LAW 487

CONSTITUTIONAL LAW

The Yang di Pertuan

Agong
INTRODUCTION
 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.
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. Non-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
cont’…
 N 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. Discretionary
b) 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
DISCRETIONARY POWER OF
THE YDPA UNDER ART 40(2)
1. Art 43(2) - Appointment of
PM
2. Art 55(3) - Dissolution of
Dewan Rakyat
Case: Datuk (Datu) Amir Kahar
bin Tun Datu Haji Mustapha v
Tun Mohd Said bin Keruak Yang
di-Pertua Negeri Sabah & Ors
55(3) [1995] 1 MLJ 169
3. Convening of Conference of
Rulers – Art 40(2)(c)
 Other cases:
1. Right to advise, encourage and
warn – Art 40(1)
PP V Mohd Amin Mohd Razali
(2000) 4 MLJ 679

2. Dismissal of PM – Art 43(4), (5)

Stephen Kalong Ningkan V Tun
Abang Haji Openg & Tawi Sli
(1966) 2 MLJ 187
3. Art 42 -
Power of Pardon

Juraimi bin Husin V Pardon Board

(2002) 4 MLJ 529

Karpal Singh V Sultan of Selangor

(1988) 1 MLJ 64
 4. Unconstitutional Legislation

Art 38(4) – no law directly affecting

the privileges, position, honour and
dignity……..
and Art 159(5) - ………shall not be
passed w/o consent of CoR

5. Granting of Honour
 Art 40
YDPA who in the exercise of
most of his powers act on
advice
 BALAKRISHNAN v KETUA
PENGARAH PERKHIDMATAN
AWAM MALAYSIA AND THE
GOVERNMENT OF MALAYSIA
[1981] 2 MLJ 259
In this case the appellant had
been charged with attempted
corruption but was acquitted.
 Held:
the reference to the
Government in the letter of the
Director of Public Services is
sufficiently comprehensive to
manifest the Yang di-Pertuan
Agong’s participation in the
decision made.
 MERDEKA UNIVERSITY v
GOVERNMENT OF MALAYSIA
[1982] 2 MLJ 243
 Issue:
a company limited by
guarantee, submitted a petition
to the Yang di-Pertuan Agong
for an incorporation order for
Merdeka University under s 6 of
the Universities and University
Colleges Act, 1971.
 Held:
(3) as there is no right to use
the Chinese language for an
official purpose, it was not
unconstitutional and unlawful of
the Government to reject the
petition to establish Merdeka
University;
Abdul Ghani bin Ali @ Ahmad
& Ors v Public
Prosecutor[2001] 3 MLJ 561
 Issue:
These two appeals were from the
decision of the trial judge
dismissing the preliminary
objections raised by the appellants
in the High Court below, where they
were charged with waging war
against the Yang di-Pertuan Agong,
an offence punishable under s 121
of the Penal Code.
issues: (i) whether the Essential (Security Cases)
(Amendment) Regulations 1975 (‘ESCAR’) was
invalid and unconstitutional, thereby resulting in
the trial under ESCAR being invalid and
unconstitutional;

(ii) whether the decision of the Attorney General to

issue a certificate under reg 2(2) of ESCAR
(declaring the appellants’ case as a security case)
in the absence of a
de facto emergency was unlawful and, hence,
void; and

(iii) whether the trial under ESCAR was invalid for

non-compliance with reg 6(2) of ESCAR
 YDPA

Power and Functions

 Executive Functions

* The executive authority of Federation

shall be vested in the YDPA – Art 39
* Appt of PM, Minister and Deputy Min.
- Art 43(1), (2) and 43A
* Dismissal of Minister other than PM –
Art 43(5)
* Receiving information concerning
government – Art. 40(1)
* Supreme Commander of Armed
Forces – Art 41
 Armed Forces Council act under
his general authority – Art 137

