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Introduction
When Malaysia received its independence in 157, it chose to establish a government based on the concept of parliamentary constitutional monarchy with a Federal Government structure. The present constitution with its parliamentary and cabinet system is based on the British Westminster model. Since independence, Malaysia is being ruled by Barisan National coalition of political parties. Formerly it was known as Alliance, but in 171 it became Barisan National.
Malaysia has a unique system of constitutional monarchy giving each of the nine State Rulers a chance to be King for five years in rotation. The rotation of the post was the brainchild of Tunku Abdul Rahman, the first Prime Minister, when Malaysia gained independent in 157. The Yang di-Pertuan Agong is elected by the Conference of Rulers' meet to elect a successor. He holds office for five years or until his resignation or death. Upon elected the Yang di Pertuan Agong relinquishes all his functions as the Ruler of his own State during his tenure as King. However, he remains head of the Muslim religion in his State.
Conference of rulers…
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The conference of rulers was established in July 187 when it met for the first time in Kuala Kangsar, the citadel of the Sultan of Perak. During 146-48, the period of the Malayan Union, it was referred to as the Council of Sultans. Under the Federal Constitution, the Conference of Rulers is subjected to Article 8 and the fifth schedule.
In Malaysia the Conference of Rulers consists of the various Sultans, who, having chosen their parents well, serve for life. However, under the Federal Constitution, fifth schedule, not only the sultans will be a member of the conference of rulers, but the Yang di-Pertua Yang di-Pertua Negeri also will be part of the conference of rulers. Being part of the Conference of Rulers, the Yang di-Pertua influence in the conference is limited if compared to the other sultans. For example, they are not to take part in the election of the Yang di Pertuan Agong. Only the sultans, in rotation, serve as King, with a term of five years. The Sultans are a permanent institution in Malaysia, going back over five hundred years. It is this permanence that highlights their position of power in the affairs of the country. The Constitution of Malaysia, though after plenty of amendment, which, have lessen the influence and powers of the sultans, still manages to recognize the primacy of the Conference of Rulers. The Sultan resident in the national palace as King, is given by the Constitution a range of powers, and he exercises these in consultation with his fellow Sultans, who, though busy with the affairs of their fief, meet regularly to tend to matters of national need. The number of appointments made by the Conference of Rulers, with the King acting as their spokesman, is large, giving them extraordinary influence in the selection of federal officers.
Jurisdiction of the Conference of Rulers…
The federal constitution, under Article 8() invested several significant and influential legal and political roles to the conference of rulers. One of the most important functions of the conference is the appointment of election of the Yang di-Pertuan Agong (YDPA). Article 8()a give the power for the conference of rulers to elect the King and his deputy as accordance to the Third Schedule. With this power given to the conference, it places a prevailing power upon them. As stated in the constitution and which is widely accepted, the YDPA is the head of state with vast powers laid upon him. Even though, the YDPA powers are subjected the certain constraint, such as to act on advice of the Prime Minister, he still have some discretionary powers which render him as an important constitutional figure of the land. Example of powers which gives the YDPA dominance are appointment of PM, refusing the request for early dissolution of the parliament, and the power to appoint some important federal post. All these powers are very important in ensuring the smooth drive of the government. Therefore, in the sense that the YDPA is an important constitutional figure, and the power to elect the YDPA is on the conference of rulers, it can be held that, the conference of rulers hold a very important power on their hand. However, despite this power, it can be argued, the jurisdiction of the conference only up to that point. They can appoint a YDPA but later on, when the YDPA is appointed, the YDPA is to act on advice or to act under his discretion on matters which he may do so. Under the constitution, the YDPA must not follow what the conference intention, he may disregard it or agree with what the conference want. Furthermore, under the constitution, it requires the YDPA to act on advice of the PM, therefore, generally, if the intention of the PM is inconsistent with the desire of the conference, the YDPA must favor the PM. Looking at this point, it is safe to say that the jurisdiction of the conference, in terms of appointing a YDPA is only to that extent. They can only appoint.
Another jurisdiction of the conference is to remove the King. This power is vested upon them under Article 6(a) of the Federal Constitution. This power is inevitably related to their other power, which has been mentioned above that is to appoint a King. With this power, arguably, the office of the YDPA is under the pleasure of the conference. Though never exercised, this remarkable power under probably exerts a significant pressure on the King to respect the wishes of his brother Rulers. After examine this power, it is seem that the jurisdiction of the conference in influencing the government is extended. It can be said that, the YDPA is, to ensure the security of his office; he should follow the request of the conference because if he does not, he can be dismiss by them. It gives the King a good reminder for not to simply disregards their demand. In 18, when the YDPA is required to assent a bill, which enable the legislation to bypass the YDPA and the sultans, he didn't do so. This is because the conference of rulers "advised" the YDPA to withhold the assent. Even though the YDPA withhold his assent and the government did compromise with the conference, it should be noted that if the government or the PM insist for the YDPA to assent the bill, the YDPA must to so. If he fails to assent, after on advice, his omission is unconstitutional and the PM can challenge it in the court of law. After analyzing this point, still it comes to a similar conclusion, which is the power of the conference of rulers in appointing, and dismissing the YDPA is, under the constitution, only up to that extent. If the PM wants a bill to be assented, he can do so even if it is against the conference's wish.
