Constitutional position: In our system of constitutional monarchy, the Yang di-Pertuan Agong is the formal head of the executive branch. A vast array of powers is vested in his office by the Constitution.

The functions of the King are not confined to the executive field but extended to the legislative and judicial branches as well. He is the Commander in Chief of the Armed Forces and the head of Islam in eight regions – his own state, Penang, Malacca, Sabah, Sarawak, Kuala Lumpur, Labuan and Putrajaya.

A literal reading of the Constitu­tion may create the impression that the monarchy is the real seat of power in the country, but the legal position is different. The King is the symbolic and formal head of state, but not the head of government.

He is the repository of vast autho­rity and dignity but very little power. He reigns but does not rule. In performing most of his functions, he is required to act on advice: Articles 40(1) and 40(1A). Save for some specific situations, the real wielder of political power is the Prime Minister.

Three categories: The powers and functions of the Yang di-Pertuan Agong can be divided into three broad categories:

> Non-discretionary powers in the exercise of which the King acts on advice;

> Discretionary powers explicitly conferred by the Constitution; and

> Residual and reserve powers.

Non-discretionary powers: In accordance with Articles 40(1) and 40(1A), most of the powers of the King are exercised “in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet”. “Advice of the Cabinet” conventionally means “advice of the Prime Minister”.

There are two clarifications to Article 40(1). First, in relation to the appointment of judges and the Auditor-General, the King acts on the advice of the Prime Minister but only after “consultation” with the Conference of Rulers.

Consultation does not mean consent. Nevertheless, if the Conference of Rulers’ advice clashes with the Prime Minister’s advice, manifold possibilities arise.

Second, in relation to some functions, the King acts not on the advice of the Prime Minister but of other constitutional bodies like the Par­dons Board and the Council of Islamic Affairs.

However, despite His Majesty’s duty to act on advice, the King is not a mere cipher or mouthpiece of his advisers. He has a right to be consulted, to encourage and to warn.

Under Article 40(1), he may ask for any information in the possession of the Cabinet and the information cannot be withheld from him despite the Official Secrets Act. He may temper the counsel of his advisers and offer guidance from his own fund of experience.

He can privately remonstrate and offer strong objections to a proposed course of action, especially if the Conference of Rulers, acting under Article 38(2), had deliberated on a question of national policy and communicated its reservations to the Yang di-Pertuan Agong.

The views of the Conference of Rulers under Article 38(2) are not binding on the Federal Government, but there is no doubt they could influence the nation’s goals and policies, and supply check and balance.

Discretionary functions: The general duty of the Yang di-Pertuan Agong to act on advice is qualified by Article 40(2), which explicitly confers on him discretionary powers in some areas. These are:

> Appointment of the Prime Minister. This power is merely symbolic if the winner of a general election has an absolute majority in the Dewan Rakyat. But if there is a hung Parliament (in which no party commands a majority), the Monarch’s discretion can shape the nation’s political destiny;

> Refusal to dissolve the Dewan Rakyat before the expiry of its five years;

> Requisitioning of a meeting of the Conference of Rulers; and

> “Any other case mentioned in the Constitution”. These words probably refer to the King’s right to seek information under Article 40(1); the right to delay legislation by 30 days under Article 66(4A); appointments to the Public Services Commission and the Election Com­mission; the appointment under Article 43(2) of a caretaker government during the dissolution of Parliament; the right to refuse advice of the caretaker government during a dissolution; and compliance with the instructions of the Conference of Rulers under Article 38(2).

All the above powers are personal to the King. Though he may seek advice, he is not bound by it.

Reserve powers: Life is always larger than the law and no consti­tution can provide for every contingency. Lawyers generally agree that in addition to powers explicitly granted by a constitution, a head of a state possesses some reserve, unenumerated, inherent and prerogative powers that are implicit in the scheme of things.

Included in this list is the right to be consulted, to encourage and to warn; the right to award honours; and the right to refuse assent to legislation deemed by the Conference of Rulers to be unconstitutional.

A controversial area is the dismissal of the Prime Minister. Our Constitution in Article 43(5) states that ministers other than the Prime Minister hold office at the pleasure of the King. It was understood, till the Perak precedent in 2009, that the only way to remove the Prime Minister or a chief minister was after a vote of no-confidence in the Assembly.

The Perak precedent broke new ground. In other countries too, clashing precedents abound. In Australia in 1975, governor-general Sir John Kerr dismissed then prime minister Gough Whitlam.

In September this year, Kazakh­stan President Nursultan Nazar­bayev dismissed prime minister Karim Massimov.

In Pakistan, several prime ministers have been dismissed, causing massive political convulsions.

In India, state governors have often sacked their chief ministers.

The law remains fluid. In sum, the Yang di-Pertuan Agong, though a constitutional monarch who is mostly bound to act on advice, is also a constitutional auditor. In exceptional circumstances, his duty to provide the chart and compass for the nation cannot be discounted.

Shad Faruqi is Emeritus Professor of Law at UiTM. He wishes Christian readers the joys and blessings of Christmas and the New Year. The views expressed here are entirely the writer’s own.

Resource : The Star Online

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