LAW 487

CONSTITUTIONAL LAW
 THE EXECUTIVE BRANCH
• Malaysian Constitution is a unique expression
of the country’s varied culture & history
• One of the elements of M’sian Consti is the
institutions which it establishes. This Part will
follow the doctrine of separation of powers,
namely, executive, legislative and judicial
authority.
 THE EXECUTIVE BRANCH
• The Conference of Rulers (COR) & the
Yang di-Pertuan Agong (YDPA)
• The Prime Minister
– The Cabinet
– The Appointment and Dismissal of Ministers
• The Attorney General
• The Public Services
 The Conference of Rulers
1) known as “The guardian of the FC”
• The history of the unique Malaysian monarchy dated back to July
1897 when it met for the first time in Kuala Kangsar. It was known as
“Durbar”
• During 1946-48 – the period of Malayan Union, it was referred as
the Council of Sultans
• CoR means the meeting of the Malays Rulers including the Head of
the States, Governors and the YDPA.
• CoR was not meant to be merely ceremonial in nature, but as an
additional feature to the three basic branches of government
• Two significant events
» 1983
» 1993
 LAW

• Article 38 of the FC
• Lay downs the functions of the CoR
• Basically there are 2 functions
• Consultative functions
• Executive functions (discretionary functions)
 Consultative Functions
• Art 38 (5)
– Limited to administrative action under Art 153
• to matters affecting the special position in West
Malaysia – there are limits to constitutionally valid
discrimination
• Responsibility of the Head of the Govt and the Rulers
to safeguard the special position of the Malays &
natives.
 cont’…
• Art 38 (3)
– Refers to the questions of national policy
• All will attend – Head of States, Governors & YDPA
together with the Head of Governments
• CoR will act in accordance with the advice of the Head
of the Governments
• CoR cannot make any decisions – but to “advise,
caution and warn”
• Case : Phang Ching Hock v PP (No 2) [1980] 1 MLJ 213
 cont’…

• Art 38 (2)
– Appointments = mandatory consultation
• Dato’ Seri Anwar Ibrahim [2000] 2 MLJ 481
– What is meant by “to consult”?
– Duty to consider without being bound
 Executive Functions
• Art 38 (2)
– Electing the YDPA
– To Perform Functions of a Religious or Ceremonial Nature and Matter
Relating to the Monarchy itself

• Art 38 (4)
– Matters affecting the privileges, position, honours or dignities of the
Rulers
– Read together with Art. 159(5)

• Art 38 (6)
– Matters relating to the alteration of the state boundaries
 Article 38(1)
There shall be a Majlis raja-raja
(Conference of Rulers), which shall
be constituted in accordance with
the Fifth Schedule.
 Functions
• “the Conference of Rulers was not meant to be merely
perfunctory and ceremonial in nature… It is a key
constitutional body that was purposefully established
by the framers of the Constitution as an additional
facet to the three basic branches of government. The
Conference of Rulers was intended to be an additional
constitutional auditor…”

• There are some evidence in the Reid Papers as well as

the provisions of the Federal constitution regarding the
functions of the Conference.
 MAIN FUNCTIONS OF
CONFERENCE OF RULERS
 Article 38 of Federal Constitution
1. Election of the Yang di-Pertuan Agong
2. Dismissal of the King
3. Legislative veto
4. Appointments
5. Religion of Islam
6. Article 153
7. Pardon
8. Special Court
9. National Policy
1. Election of the Yang di-Pertuan
Agong
Article 38(2)(a)

The Conference of Rulers shall exercise its

functions of electing, in accordance with the
provisions of the Third Schedule, the Yang di-
Pertuan Agong and Timbalan Yang di-Pertuan
Agong.
 2. Dismissal of the King
Article 38(6)

The members of Conference of Rulers may act

in their discretion in any proceedings relating
to the following functions.
 3. LEGISLATIVE VETO
Article 38 (4):
“No law directly affecting the privileges, position , honours or
dignities of the Rulers shall be passed without the consent of
the Conference of Rulers.”

Article 2(b) :
“A federal law altering the boundaries of a state shall not be
passed without the consent of the state legislature concerned
and of the Conference of Rulers.”

Article 159 (5):

requires any legislation making an amendment to the
following provisions of the Constitution shall not become law
without the consent of the Conference of Rulers .
 FIFTH SCHEDULE, SECTION 8
In any case where the Conference of Rulers is not unanimous it
shall take its decision by a majority of the members voting,
subject however to the provisions of the Third Schedule.

The combined effect of Articles 38(4), 159(5) and 2(b) is that

some provisions of the Constitution are so deeply entrenched
that even the will of the elected legislature is not sufficient to
enact the proposed changes.

The consent of 5 out of 9 Malay Sultans is an essential

prerequisite.
 1983, the proposal to allow a Bill to become law if
the Yang di-Pertuan Agong or the State Rulers failed
to give their assent to it within 15 days

1993, the withdrawal of royal immunities

this consent was refused and the Bills involved had

to be redrafted to make them acceptable to the
Conference of Rulers.
 Article 66 and the 8th Schedule were
amended to specify that the maximum
period of delay is 30 days, after which the
Bill becomes law without Royal Assent.
Article 66 deals with the ordinary
legislative process, not with
constitutional amendments.
 4. Appointments
Article 38(6)(b):
The members of the Conference of Rulers may act in their
discretion in any proceedings relating to the following
functions, that is to say the advising on any appointment.

