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Thread: Constitution: Unclear limits of discretion of Monarchy

   
   
       
  1. #1
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    Constitution: Unclear limits of discretion of Monarchy

    Unclear limits of discretion

    Posted by admin
    Wednesday, 22 April 2009 13:31

    The Constitution is still evolving and responding to the times, and only the future will tell the shape of things to come.


    Reflecting on the Law
    By SHAD SALEEM FARUQI, The Star

    EVER since the general election of March 2008, and especially after the constitutional temasyah in Perak, an animated debate is raging about the powers and position of the Malay Rulers.

    History: Malay kingship existed as early as the first century and the powers of the Sultans were nearly absolute through much of history. During the colonial period these powers waned.

    The decline began with the absorption of Malay kingdoms into the Federated Malay States of 1895 and the Federation of Malaya 1948.

    The Merdeka Constitution of 1957 restored the honours and dignities of the Sultans but at the same time converted the Rulers to constitutional monarchs.

    Save for a limited number of situations in which a margin of discretion is conferred, the federal and state Constitutions require the Yang di-Pertuan Agong and the Rulers to act on the advice of the elected political executive.

    During the last 52 years things did not al**ways work this way. In the 60s and 70s the in**fluence of the Sultans on government and so**ciety was far greater than what the Consti**tution envisaged. History overshadowed the law.

    The 80s and 90s saw several constitutional amendments to curb royal powers. The Yang di-Pertuan Agong and the Sultans could be bypassed in the ordinary legislative process.

    Royal immunities were abolished. If sentenced to more than one day of imprisonment, a Ruler could be removed from his throne unless pardoned by the Majlis Raja-Raja.

    However, the spirals of history are at work again. Some sections of the population, including many members of the legal community, are beginning to view the Rulers as the last bastion against the political executive’s omnipotence.

    In response to these popular sentiments and in order to recover ground that was lost in the 80s and 90s, the Conference of Rulers, the Yang di-Pertuan Agong and the state Rulers have lately shown tremendous assertiveness in a number of areas.

    Leading examples relate to appointments to the superior courts, refusal to extend the tenure of a retiring Chief Justice, appointment of Chief Ministers in Perlis, Terengganu, Perak and Selangor after the March 2008 general election, refusal of premature dissolution of the Perak Assembly, dismissal of a Chief Minister and appointment of a new Chief Minister in Perak early this year.

    A few weeks ago, in exercise of its powers under Article 38(2) to deliberate on questions of national policy, the Majlis Raja-Raja appointed the Yang di-Pertuan Agong as the Patron of Universiti Sains Malaysia to keep the Con*ference informed of USM’s progress as an apex university.

    Some of these royal assertions have raised eyebrows. Questions are being asked whether an activist monarchy is compatible with the letter and spirit of the Federal Constitution.

    In this area the “glittering generalities” of the Constitution provide ample scope for a kaleidoscope of views.

    Let us examine the constitutional canvass.

    Constitutional monarchs: Article 71 and the Eighth Schedule of the Federal Constitution require that all state Constitutions shall contain some “essential provisions”.

    The most significant provision is that, except in relation to discretionary powers, all state Rulers “shall act in accordance with the advice of the Executive Council”.

    The implication of this is that the state Rulers are not absolute monarchs. They are not expected to rule in person or to seek to control the day-to-day administration of government.

    However, the Constitution is equally clear that Their Majesties are anointed with certain discretionary powers in critical areas.

    Personal powers: All state Constitutions confer discretionary powers on the Rulers in relation to the following matters:

    > Any function as Head of the Muslim religion or relating to Malay adat;

    > The appointment of heir, consort, Regent, Council of Regency and Council of Succession;

    > Appointments to Malay customary ranks, titles, honours and dignities; and,

    > Regulation of royal courts and palaces.

    In addition, there is a right to succeed to the throne in accordance with the Constitution of the state and without interference from the Federal Government.

    Though immunities are abolished, some special treatment is still accorded. No one can sue or prosecute a Sultan without the Attorney-General’s consent. Cases will not be heard in ordinary courts but in a Special Court. The Majlis will nominate two out of five judges to the court. If a Sultan is convicted of a crime the Majlis can pardon him.

    Political powers: Though the Sultans are above politics, federal and state Constitutions confer on them some monumentally important political discretions.

    Under Article 38(6) of the Federal Constitution, all Sultans in their capacity as members of the Conference of Rulers may act in accordance with their wishes in the following matters:

    > Proceedings relating to the election or removal of the Yang di-Pertuan Agong;

    > Election of the Timbalan Yang di-Pertuan Agong;

    > The advising on many key federal appointments;

    > 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 the privileges and position, honours or dignities of the Rulers;

    > Agreeing or disagreeing to the extension of any religious acts, observances and ceremonies to the Federation as a whole; and,

    > Appointment of members of the Special Court under Article 182(1).