Another jurisdiction of the conference of rulers is the power to veto legislation. Under Article 8(4), any law that affects the privileges, position, honors or dignities of the Rulers cannot be passed without the consent of the conference of rulers. Under Article (b), consent of the conference of rulers is required if a law is to be passed regarding the alteration of state boundaries. In relation to the amendments to the Federal Constitution, Article 15(5) requires that any legislation making amendment to certain matters under the constitution shall not become law without the consent of the conference of rulers. The matters are an amendment concerning the conference of rulers of the Article 8, an amendment to Article 70 of the constitution which deals with the precedence of rulers, an amendment to Article 71 which guarantees the right of a ruler to enjoy and exercise the constitutional rights and privileges of a ruler, an amendment to Article 10(4) which permits laws to prohibit the questioning of some enumerated "sensitive issues" of the body politic, and amendment to Article 7(4) freedom of speech at the State Legislative Assembles, Article 6(4) freedom of speech in Parliament, Article 15 which makes Malay the national language, Article 15 special privilege for orang asli, and Article 14 and 1 regarding citizenship.
Above, we can see, that the conference of rulers can veto a number legislation. The collective effect of Articles 8(4), 15(5) and (b) created an entrenched part of the constitution. It preserves the special rights of the royals that their consent is required to make law. There are two occasions where a Bill had to be redrafted in order to make it acceptable to the conference. One in 18 regarding the bypass of consent and another in 1 over the withdrawal of royal immunities. Nevertheless, even with the power to veto legislation, it is still a limited jurisdiction for the conference of rulers. Almost all of the legislation that requires the consent of the rulers is trivial in effect. 4 out of it are regarding the rulers themselves. Article 7(4) and Article 6(4), which concerns about the freedom of speech in State Legislative Assembly and in Parliament respectively, in away have been, intrude. This is so because under the Sedition Act 148 or more famously known as Akta Hasutan, if a person says something that is seditious, they can be prosecuted and seditious is considered as a crime. The Sedition Act, originally enacted by British colonial authorities, limits free expression by broadly criminalizing any speech that is judged to have a seditious tendency, including speech which tends to bring into hatred or contempt or to excite disaffection against the government, promote feelings of ill-will and hostility between different races, or question constitutional preferences in business, education, and government employment opportunities given to Malays and natives of Sabah and Sarawak. The speakers intent and the statements veracity are irrelevant. A violation of the act is punishable by up to three years in prison, a 5,000-ringgit fine or both. An MP, who is supposedly have the immunity for anything he said in the Parliament, under this amended Sedition Act can be prosecuted if he says something seditious, even if he says it in Parliament. From this we can see that the right to freedom of speech in Parliament have been tampered, and this is done without the requirement of the consent of the conference of rulers.
Another legislation that requires the consent of the conference of rulers is the amendment to article 15, which makes the Malay language as the national language. Even if the national language is the Malay language, how far can it affect the public as a whole? It is up to them the speak in what language, even now, most of youngsters in Selangor speak English rather than Malay, and the government is now slowly accepting that mastering English is more important than Malay language. Therefore it is safe to say that only the legislation regarding the "sensitive issues" Article 10(4), article 15, privileges of orang asli and Article 1 to 1 about citizenship is seen as the real power to the conference of rulers. And these are only three topics out of 18 articles under the constitution. This clearly shows that the jurisdiction of the conference is trivial and very limited.
The conference of rulers under Article 8(6)(b) is given the right to be consulted before several critical posts are filled. These critical posts are judges of superior courts, the Auditor-General, the Chairperson and members of the Public Services Commission and the Election Commission. This consultation is mandatory and if the conference is not consulted before the appointment, this appointment shall be declared by the Federal Court as null and void as the appointment is inconsistent with the constitution. The conference of rulers can bring this matter to the Federal Court if there is any appointment on critical federal post is filled without their prior consultation. As powerful as it may seem, it need to be stressed out that this appointments only require consultation. It doesn't need their consent. Mere consultation will do. Though the PM has the right to have his way on these appointments, there is no doubt that the mandatory consultation with the conference is an important safeguard for examining the suitability of the proposed appointees. But again, it only requires consultation.
