State Rulers and Federal Constitution

  • Reflecting On The Law
  • Thursday, 09 May 2019

THE constitutional position of state Rulers has been in the news lately and there is bitter controversy over several issues. What can be agreed is that historically, there were several sovereign Malay states on the peninsula with absolute Rulers.

But between 1511 and 1946, successive Portuguese, Dutch, Siamese, British and Japanese colonial governments wrested away most of the royal powers except in matters of Islam, Malay adat and palace affairs.

The Merdeka Constitution sought to restore the authority, dignity and some of the traditional powers of the Sultans while also converting them into constitutional monarchs.

Rights of Rulers: The Federal Constitution is the supreme law of the federation, but it allows each state to have its own Constitution subject to some compulsory “essential provisions” in the Eighth Schedule to be inserted in all state Constitutions.

Thus, the Constitutions of Johor (1895), Terengganu (1911), the rest of the peninsula states (1948), and Sabah and Sarawak (1963) were allowed to continue with major amendments to comply with the Federal Constitution.

The Federal Constitution gives iron-clad guarantees to the Rulers to succeed and hold their thrones. If any dispute arises about succession, it shall be determined solely by palace authorities. The Federal Govern­ment cannot interfere.

State Rulers have much larger powers than the Yang di-Pertuan Agong over matters like Islam, Malay adat and conferment of honours.In addition, all state Constitutions confer on the Rulers vast personal powers on such “palace matters” as regency and royal councils. Unlike the federal monarch, who is limited to a term of five years under Article 32(3), a Ruler has a life tenure.

All Rulers play a significant role in the Conference of Rulers, which is endowed with many critical functions of checks and balances. Amendments to the Sedition Act in 1970 strengthened the position of the Sultans.

Constitutional monarchy: Unlike the monarchies in Brunei or Arabia, the Rulers in Malaysia are constitutional monarchs whose discretionary powers are confined to a number of enumerated areas like requests for a meeting of the Con­ference of Rulers; matters of Islam and Malay custom; appointment of heirs, consort and regent; grant of honours; and regulation of royal courts.In other areas such as the appointment of a mentri besar and the premature dissolution of the Assembly, the Rulers do have discretion but it is not absolute as is being claimed by some quarters. It is limited by the federal and state constitutions and guided by conventions.

As in all parliamentary democracies, the discretion to appoint a mentri besar is hedged in by the requirement that the mentri besar must belong to the Assembly and must enjoy the confidence of the elected members of the Assembly.

Unless there is a “hung parliament”, a Ruler has no power to withhold assent to the appointment of someone chosen by the majority party.

A Ruler has no power to dissolve an Assembly on his own and to override electoral results.

A constitutional monarch is a formal head of state but not the functional head of government. He reigns and does not rule. This was so during the centuries of colonial rule.

It is not within a Ruler’s constitutional remit to make political, educational, business and commercial decisions for his state.

But, of course, as a sagacious monarch he is not prevented from advising, cautioning, warning and delaying the political executive, who is ultimately answerable and responsible to an elected legislature.

Sovereignty and secession: It is alleged by some state nationalists that each state of Malaysia is a sovereign state with a right to secede from the Federation.

Such an assertion has no legal basis. We are a federation, not a confederation. Johor, Sabah and others are constituent units of the sovereign nation of Malaysia. They have limited autonomy in matters prescribed by the Federal Constitution. Any attempt to secede will be a serious offence under the Penal Code.

State Constitutions: All state Constitutions are required to incorporate some “essential provisions” mandated by the Eighth Schedule of the Federal Constitution. These provisions require the Ruler to act on advice, appoint a mentri besar and executive council to advise him and to have an elected state legislature.

If the states fail to comply, the federal parliament can, by ordinary law under Article 71(3) and (4), amend the state Constitution to give effect to the essential provisions.

State autonomy: In legislative, executive, judicial and financial matters assigned to the states by the Federal Constitution, the states are indeed independent and may seek judicial review to enforce their autonomy. But it is an exaggeration to demand that the Federal Govern­ment must stay out of “state affairs”. In scores of ways, the Federal Government is authorised to provide direction to the states.

Federal power over the states: There are several supervisory or policymaking federal bodies whose advice is binding on the states. Among them are the National Land Council, the National Council for Local Government, the National Finance Council, the Auditor General and the Election Commission.

To enforce international treaties, the Federal Government can encroach on the state field. During an emergency, it can encroach on all state matters.

The Federal Government has control over development plans, inquiries, surveys and statistics. It can acquire state land for federal purposes but subject to payment.

Legislative process: In 1994, the Federal Constitution mandated that the Rulers can be bypassed in

the state legislative process after 30 days.

Clash of laws: Under Article 75, if a state law is inconsistent with a federal law, the federal law prevails. Under Article 162(6), if any pre-Merdeka law (including a state Constitution) conflicts with the Federal Constitution, the Federal Constitution prevails.

No immunity: Though Article 181 preserves the prerogatives and powers of the Sultans, these are “subject to the provisions of this Constitution”. In 1993, Articles 182 and 183 removed the immunity of the Rulers from criminal or civil proceedings due to complaints of abuse of this immunity.

In sum, claims of state sovereignty, absolute discretion and right to secede have no legal basis.

Admonishing the Federal Govern­ment to not interfere in a state’s commercial and policy decisions when these impact on foreign relations and cause massive environmental degradation reflects lack of knowledge of the Federal Govern­ment’s overriding powers in many areas.It is best not to awaken the sleeping federal lion.

Emeritus Prof Datuk Dr Shad Saleem Faruqi is holder of the Tunku Abdul Rahman Chair at Universiti Malaya’s law faculty. The views expressed here are entirely the writer’s own.

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