Tuesday, February 23, 2021

The king and us

The king rules and the government governs. The role of the Agong is to be consulted, to encourage and to warn, with conventions clearly stated in the constitution.

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The Agong’s refusal to accede to the prime minister’s request to declare an emergency has triggered keen excitement over his role in the constitution.

Some argue that the king has no role and must abide by what the government of the day wants.

Others say that he is empowered to overrule any decision proposed by the Cabinet, and that it’s a matter of his personal discretion.

Yet others assert that while the king must (generally) act on the Cabinet’s advice, he has residual powers and can act as he deems fit in the best interest of the country – a check and balance role.

How may these seemingly irreconcilable contentions be resolved? Perhaps we must go back to the fundamentals.

The constitution is founded on the rule of law, which envisages a separation of powers encapsulated in three organs: the executive, the legislative, and the judiciary. These represent the governing architecture of the country.

Our highest judiciary has entrenched this as an inviolate basic structure of the constitution. The grant and exercise of other powers is subsidiary to this governing structure, to help reinforce it. No more, no less.

The king rules and the government governs. After all the government has the wherewithal – access to information, and the machinery of state – which the king does not.

The Agong is a constitutional monarch, and is obliged to act on the advice of the Cabinet in all matters relating to governance as stated in Articles 40(1) and (1A) of the constitution.

The functions where he may act in his discretion are explicitly stated in Article 40(2): the appointment of a PM, the withholding of consent for the dissolution of Parliament on the PM’s request; and a matter not relevant here regarding the requisition of a meeting by the Conference of Rulers.

Those attributing extended or residual powers of the king point to the concluding phrase in the article: “and in any other case mentioned in this constitution”.

This cannot be open-ended. They must be expressly provided for.

The constitution enumerates a vast panoply of powers for the Agong. Executive authority is vested in him (Article 39); he is part of the legislature (44); he appoints members of the judiciary (122B); he is the supreme commander of the armed forces (41), and countless other roles assigned to him by the constitution.

So too in the matter of the proclamation of emergency. This is despite the wording of Article 150(1) that he “may” declare an emergency if “satisfied” that a grave situation exists.

These words, seemingly bestowing discretionary powers, also appear elsewhere.

Article 92 says that the Agong may, if “…satisfied that it is conducive to the national interest”, proclaim any area for which a development plan be put in place. This paves the way for Parliament to override state jurisdiction.

Article 92(3) defines development plan as a plan for the development, improvement, or conservation of the natural resources of a development area, the exploitation of such resources, or the increase of means of employment in the area.

If the same interpretation is accorded to this article as for the emergency proclamation article, the king is given final determining authority to trigger Parliament into enacting development plans for any state. And this determination he makes without the aid and support of a whole functioning government machinery.

Thus a contextual and realistic reading of the constitution shows that the Agong is assigned these roles as the head of state not as head of government. He does not participate in the actual functioning of these governmental organs, nor will he have the operational knowledge to do so.

His role is, in the words of a famous constitutional commentator, Bagehot, to be consulted, to encourage and to warn, except where the functions are spelt out explicitly as stated earlier, as well as in matters of Islam of which the king and rulers are heads. And they act in accordance with practices (“conventions”), many of which are expressly provided for in the constitution.

Our highest Federal Court has made this crystal clear, pointedly in declaring an emergency.

In Abdul Ghani Ali v PP (2001), it ruled as firmly established that “the king does not have a personal discretion under Art 150(1) of the constitution but has at all times to act on Cabinet advice”.

This affirmed the earlier Privy Council decision that the king “is required in all executive functions to act in accordance with the advice of the Cabinet”, including where the power is expressed to be exercisable where he is satisfied that a particular state of affairs exists (Teh Cheng Poh v PP).

Declaring an emergency is, undoubtedly, an executive function.

There is an imperative need to quieten the voices on the role of the monarchy. Clearly, no ruler desires to become, in Asquith’s phrase, “the football of contending factions”” Who is to fulfil this task?

When the then-sultan of Perak assumed the right to decide on who had the confidence of the majority in the state assembly to rule the state in the 2010 crisis case, it was ultimately the courts that played a key role in delineating the various strands of power and authority. And they broke new ground indeed.

Perhaps that’s where heads are now turned, to stymie any hurt to our constitutional construct.

“A little fire is quickly trodden out; Which being suffer’d rivers cannot quench” (Shakespeare, in “Henry VI”).

Gurdial Singh Nijar is a former law professor, now a practising lawyer.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.

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