Constitutional Monarchy in Malaysia and the Extent of the Agong’s Discretion under the Constitution
Twitter is currently abuzz with discourse on constitutional monarchy in Malaysia. One point is quite interesting to me and that is the question of just how much power is actually conferred on the Yang di-Pertuan Agong (Agong) and whether the exercise of that power is a personal discretion or one that must be preceded by PM’s advice. Last year I wrote about my views on the formulation of Agong’s satisfaction which is a prerequisite to the proclamation of emergency under Article 150(1). This time, I will give a general overview of the constitutional nature of the Agong’s office and the exceptions to the Agong’s duties under the Constitution.
1. Article 32: Supreme Head of the Federation
32. (1) There shall be a Supreme Head of the Federation, to be called the Yang diPertuan Agong, who shall take precedence over all persons in the Federation and shall not be liable to any proceedings whatsoever in any court except in the Special Court established under Part XV.
Firstly, Agong is the designated Supreme Head of the federation of Malaysia. He is elected by the Majlis Raja-Raja and serves as Agong for 5 years unless he resigns, as was the case with our previous Agong. The Agong, along with all state Rulers, cannot be the subject of any legal proceedings in any court of law, except the Special Court. The Special Court, as the name suggests, is a specially constituted court to hear proceedings by or against the Agong or state Rulers in their personal capacity. If an Agong is charged with an offence under any law in the Special Court, he can no longer serve the functions of Agong.
The only instance where a proceeding took place against a Ruler in the Special Court is the 1996 case of Faridah Begum v Ahmad Shah¹, where the plaintiff brought a civil suit against the then Sultan of Pahang. No criminal proceeding has ever been instituted against an Agong or a state Ruler, and therefore no Agong has ever been forced to cease his functions as Agong.
2. Article 40(1): General Duty to Act on Advice
40. (1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.
The Agong is under a general constitutional duty to act upon the advice of the Cabinet or the relevant Minister. This duty however allows the Agong to request from the Cabinet any information that he needs concerning the Federation. This general duty was judicially affirmed in many landmark judgments, most notably in Stephen Kalong Ningkan v Govt of Malaysia (1968)² and Madhavan Nair v Govt of Malaysia (1975)³.
3. Article 40(2): Explicit Exceptions to the General Duty to Act on Advice
(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say: (a) the appointment of a Prime Minister; (b) the withholding of consent to a request for the dissolution of Parliament; (c)the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting, and in any other case mentioned in this Constitution.
However, there are explicit exceptions to the general constitutional duty for Agong to act only upon the advice of Cabinet. Article 40(2) provides for at least 3 situations where the Agong has a discretion in the performance of his functions (Explicit Exceptions). The first one is the appointment of the PM. The second one is refusal to give consent to a request for the dissolution of Parliament. The third one is the meetings of the Majlis Raja-Raja, provided that the agenda of the meeting concern solely with the Rulers’ positions and privileges. There is also an additional general exception where the Agong may act in his discretion “in any other case mentioned in this Constitution” (General Exception).
4. First Interpretation of the General Exception
How do we interpret the ambit of this General Exception? There are two opposing positions. The first position, in its extreme version, interprets “in any other case mentioned in this Constitution” to mean any other provisions in the Constitution that mention the Agong and confer some power on him. A simple search through the Constitution shows that the Agong is mentioned at least 274 times. The extreme view would argue that the Agong may act in his discretion in all the situations anticipated in the 274 times that he is mentioned in the Constitution.
5. Second Interpretation of the General Exception
The second position interprets “in any other case mentioned in this Constitution” to mean provisions in the Constitution which expressly state that the Agong has a discretion in the performance of his function. This is based on the finding that some provisions concerning the performance of Agong’s functions use words that expressly confer a discretion (e.g. “…the Yang di-Pertuan Agong in his discretion…” in Articles 139, 141A, 143 and Item 19A of the 8th Schedule), while others use more vague words and do not contain any express reference to a discretion (e.g. “if the Yang di-Pertuan Agong is satisfied…” in Articles 92 and 150).
Since the rules of interpretation presume that there is a purpose behind legal wording, there must be a difference between a discretion and a satisfaction. The second position therefore limits the ambit of the General Exception to situations where the word ‘discretion’ is expressly found in the relevant Constitutional provisions.
6. My View on the General Exception
There is logical support for the adoption of the second position over the first position. The first thing to bear in mind is that the monarchy in Malaysia is not absolute and the wording of Article 32 clearly establishes a constitutional monarchy, one whose powers and duties are clearly laid down. If this constitutional nature of the Agong is to be preserved, it is imperative that the General Exception be interpreted in a way that does not undermine the Agong’s general duty to act upon advice pursuant to Article 40(1).
It follows therefore that the first interpretation which treats all 274 times that the Agong is mentioned in the Constitution as conferring a discretion is surely perverse. If this interpretation is adopted, it will erode the application of the general duty to act upon advice pursuant to Article 40(1). It will be as if there is no such general duty at all.
The second interpretation adheres more closely the constitutional design of the office of the Agong. Any exception to the general rule must not be so wide so as to render the general rule itself to have no application. It is more logically coherent for “in any other case mentioned in this Constitution” to refer to provisions that expressly allow the Agong to act in his discretion, instead of provisions that simply mention the Agong.
I am therefore of the view that the Agong has no discretion except where a Constitutional provision expressly states that he has one. If this second, more limited, interpretation is adopted, there will be only 4 instances where the Agong can be said to have a personal discretion. These 4 instances are Article 139(4) on the Public Services Commission, Article 141A(2) on the Education Service Commission, Article 143(1) on the appointment of any commission related to the public service, and Item 19A of the 8th Schedule on the appointment of the Yang di-Pertua Negeri of Melaka, Penang, Sabah and Sarawak.
It must be noted however that even these 4 instances do not completely grant absolute discretion to the Agong. The discretion granted in these 4 provisions is expressly tethered to a duty to consider the advice of the PM. In terms of onerousness, the duty to consider the PM’s advice is a notch below the duty to act on the advice of Cabinet, but it is still a duty nonetheless, and it has to be fulfilled whenever the Agong exercises his discretion in these 4 situations of General Exceptions.
Additional Notes
My endorsement of the second interpretation which calls for a more limited General Exception does not mean that I agree that the Agong is a mere automaton that unthinkingly executes the advice of the Cabinet. I have already written about the operation of the emergency powers under Article 150, and how the Agong’s satisfaction ought to be treated. I believe that the correct reading of Article 150(1) is that the Agong does not have a personal discretion to proclaim a state of emergency, but neither does the advice of the Cabinet or the PM automatically require the Agong to make a proclamation. This is what I call a negative exercise of Article 150(1) proclamation power. The Agong must still be satisfied that the state of emergency exists before he may proclaim a state of emergency.
For a more detailed argument on active/passive exercise of power and the conditions of Article 150(1), see here: RECONCILING ISTANA’S STATEMENT ON 25.10.2020 WITH ARTICLE 40(1) — YDPA ACTS ON ADVICE OF PM
Footnotes
¹ [1996] 1 MLJ 617
² [1968] 1 MLJ 119
³ [1975] 2 MLJ 286