    Under section 1(2) of Part I of the Eighth Schedule of the Federal Constitution and in various provisions of 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 Assembly; and,

    > The making of a request for a meeting of the Conference of Rulers.

    Two of the above powers were exercised in Perak with telling effect a few weeks ago.

    Under state Constitutions every Sultan has a prerogative to advise, to encourage and to warn. He can remonstrate and object to a proposed course of action. He can delay action on a matter referred to him. But after a reasonable time he must accede to advice.

    Some state Constitutions confer additional discretionary powers. For example, the Laws of the Constitution of Kelantan invest His Royal Highness with personal powers in the matter of appointment of some officials (Article 13), appeals to the Sultan against decisions of any person (Article 25), and appointment of the State Service Commission (Article 61).

    Legally, these discretionary powers are very broad. In actual practice, they are hemmed in by constitutional guidelines and by binding conventions that “supply the flesh to clothe the dry bones of the law”.

    In sum, it can be stated that despite their overall role as constitutional heads who reign but do not rule; who are above politics; who supply the unifying and dignifying element of state Constitutions; the Malay Rulers have an undoubted residue of critical, discretionary powers whose actual ambit has not yet been authoritatively determined.

    The Constitution is still evolving and responding to the felt necessities of the times. The British model of a largely ceremonial monarchy has not taken hold. Only the future will tell the shape of things to come.

    Dr Shad Saleem Faruqi is Professor Emeritus at Universiti Teknologi MARA.

    http://mt.m2day.org/2008/content/view/20934/84/
    py

  2. #2
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    Re: Constitution: What is Constitutional Monarchy?

    What is Constitutional Monarchy?

    Posted by admin
    Thursday, 23 April 2009 10:01

    By Hakim Joe

    There are actually only three types of government in this world, anarchy, autocracy and democracy. The rest falls under these forms in one way or another. Anarchy is rule without a government, Autocracy might infer to rule by one as in absolute monarchy or dictatorship and Democracy is rule by majority.

    Malaysia adopted the Constitutional Monarchy form of government when she achieved independence from the British, much like her former colonial masters where the Queen is a ceremonial Head of State and the Parliament forms the basis of executive legitimacy. Over here, the Yang di-Pertuan Agong is the ceremonial Head of State and the people democratically elect the Parliament whereby the PM becomes the active Head of the executive branch of government. The only visible difference between UK and Malaysia is that in UK, the position of the Head of State is hereditary from the Tudor family whereby in Malaysia, the 9 hereditary State Sultans take turns becoming the Yang di-Pertuan Agong for a period of 5 years. One other important dissimilarity is that the UK constitution is uncodified whereas the Malaysian constitution is codified.

    Constitutional Monarchy can also be characterised as a form of government where the Head of State’s powers and authority is defined in the constitution and limited by the elected Parliament as opposed to Absolute Monarchy where the Head of State has absolute unquestionable power, even to the extent of being above the Law.

    In Malaysia, the form of Constitutional Monarchy also applies to the Sultans. So, what are these authority and limitations specified within the constitution here in Malaysia?

