THE concept of “constitutional monarchy” limits the powers of the monarch who had previously enjoyed the powers of absolute monarchy. History shows that “traditional constitutionalism” in the past that protected the rights and interests of the few ruling elites such as the monarch and some members of the nobility was soon replaced by the concept of “modern constitutionalism”, which is concerned with the protection of the rights of the people. With regards to the position of the Yang di-Pertuan Agong (YDPA), the Reid Commission Report of 1957 together with the White Paper on the Constitutional Proposals of Malaya 1957 contain clear provisions to limit the position of the YDPA to a ruler who acts on advice. The federal constitution further continues this purpose by specifically limiting the powers of the YDPA with regards to “His functions under the constitution” in Article 40(1) together with Article 40(1A) which states that the YDPA is bound to act on such advice.

But what the constitution says and how it is understood and practised could be two separate things altogether. This is because the constitution in reality is just a piece of document. Its power and significance is derived from that which is bestowed by the people and the government officials. Thus, while we crave for certainty in life, especially in the content and enforcement of the law, in reality it might be difficult to achieve since a person’s comprehension is determined not only by his personal will but also by social factors since man is a social animal. Thus in reality there is often an inconsistency between the actual content of a constitution and “the living constitution”.

Does the YDPA have discretion in making a proclamation of emergency? The federal constitution is very clear on this point. While Article 150(1) only says that it is to be made by the YDPA, Article 150 has to be read together with Article 40(1) since making a proclamation of emergency is one of “His functions under the constitution”. Several cases that were decided by the court in the past have also confirmed this position. Also, technically, when the cabinet has advised the YDPA to make such a proclamation, under Article 40(1A), the YDPA does not have any discretion and that he is bound to accept and act upon such advice.

The refusal of the YDPA yesterday in issuing a proclamation as advised by the cabinet certainly demonstrates the existence of a “living constitution”. Several other “constitutional anomalies” also accompanied the YDPA’s refusal. Firstly, the YDPA called for a meeting of the Conference of Rulers to discuss the matter. Articles 40 and 150 are silent on this point. The federal constitution does not provide for any consultation with the Conference of the Malay Rulers prior to issuing a proclamation of emergency. Next, according to the 8th Schedule of the federal constitution, even in exercising his authority as a member of the Conference of Rulers, the Malay rulers do not enjoy any personal discretion and that they must act on the advice of their respective state executive councils. So when the YDPA called for a meeting of the Conference of Rulers yesterday, in theory even in such a meeting the powers of the Malay rulers would similarly be circumscribed by Section 1 of the 8th Schedule.

Was the YDPA’s refusal unconstitutional? It is difficult to reach to a different conclusion according to a strict and literalist reading of the federal constitution. However, with reference to the concept of a “living constitution”, it was argued by some academics that the powers and sovereignty of the Malay rulers transcends the written constitution in which the principle of “constitutional monarchy” is believed to be a colonial imposition in the colonial past. Therefore the YDPA as a Malay ruler enjoys some prerogative powers which include the proclamation of emergency in which it is argued that the YDPA has the discretion to decide whether to accept or reject such advice from the cabinet. Clearly this opinion is in direct opposition to the clear provisions in Articles 40 and 150 of the constitution. This writer humbly believes that nostalgia for the past concerning the historical existence of past Malay Sultanates would probably necessitate such a way of thinking. While a constitution certainly is difficult to be divorced from the culture, traditions and history of its people, we have to be very careful in attempting to read into the constitution principles of customs and traditions. Before such an attempt is made, an honest exploration into the social facts of class interests must be first looked into since customs and traditions are more aligned to the concept of “traditional constitutionalism”.

Another view of “the living constitution” relating to the YDPA’s decision was provided by Aziz Bari last night during his live Facebook talk. He said that in refusing to accede to the advice given by the cabinet, the YDPA was just acting to defend the concept of democracy in Malaysia. This opinion is in line with the view that looks at emergency proclamations with suspicion since it is anathema to democracy. Under democracy, laws are passed by the representatives of the people and they are accountable for their actions in Parliament. During an emergency, it is the executive that makes the law instead of the legislative body and that both the laws made during an emergency together with the executive would enjoy certain protections. It is this part of emergency that is viewed with suspicion since it is anti-democratic. To look at the YDPA’s action from this angle, this would not be “revolutionary” since it conforms to the basic structure doctrine. Under this doctrine, there are some concepts and values which are sacrosanct and they transcend the constitution. This doctrine is certainly not free from controversies since the principles that are argued to form such basic structure might not be supported by any specific provisions in the constitution. For example, there is still a debate as to whether “separation of powers” and “judicial power” are part of the basic structure of the Malaysian constitution since the federal constitution does not say that such concepts cannot be amended.

Next, it has been argued that there was no “advice” given by the cabinet with reference to the concept of advice in Article 40(1). It was argued that the cabinet only submitted a proposal to the YDPA concerning a proclamation of emergency and that since it was only a proposal instead of an “advice”, the YDPA was constitutionally correct in rejecting such a proposal. This view found support in the letter issued by the keeper of the rulers’ seal. That letter stated “...memohon perkenan Baginda untuk mengisytiharkan darurat berdasarkan Perkara 150 Perlembagaan Persekutuan…”. This argument again demonstrates the existence of “a living constitution” in Malaysia where there is no uniformity in the meanings of the words and phrases in the constitution. A standard translation of “memohon perkenan Baginda” would be “making an application (or a proposal) to his majesty”. But in the context of the royal customs of the Malay rulers, particularly in the mode and form of language that a citizen uses to address the Malay rulers, it is highly unlikely for the cabinet let alone any politician to use plain words to advise the Malay rulers. Etiquette and protocol with reference to “the language of the palace” or “Bahasa Istana” would necessarily dictate that one does not “advise” the Malay rulers and that one must only “propose”. Looking at the letter from this angle would support the view that there was an advice made by the cabinet to the YDPA and that it was rejected.

All of these would be particularly confusing to those who read the constitution literally and expect absolute conformity to the provisions of the constitution. Maybe it is time to explore other dimensions of the constitution instead of mere obsession with its content. The constitution does not exist in a vacuum. Its meaning, its significance, its workings, all of which depend on the constitutional culture of the polity. – October 26, 2020.

* Mohd Nazim Ganti Shaari is a law lecturer at Universiti Teknologi Mara.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.