EXECUTIVE SUMMARY
- In relation to the power and functions of the Yang di-Pertuan Agong (the Federal Monarch) and the nine State Rulers, the Malaysian Constitution is largely fashioned on the British model of a constitutional monarchy but with local adaptations. Save in some enumerated situations in which royal discretion is explicitly conferred, the King is required to act on the advice of the Prime Minister.
- Lately, however, this view is being increasingly challenged. Due to a trust deficit by the citizens in most political and public institutions, there are calls for the monarchs to provide leadership, play an enhanced role, become constitutional auditors and provide a check and balance against discredited political institutions.
- Royal assertiveness had been growing since the resignation of the strong-willed Prime Minister Mahathir Mohamad in 2003. The devastating Covid-19 crisis and the political instability that engulfed the nation after the fall of the Pakatan Harapan government in February 2020 enhanced the role of the federal and State monarchs significantly.
- Are these changes an ephemeral response to passing events or do they reflect an evolution from Westminster-based monarchic restraint to an “Eastminster type” of autochthonous constitutional arrangement? The ultimate shape of things will depend on a number of factors outlined in this Perspective.
INTRODUCTION
In Malay history, the Rulers enjoyed nearly absolute powers. However, the British colonial government reduced their role into a ceremonial one except on matters of Islam and Malay custom. It was the Malay revolt against the Malayan Union which took place in 1946 which halted the attempt to marginalise the Malay Rulers further.
When Malaya gained independence in 1957, the Merdeka Constitution provided for a largely Westminster-style constitutional monarchy.[1] However, the Constitution did bestow some discretionary powers in critical areas on the federal King,[2] the State Rulers[3] and the Conference of Rulers.[4] Several laws protect the royal institution against any challenge to its existence and continuity.[5]
From 1957 to 1983, the monarchy, at least at the federal level, attracted very little controversy. However, during the premiership of Mahathir Mohamad from 1981 to 2003, conflicts arose between the Rulers and the Government. The resulting constitutional amendments caused a serious decline in the prestige and powers of the monarchy.[6] However, the devastating Covid-19 crisis and the political instability that engulfed the nation after the fall of the Pakatan Harapan government in February 2020, brought about a vastly enhanced role for the federal King and the Conference of Rulers in several critical areas of constitutional law. This Perspective provides an overview of the role of the Malaysian monarchy in a historical as well as a contemporary context.
MALAYSIA’S DISTINCTIVE CONSTITUTIONAL MONARCHY
Unlike the absolute monarchy in Brunei or Arabia, the constitutional monarchy in Malaysia is modelled on the British Westminster system albeit with many local modifications.
First, the unique institution of the Conference of Rulers is conferred with significant powers to deliberate on issues of principle and policy that would be outside the powers of the British monarch.
Second, the federal monarchy is elective and the King can be dismissed by his brother Rulers.
Third, the State Sultans have considerable personal powers under their State Constitutions, something that the UK monarch does not possess.
Fourth, constitutional conventions in the UK transformed an absolutist monarchy into a constitutional one. In Malaysia the role of conventions has been the opposite. A constitutional monarchy has been conferred personal discretions which the law did not envisage, for example, the power of the state Sultans over the appointment of State Chief Ministers (CMs).
Fifth, the Yang di-Pertuan Agong (King), though generally bound by the advice of the political executive, does not tamely rubber stamp all political and legal decisions if the Conference of Rulers, that has the power to dismiss him, instructs him otherwise.
Sixth, as in all other countries with a split executive (King-PM, President-PM) the King and the Sultans have some reserve, inherent, prerogative, and non-statutory powers which can be exercised in exceptional circumstances. The nature and extent of such powers are, however, a matter of contention.[7]
After the racial riots of 1969, the royal position was strengthened further by the 1971 constitutional amendment to Article 63 which extended the law of sedition to proceedings in Parliament.[8] However, the pendulum swung the other way after Mahathir Mohamad came to power in July 1981.
