The constitutional evolution of Malaysia witnessed two transformative amendments in 1993 and 1994. These amendments fundamentally redefined the relationship between constitutional monarchy, executive authority, and judicial oversight.

Whilst preserving the dignity of the Royal Houses, the amendments established the unequivocal supremacy of constitutional law over traditional royal prerogatives.

This is particularly so in matters of royal immunity; the need for a monarch to henceforth having to act on advice, and on clemency powers.

The Constitutional Landscape Before Reform

Prior to these amendments, Malaysia’s constitutional monarchy operated within a framework that afforded the Rulers considerable immunity from legal proceedings.

The Yang di-Pertuan Agong and State Rulers enjoyed absolute immunity, whilst the power of clemency under Article 42 was exercised as a personal royal prerogative, largely immune from judicial scrutiny.¹ https://www.skrine.com/insights/newsletter/december-2018-1/pardon-me-i’m-going-home; and https://www.elitigation.sg/gd/gd/2010_SGHC_235/pdf  

This arrangement, whilst respecting traditional monarchical dignity, created a constitutional paradox wherein certain individuals remained beyond the reach of ordinary legal processes.

The clemency power, in particular, was treated by the courts as a ‘non-justiciable royal prerogative’, ‘immune from challenge’ regardless of the circumstances surrounding its exercise.²Ibid

The Constitutional Crisis  and Malaysia’s Legislative Response

The early 1990s presented Malaysia with unprecedented constitutional challenges involving members of the Royal Houses. These circumstances necessitated a careful constitutional recalibration to preserve both the dignity of constitutional monarchy and the supremacy of law.³https://en.wikipedia.org/wiki/1993_amendments_to_the_Constitution_of_Malaysia and https://www.umconstiteam.com/post/episode-33-royal-immunity

The government’s response manifested through two comprehensive constitutional amendments that would reshape Malaysian jurisprudence whilst maintaining the essential character of the monarchy.

The 1993 Constitutional Amendment: Establishing Accountability

The Constitution (Amendment) Act 1993 (Act A848) introduced three fundamental changes that marked a decisive shift toward constitutional accountability.⁴https://en.wikipedia.org/wiki/1993_amendments_to_the_Constitution_of_Malaysia

Modification of Royal Immunity

Article 181(2) underwent substantial revision, removing the absolute immunity previously enjoyed by the Rulers. This amendment established that Rulers could now face legal proceedings in their personal capacities, subject to the jurisdiction of specially constituted courts. The principle emerged that constitutional office, however exalted, does not confer immunity from legal accountability for personal conduct.⁵https://www.umconstiteam.com/post/episode-33-royal-immunity

Establishment of the Special Court

Article 182 created an innovative judicial mechanism – the Special Court – specifically designed to hear civil and criminal proceedings against the Yang di-Pertuan Agong or State Rulers in their personal capacities.⁶ https://theedgemalaysia.com/node/744500   The Special Court, as an institution, represented a masterful balance between maintaining royal dignity and ensuring legal accountability. The Court’s composition, involving judges nominated partly by the Conference of Rulers, demonstrated constitutional sensitivity whilst establishing judicial oversight.⁷Ibid

Introduction of Disqualification Provisions

Articles 33A and 34 introduced specific disqualification mechanisms. These provisions established that if charged with an offence, a Ruler would temporarily cease functions, and if convicted and sentenced to imprisonment exceeding one day, would cease to be Ruler unless granted a free pardon.8Ibid  These amendments embedded the principle that a constitutional office carries both privilege and responsibility.

The 1994 Constitutional Amendment: Binding Executive Discretion

The Constitution (Amendment) Act 1994 (Act A885) completed the constitutional transformation by definitively establishing the supremacy of constitutional advice over royal discretion.⁹https://theedgemalaysia.com/node/701628

Entrenchment of Advised Action

Article 40(1A) represented perhaps the most significant constitutional provision in modern Malaysian history.¹⁰ https://theedgemalaysia.com/node/701628; and https://www.skrine.com/insights/newsletter/december-2018-1/pardon-me-i%E2%80%99m-going-home  This amendment mandated that the Yang di-Pertuan Agong “shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution”.¹¹Ibid

The provision eliminated any lingering ambiguities regarding royal discretion, restricting independent action to only those matters explicitly enumerated in the Constitution. The amendment established that a constitutional monarchy ‘operates’ through ‘advised action’, not through any personal discretion.

The Transformation of Clemency Powers

The amendments fundamentally altered the nature and exercise of clemency under Article 42, creating profound legal consequences.¹²https://theedgemalaysia.com/node/744500

From Royal Prerogative to Executive Function

The amendments transformed the clemency power from a ‘personal royal prerogative into an ‘executive function’ exercised ‘on advice’.¹³Ibid, and see also [2010] SGHC 235

The Yang di-Pertuan Agong’s role became ceremonial, akin to appointing Cabinet members on the Prime Minister’s recommendation.

