The Yang di-Pertuan Agong of Malaysia

THE CORRIDORS OF POWER
Raja Petra Kamarudin
http://www.malaysianmonarchy.org.my/

Article 32(1) of the Federal Constitution provides that there shall be a Supreme Head of the Federation to be called the Yang di-Pertuan Agong. His Majesty 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 (Articles 182 and 183). The Constitution also provides that the Raja Permaisuri Agong shall take precedence next after the Yang di-Pertuan Agong.

Present Agong: His Majesty Seri Paduka Baginda Al-Wathiqu Billah Tuanku Mizan Zainal Abidin Ibni Al-Marhum Sultan Mahmud Al-Muktafi Billah Shah

The Status and Powers of The Yang di-Pertuan Agong

Articles 32(1) and 32(2) of the Federal Constitution state that:

32. Supreme Head of the Federation, and his Consort

(1) There shall be a Supreme Head of the Federation, to be called the Yang di-Pertuan 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.

(2) The Consort of the Yang di-Pertuan Agong (to be called the Raja Permaisuri Agong) shall take precedence next after the Yang di-Pertuan Agong over all other persons in the Federation.

Articles 182 and 183 of the Federal Constitution provide that:

182. The Special Court

(1) There shall be a court which shall be known as the Special Court and shall consist of the Chief Justice of the Federal Court, who shall be the Chairman, the Chief Judges of the High Courts, and two other persons who hold or have held office as judge of the Federal Court or High Court appointed by the Conference of Rulers.

(2) Any proceedings by or against the Yang di-Pertuan Agong or the Ruler of a State in his personal capacity shall be brought in a Special Court established under Clause (1).

(3) The Special Court shall have exclusive jurisdiction to try all offences committed in the Federation by the Yang di-Pertuan Agong or the Ruler of a State and all civil cases by or against the Yang di-Pertuan Agong or the Ruler of a State notwithstanding where the cause of action arose.

(4) The Special Court shall have the same jurisdiction and powers as are vested in the inferior courts, the High Court and the Federal Court by this Constitution or any federal law and shall have its registry in Kuala Lumpur.

(5) Until Parliament by law makes special provision to the contrary in respect of procedure (including the hearing of proceedings in camera) in civil or criminal cases and the law regulating evidence and proof in civil and criminal proceedings, the practice and procedure applicable in any proceedings in any inferior court, any High Court and the Federal Court shall apply in any proceedings in the Special Court.

(6) The proceedings in the Special Court shall be decided in accordance with the opinion of the majority of the members and its decision shall be final and conclusive and shall not be challenged or called in question in any court on any ground.

(7) The Yang di-Pertuan Agong may, on the advice of the Chief Justice, make such rules as he may deem necessary or expedient to provide for the removal of any difficulty or anomaly whatsoever in any written law or in the carrying out of any function, the exercise of any power, the discharge of any duty, or the doing of any act, under any written law, that may be occasioned by this Article; and for that purpose such rules may make any modification, adaptation, alteration, change or amendment whatsoever to any written law.

183. No Action to be instituted against the Yang di-Pertuan Agong or a Ruler except with the consent of the Attorney-General personally

No action, civil or criminal, shall be instituted against the Yang di-Pertuan Agong or the Ruler of a State in respect of anything done or omitted to be done by him in his personal capacity except with the consent of the Attorney-General personally.

The Position of The Yang di-Pertuan Agong (and the others in order of priority)

1. Yang di-Pertuan Agong.
2. Raja Permaisuri Agong.
3. Nine (9) Rulers and Acting Rulers.
4. Four (4) Yang Dipertua Negeri.
5. Former Raja Permaisuri Agong receiving Royal pension from the Federal Government.

6. Prime Minister.
7. Deputy Prime Minister.
7A. Courtesy - Heir Apparent (Tengku Mahkota/ Raja Muda).
8. Members of the Darjah Utama Seri Mahkota Negara (D.M.N.).
9. Members of the Seri Maharaja Mangku Negara (S.M.N.).
10. Members of the Seri Setia Mahkota (S.S.M.)
10A. Courtesy - 10A. The Four Dato Undang of Negeri Sembilan and Tengku Besar Tampin, Negeri Sembilan.
11. Chief Justice of the Federal Court.
12. President of the Senate.
13. Speaker of the House of Representatives.
14. Former Prime Ministers.
15. Former Deputy Prime Ministers.
16. Members of the Cabinet.
17. Secretary to the Cabinet Chief Secretary to the Government.
17A. Courtesy - Menteri Besar and Chief Ministers.
18. Attorney-General.
19. Chief of the Armed Forces Staff.
20. Inspector-General of Police.

Executive Functions (Article 39)

Although the Constitution (Article 39) accords the Yang di-Pertuan Agong with executive authority, subject to the provisions of any federal law and of the Second Schedule of the Constitution, Parliament may by law confer executive functions on other persons.

