Unclear limits of discretion

Reflecting on the Law
By SHAD SALEEM FARUQI

The Constitution is still evolving and responding to the times, and only the future will tell the shape of things to come.

VER since the general election of March 2008, and especially after the constitutional temasyah in Perak, an animated debate is raging about the powers and position of the Malay Rulers.

History: Malay kingship existed as early as the first century and the powers of the Sultans were nearly absolute through much of history. During the colonial period these powers waned.

The decline began with the absorption of Malay kingdoms into the Federated Malay States of 1895 and the Federation of Malaya 1948.

The Merdeka Constitution of 1957 restored the honours and dignities of the Sultans but at the same time converted the Rulers to constitutional monarchs.

Save for a limited number of situations in which a margin of discretion is conferred, the federal and state Constitutions require the Yang di-Pertuan Agong and the Rulers to act on the advice of the elected political executive.

During the last 52 years things did not al­­ways work this way. In the 60s and 70s the in­­fluence of the Sultans on government and so­­ciety was far greater than what the Consti­­tution envisaged. History overshadowed the law.

The 80s and 90s saw several constitutional amendments to curb royal powers. The Yang di-Pertuan Agong and the Sultans could be bypassed in the ordinary legislative process.

Royal immunities were abolished. If sentenced to more than one day of imprisonment, a Ruler could be removed from his throne unless pardoned by the Majlis Raja-Raja.

However, the spirals of history are at work again. Some sections of the population, including many members of the legal community, are beginning to view the Rulers as the last bastion against the political executive’s omnipotence.

In response to these popular sentiments and in order to recover ground that was lost in the 80s and 90s, the Conference of Rulers, the Yang di-Pertuan Agong and the state Rulers have lately shown tremendous assertiveness in a number of areas.

Leading examples relate to appointments to the superior courts, refusal to extend the tenure of a retiring Chief Justice, appointment of Chief Ministers in Perlis, Terengganu, Perak and Selangor after the March 2008 general election, refusal of premature dissolution of the Perak Assembly, dismissal of a Chief Minister and appointment of a new Chief Minister in Perak early this year.

A few weeks ago, in exercise of its powers under Article 38(2) to deliberate on questions of national policy, the Majlis Raja-Raja appointed the Yang di-Pertuan Agong as the Patron of Universiti Sains Malaysia to keep the Con­ference informed of USM’s progress as an apex university.

Some of these royal assertions have raised eyebrows. Questions are being asked whether an activist monarchy is compatible with the letter and spirit of the Federal Constitution.

In this area the “glittering generalities” of the Constitution provide ample scope for a kaleidoscope of views.

Let us examine the constitutional canvass.

Constitutional monarchs: Article 71 and the Eighth Schedule of the Federal Constitution require that all state Constitutions shall contain some “essential provisions”.

The most significant provision is that, except in relation to discretionary powers, all state Rulers “shall act in accordance with the advice of the Executive Council”.

The implication of this is that the state Rulers are not absolute monarchs. They are not expected to rule in person or to seek to control the day-to-day administration of government.

However, the Constitution is equally clear that Their Majesties are anointed with certain discretionary powers in critical areas.

Personal powers: All state Constitutions confer discretionary powers on the Rulers in relation to the following matters:

> Any function as Head of the Muslim religion or relating to Malay adat;

> The appointment of heir, consort, Regent, Council of Regency and Council of Succession;

> Appointments to Malay customary ranks, titles, honours and dignities; and,

> Regulation of royal courts and palaces.

In addition, there is a right to succeed to the throne in accordance with the Constitution of the state and without interference from the Federal Government.

Though immunities are abolished, some special treatment is still accorded. No one can sue or prosecute a Sultan without the Attorney-General’s consent. Cases will not be heard in ordinary courts but in a Special Court. The Majlis will nominate two out of five judges to the court. If a Sultan is convicted of a crime the Majlis can pardon him.

Political powers: Though the Sultans are above politics, federal and state Constitutions confer on them some monumentally important political discretions.

Under Article 38(6) of the Federal Constitution, all Sultans in their capacity as members of the Conference of Rulers may act in accordance with their wishes in the following matters:

> Proceedings relating to the election or removal of the Yang di-Pertuan Agong;

> Election of the Timbalan Yang di-Pertuan Agong;

> The advising on many key federal appointments;

> The giving or withholding of consent to any law altering the boundaries of a state;

> The giving or withholding of consent to any law affecting the privileges and position, honours or dignities of the Rulers;

> Agreeing or disagreeing to the extension of any religious acts, observances and ceremonies to the Federation as a whole; and,

> Appointment of members of the Special Court under Article 182(1).

Under section 1(2) of Part I of the Eighth Schedule of the Federal Constitution and in various provisions of State Constitutions the Rulers are allowed to exercise personal judgment in the following matters:

> Appointment of a Mentri Besar;

> Withholding of consent to a request for the dissolution of the Assembly; and,

> The making of a request for a meeting of the Conference of Rulers.

Two of the above powers were exercised in Perak with telling effect a few weeks ago.

Under state Constitutions every Sultan has a prerogative to advise, to encourage and to warn. He can remonstrate and object to a proposed course of action. He can delay action on a matter referred to him. But after a reasonable time he must accede to advice.

Some state Constitutions confer additional discretionary powers. For example, the Laws of the Constitution of Kelantan invest His Royal Highness with personal powers in the matter of appointment of some officials (Article 13), appeals to the Sultan against decisions of any person (Article 25), and appointment of the State Service Commission (Article 61).

Legally, these discretionary powers are very broad. In actual practice, they are hemmed in by constitutional guidelines and by binding conventions that “supply the flesh to clothe the dry bones of the law”.

In sum, it can be stated that despite their overall role as constitutional heads who reign but do not rule; who are above politics; who supply the unifying and dignifying element of state Constitutions; the Malay Rulers have an undoubted residue of critical, discretionary powers whose actual ambit has not yet been authoritatively determined.

The Constitution is still evolving and responding to the felt necessities of the times. The British model of a largely ceremonial monarchy has not taken hold. Only the future will tell the shape of things to come.

Dr Shad Saleem Faruqi is Professor Emeritus at Universiti Teknologi MARA.