LAW 487CONSTITUTIONAL LAW

The Yang di Pertuan Agong

The office was created in 1957 (Merdeka Constitution). He is a constitutional monarch- “should reign; but should not rule.”

It symbolizes the muslim and Malay character of federation.

Appointed from the nine Malay Rulers for a period of five years. He is elected by the COR, but may resign or be removed from office by the COR.

He must act on the advice of the elected political executive.

INTRODUCTION

UNIQUENESS OF OFFICE

1. Elected not hereditary by his brother Rulers : Art 32(3). He is chosen by ballot from amongst the nine Malay states Rulers.

2. Rotational : Art 32(3). All nine Malay Rulers can take turns to occupy the federal throne. The YDPA is elected under rules contained in Schedule 3 of the Constitution.

3. Short term = 5 years : there is no possibility he is being re-elected, but he can be removed before his term has expired. Art.32(3)

4. Elected Timbalan Yang di Pertuan Agong. Art.33(1). Exercise the functions and have same privileges of the YDPA (ONLY if the YDPA vacant his office). Remains the Ruler of his state unlike the YDPA. What happens if the YDPA dies in office? Will the TYDA automatically step in as the YDPA?

cont’…

5. The YDPA is forbidden to exercise the functions of a Ruler except in relation to Islam, amendments to the Constitution of his state and the appointment of a Regent. This is because he is now the head of the Federation. Art 34(1) & 34 (8)

6. No immunities (since 1993) from civil and criminal proceedings in his personal capacity. Art 181-183

7. The YDPA can be suspended if he is charged for a criminal offence till the trial completed : Art 33(A)

8. The YDPA can be dismissed through :-a) Decision of the COR. Art 32(3) & Art 38(6)(a)

Constitutionally, the YDPA is subjected to PM’s advice; but if the COR does not agree, so how?

Constitutional Crisis 1983

b) If he ceases to be a Ruler of the state. Art 32(3)

FUNCTIONS

1.1. Non-discretionaryNon-discretionary (he exercises it as a constitutional monarch in accordance with advice)

a) Advice of Cabinet (PM) : the role of the YDPA is purely formal and symbolic

i. See Art 40(1) and Art 40(1A) : Unless a clause explicitly confers personal discretion, all references to the YDPA in the Constitution should be interpreted to mean “YDPA acting on advice”

b) Advice of Cabinet/ PM after consultation with other named bodies ; COR, Pardon Board or other Boards

c) Advice of other bodies without involving the PM/Cabinet; Islamic matters

d) Stop 12.3.2013/15.3.2013

cont’…

N Madhavan Nair v Government of MalaysiaN Madhavan Nair v Government of Malaysia [1975] 2 MLJ 286, 289, per Chang Min Tat J;

“emergency rule which passes the legislative power from Parliament to the YDPA has not displaced his position as the Constitutional Monarch, bound by the Constitution to act at all times on the advice of the Cabinet [except, of course, in those discretionary matters spelled out in the constitution]”

Case:The applicant in this case, the Publicity

Secretary of the Democratic Action Party, Youth, Malaysia, applied to court for a determination of the validity of the Emergency (Essential Powers) Ordinance, No 1 of 1969 and the Essential (Community Self-Reliance) Regulations, 1975.

The Ordinance as published in the Gazette notification did not (a) bear the public seal and (b) did not contain the formula and legend usually appended at the end of such Ordinances. Applicant contended that this meant that the Yang Dipertuan Agung had not assented to such Ordinance, that it had not been properly or at all promulgated and had not the force of law of the land. Applicant also contended that the Yang Dipertuan Agung had no power to make essential regulations and that the Prime Minister had no power to make orders under such regulations.

Refer case……………….

cont’…

Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawil Sli (No 2) [1967] 1 MLJ 46,47, per Pike CJ (Borneo);“…since under Art 40…the YDPA is required to act upon the advice of the Cabinet in making a proclamation under Art 150 [and indeed in all other matters except those mentioned in clauses (2) and (3) of Art 40], it cannot…be argued that the power conferred by Art 150 is a prerogative power analogous to certain powers of the British Sovereign.”

cont’…

Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50, Lord Diplock, delivering the judgement of the Privy Council;“…when one finds in the Constitution itself or in a Federal law powers conferred upon the YDPA that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affairs exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.”

FUNCTIONS

2. Discretionary a) Enumerated : Art 40(2)

i. Appointment of the PM ; Art 43(2)– “hung Parliament”

ii. Dissolution of Dewan Rakyat; Art 55(3)

iii. Call for the COR meeting; Art 40(2)(c)

iv. Any other case mentioned in the Constitution Whenever you come across the word YDPA;

you must read it with Art.40(1) because he is a constitutional monarch.

FUNCTIONS

2. Discretionaryb) Unemunerated areas

Caretaker government : role of the YDPA to appoint a caretaker govt during the interim period.

Art 66(4) & Art 66 (4A) – delay by 30 days : can decide discretionary because there is no government

Exceptional power

The YDPA is the formal head of the executive branch. He is the head of the state but not the head of the government.

He is a constitutional monarch where he is required to act in accordance with the advice of the Cabinet/PM.

Conclusion