Under Article () of the Federal Constitution the Sultans are the head of the religion of Islam in their states. The YDPA is the head of the religion of Islam in Wilayah Persekutuan, Labuan, Putrajaya, Melaka, Penang, Sabah and Sarawak. Under Article (5), the Parliament may by law make a provision for regulating Islamic religious affairs and for constituting a council to advise YDPA. For matter relating to Islam, the conference has the discretionary power to agree or disagree to the extension of any religious acts, observance or ceremonies throughout the whole Federation. From this, it is clear that the conference of rulers do have a full jurisdiction in relation to Islam. Even though the YDPA is to act on advice of the Council of Islam, the conference of rulers do not. Nowhere in the constitution states that the conference is to act on advice of the Islamic Council. Therefore, to this extent, the conference has a wide jurisdiction in regarding Islam. An example of a situation where the conference of rulers has a wide jurisdiction in regarding Islam is when they issued a ruling to permit the use of word Islam in political parties and organization even though the ruling government at that time suggested otherwise.
The constitution in Article 8(5) requires that the conference to be consulted before any changes in policy affecting administrative action under Article 15 be made. Again, the word consulted is used. Article 15 is regarding the privileges of the Malays and the natives of Sabah and Sarawak and the legitimate interests of other communities. The word consulted is plainly used. Therefore, if the government intends to change their administrative policy concerning the privilege of Malays and native of Sabah and Sarawak, just tell it the conference and they can change it as they want.
Another special prerogative jurisdiction for the conference is the power to pardon. Under Article 4(5) the conference of rulers may exercise mercy after considering any written opinion of the Attorney General. The conference may grant pardon the YDPA or the sultans if they were found guilty in a criminal court. The conference also has the power to grant pardon in relation to the consort of the YDPA or a ruler. Despite this prerogative power to exercise mercy, it can be argued that this power is only to act on advice. It is said that in order for the conference to grant pardon, they must first received the advice of the pardon board and after considering a written opinion of the Attorney General. They cannot simply give pardon. If Malaysia follows what is practiced in the United Kingdom, where the Queen's power to pardon can only be exercise on advice, then the conference is only to act after advice. However, this matter is yet to be decided in Malaysia and is still open to debates. Whatever it is, the conference cannot just simply give pardon because the Pardon Board accompanies them on this matter.
In a constitutional amendment in 1, the rulers and the YDPA has no longer immunity, neither in civil nor criminal actions. Under Article 18 requires that any proceeding that involves the YDPA or the sultans, the action will take place in a Special Court. Under this article, the conference is honored the power to nominate two judges to preside in that court. Again, this is a situation where it only concerns the rulers. The conference can only appoint judges where the case that is going to take place concerns the rulers. If not, the conference has no power to do so. This why it is said that the extent of the jurisdiction of the conference of rulers is limited. In fact, in the Special Court, only two judges out of five will be appointed by the conference, therefore their appointments won't even be majority in the court. Even if the two judges decided on behalf of the rulers, the other three can decide otherwise. So, in discussing about the jurisdiction of the conference in relation to justice, it can be said that their jurisdiction is only influential in regards to their brethren in trial. Even in this kind of trial, their power is still subject to limitation.
The conference of rulers has been invested by the constitution with a unique unifying and advisory role. Under Article 8() it has been given the power to deliberate on questions of national policy and any other matter it thinks fit. This article also requires that when the conference deliberates on matters of national policy, shall be accompanied by their respective Menteri Besar or Chief Minister. It is also a requirement under this article that the deliberation shall be among the functions exercised, by the ruler(s) in accordance with the advice of their executive council. Therefore this function is non-discretionary because its performance is accompanied by their Menteri Besars or Chief Ministers. The conference may ask questions on national policy, they may even give advice and share their views about national policy, but whatever it is, their views and advises are not binding.
The last but not least of the jurisdiction of the conference is granting honor. Each sultan and The Yang di-Pertua Negeri can grant honors. This is power is prerogative in nature and is nowhere mentioned in the constitution. Even though this jurisdiction is exercised on advise, it is acceptable if the conference of rulers wishes to honor some subject that he likes.
Conclusion…
The conference of rulers is a distinctive Malaysian institution. Their functions are varied and they do enjoy some jurisdiction in certain matters. This powers or the Federal Constitution vests jurisdictions on them. This assignment requires me to critically analyze the extent of the jurisdiction of the conference of rulers. After a bit of research and study, I manage to understand what is the conference of rulers and develop my own view about the extent of their jurisdiction. The conference has the power to appoint and dismiss the YDPA. The conference may even veto some legislation. The conference has the right to be consulted for certain critical appointments, if there are any changes in policy under Article 15 and regarding national policy. They are the head of religion of Islam in their respective states and they have the power to nominate two court judges for the Special Court. They can also exercise mercy. All these are the conference of ruler's jurisdiction and almost all are limited. Most of these jurisdictions only require the conference of rulers to be consulted. After consultation, they can't do anything about it. After appointment, they can no longer demand their appointees to do what they say and they also have to act, in certain condition, on advice. Most of the jurisdictions of the conference are only concerning their brother rules. Seldom it affects the public as a whole.
In sum, even though the conference of rulers is vested with discretionary and non-discretionary powers as one mean of check and balance, their jurisdiction are very limited and have little effect.
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