Except as otherwise provided for by the Constitution as regards his position and authority, the Yang di-Pertuan Agong usually acts in accordance with the advice of the Cabinet or more specifically, of the Prime Minister, in the exercise of his functions. However, the Yang di-Pertuan Agong is entitled to and at his request, any information concerning the government of the Federation which is available to the Cabinet.

Although the Yang di-Pertuan Agong is to act on the advice of the Cabinet or of a Minister or after consultation with or on the recommendation of any person or body of persons (other than the Cabinet), His Majesty may act in his discretion in the performance of the three following functions, that is to say:

1. The appointment of a Prime Minister;

2. Consent or the withholding of consent to a request for the dissolution of Parliament;

3. The requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honor and dignity of Their Royal Highnesses, and any actions at such a meeting.

The appointment of a person (a Member of Parliament) as the Prime Minister is based on his ability to command the confidence of the majority of the members of the House of Representatives. The appointment of members of the Cabinet and Deputy Ministers is made on the advice of the Prime Minister.

Articles 39 and 40 of the Federal Constitution state that:

39. Executive Authority of Federation

The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable subject to the provision of any federal law and of the Second Schedule, by him or by the Cabinet or any Minister authorized by the Cabinet, but Parliament may by law confer executive functions on other persons.

40. Yang di-Pertuan Agong to act on advice

(1) In the exercise of his functions under this Constitution, or under 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 which is available to the Cabinet.

(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with that 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, honour and dignity of Their Royal Highnesses, and any action at such a meeting,and in any other case mentioned in this Constitution.

(3) Federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or a body of persons other then the Cabinet to exercise any of his functions other than:

(a) functions exercisable in his discretion; and

(b) functions with respect to the exercise of which provision is made in any other Article."

Judicial Functions

The Yang di-Pertuan Agong also plays a significant role in the judiciary. It is the responsibility of the Yang di-Pertuan Agong to appoint the Chief Justice of the Federal Court, the President of the Court of Appeal, the Chief Judge of Malaya, the Chief Judge of Sabah and Sarawak, the judges of the Federal Court, the judges of the Court of Appeal and the judges of the High Courts on the advice of the Prime Minister after consultation with the Conference of Rulers. His Majesty may also appoint any person qualified as a judge of the High Court to be a Judicial Commissioner (who has the powers of a High Court judge) on the advice of the Prime Minister after consultation with the Chief Justice of the Federal Court (a transitional stage before being appointed as a High Court Judge.)

Apart from the abovementioned powers, the Yang di-Pertuan Agong may also extend the tenure of office of a judge who has reached the age of 65 years. However, such extension shall not exceed six months after he has attained the age of 65 years. A judge of the Federal Court may resign his office at any time by writing under his hand addressed to the Yang di-Pertuan Agong.

On the matter of removing a judge from office, the Federal Constitution provides that the Prime Minister or the Chief Justice of the Federal Court after consulting the Prime Minister may make representations to the Yang di-Pertuan Agong that a judge of the Federal Court ought to be removed from office on the grounds of breach of any provisions of the code of ethics or on the grounds of inability to discharge the functions of his office owing to infirmity of body or mind or any other cause. After receiving such representations the Yang di-Pertuan Agong shall appoint a tribunal and may on the recommendation of the tribunal remove the judge from office.

It should be noted that the Yang di-Pertuan Agong is not vested with the authority to remove a judge from office of his own free will. Only after receiving representations made by the Prime Minister or the Chief Justice of the Federal Court and on the recommendation of the tribunal, may the Yang di-Pertuan Agong remove a judge from office.

However, the Yang di-Pertuan Agong may act in his discretion to either accept or reject the recommendation of the tribunal to remove a judge or to allow the judge to continue in his office.

POWERS TO PROCLAIM EMERGENCY

His Majesty the Yang di-Pertuan Agong having been satisfied, in accordance with Article 150 of the Federal Constitution, that a grave state of emergency exists threatening the security, life, economy or public order in the Federation or in the States, may issue a Proclamation of Emergency.

Article 150 of the Constitution provides that:

150. Proclamation of Emergency

(1) If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.

(2) A Proclamation of Emergency under Clause (1) may be issued before the actual occurrence of the event which threatens the security, or the economic life, or public order in the Federation or any part thereof if the Yang di-Pertuan Agong is satisfied that there is imminent danger of the occurrence of such event.

(2a) The power conferred on the Yang di-Pertuan Agong by this Article shall include the power to issue different Proclamations on different grounds or in different circumstances, whether or not there is a Proclamation or Proclamations already issued by the Yang di-Pertuan Agong under Clause (1) and such Proclamation or Proclamations are in operation.

(2b) If at any time while a Proclamation of Emergency is in operation, except when both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as circumstances appear to him to require.

