kheru2006 (kheru2006) wrote,
kheru2006
kheru2006

A unique royal institution

The Yang di-Pertuan Agong is head of state but not the head of government, and reigns but does not rule.

EVERY year the first Saturday of June is commemorated as the official birthday of our Yang di-Pertuan Agong. With the day approaching, attention is drawn to the uniqueness of this royal, federal institution and its potentially pivotal role in the life of the nation.

Unique features: The system of constitutional monarchy at the federal level is a rich blend of British conventions and Malay royal traditions. The unique rotational system is grounded in Negri Sembilan’s history of customary Chiefs (Undang) of the various districts (Luak) taking turns to occupy the post of Yang di-Pertuan Besar. The office of the federal Yang di-Pertuan Agong exhibits many other unique features.

First, the monarch is elected by and from amongst the Rulers of the nine Malay states. Second, the position is rotational under a fascinatingly complex system detailed in the Third Schedule.

Third, the post is not permanent. The King is elected for a period of five years and cannot be re-elected to a consecutive term.

Fourth, in addition to the Yang di-Pertuan Agong, there is a Timbalan Yang di-Pertuan Agong who acts on behalf of the King if the monarch is unable to exercise his functions due to illness or absence.

But if the monarch dies in office, the Timbalan does not become King automatically. Nor does he fill out the remainder of the deceased sovereign’s term. He fills the breach till the Conference of Rulers elects a new King and a new deputy.

Fifth, unlike in the United Kingdom where the monarchy knows of no break and a new monarch’s accession is always backdated to the date of the previous sovereign’s demise, in Malaysia a time lapse may exist between the end of one reign and the beginning of another.

Sixth, under the Federal Constitution the King suffers from several legal disabilities. For example, as long as he is the federal monarch, he is not allowed to exercise his functions as State Ruler except in regard to his role as head of Islam, amendments to his State Constitution and the appointment of a Regent or Council of Regency.

Seventh, since 1993, the King enjoys no immunity in civil or criminal law.

Eighth, the King is removable from office. This is possible in three direct or indirect ways.

* Dismissal by the Conference of Rulers – a unique provision of accountability of the King to his brother Rulers.

* If he ceases to be the ruler of his State in accordance with the Constitution of his State.

* If he is charged with a criminal offence in the Special Court, he is suspended temporarily from his office. If he is acquitted, he resumes office.

If convicted, he may be pardoned by the Conference of Rulers. If not pardoned, presumably he loses his office.

Constitutional role: In our system of parliamentary democracy and constitutional monarchy, the Yang di-Pertuan Agong performs functions similar to that of the British Monarch but with adaptations to suit the Malaysian context.

Executive functions: The Yang di-Pertuan Agong is the formal head of the executive branch. In this capacity he performs a whole array of crucial political and legal functions like the appointment and dismissal of the Prime Minister and the Cabinet.

He is the ceremonial supreme commander of the armed forces. He appoints and removes public servants, members of constitutional Commissions and other special offices under the Constitution.

He has the power to proclaim an emergency, protect the special position of the Malays and the Natives of Sabah and Sarawak, and determine which public authorities should submit accounts to the auditor general.

Functions relating to the judiciary: Though institutionally separate from the judiciary, the King appoints superior court judges and also removes, retires or suspends them. He can seek the Federal Court’s advisory opinion. He grants pardons, reprieves and respites to persons convicted by a court.

Functions relating to Parliament: The King has the power to summon, prorogue or dissolve Parliament, address one or both Houses and appoint 44 nominated Senators. He appoints the clerks to the two Houses.

He can promulgate Ordinances during an emergency. Except under Article 66(4A), his assent is needed before a parliamentary Bill becomes law. Before giving his assent he can delay legislation by 30 days.

In relation to Islam: The Yang di-Pertuan Agong is the head of the religion of Islam in eight territories – the three federal territories, his home State plus Malacca, Penang, Sabah and Sarawak. Though he acts on advice, his capacity to delay, moderate and reconcile is undoubted.

The vast array of powers vested in the Yang di-Pertuan Agong, if interpreted literally, create the impression that the monarchy is the real seat of power in the country. However the legal reality is different.

The Yang di-Pertuan Agong is head of state but not the head of government. He reigns but does not rule.

He is the ceremonial, dignified head of state but most of the executive power resides with the Prime Minister. This is because of the overriding constitutional provisions in Article 40(1) and 40(1A) that in the exercise of all his functions under the Constitution and laws, the Yang di-Pertuan Agong shall act on advice save in those areas where the Constitution confers discretion.

Discretionary functions: Despite his general duty to act on advice, the Constitution confers on the King a number of discretionary functions in relation to which he is guided by his own discretion and wisdom and not by advice.

These areas of discretion are few but are at the heart of constitutional discourse and can change the course of the nation’s history. They will be covered in the next column.   Shad Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and teacher of the law who aspires to make difficult things look simple and simple things look rich. Through this column, he seeks to inspire change for the better as every political, social and economic issue ultimately has constitutional law implications. He can be reached at prof.shad.saleem.faruqi@gmail.com. The views expressed here are entirely his own. The STAR Home Columnist Reflecting on the law 29/05/2014

Tags: agong, king, sultan
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