    1. The government cannot arbitrarily alter the boundaries of the states. Only the Sultans have that privilege (Article 2).
    2. The Sultans are automatically the Head of Religion within their own States and the Yang di-Pertuan Agong is the Head of Religion for the entire country including the States without Sultans and the Federal Territories (Article 3).
    3. The Agong shall be the supreme Head of the nation, subjected to constitutional limitations (Article 32).
    4. The Agong shall enjoy total immunity from Law except specifically charged by a Special Court (consisting of the CJ, High Court judges plus 2) with prior approval from the AG. This applies to all the Sultans as well (Article 32 and Article 182).
    5. The Agong gets to keep and use the Public Seal of the Federation. (Article 36)
    6. The Agong possesses the power to pardon, grant reprieves, remitting, suspending or commuting sentences of convicted persons (Article 38 and 42), under the advice of the Pardon Board.
    7. The Agong can exercise the executive authority as Head of State, subjected to existing federal laws (Article 39) and on advices from the Cabinet (Article 40).
    8. The Agong gets to choose who he wants as the PM from a list submitted by the winning political party if he does not like the leader of the winning party (Article 40). This applies to all the Sultans as well. The constitution however does not afford him the right and authority to dismiss the PM or the MB.
    9. The Sultans and Agong can dismiss or withhold consent to a request for the dissolution of Parliament (Article 40).
    10. The Agong is authorised to call a Conference of Rulers any time HRH desires but the agenda of this meeting is limited to discussions dealing solely with the privileges, position, honours and dignities of Their Royal Highnesses (Article 40).
    11. The Agong gets to be the Supreme Commander of the Malaysian Armed Forces (Article 41).
    12. The Agong can only dissolve the Parliament at the request of the PM (Article 43).
    13. The Agong gets to appoint Ministers and Deputy Ministers subjected to advice from the PM (Article 43).
    14. The Agong gets control over the legislative authority of the country together with the Senate and the House of Representatives (Article 44).
    15. The Agong also gets to nominate 40 members to the Senate (Article 45).
    16. The Agong also gets to be the timekeeper whereby HRH shall not allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session (Article 55).
    17. The Agong gets the prerogative to address the Senate and the House of Representatives either singularly or jointly (Article 60).
    18. Unless HRH advocates the abolition of the constitutional position of the Yang di-Pertuan Agong as the Supreme Head of the Federation or the constitutional position of the Ruler of a State, the Agong may pretty well be able to say just about anything he wants and not be liable in Court. (Article 63).
    19. The Agong also gets to nominate the Senate Clerk and the House of Representative Clerk (Article 65).
    20. The Agong however does not get the opportunity to reject any new laws or amendments to existing laws because it will automatically become law after 30 days from the initial submission to HRH (Article 66).
    21. The Agong gets to support any development plans put forth by the government, having declared it as a national development to authorise the Parliament to start work on it (Article 92).
    22. The Agong has the power to extend legislative or executive powers of States except to repeal or amend a law unless specifically authorised by the House of Representatives (Article 95).
    23. HRH also gets to validate the PM’s nomination of an Attorney General after consultations with the other Sultans (Article 105 and Article 145).
    24. The same goes for the selection of the Auditor General (Article 106) and HRH gets the first copy of the auditor report before they are exhibited in both Houses (Article 107 and Article 112).
    25. Reviews of any State Grants to Sabah and Sarawak needs the approval of the Agong, once again subjected to advice from the PM and the approval of the House of Representatives (Article 112).
    26. The Agong also gets to elect the Chairman, the deputy Chairman and 5 other members of the Elections Committee, subjected to approval from the Conference of Rulers and under advise from the government (Article 114).
    27. Gerry meandering also needs HRH’s approval (Article 115).
    28. The Agong gets to name where he wants to register the High Court in West Malaysia and the High Court in East Malaysia. Same goes for the Court of Appeals and the Federal Court (Article 121).
    29. The Agong gets to name four judges to the Federal Court, ten judges to the Court of Appeals and the High Court judges, subjected to recommendations from the Chief Justice and advice from the PM (Article 122). What HRH cannot do is to sack the judges (Article 125) without prior consultation with the PM and the CJ. The only people HRH can sack (without consultation and advice from anybody) are the junior public servants. Any member of the administration in the Federation or State is a big no-no. Can’t touch the Parliament or Senate either. Hell, the Agong cannot even demote the senior public servants.
    30. The Agong however gets to appoint the Chief of Defence Forces, 2 senior Army Staff Officers, 1 senior Naval Staff Officer, 1 senior Air Force Staff Officer plus an additional 2 more (civilian or military) people to the Armed Forces Council (Article 137).
    31. Same concept with the Judiciary (Article 13, the Public Services (Article 139), the Police Force Commission (Article 140), and the Education Service Commission (Article 141). What HRH cannot do is to either demote or sack them unless they are very junior (assistant clerks or cleaners) or that HRH specifically obtained prior permission to doing so.
    32. Now come the good parts. The Agong possesses the power and authority to declare a State of Emergency (Article 150) or even different States of Emergencies as befitting different circumstances. The kicker is that he can declare it but only Parliament can revoke it. When the country is in a State of Emergency, the Parliament is free to install and promulgate any new laws that are necessary to overcome this situation.
    33. The Agong also gets to pardon (or release) any person incarcerated during the State of Emergency (if HRH wants to) within 3 months after the lapsing or revocation of the Emergency (Article 151).
    34. The Agong gets the responsibility of safeguarding the position of the Bumis (Article 153).
    35. The Agong’s permission must be obtained if a reprint of the constitution is ever required (Article 160). HRH also gets to edit (and proofread) the document if ever it is being translated to another language for publication.

    There you have it all. The constitution specifically stressed that HRH can appoint but cannot dismiss. HRH can also declare any number of States of Emergencies but he cannot revoke them. The rest are basically official functions as befitting a ceremonial Head of State.

    So, what does HRH mean by stating that his role “goes beyond what is stipulated in the constitution”? Isn’t the constitution the highest form of Law in a country?

    Link here…
    py

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