• The Conference have the rights to be consulted before

some critical federal posts are filled.
- Article 122B(1)- judges of the Superior Courts
- Article 105(1) – the Auditor-General
- Article 141A(2) – Education Service Commission
- Article 114(1) – Election Commission
- Article 139(4) – the chairpersons and members of Public
Services Commission
 4. Appointments
Case: Oral Application by Dato’ Seri Anwar
[2000] 2 MLJ 481
1. What is meant by “after consultation with” and
“after consulting”?
2. Does the Conference have the power to veto the
Prime Minister’s choice?
3. What happen if the views of the Conference of
Rulers clash with the advice of the Prime
Minister?
4. Within what time-frame must the Conference
and the Yang di-Pertuan Agong act on the advice
of the Prime Minister?
 5. Religion of Islam
• DUTY OF THE CONFERENCE OF RULERS

Article 3(2):
Sultans are the head of the religion of Islam in their own States
and they enjoy many rights, privileges, prerogatives, power
which are unaffected and unimpaired.

Article 38(2)(b):
• The Conference of Rulers exercise its functions of agreeing and
disagreeing to the extension of any religious acts, observances
or ceremonies to the Federation as a whole.
- banned the debate on Islamisation
- permitting the use of the word ‘Islam’
- cautioned against deviationist teachings.
6. Article 153
• This article basically deals with
the PRIVILEGES of the Malays and
the natives of Sabah and Sarawak
+ legitimate interests of other
communities.

• Art 38 (5) – The conference shall

be consulted before any changes
affecting action under Art 153 are
made.
 • Art 153 provides a scheme of preferential treatment
for Malays + the natives of Sabah & Sarawak in a
number of specific areas.
• The YDPA reserve such proportion as he deems
reasonable of - Places in
institutions of
higher learning
providing
education after
Positions MCE – refer to
in the Permits or Art 153 (8A)
public Scholarships, licences for the
services educational or operation of any
training trade or business
privileges or required by
special facilities. federal law - Art
153 (2)
• The Malay Privileges are
entrenched(established firmly and securely)
against repeal in TWO ways.

1 ) Any Bill to abolish or curtail them may be

caught by the law of sedition – Arts 63(4) &
72(4)

2 ) Any amendment to Art 153 will require a

special two-thirds majority of the total
majority of the total membership of each
House of Parliament plus the CONSENT of
the CONFERENCE OF RULERS.
 7. Pardon
• Art 181 (2) – The rulers lost their personal immunity in
civil and criminal actions.

• Arts 38 (2)(e) and 42 (12)(b)(ii) –

o If found guilty in a criminal court, they may apply to

the Conference of Rulers for a pardon, reprieve,
remission, suspension or commutation.

o And the Conference may exercise mercy after

considering any written opinion of the Attorney
General.
 8. Special Court
• Article 182 requires that the action be commenced in a
Special Court (SC) if the YDPA or a Sultan or Malay
Rulers is subject to judicial proceedings in a civil or
criminal court.

• Of 5 judges – 2 persons of whom shall be nominated by

the Conference of Rulers + Chief Justice of the Federal
Court + Chief Judges of the High Courts.

• The decision of the SC is final and cannot be challenged

in any court on any ground.
• SC has exclusive jurisdiction over all proceedings by
or against the YDPA or Malay Rulers in his personal
capacity.

• If the YDPA or Ruler of a state is charged with an

offence in the SC, he then will cease to exercise the
functions of the YDPA or Rulers.

• Where a Ruler is convicted & sentenced to

imprisonment – more than ONE day, he will cease to
be the Ruler UNLESS he receives the free pardon
from the Conference of Rulers.
 Tengku Muhammad Ismail
has been appointed as The
Crown Prince of Terengganu at
the age of 8.
 Tengku Amir Shah
has been appointed as the
Crown Prince of Selangor at the
age of 11.
 Tunku Ismail Ibrahim
has been appointed as the
Crown Prince of Johor at
the age of 22.
 9. National Policy
Article 38(3)

When the Conference deliberates on matters of

national policy the Yang di-Pertuan Agong shall
be accompanied by the Prime Minister, and the
other Rulers and the Yang di-Pertua-Yang di-
Pertua Negeri by their Menteri-Menteri Besar or
Chief Ministers; and the deliberations shall be
among the functions exercised, by the Yang di-
Pertuan Agong in accordance with the advice of
the Cabinet, and by the Rulers and the Yang di-
Pertua-Yang di-Pertua Negeri in accordance with
the advice of their Executive Councils.
 CONCLUSION

• This function is non-discretionary.

• Though the views of the Conference are not binding on the federal
government, there is no doubt that there are some potential in this
provision for influencing the nation’s goals and policies.

• Scrutiny by the Conference can supply some checks and balances and
promote some openness and transparency.