Appoint and removal of person in

Federal Public Service – 132(2A)
and 135
Appoint and removal of members of
Commission and Council
established by the Const.
 Election Com – Art 114
Armed Forces Councils – Art
137
the Judicial and Legal Service
Com – Art. 138
Public Service Com – Art 139
the Police Force Com Art 140
the Education Service Com –
Art 141A(2)
 Appt of Advisory Brd to deal with
preventive detention cases – Art
151(2)
Appointment of other special
officers:
Chief of the Armed Forces – 137(3)
Attorney General –Art145(1)
Auditor General – Art 105
Duty to consider recommendations
of the Advisory Brd in preventive
detention cases – 151(1)b
Proclaim an emergency – 150(1)
Determine which public authorities
shall submit accounts to the Auditor
General – Art 106(2)
 ***Declare an area in a State to be a
‘development area’ – Art 92(1)
***Protect the special position of the
Malays and the Natives of Sabah and
Sarawak and
*** to safeguard the legitimate interest
of other communities – Art 153(1)
***The Grant of Honours – not provided
by the Const. – prerogative
Functions in Relation to the
Judiciary
Art 130
Reference to the Fed Court to
seek the court’s advisory
opinion on any constitutional
question
 Art 122B
Appt of judges of the High Crt,
Crt of Appeal and Fed Crt

Art 125
Power to remove, retire or
suspend superior crt judges
subject to the provisions of the
Constitution
 Art 138
Appt of the Judicial and Legal
Service Commission

Art 42(1)
Power to grant pardons,
reprieves (relieve temporarily)
and respites
Chiaw Thiam Guan V Spt of
Pudu Prison & Govt of Msia
(1983) 2 MLJ 116
stay of execution would only
be an extension of the
prerogative of the Yang di
Pertuan Agong in accordance
with article 42 of the Federal
Constitution.
 Karpal Singh V Sultan of
Selangor (1988) 1 MLJ 64
……….not pardon anyone who has
been sentenced to the mandatory death
sentence for drug trafficking in Selangor
is in violation of Article 42 of the Federal
Constitution.
Spt of Pudu Prison V Sim Kie
Chon (1986) 1 MLJ 494
……..The Pardons Board had tendered
its advice to the Yang di-Pertuan Agong
and no pardon, reprieve or respite had
been granted
Juraimi bin Husin V Pardons
Board, State of Pahang & Ors
(2002) 4 MLJ 529
The prerogative of mercy was amongst
the powers that was not susceptible to
judicial review because its nature and
subject matter was such as not to be
amenable to the judicial process;
 Functions in Relation to
Parliament
Art 150(2B)
Promulgate Ordinance during
emergency if the two Houses are
not in session concurrently

Art 44- The YDPA is part of

Parliament –However, he does not
sit in Parliament.
 Art - 60
Right to address one or both
Houses separately or jointly

Art 55(1) and (2) - Power to

summon or prorogue Parliament

Art 55(2) and Art 40(2)(b)

-Power to dissolve the Dewan
Rakyat
Save under Art 66(4A) - YDPA assent
is required before a Bill can become
law
Power to remove disqualification from
membership of Parliament – Art 48(3)

Appointment of Clerks of Senate and

House of Representative –Art 65

Appointment of 70 Senators to the

Dewan Negara –Art 45(1)
 Functions relating to the receiving of
reports of the Auditor General and
laying them before the Dewan Rakyat –
Art 107(1( and 112A(1)
Laying before the Dewan Rakyat a
statement of the receipts and
expenditure of the Federation for every
financial year – Art 99(1)
Power to delay legislation by 30 days –
Art 66(4A)
 Functions in Relation to Islam
The YDPA is the head of Islam in
the Federal Territories – Art 3(5)
and in his own state –Art 34(1) and
in Malacca, Penang, Sabah and
Sarawak – Art 3(3)
YDPA presides over the Council for
Islamic Religious Affair for KL,
Labuan and Putrajaya – Art 3(5)
 Conclusion

 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.