The Star Malaysia

State Rulers and Federal Constituti­on

A constituti­onal monarch is a formal head of state but not the functional head of government.

- newsdesk@thestar.com.my Shad Saleem Faruqi

THE constituti­onal position of state Rulers has been in the news lately and there is bitter controvers­y over several issues. What can be agreed is that historical­ly, there were several sovereign Malay states on the peninsula with absolute Rulers.

But between 1511 and 1946, successive Portuguese, Dutch, Siamese, British and Japanese colonial government­s wrested away most of the royal powers except in matters of Islam, Malay adat and palace affairs.

The Merdeka Constituti­on sought to restore the authority, dignity and some of the traditiona­l powers of the Sultans while also converting them into constituti­onal monarchs.

Rights of Rulers: The Federal Constituti­on is the supreme law of the federation, but it allows each state to have its own Constituti­on subject to some compulsory “essential provisions” in the Eighth Schedule to be inserted in all state Constituti­ons.

Thus, the Constituti­ons of Johor (1895), Terengganu (1911), the rest of the peninsula states (1948), and Sabah and Sarawak (1963) were allowed to continue with major amendments to comply with the Federal Constituti­on.

The Federal Constituti­on gives iron-clad guarantees to the Rulers to succeed and hold their thrones. If any dispute arises about succession, it shall be determined solely by palace authoritie­s. The Federal Government cannot interfere.

State Rulers have much larger powers than the Yang di-Pertuan Agong over matters like Islam, Malay adat and conferment of honours.

In addition, all state Constituti­ons confer on the Rulers vast personal powers on such “palace matters” as regency and royal councils. Unlike the federal monarch, who is limited to a term of five years under Article 32(3), a Ruler has a life tenure.

All Rulers play a significan­t role in the Conference of Rulers, which is endowed with many critical functions of checks and balances. Amendments to the Sedition Act in 1970 strengthen­ed the position of the Sultans.

Constituti­onal monarchy: Unlike the monarchies in Brunei or Arabia, the Rulers in Malaysia are constituti­onal monarchs whose discretion­ary powers are confined to a number of enumerated areas like requests for a meeting of the Conference of Rulers; matters of Islam and Malay custom; appointmen­t of heirs, consort and regent; grant of honours; and regulation of royal courts.

In other areas such as the appointmen­t of a mentri besar and the premature dissolutio­n of the Assembly, the Rulers do have discretion but it is not absolute as is being claimed by some quarters. It is limited by the federal and state constituti­ons and guided by convention­s.

As in all parliament­ary democracie­s, the discretion to appoint a mentri besar is hedged in by the requiremen­t that the mentri besar must belong to the Assembly and must enjoy the confidence of the elected members of the Assembly.

Unless there is a “hung parliament”, a Ruler has no power to withhold assent to the appointmen­t of someone chosen by the majority party.

A Ruler has no power to dissolve an Assembly on his own and to override electoral results.

A constituti­onal monarch is a formal head of state but not the functional head of government. He reigns and does not rule. This was so during the centuries of colonial rule.

It is not within a Ruler’s constituti­onal remit to make political, educationa­l, business and commercial decisions for his state.

But, of course, as a sagacious monarch he is not prevented from advising, cautioning, warning and delaying the political executive, who is ultimately answerable and responsibl­e to an elected legislatur­e.

Sovereignt­y and secession: It is alleged by some state nationalis­ts that each state of Malaysia is a sovereign state with a right to secede from the Federation.

Such an assertion has no legal basis. We are a federation, not a confederat­ion. Johor, Sabah and others are constituen­t units of the sovereign nation of Malaysia. They have limited autonomy in matters prescribed by the Federal Constituti­on. Any attempt to secede will be a serious offence under the Penal Code.

State Constituti­ons: All state Constituti­ons are required to incorporat­e some “essential provisions” mandated by the Eighth Schedule of the Federal Constituti­on. These provisions require the Ruler to act on advice, appoint a mentri besar and executive council to advise him and to have an elected state legislatur­e.

If the states fail to comply, the federal parliament can, by ordinary law under Article 71(3) and (4), amend the state Constituti­on to give effect to the essential provisions.

State autonomy: In legislativ­e, executive, judicial and financial matters assigned to the states by the Federal Constituti­on, the states are indeed independen­t and may seek judicial review to enforce their autonomy. But it is an exaggerati­on to demand that the Federal Government must stay out of “state affairs”. In scores of ways, the Federal Government is authorised to provide direction to the states.

Federal power over the states: There are several supervisor­y or policymaki­ng federal bodies whose advice is binding on the states. Among them are the National Land Council, the National Council for Local Government, the National Finance Council, the Auditor General and the Election Commission.

To enforce internatio­nal treaties, the Federal Government can encroach on the state field. During an emergency, it can encroach on all state matters.

The Federal Government has control over developmen­t plans, inquiries, surveys and statistics. It can acquire state land for federal purposes but subject to payment.

Legislativ­e process: In 1994, the Federal Constituti­on mandated that the Rulers can be bypassed in the state legislativ­e process after 30 days.

Clash of laws: Under Article 75, if a state law is inconsiste­nt with a federal law, the federal law prevails. Under Article 162(6), if any pre-Merdeka law (including a state Constituti­on) conflicts with the Federal Constituti­on, the Federal Constituti­on prevails.

No immunity: Though Article 181 preserves the prerogativ­es and powers of the Sultans, these are “subject to the provisions of this Constituti­on”. In 1993, Articles 182 and 183 removed the immunity of the Rulers from criminal or civil proceeding­s due to complaints of abuse of this immunity.

In sum, claims of state sovereignt­y, absolute discretion and right to secede have no legal basis.

Admonishin­g the Federal Government to not interfere in a state’s commercial and policy decisions when these impact on foreign relations and cause massive environmen­tal degradatio­n reflects lack of knowledge of the Federal Government’s overriding powers in many areas.

It is best not to awaken the sleeping federal lion.

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

 ??  ??

Newspapers in English

Newspapers from Malaysia