The constitutional monarch's role in A-G's appointment

A FEW hours ago, The Malaysian Insight carried a story that the Yang di-Pertuan Agong (YDPA) has not acted on and has asked Prime Minister Dr Mahathir Mohamad to reconsider his choice of renowned lawyer, Tommy Thomas, as the attorney-general (A-G) of Malaysia.

It was reported that “Instead, there have been messages relayed from the palace, seeking that Pakatan Harapan drop its choice of Thomas. Dr Mahathir was asked to consider several other candidates, including a former high court judge and a serving court of appeal judge.

“The Malaysian Insight understands that other Malay rulers have also supported the King’s position, adamant that the A-G should be a Malay/Muslim.”

Regardless of the accuracy of such reports, it is important that Malaysians recognise the YDPA’s role in the appointment of key offices prescribed by the federal constitution – including the A-G.

Malaysia is a constitutional monarchy. A constitutional monarchy is a form of government where a King or Queen acts as the head of state – but strictly within the parameters of the constitution.

The monarch is therefore is not vested with direct executive powers to govern a country. The monarch acts as a ceremonial symbol of unity instead. This is similarly practiced in the United Kingdom, Spain & Thailand.

What does our constitution say about the appointment of the A-G?

Article 145(1) of the federal constitution states that “the YDPA shall, on the advice of the prime minister, appoint a person who is qualified to be a judge of the Federal Court to be the attorney-general for the federation”.

Nonetheless, because we are a constitutional monarchy, Article 40(1A) of the federal constitution states that the YDPA in such circumstances must accept and act in accordance with the advice of the prime minister. There is no room for any exercise of discretion.

In Anwar Ibrahim v Perdana Menteri Malaysia & Anor [2010] 3 MLJ 174, our apex court considered Article 40(1A) and held:

“The YDPA upon being advised by the prime minister on the choice of his candidates must act on such advice. His Majesty does not have any discretion to reject or question the discretion of the prime minister… Reference to the YDPA in the said article of the federal constitution is only a formality by virtue of his majesty being the constitutional monarch.

“Such a clear demarcation of power and roles between the prime minister and the YDPA in matters of appointment and revocation of ministerial posts is imperative in order to realise the role of collective responsibility of the cabinet ministers.”

The YDPA may only exercise his discretion in very limited areas prescribed under Article 40(2): the appointment of prime minister, withholding of consent to a request for the dissolution of Parliament, etc.

By extension, the Council of Rulers also does not need to be consulted beforehand or have a say in the appointment of the A-G.

There is further no constitutional requirement that the A-G must be of a particular race or professes any specific faith. This is unlike most state constitutions in Malaysia which constitutionally require the menteri besar to be a Malay and to profess the religion of Islam.

Hence, as long as the prime minister advices to appoint as A-G a candidate whom the prime minister himself believes is qualified to be a judge of the Federal Court, the YDPA is bound to act on such advice.

Otherwise, the very core of our nation’s governing blueprint as a constitutional monarchy will be shattered. It will be a dangerous precedent if the clear demarcation of roles between the monarchy and executive is blurred.

Be it the common man or the royal palaces – the federal constitution must always be the guiding scripture for all on how we function as a democratic nation. – June 2, 2018.

* Lim Wei Jiet is an advocate & solicitor of the High Court of Malaya & deputy chairman of the Bar Council’s Constitutional Law Committee.

* 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.

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  • Very clear and precise distinction on the roles have been spelt out in the Constitution and with that suppose "Impasse" the rakyat is kept in the dark on why such an important appointment is unnecessarily delayed causing justice not being able to be implemented. This is something that a democratic and transparent government is being not seen in the eyes of the rakyat, which is their very rights as a citizen of proud and new Malaysia.

    Posted 5 years ago by KT Hong · Reply

  • Thank you very much for your clear and concise summary. I hope the King is receiving this same adcise too

    Posted 5 years ago by A T · Reply

  • Article 145 on Attorney General reads:

    (1) The YDPA shall. on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.{ It should be clear that it is the PM who is responsible to ensure that the AG meet the qualification stated.}

    Article 40(2) reads:
    The YDPA may act in his discretion in the performance of the following functions, that is to say:
    (a) the appointment of a PM;
    (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 meeting.

    Article 40 Yang di-Pertuan Agong to act on advice other than those provided under Article 40(2) above.

    Posted 5 years ago by Meng Kow Loh · Reply

  • Now the role of Sultan and agong has gone too far. . about time to replace all the sultans with an elected president

    Posted 5 years ago by Stan stanoi · Reply