July 13, 2011

July 9 was not an ordinary moment as many feared turmoil and confrontation appeared imminent. And so the King found it necessary to don the mantle of a statesman. The nation is the better for it.

MANY readers have enquired whether Yang di-Pertuan Agong Tuanku Mizan Zainal Abidin had acted constitutionally in intervening in the Bersih 2.0 affair.

Some people think His Majesty’s measured advice to both parties to withdraw from the brink and to avoid confrontation did much to enhance his image as an independent, impartial monarch who is above politics and who rises above the passions and prejudices of ordinary people.

Others believe that Tuanku’s grant of an audience to Datuk Ambiga Sreenevasan, head of an organisation that had been declared illegal by the authorities, went beyond the bounds of constitutional propriety. Further, the Istana’s refusal to similarly entertain Ibrahim Ali was a rebuff to the controversial Perkasa chief.

I personally think that Tuanku’s suggestion that huge protests of this sort should not be staged on the streets but within the confines of a stadium was, in the circumstances, very balanced.

To the best of my knowledge, Tuanku’s stand went down well with most people, politicians and police alike.

Surrounding his advice was an implicit royal recognition that dissent is part of democracy; that calls for the reform of laws and structures are not necessarily unpatriotic.

However, according to Tuanku, the traditional form of democratic protest – rallies and public marches on the streets – require rethinking in modern times.

In heavily populated areas, they choke up the arteries of modern life, disrupt traffic, affect business and have the potential of causing outbursts of disorder.

Whatever one’s view of the fundamental right to speech, assembly and association, Bersih 2.0 situation draws attention to the constitutional role of the Yang di-Pertuan Agong in our legal and political system.

Constitutional monarch: In our system of government, the Yang di-Pertuan Agong is the formal head of the executive branch.

A vast array of powers is vested in his office by the Constitution and the laws.

His functions are not confined to the executive field but extend to the legislative and judicial branches as well.

A literal reading of the laws would create the impression that the monarchy is the real seat of power in the country.

Actually, the legal position is quite different. The powers and functions of the Yang di-Pertuan Agong are divisible into two categories – non-discretionary and discretionary powers.

Non-discretionary: These constitute the bulk of his powers. Their exercise is largely regulated by Articles 40(1) and 40(1A) which state that, except as otherwise provided in the Constitution, the Monarch is required to “act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet”.

By virtue of constitutional conventions, “advice of the Cabinet” has come to mean “advice of the Prime Minister”.

In addition to his duty to act on the advice of the Cabinet, the King is, in particular situations, required to consult with named bodies like the Conference of Rulers, the Pardons Board and the Council on Islamic affairs.

Discretionary functions: The general duty of the Yang di-Pertuan Agong to act on advice is qualified by Article 40(2) which confers on him discretionary power in three specified and one general area.

These are; appointment of the Prime Minister, premature dissolution of the Dewan Rakyat, requisitioning of a meeting of the Con-ference of Rulers and “any other case mentioned in the Consti-tution”.

“Any other case” probably refers to his right to seek information under Article 40(1), right to delay legislation by 30 days under Article 66, special constitutional appointments, like to the Public Services Commission and the Election Commission and the installation, if need be, of a caretaker government during the dissolution of Parliament under 43(2).

In these areas, the King is not bound by the advice of the PM.

The overall constitutional position of the King is that he is the symbolic and formal head of state but not head of government.

He is the repository of vast authority and dignity but very little power. Save in some specified situations, the real wielder of political power is the Prime Minister.

Having said that, it must also be noted that despite his duty to act on advice, the King is not a mere cipher or mouthpiece of his government.

As in the UK he has a right to be consulted, to encourage and to warn.

Under Article 40(1), he may ask for any information in the possession of the Cabinet and the information cannot be withheld from him, the Official Secrets Act notwithstanding.

He may temper the counsel of his advisers and offer guidance from his own fund of experience.

He can privately remonstrate and offer strong objections to a proposed course of action.

This would be so especially if the Conference of Rulers, acting under Article 38(3), had deliberated on a question of national policy and expressed reservations.

The views of the Conference of Rulers under Article 38(3) and of the Yang di-Pertuan Agong are not binding on the Federal Government, but there is no doubt that they can influence the nation’s goals and policies, supply some check and balance, and promote openness and transparency.

In normal circumstances, the Yang di-Pertuan Agong ought not to reject the final advice of the parliamentary executive.

He ought not to try to act as arbiter or mediator between rival political parties and policies; still less to take advice from the leaders of opposing political factions, with a view to forming a conclusion of his own.

However, July 9 was not an ordinary moment.

Many feared turmoil. Confron-tation appeared imminent.

The Government itself found it necessary to brief the Confe- ren­ce of Rulers on the impending event.

Many Sultans went out of their way to issue public statements.

And the Yang di-Pertuan Agong found it necessary to don the mantle of a statesman. The nation is the better for it.

Though his advice was not ultimately followed, it seems to have had a calming, restraining effect on both sides.

The Bersih 2.0 events have shown that the Yang di-Pertuan Agong, though a constitutional monarch bound to act on advice, is also a constitutional auditor.

His role as a unifying, dignifying and stabilising influence in the country is immense.

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM. He was also one of the speakers in the recent Perdana Leadership Foundation CEO Forum 2011 held in Sime Darby Convention Centre.

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