Discretionary powers of the King — Shad Saleem Faruqi


Source: The Star Online


Shad Saleem Faruqi - file pic

Shad Saleem Faruqi – file pic

HIS Majesty Sultan Muhammad V, the Sultan of Kelantan, was installed as our 15th Yang di-Pertuan Agong on April 24. It is timely, therefore, to examine the constitutional position of our monarch.

Broadly speaking, the Yang di-Pertuan Agong is invested with two categories of functions. First, a vast array of non-discretionary functions, exercisable on advice.

Second, a small number of discretionary functions in some critical areas of law and politics.

NON-DISCRETIONARY FUNC­TIONS: Hundreds of provisions in the Federal Constitution and Federal laws confer on the Yang di-Pertuan Agong vast powers in relation to the executive, legislative and judicial branches; matters relating to the armed forces; matters of Islam; and emergency proclamations.

Most of these powers are subjectively worded. 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”. If these provisions were read literally, it would appear that the country is ruled by an absolute monarch.

Actually, the constitutional position is quite different. Most of the powers of the King are not personal prerogatives but exercisable in accordance with the advice of his constitutional advisers. There are three sets of such advisers:

> The prime minister and the Cabinet in relation to most functions of the state. Refer to Articles 40(1) and 40(1A), which must be grafted on to every provision conferring power on the King.

> The King has to consult the Conference of Rulers on such matters as the appointment of judges.

> The Council on Islamic affairs advises the King on Islamic affairs.

There is considerable case law to support the view that the King is a constitutional monarch bound by advice.

DISCRETIONARY FUNCTIONS: 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 the following:

– Appointment of the prime minister: It is expressly stated in 40(2)(a) that appointment of the prime minister is a discretionary power. Note, however, that though the discretion is undoubted, it is not absolute. The prime minister must come from the lower House. He must be likely to command the confidence of the majority in that House.

If a party or coalition has an absolute majority, its leader has a democratic right to be commissioned as prime minister. Only if there is a “hung Parliament” or a loss of majority due to the death, defection, resignation or disqualification of member of parliaments does the King’s discretion come alive.

– Dissolution of parliament: Under Article 40(2)(b), the King has undoubted power to refuse a premature dissolution of the Dewan Rakyat. But if a prime minister is firmly in the saddle, and wishes to call an early election, then conventionally the monarch should not stand in the way.

– Requisitioning of the Confe­rence: The King may act in his discretion in the requisitioning of the Conference if it is concerned solely with the privileges, positions, honours and dignities of Their Highnesses.

– Any other case mentioned: This category is not precisely explicated. One has to scan the entire Constitution to discover examples within this category. Among them are the right under Article 40(1) to ask for any information from the Government; delaying legislation for 30 days under Article 66(4A); and appointments to the Public Service Commission, Education Service Commission and the Election Commission.

ADDITIONAL RESIDUAL POWERS: In addition to constitutionally conferred discretionary powers, there are probably other instances where residual, reserve, prerogative and inherent powers of the Yang di-Pertuan Agong may come into play. We have to remember that life is larger than the law and no Constitution is exhaustive or can anticipate every contingency. The residual power situations may be the following:

– Caretaker government: The convention is that during a dissolution, the Government in place continues till the next Government is appointed. But it is within the realm of Article 43(2) for the King to appoint a neutral or multi-party caretaker Government.

– Advice of caretaker government: In PP v Mohd Amin Mohd Razali (2002), the court ruled that the monarch is not bound by the advice of a caretaker Government.

– Dismissal of the prime minister: Under Article 43(5) the King, acting on the advice of the prime minister, can remove “Ministers other than the Prime Minister”. This implies that the prime minister, once appointed, is not removable unless he loses the confidence of the majority of the members of the Dewan Rakyat. To this proposition, some exceptions must be noted:

> The Zambry v Nizar case (2009) laid down that the members’ loss of confidence can be expressed by informing the Sultan outside the Assembly of their lack of confidence in the mentri besar.

> Despite Article 43(5), the King may dismiss a prime minister if the prime minister loses the confidence of the Dewan Rakyat, advises a dissolution, fails to secure the King’s consent to a dissolution, and yet refuses to step down contrary to Article 43(4).

> If the caretaker prime minister fails to obtain a majority of the lower House seats at a General Election but refuses to step down, the King can force him to resign.

> If at the ruling party’s internal election, the prime minister loses his party’s leadership position, or if he is expelled from the party, and consequently loses his parliamentary support, the Yang di-Pertuan Agong would be constitutionally justified in sacking him if he does not resign.

– Honours: The Federal Consti­tution, unlike State Constitutions, is silent on this matter of honours. The power is, therefore, a prerogative power.

– Pardon: The exercise of this power on the advice of the Pardons Board is provided for in Article 42. Yet, the Supreme Court in Superintendent of Pudu Prison v Sim Kie Chon (1986) stated that pardon is a prerogative power. Most respectfully, once a power is legislated, it ceases to be a prerogative.

– Unconstitutional legislation: If the Government and Parliament try to pass constitutional amendments in disregard of procedures in Articles 2(b), 38(4), 159(5) and 161E, the Yang di-Pertuan Agong is justified in withholding consent, Article 40(1) notwithstanding.

Our learned and late Sultan Azlan Shah, writing in 1986, summed up the situation beautifully.

“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 Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya.