THE political and legal dramas surrounding the appointment of the Chief Ministers of Perlis, Terengganu, Perak, Kedah and Selangor have stoked the embers of controversy about the role and function of Malay Rulers.
Are the Sultans ceremonial heads always bound by advice or are they absolutist rulers with wide discretion to interfere in politics and administration?
If they are bound by advice, whose advice binds them that of the state executive or of the federal Prime Minister?
The constitutional position of the State Rulers needs to be examined. As a generalisation it can be stated that the powers and functions of the Rulers can be placed in three categories: powers of a personal nature; political powers of a discretionary nature; and political powers of a non-discretionary nature.
Personal powers: Article 71 of the Federal Constitution guarantees the right of a Ruler to succeed to the throne in accordance with the Constitution of his State. The federal government cannot interfere.
All State Constitutions contain provisions to confer discretionary powers on the Rulers in relation to the following matters:
> ANY function relating to Islam or Malay adat;
> APPOINTMENT of heir, consort, Regent or Council of Regency;
> APPOINTMENTS to Malay customary ranks, titles, honours and dignities;
> REGULATIONS of royal courts and palaces; and
> MANY State Constitutions confer additional discretionary powers e.g. Article 25 of the Constitution of Kelantan invests the Monarch with power to hear appeals against the decision of any person. Article 61 empowers him to appoint the State Service Commission.
Discretionary political powers: Articles 38(6) and 159(5) of the Federal Constitution provides that all Sultans, as members of the Conference of Rulers, may act in their discretion in any of the following matters:
> PROCEEDINGS relating to the election or removal of the King;
> ELECTION of the Deputy King;
> THE advising on many key federal appointments including those of superior court judges;
> 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 ten special topics enumerated in Article 159(5).
Among these are Rulers rights, Malay privileges, Malay language and the citizenship rights of all persons;
> AGREEING or disagreeing to the extension of any religious acts to the federation as a whole, and
> APPOINTMENT of members of the Special Court under Article 182(1) to try a Ruler;
> UNDER section 1(2) of the Eighth Schedule and in various provisions of all 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 State Assembly; and
> THE making of a request for the convening of the Conference of Rulers.
There can be no doubt that the above discretionary powers enhance the prestige, power and authority of the Rulers in the political, social and religious life of the community. The position of the State Sultans is far stronger than that of the Yang di-Pertuan Agong and the British Queen.
Of course it must be noted that the above discretionary powers are not absolute. They are controlled discretions in that some limitations may apply.
For example, in relation to the appointment of a Mentri Besar, the State Constitutions impose two guidelines.
The MB must belong to the Assembly. The MB must be a person who in the Rulers judgment is likely to command the confidence of the Assembly.
What this means is that if there is a party or coalition with an absolute majority and the members of the Assembly are agreed on their leader (as in Terengganu), the Rulers role is nominal.
But if there is no party with a clear majority (as in Perak, Selangor and Kedah) or the Assembly members are divided on their leader (as in Perlis), the Ruler acquires a catalytic role.
He is not bound to accede to the wishes of the federal Prime Minister.
He is not bound to appoint the leader of the largest party (if it has no majority). He is free to choose a non-Malay as the CM if it is expedient to do so.
He is free to choose any coalition (whether formally registered or not) that may be able to pass Bills and Budgets and provide stability and continuity.
In circumstances where no coalition can be cobbled up he may even appoint a minority government in a caretaker capacity pending new elections.
In Malaysia because of the steamroller majority of the BN at both federal and state levels for 11 elections, the Rulers awesome powers were never before exercised. But
this time around, hung Parliaments with
no clear cut majorities afflict us in three states.
The Rulers exercise of their undoubted discretion has left many people worried. Will these precedents embolden Rulers to act as absolute monarchs and to disregard their constitutional duty to remain above politics?
The fears are unjustified. In Perak, Selangor and Perlis, Their Majesties have honoured their Constitutions to the hilt.
It is some of us who are in denial about the changed times and who are trapped in time frames of the past.
Terengganu is, at the time of writing, still unsettled. But we must be patient. There are no specific time limits for the appointment of the MB.
In most countries the matter takes weeks; sometimes months.
Non-discretionary political powers: Except in relation to their personal and their discretionary powers, the position of the State Rulers is similar to that of the Yang di-Pertuan Agong.
The Rulers are constitutional monarchs whose roles are defined and limited by the law.
They are not expected to rule in person or to seek to control the day-to-day administration of government or to get involved in partisan politics.
In relation to most of their functions, all Rulers are required by section 1 of the Eighth Schedule to act in accordance with their Executive Councils advice. Their Highnesses possess great authority and dignity but most of the effective power lies in the hands of elected officials.
In actual practice, however, the influence of the State Rulers on government and society is far greater than what the law envisages. Constitutional conventions, which in Britain converted an absolute monarchy into a limited one, seem to have worked in the opposite direction at state level in Malaysia.
It is well known that in the past 50 years many Sultans have exerted influence in areas that are not envisaged by the Constitution.
After a decline of power and influence between 1983 and 1994, the spirals of history are in motion again.
The last few years have seen a discernible upsurge in popular perception that the Rulers constitute a vital check and balance mechanism of the Constitution and, as members of the Conference of Rulers, can supply a much-needed corrective to the absolute powers of the political executive.
Not surprisingly there has been assertiveness by the Conference of Rulers in several areas where the Constitution gives them a role e.g. in advising on the selection, promotion and extension of judges and the appointment of Chief Ministers.
None of this is surprising. Constitutional law reacts to the felt necessities of the times.
Dr Shad Faruqi is professor of Law at UiTM
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