The eighties and nineties saw several confrontations between the State Rulers and the strong-willed Prime Minister. A constitutional amendment to Article 66 was passed in Parliament in August 1983 to bypass the King and the Rulers in the legislative process. The Conference of Rulers unanimously vetoed the amendment. The government then unleashed an intense media campaign to disclose the extravagant lifestyle, abuses and improprieties of some royal houses.[9] A compromise Amendment Bill was then worked out in 1984 to allow the King and the Rulers to be bypassed in the legislative process after a multi-tiered process.[10]
In 1993, the monarchs were humiliated again by being deprived of their personal and legal immunity in civil and criminal proceedings. Subsequently several civil suits were filed against the Rulers with one successful result.[11]
RESURGENCE SINCE 2003
In the years after the resignation of Mahathir as Prime Minister in 2003, the monarchy, at least at the State level, began to reassert itself. There are on record some spectacular instances of royal assertiveness in the appointment of the State Chief Minister (CM) in Perak, Perlis, Selangor and Terengganu.
In some States, the royal view appears to be that the power to appoint a CM is an ancient, inherent, non-statutory, and prerogative power not regulated by the Constitution, notwithstanding the norm of parliamentary democracies that whoever commands the confidence of the Assembly, has the right to be invited.[12]
In Perak in 2009 when Nizar Jamaluddin, the Pakatan Rakyat CM, lost his majority due to defections, he requested the Sultan to dissolve the Assembly and call for fresh elections. The Sultan declined the request, as was his undoubted power under Article 18(2)(b) of the Perak Constitution and allowed Barisan Nasional, under debatable circumstances, to form the new government.[13] The “Nizar precedent” adds considerably to royal discretion in the matter of appointment of State Chief Ministers and (as it turns out) in the appointment of the federal PM during the period 2020-2021.
Islamic issues have provided Sultans with opportunities to make decisions that appeal to the Muslim masses.[14] In 2013, Sultan of Selangor relied on a 1988 State law to decree that non-Muslims cannot use the word “Allah” in their holy books. In 2014, the government of Johor declared Friday and Saturday as state holidays in accordance with the wishes of the Sultan to make it easier for Muslims to offer their Friday prayers.
Royal assertiveness became more evident in the period after May 2018 when Barisan Nasional lost the General Election to the multi-racial Pakatan Harapan coalition led by Mahathir. The then King, the Sultan of Kelantan, waited nearly 21 hours to swear-in Mahathir as the PM. Even though Mahathir was the acknowledged leader of the winning coalition, the King first offered the premiership to Wan Azizah, who was the leader of the largest component in the victorious Pakatan coalition.[15]
When PM Mahathir nominated the senior lawyer, Tommy Thomas, to the post of Attorney-General, the King referred the matter to the Conference of Rulers which opposed the nomination. It took several weeks for the King to give his consent. A similar delay was witnessed when the senior-most judge of the apex court, Tan Sri Richard Malanjum (now a Tun), who is a Christian from Sabah, was nominated Chief Justice of Malaysia. In 2019, when the Johor CM was ousted by defecting Assemblymen, the Palace asserted the right to nominate his successor.[16]
In 2019, Malaysia ratified the Rome Statute of the International Criminal Court (ICC) but was forced to announce its withdrawal within a month of ratification due to strong opposition from the Malay Rulers. Royal objections were based on the allegation that the treaty would undermine Islam, the Malays, and the monarchy.[17]
POST-2020: ENHANCED MONARCHY
The year 2020 was marked by a devastating Covid-19 pandemic, the resulting economic crisis, the 1-MDB related scandals, rising ethnic tensions, endemic party-hopping and the resulting political instability that engulfed the nation after the fall of the elected PH government in early 2020. With the weak Muhyiddin Yassin government unwilling to face Parliament and relying on royal support for survival, the monarchy exerted a vastly enhanced influence in a number of legal, political and administrative areas.
Appointment of the Prime Minister
If there is a vacancy in the office of the PM for any reason whatsoever, Article 43(2) mandates that the King must appoint an MP as the PM who “in his judgment is likely to command the confidence of the majority of the members of the House”. The words “in his judgment” lead some people to believe that the Monarch has unlimited and subjective discretion in the matter. Actually, Article 43(2) must be read along with the universal tradition of parliamentary democracies that if a party or coalition commands the confidence of an absolute majority of the members of the elected House, the Head of State has no choice but to choose its leader as the PM. However, if no party or faction controls a majority, and the situation is one of a “hung Parliament” then the constitutional text provides very little guidance about the murky world of government formation.
