The King reigns, he does not rule

When exercising most of his constitutional functions, the Yang di-Pertuan Agong is required to act on advice.

IN the exercise of his vast powers under the Constitution, is the Yang di-Pertuan Agong required to act on prime ministerial advice or does he possess a large residue of personal discretion?

The situation is complex because the Constitution in more than 30 places confers on the King critical functions in the executive, legislative and judicial fields.

In addition, there are roles in relation to Islam, the armed forces and the declaration of emergency.

Most provisions dealing with the functions of the King are subjectively worded and some begin with the words “If the Yang di-Pertuan Agong is satisfied...”.

If read literally, these provisions will convert Malaysia into an absolute monarchy. For example, Article 150(1) provides that “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists ... he may issue a Proclamation of Emergency”.

Duty to act on advice: Having a role is not the same thing as having a discretion.

As the Yang di-Pertuan Agong is a constitutional monarch, his role is mostly formal and ceremonial and must be exercised on advice due to Article 40(1), which provides that “in the exercise of his functions under this Constitution or federal law, the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet”.

The duty to act on advice under Article 40(1) is further reinforced by Article 40(1A).

There is considerable case law to support the view that in the exercise of most of his constitutional functions, the King is required to act on advice – Stephen Kalong Ningkan v Tun Abang Haji Openg (1967); Dato Seri Anwar Ibrahim v PM (1999); and Abdul Ghani Ali (2001).

The 30 or so provisions conferring power on the King must not be read literally or in isolation.

Article 40(1) must be grafted onto each of these provisions.

Case law supports the view that a reference to the opinion or satisfaction of the Yang di-Pertuan Agong “is, in reality, a reference to the collective opinion or satisfaction of the members of the Cabinet or the opinion or satisfaction of a particular Minister” – Teh Cheng Poh v PP (1979).

In reality, the King reigns, he does not rule.

Discretionary powers: Within a narrow field, the Constitution places on the shoulders of the Monarch the awesome burden of making critical decisions on affairs of state in his personal wisdom.

These situations are divisible into two categories: discretions explicitly conferred and implied discretions.

However, even in these areas, constitutional conventions limit royal discretion.

Appointment of the Prime Minister: Under Articles 40(2)(a) and 43(2)(a), there is explicit mention of personal discretion in this critical area. It must be noted, however, that the discretion is not absolute.

The prime minister must belong to the lower House and must, in the judgment of the King, be likely to command the confidence of the House.

If there is a party or coalition enjoying an absolute majority, the King has no choice.

But if election throws up a “hung Parliament” or a vacancy in the prime minister’s post arises during a dissolution, the King’s personal discretion acquires significance.

Dissolution of Parliament: Under Article 40(2)(b), the King is not bound by advice on this matter. The convention, however, is that the King generally accepts the prime minister’s advice on the timing of the poll.

Conference of Rulers: Under Article 40(2)(c), the requisitioning of the Conference of Rulers to deliberate on Their Majesty’s position and privileges is not subject to prime ministerial advice.

Seeking information: Under Article 40(1), the King has a right to any information concerning the government and the Official Secrets Act cannot be used to withhold any information.

Appointments: Some appointments like those to the Public Service Commission under Article 139(4) and to the Education Service Commission under Article 141A(2) are in the King’s discretion.

Implied discretions: These may be regarded as un-enumerated, residual, prerogative, reserve or inherent powers. The list is speculative and incomplete and may consist of the following:

• Delaying legislation for 30 days under Article 66(4A).

• In appointing members of the Election Commission, the King “shall have regard to the importance of securing an Election Commission that enjoys public confidence” – Article 114(2).

• Appointment of a caretaker government after dissolution – Article 43(2). This is guided by the British convention that the prime minister who called the election continues in office as a caretaker. However, Article 43(2) permits the King some discretion in choosing the caretaker prime minister.

• Accepting or rejecting the advice of a caretaker government – PP v Mohd Amin Mohd Razali (2002).

• Dismissal of a prime minister in situations covered by the 2009 Nizar case in Perak.

• Grant of honours. The Federal Constitution is silent on the matter.

• Power of pardon. Article 42 provides for a Pardons Board to advise the King. However, the Supreme Court in Sim Kie Choon (1986) ruled that pardon is a discretionary power.

• Refusing consent to constitutional amendments passed in disregard of mandatory constitutional procedures. Suppose Parliament tries to amend the Constitution in disregard of constitutional procedures in Articles 2(b), 159 and 161E. Article 66(4A) on bypassing the King after 30 days in the ordinary legislative process will not apply.

It is arguable that the Yang di-Pertuan Agong may, as part of the check- and- balance mechanism, have a right to withhold consent till there is compliance with procedural provisions of obtaining consent of the State concerned under Article 2(b), consent of the Majlis Raja-Raja under Article 159(5) and consent of the Governors of Sabah and Sarawak under Article 161E.

Our learned and late Sultan of Perak Sultan Azlan Shah, writing in 1986, summed up the situation well. “A King is a King, whether he is an absolute or a constitutional monarch ... It is a mistake to think that the role of a King ... is confined to what is laid down by the Constitution. His role far exceeds those constitutional provisions.”

Emeritus Professor Datuk Dr Shad Saleem Faruqi is a holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are entirely the writer’s own.