(2c) An ordinance promulgated under Clause (2b) shall have the same force and effect as an Act of Parliament, and shall continue in full force and effect as if it is an Act of Parliament until it is revoked or annulled under Clause (3) or until it lapses under Clause (7); and the power of the Yang di-Pertuan Agong to promulgate ordinances under Clause (2b) may be exercised in relation to any matter with respect to which Parliament has power to make laws, regardless of the legislative or other procedures required to be followed, or the proportion of the total votes required to be had, in either House of Parliament.

(3) A Proclamation of Emergency and any ordinance promulgated under Clause (2b) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2b).

(4) While a Proclamation of Emergency is in force the executive authority of the Federation shall, notwithstanding anything in this Constitution, extend to any matter within the legislative authority of a State and to the giving of directions to the Government of a State or to any officer of authority thereof.

(5) Subject to Clause (6a), while a Proclamation of Emergency is in force, Parliament may, notwithstanding anything in this Constitution make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency; and Article 79 shall not apply to a Bill for such a law or an amendment to such a Bill, nor shall any provision of this Constitution or of any written law which requires any consent or concurrence to the passing of a law or any consultation with respect thereto, or which restricts the coming into force of a law after it is passed or the presentation of a Bill to the Yang di-Pertuan Agong for his assent.

(6) Subject to Clause (6a), no provision of any ordinance promulgated under this Article, and no provision of any Act of Parliament which is passed while a Proclamation of Emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of this Constitution.

(6a) Clause (5) shall not extend the powers of Parliament with respect to any matter of Islamic law or the custom of the Malays, or with respect to any matter of native law or customs in the State of Sabah or Sarawak; nor shall Clause (6) validate any provision inconsistent with the provisions of this Constitution relating to any such matter or relating to religion, citizenship, or language.

(7) At the expiration of a period of six months beginning with the date on which a Proclamation of Emergency ceases to be in force, any ordinance promulgated in pursuance of the Proclamation and, to the extent that it could not have been validly made but for this Article, any law made while the Proclamation was in force, shall cease to have effect, except as to things done or omitted to be done before the expiration of that period.

(8) Notwithstanding anything in this Constitution:(a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2b) shall be final and conclusive and shall not be challenged or called in question in any court on any ground; and (b) no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of(i) a Proclamation under Clause (1) or of a declaration made in such Proclamation to the effect stated in Clause (1); (ii) the continued operation of such Proclamation; (iii) any ordinance promulgated under Clause (2b); or (iv) the continuation in force of any such ordinance.

(9) For the purpose of this Article the Houses of Parliament shall be regarded as sitting only if the members of each House are respectively assembled together and carrying out the business of the House.

OTHER IMPORTANT DUTIES OF THE YANG DI-PERTUN AGONG

Supreme Commander of the Armed Forces

His Majesty the Yang di-Pertuan Agong is the Supreme Commander Of the Armed Forces as provided for in Article 41 as follows:

41. Supreme command of the armed forces

The Yang di-Pertuan Agong shall be the Supreme Commander of the armed forces of the Federation.

Power of PardonThe Yang di-Pertuan Agong is also seen as the fountain of mercy. He is vested with the power to grant pardons and reprieves in respect of offences triable by court-martial and all offences committed in the Federal Territories of Kuala Lumpur and Labuan. This is provided for in Article 42 of the Federal Constitution.

The Special Position of the Malays and Natives of Sabah and Sarawak

One of the important duties of the Yang di-Pertuan Agong is to safeguard the special position of the Malays and natives of Sabah and Sarawak. This is clearly stated in Article 153 (1) of the Federal Constitution as follows:

153. Reservation of quotas in respect of services, permits etc., for Malays and natives of any of the States of Sabah and Sarawak

(1) It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.

NOTES:

Fallacy: The Prime Minister’s wife is the ‘First Lady.

Fact: The Raja Permaisuri Agong is the ‘First Lady’ (Article 32.2).

Fallacy: The previous Prime Minister has no power/authority.

Fact: The previous Prime Minister is above the Cabinet Members (Menteris Besar/Chief Ministers), Chief Secretary, Attorney-General, Chief of the Armed Forces Staff, and the Inspector-General of Police.

Fallacy: The Agong must appoint the Prime Minister from amongst the leadership of the political party with the majority seats in Parliament.

Fact: The Agong can act on his discretion in the appointment of the Prime Minister (Article 39).

Fallacy: The Agong must dissolve Parliament once the Prime Minister advices him to do so.

Fact: The Agong can withhold consent for the dissolution of Parliament (Article 39).

Fallacy: The Agong cannot interfere in the running of the country.

Fact: The Agong can declare an emergency if he is satisfied it is prudent to do so (Article 150). Under this emergency proclamation, the Agong can issue other proclamations which will be above judicial review and unchallengeable in court even if it violates the Constitution.