This was the scenario in 2020-21 which saw repeated floor crossings, hung Parliaments and the collapse of two successive coalition governments, one in February 2020 and the other in August 2021. There was resignation of two PMs in less than 18 months.
In February 2020 on the resignation of Mahathir, the Yang di-Pertuan Agong adopted the unprecedented, admirable, but extra-parliamentary method of interviewing all MPs to determine who they backed as the new PM. The poll of MPs conducted by the Monarch was not made public.[18] The King ultimately chose Muhyiddin Yassin as PM on March 1 but did not impose any requirement of convening Parliament within a time limit or seeking a vote of confidence or working out a Confidence and Supply Agreement. The King also rejected as unconvincing, Mahathir and Anwar Ibrahim’s later claims that they had gained a parliamentary majority.
Before the Budget session in late 2020, the King issued a strong public statement urging all MPs to subordinate politics to national interest and support the Muhyiddin government on Budget 2021. However, with the loss of support from factions within UMNO, Muhyiddin resigned on 16 August. This time around, the King consulted party leaders and came to the conclusion that under Article 43(2)(a), Ismail Sabri commanded the confidence of the majority of the Dewan Rakyat.
It is noteworthy that both governments since February 2020 were created at the Istana rather than as a result of the electoral process or a vote of confidence in the Dewan Rakyat.
Governance and Parliamentary Affairs
Summoning of Parliament
Under Article 55(1), the King shall from time to time summon Parliament. This power is subject to the advice of the PM. A constitutional dilemma arose during 2020-21 when PM Muhyiddin acted undemocratically to keep the legislature at bay. After his appointment as PM, Muhyiddin postponed the March session of Parliament to May. To comply with the 6-month time limit imposed by Article 55(1), he convened Parliament for two hours on 18 May to listen to the Royal Address and then adjourn without any debate or motions. He appointed a bumper Cabinet but kept avoiding Parliament. During 2021, there were repeated admonitions from the King to the government to convene Parliament as soon as possible.[19] Muhyiddin set a September 2021 date but, under royal pressure, changed it to July 2021.
Declaration of Emergency
In October 2020, the King declined Prime Minister Muhyiddin’s advice to declare an emergency. This was perhaps the first time since independence that a Prime Minister’s advice on proclamation of emergency was ever refused. However, the King accepted the PM’s advice in January 2021 to proclaim an emergency but with significant qualifications.[20]
Refusal to Revoke Emergency Ordinances
Three days before parliament was to meet in July 2021, Prime Minister Muhyiddin advised the King to revoke some of the Emergency Ordinances in operation. The King refused on the ground that, as Parliament was about to come to session, the Proclamation and the Ordinances must be submitted to Parliament for scrutiny as the PM had promised.[21]
Legislation and Policy-making
Amendments to Laws
In the last 10 years, a new development has come about that on constitutional amendments involving Islam and issues covered by Articles 38 and 159, many Royalists expect that no Bill shall be introduced in Parliament without prior consultation with the Conference of Rulers. In 2017, the Bill to amend Act 355 (on Shariah courts’ jurisdiction) was laid before Parliament. Former MP, Tawfik Ismail, challenged it in a court of law on the ground that the Bill must first obtain clearance from the Conference because Islam is within the powers of the Sultans. In fact, the Constitution in Articles 38(4) and 159(5) provides for the Conference to exercise veto power after laws are enacted, not before they are tabled.
Issuing of Press Communiques
A significant feature of the last few years is that the Istana Negara issues periodic press statements expressing the King’s hopes and wishes on many issues. The PM’s Department is not consulted.
The Conference of Rulers has also for some time resorted to issuing press statements expressing the Conference’s views on such issues as race and religious relations.[22] Individual Sultans especially the Sultans of Perak and Johor express their hopes and wishes for the nation and caution against extremism and intolerance.
Collective Leadership and Governance
Petitions from Citizens’ Groups
The activism of the King and the Conference of Rulers since 2003 has wide public support. Many citizens see the Conference as the only remaining constitutional institution that can provide check and balance in government and be a healer and reconciler of society’s conflicts. Most remarkably, the non-Malays see the Sultans as their last line of defence against the Malay-Islamist-Ketuanan ideology. The Malay ethnocratic and ethno-sectarian forces, likewise, see the Rulers as defenders of ‘Malay interests’.
