PETALING JAYA: The duties and the roles of the Yang di-Pertuan Agong cover the three main branches of the government – the executive, legislative and judiciary.
Constitutional expert Emeritus Prof Datuk Dr Shad Saleem Faruqi said the King, as the formal head of the executive branch, was invested with two categories of functions.
Firstly, the King is invested with a vast array of non-discretionary functions – exercisable on advice – and secondly, a small number of discretionary functions in some critical areas of law and politics.
“Most of the King’s powers are not personal prerogatives but exercisable in accordance with the advice of his constitutional advisers.
“He is a constitutional monarch. He has to act on the advice of the prime minister, the Cabinet or other bodies, such as the Conference of Rulers, the Pardons Board and the Council on Islamic Affairs.
“The common mistake is that when people read the Federal Constitution and the laws and come across clauses which confer powers on the Yang di-Pertuan Agong, they think that it is his personal power and that is not true.
“Whenever the word ‘Yang di-Pertuan Agong’ occurs, it means the Agong (acting) on advice, which means the powers of the Agong are actually the powers of the prime minister,” said Prof Shad.
However, he said the King was not powerless as he still could “advise, caution and delay” certain matters, adding that he was not just a “rubber stamp”.
For example, when it comes to the appointment of Cabinet members, the King can still ask the prime minister to “think about it” and the premier is obliged to consider.
“But of course, the prime minister can come back and say he insists (on the appointment). Then, the King has to agree,” he said.
When it came to discretionary powers, Prof Shad said the Constitution placed “the awesome burden of making critical decisions on (some) affairs of state” in the personal wisdom of the monarch.
Some of these are the appointment of the prime minister, the dissolution of Parliament and the requisitioning of the Conference of Rulers if this concerns solely the privileges, positions, honours and dignities of Their Highnesses.
However, even these discretionary powers are not absolute but hedged in by constitutional guidelines.
For example, although the appointment of the prime minister was a discretionary power, Prof Shad said he must come from the Dewan Rakyat and must – in the King’s judgment – be likely to command the confidence of the majority in that House.
“If a party or coalition has an absolute majority, its leader has a democratic right to be commissioned as Prime Minister.
“Only if there is a ‘hung Parliament’ or a loss of majority due to the death, defection, resignation or disqualification of Members of Parliament does the King’s discretion come alive,” he said.
The King also had the power to refuse a premature dissolution of the Dewan Rakyat, said Prof Shad.
“But if a prime minister is firmly in the saddle and wishes to call for an early election, then, conventionally, the monarch should not stand in the way,” he said.
There were also some areas where the King had implied discretion because the laws were silent and conventions and prerogatives came into play, said Prof Shad.
“We have to remember that life is larger than the law and no Constitution is exhaustive or can anticipate every contingency,” he said.
Among these scenarios are the caretaker government.
“Once a general election is called, who should head the government – in other words – the caretaker government?
“The Constitution is thunderously silent on that. So, we rely on the tradition since 1957 that the previous prime minister, who has advised on the dissolution (of the Dewan Rakyat), continues in office,” he pointed out.
Prof Shad said the prime minister’s right to be the prime minister was dependent on his majority in the Dewan Rakyat.
“However, once the dissolution happens, there is no Dewan Rakyat. So, the prime minister has lost his political and legal basis as there is no majority in the House.
“But the King relies on the traditions of Parliamentary democracy to allow the previous prime minister to continue,” he added.
Prof Shad said the King also had residual power for situations such as the dismissal of the prime minister.
Under Article 43 (5), the King, acting on the prime minister’s advice, could remove “ministers other than the prime minister”, he said.
“This implies that the prime minister, once appointed, is not removable unless he loses the confidence of the majority of the Dewan Rakyat members,” he added, noting however that there were exceptions.
“Among the exceptions are if the prime minister loses the confidence of the Dewan Rakyat, advises a dissolution, fails to secure the King’s consent for a dissolution and yet refuses to step down.
“If the caretaker prime minister fails to obtain a majority of the lower House seats at a general election but refuses to step down, the King can force him to resign.
“If during the ruling party’s internal election the prime minister loses his party’s leadership position or if he is expelled from the party and consequently loses his parliamentary support, the Yang di-Pertuan Agong will be constitutionally justified in sacking him if he does not resign,” added Prof Shad.