Unclear Limits of Discretion

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

Reflecting on the Law

By Dr.Shad Sallem Faruqi,
Wednesday, 22 April 2009


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

©The Star

An Avalanche of Legal Issues

Reflecting On the Law

By Dr.Shad Saleem Faruqi
Wednesday March 25, 2009

The legal skirmishes triggered by the four Perak assemblymen who defected have sullied the reputations of several hallowed institutions and opened up new legal frontiers where no Malaysian has up to now travelled.

THE four Perak Assemblymen who slithered down the treacherous slope of defections could not have anticipated the political and legal avalanche they have triggered.

The punches and counter-punches and the legal skirmishes over issues of procedure and substance are opening up new legal frontiers where no Malaysian has up to now travelled.

Several constitutional institutions, including the state’s Sultan, the Election Commission, the Attorney-General’s office, the police, the Malaysian Anti-Corruption Commission, the State Speaker and the Secretary to the State Assembly, have become embroiled in the controversy and have had their good names sullied.

The judiciary has not been spared.

When the case first reached the courts, a Judicial Commissioner gave judgments that defy understanding. To have a Judicial Commissioner and not a senior High Court judge presiding over this novel constitutional case was indeed disappointing.

Hearings were not in open court but in chambers. The Speaker of the Perak Assembly was declared to be a public servant despite indisputable legal evidence that he is exempted from such a definition.

The Speaker was not allowed to be represented by private lawyers. He was not even allowed to represent himself!

There was an unbelievable ruling that no conflict of interest existed in the state legal adviser representing the unwilling Speaker against the state government!

These initial judicial missteps were fortunately corrected on appeal but they left a bad feeling and sullied the reputation of a hallowed institution whose resurgence we were all praying for.

Defections: As opposed to the stability of the American presidential system, governments in parliamentary democracies often rise and fall because of political defections.

Unfortunately, the right to disassociate and re-associate is part of the fundamental right to association under the Federal Constitution’s Article 10(1) (c) and the decision in Nordin Salleh (1992).

We need a constitutional amendment to Articles 10(1) and 48(6). There are eminent legal models available in other Commonwealth countries. MPs and Assemblymen who hop midstream should be required to vacate their seats and seek a fresh mandate from their constituency.

Dissolution: The right to refuse a premature dissolution is an undoubted constitutional discretion of the Sultan under Article 18(2) (b) and 36(2) of the Perak Constitution.

We have instances in Kelantan in 1977 and in Sabah in the 90s when requests by MBs for premature dissolution were politely turned down. Judicial authority in Datuk Amir Kahar (1995) confirms the non-reviewability of this discretion.

Even if it is argued that the Sultan was bound by constitutional convention to pay heed to the advice of the then beleaguered MB, it must be noted that constitutional conventions are not law. They are rules of political morality that are non-enforceable in a court: Government of Kelantan v Government of Malaya (1963).

Dismissal of MB: This poses more complex issues. Article 16(7) of the Perak Constitution implies that the Sultan has no power to dismiss an MB. An MB’s cessation of office must come about by resignation under Article 16(6):

“If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.”

The Sarawak case of Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (1966) ruled that lack of confidence may be demonstrated only by a vote of no-confidence in the Council Negeri. Factors outside the Council Negeri are irrelevant.

The High Court will have to decide whether to follow Ningkan or to distinguish it on many grounds, among them, that in Sarawak in 1966 the Assembly was in session when the Governor sacked Ningkan. In Perak, the Assembly was in adjournment and a vote on the floor was, therefore, not possible.

The High Court may also note that Article 16(6) does not make any explicit reference to a vote of no-confidence in the Assembly. It uses the words “confidence of the majority of the members of the Assembly”.

The Privy Council in Adegbenro v Akintola (1963) and the Sabah High Court in Datuk Amir Kahar (1995) have held that factors other than a vote of no confidence can be taken note of in determining the question of confidence, and that there is no limitation to the consideration of factors outside the Assembly.

There was an additional complication. The Speaker of the Assembly declared that the hoppers had ceased to be members of the Assembly. With them excluded, Nizar disputed the loss of confidence and therefore refused to resign under Article 16(6).

In such a stalemate, did the Sultan have a residual, prerogative power to dismiss Nizar? In addition could His Highness rely on section 47 of the Interpretation Act that the power to appoint includes the power to dismiss? The court has to decide.

Appointment of MB: This is a discretionary function but is controlled and structured by constitutional guidelines. The Sultan has to appoint someone who, in his opinion, is likely to command the confidence of the State Assembly.

If there is a clear-cut leader with the requisite numbers, the discretion of the Ruler is merely nominal. But in an Assembly where no one has a clear majority, (a “hung Assembly”) the Sultan’s personal discretion acquires great significance.

In this case, the Sultan was obviously of the view that Zamri had the requisite numbers and therefore swore him in. The Sultan relied on face to face, separate interviews with the actors involved. The court will have to determine whether this manner of determination is legally justified.

Along with the above contentious issues there is a whole range of controversies that the Perak crisis has engendered.

Powers of Sultan: Can a Sultan be sued in the courts for his official acts? Is a threat to sue tantamount to sedition or treason?

Speaker’s powers: If open-dated resignation letters have no effect, as was determined in Datuk Ong Kee Hui v Sinyium (1983), can the Speaker still rely on them to declare that four Assembly seats have fallen vacant?

Is the Election Commission bound by the rulings of the Speaker on this point or can it decide on the issue independently?

The Speaker of an Assembly is indeed the master of proceedings and procedures in his Assembly, but does his power go so far as to declare seats vacant and to deprive members of their legal right to attend? Is his decision absolutely unimpeachable in any court?

In India, courts do not refrain from pronouncing on the validity of decisions in the House if human rights or constitutional issue are involved.

If the Assembly was not under prorogation but merely under adjournment, can the Speaker convene it on his own without an order from the Sultan?

Who must issue the summons, the Speaker or the Secretary to the Assembly? Does the Speaker have the power to dismiss a disobedient Assembly Secretary?

Privileges committee: The committee has undoubted powers to try members for contempt. But its decisions are not final and any recommendation to dismiss, suspend or discipline members must be confirmed by the Assembly.

Immunity of members: There is no legal bar to the Assembly meeting outside its official premises. The constitutional issue is whether those, including the police, who obstructed the Assembly from meeting are liable to punishment by the Assembly for contempt?

Likewise, are the police and the Anti-Corruption Commission guilty of serious breach of the privileges of the Assembly by questioning the Speaker and Privileges Committee members for their official conduct?

These are serious triable issues. Our answers to them must not be based on expediency or political partisanship but on well established principles of constitutional law.
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Dr Shad Faruqi is Professor of Law at Universiti Teknologi MARA.

©Star