From time to time, groups of citizens send petitions to the King or the Conference for urgent remedial actions. In late 2021, Nazir Razak, the brother to former PM Najib Razak, joined 55 other citizens to make wide-ranging proposals for institutional reform – most significantly by proposing that the Conference of Rulers establish a deliberative assembly to advise parliament.[23] Whether the initiatives proposed are within the constitutional functions of the monarchy is a matter of doubt but what is significant is that many Malaysians of all races see the Sultans as more trustworthy than politicians and as capable of providing check and balance in government.
Role of the Conference of Rulers
Another important development under the present King, the Sultan of Pahang who acceded the national throne in January 2019, is that on most constitutional issues, he has sought the counsel of his brother Rulers. Whether it is appointment of the PM, the declaration of emergency, the revocation of a proclamation, or the proroguing or dissolution of the State Assemblies, the King exercises his powers after consultation with the Conference of Rulers. This fits well with Article 38(2), which stipulates that the Conference has the power to deliberate on questions of national policy and “any other matter it thinks fit”.[24] This role contains tremendous potential. It invests the conference with a unique unifying and advisory role.[25]
However, the recent practice of this deliberative function raises some constitutional issues. First, on several occasions recently, only the Malay Rulers were invited to these deliberations even though the four Governors too are part of the Conference of Rulers.[26] Second, during the recent deliberations and consultations, the King and the Rulers were not accompanied by their PM or CM as is required by the Constitution’s Article 38(3).
CONCLUSION
Though the Constitution and the laws confer on the Conference of Rulers, the Yang di-Pertuan Agong and the State Rulers a vast range of powers and functions in the executive, legislative and judicial fields, and in matters of Islam, in reality most of these powers belong to the elected government of the day.
However, royal powers have resurged in recent years due to significant political and social developments. These include the following:
- The Barisan Nasional’s decline of political dominance since the General Election of 2008 has enabled the Sultans to play a decisive backstage role. Since 2020, the country has suffered serious political instability and the Rulers have filled the power vacuum.
- The quality of national and state leadership since 2020 has declined seriously and the citizenry seems to have lost confidence in the ability and the resolve of the leadership to tackle the many challenges faced by the nation.
- The position of the Rulers as guardians of Islam and defenders of the special position of Malays gives them a legitimacy and authority that remains unshaken.[27]
- In the altered political circumstances, with a weak and unstable government at the Centre, the States are likely to assert themselves and reclaim their rights against the federal government. In such a situation, the State Rulers may be tempted to play the role of statesmen and arbitrators.
Other factors attenuate the leverage of Malaysia’s monarchies.
The increasing involvement of the royal houses in business and commercial activities, logging and mining, is susceptible to conflict with the growing Malay corporate sector and the Malay political elite.[28]
One must also note the power of the social media to supply alternative information. There is also a political awakening amongst the youth demographic who are now armed with the right to vote at age 18. A number of new political parties, some youth-based, some multiracial, made an appearance in late 2021.
The burgeoning power of the Syariah establishment may also, one day, challenge the power of the Sultans in matters of Islam. It is being openly talked about that the authority of the State Rulers is often undermined by federal religious authorities.[29]
The extent and effect of the revival of royal power will depend on the balance of various factors. Among them, the character, personality and ideological leaning of future political leaders; the relationship (harmonious or discordant) between royal houses and the Malay corporate elite; the ruling party’s electoral strength; the unity or disunity between the major Malay political parties; the power of the mass media; and how the Rulers relate to the people.
In sum, the period 2018-2021 has seen a tremendous enhancement in the powers of the Yang di-Pertuan Agong and the Conference of Rulers, substantially departing from their Westminster-modelled constraints. Whether this was a temporary phenomenon in response to the political and economic challenges of the last few years or a lasting imprint on an “Eastminster Constitution” with an enhanced monarchy[30], remains to be seen. Many welcome this royal activism and see it as a check and balance on an uncontrolled government. Others fear that this may tempt an overreach by a future monarch. While that is unlikely at the federal level, only time will show the shape of things to come.
By Shad Saleem Faruqi / iseas
The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the position of AsiaWE Review.
