by Ganesh Sahathevan*
In considering Constitutional Law it is important that one does not dismiss the cultural, religious and other societal factors that provide the context within which constitutional matters are decided in reality.
To appreciate the full extent power of Malaysia's Malay Rulers, the sultans of the respective states, and the King, or Agong, who they choose from among themselves to rule the country in turn, one needs to appreciate that the rulers occupy a paramount place in the Malay community and in the Islamic faith that all Malays are at least nominally adherents.
Therefore, while nominally constitutional monarchs the rulers have a cultural influence that is probably in excess of any strict legal reading of the constitutions of the Malaysian states and the federal constitution.
The recent comments of the Crown Prince of Johor are a case in point.
To understand the extent of their powers an understanding of the legal basis underlying the dismissal of Australian Prime Minister Gough Whitlam in 1975 by the Governor-General Sir John Kerr, as representative of Queen Elizabeth in her capacity as Queen of Australia, can provide useful guidance.
To summarize that incident:
On 11 November 1975 the Governor-General, Sir John Kerr, dismissed
Gough Whitlam as Prime Minister .For the first time, an unelected vice-regal representative, the Governor-General, had removed from office a prime minister who had a majority in the House of Representatives.
Kerr's reasons in his own words as follows:
It has been necessary for me to find a democratic and constitutional
solution to the current crisis which will permit the people of Australia
to decide as soon as possible what should be the outcome of the
deadlock which developed over supply between the two Houses of
Parliament and between the Government and Opposition parties. The only
solution consistent with the constitution and with my oath of office and
my responsibilities, authority and duty as Governor-General is to
terminate the commission as Prime Minister of Mr Whitlam and to arrange
for a caretaker government able to secure supply and willing to let the
issue go to the people.
I should be surprised if the Law Officers expressed the view that there
is no reserve power in the Governor-General to dismiss a Ministry which
has been refused supply by the Parliament and to commission a Ministry,
as a caretaker ministry which will secure supply and recommend a
dissolution, including where appropriate a double dissolution. This is a
matter on which my mind is quite clear and I am acting in accordance
with my own clear view of the principles laid down by the Constitution
and on the nature, powers and responsibility of my office.
While the Malaysian and Australian Constitutions are of course very different they are both based on the concept of a constitutional monarchy. The key phrase in Kerr's reasoning is the reference to reserve powers and it would be fair to say that these powers are present in the Malaysian Constitution.
In the Malaysian context it is important to keep in mind the following that makes Malaysia very different from Australia:
a) Malaysia was formed by agreement of the rulers,and so it is at least open to argument that they can choose to take their states out of the federation if they so wish.
b) The Malaysian Prime Minister cannot dismiss the Agong, while the Australian Prime Minister has at least the power to dismiss the Queen's representative.
c) Culturally, the majority Malays, unlike Australians and even the British, would not object to their rulers speaking on any matter , including the government of the day. Again there is the recent example of the Johor Crown Prince.
Taking these few factors alone, and more extensive research will probably find more, the Agong and the Malay Rulers would, prima facie, appear to possess reserve powers greater than that of the Australian Governor-General (who represents the Queen as head of state). It follows then that they have a responsibility to exercise that power in times of crisis where a change of at least prime minister is necessary. Readers,can decide for themselves if there is at this point of time in Malaysia's history such a crisis, requiring the rulers to intervene.
*BEc,LLB (Monash), LLM (Sydey)