The substantive decision-making authority was transferred to the Pardons Board, comprising the Attorney-General, relevant Ministers, and appointed members.¹⁴Ibid

Enhanced Justiciability

By establishing that clemency decisions constitute executive acts rather than personal royal determinations, the amendments opened these decisions to judicial scrutiny.¹⁵https://theedgemalaysia.com/node/744500 and https://theedgemalaysia.com/node/701628   The traditional immunity from judicial review dissolved, as executive decisions can be challenged for illegality, irrationality, or procedural impropriety under established administrative law principles.¹⁶ see [2010] SGHC 235

Constitutional Accountability and Judicial Precedent

The amendments reinforced that clemency decisions must conform to constitutional supremacy and the rule of law.

No longer could such decisions claim immunity from legal challenge based on royal prerogative. The principle emerged that any exercise of public power, regardless of its constitutional source, remains subject to legal accountability.

And these amendments had the effect of sweeping away all the previous cases which had ruled that once a Ruler had made a decision on a pardon a court of law could not examine it. ¹⁷See e.g. PP v. Soon Seng Sia Heng [1979] 2 MLJ 170; PP v. Lim Hiang Seoh [1978] 1 MLJ 68; Chow Thiam Guan v. Supt [1983] 2 MLJ 116; Sim Kie Chon v. Supt (No 1) [1985] 2 MLJ 385; Supt of Pudu Prison v. Sim Kie Chon (No 2) [1986] 1 MLJ 494; Karpal Singh v. Sultan of Selangor [1988] 1 MLJ 64

If these amendments are properly studied and correctly construed, it can be argued that the later cases which decided the same point may no longer be good law, having been superseded by the constitutional transformation that rendered clemency an executive rather than royal function.¹⁸YAM Raja Dato Sri Hj Izzuddin Iskandar Shah v. Dewan Negara [2010] 2 CLJ 787; Tun Mahathir v. Dato Seri Mohd Najib [2018] 8 MLJ 297; DS Anwar Ibrahim v. Mohd Khairul Azam [2023] 2 CLJ 236

Legal and Practical Implications

These constitutional changes created a sophisticated framework balancing respect for constitutional monarchy with democratic accountability.

Preservation of Dignity

The amendments carefully preserved royal dignity through specialised procedures. The Special Court provisions ensured that any legal proceedings involving Rulers would occur in appropriately constituted forums with Conference of Rulers input on judicial appointments.¹⁹ https://www.umconstiteam.com/post/episode-33-royal-immunity

Strengthened Rule of Law

The amendments established that constitutional supremacy applies universally. No person or institution, regardless of constitutional status, operates beyond legal accountability. This principle strengthened Malaysia’s constitutional democracy whilst maintaining monarchical traditions.

Enhanced Democratic Governance

By transforming clemency into an executive function subject to judicial review, the amendments enhanced democratic accountability.²⁰ https://theedgemalaysia.com/node/744500 and https://theedgemalaysia.com/node/701628   Citizens gained the right to challenge clemency decisions through established legal processes, strengthening the relationship between governance and the governed.

Contemporary Legal Significance

These amendments continue to shape Malaysian constitutional law. Recent challenges to Pardons Board decisions rely heavily on the 1994 amendments’ establishment that such decisions constitute reviewable executive acts. The amendments provide the doctrinal foundation for subjecting clemency to judicial oversight whilst respecting constitutional monarchy.

The Malaysian Bar’s recent legal challenge demonstrates the continuing relevance of these amendments. Their argument that the Yang di-Pertuan Agong is bound to act on Pardons Board advice, and that such advice can therefore be judicially reviewed, rests entirely upon the constitutional transformation effected by these amendments.

Constitutional Legacy: in Malaysia, constitutional evolution can occur without disruption, while preserving valued institutions

The 1993 and 1994 amendments resolved a potentially destabilising constitutional crisis while strengthening both democratic governance and the constitutional monarchy.

The amendments demonstrated that constitutional evolution can occur without revolutionary disruption, preserving valued institutions whilst adapting them to contemporary democratic requirements.

These changes established Malaysia as a constitutional democracy where the law reigns supreme, whilst maintaining the cultural and constitutional significance of the monarchy. The amendments proved that a constitutional monarchy and democratic accountability can coexist harmoniously when properly balanced through thoughtful constitutional design.

The lasting significance of the amendments

The enduring significance of these amendments lies in their demonstration that constitutional systems can evolve to meet contemporary challenges whilst preserving essential institutional characteristics.

They represent a masterful balance between tradition and progress, dignity and accountability, monarchy and democracy – a constitutional settlement that continues to serve Malaysia’s democratic aspirations whilst honouring its monarchical heritage.

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Gratitude: The author thanks Tan Sri Zainun Ali, Emeritus Prof Datuk Shad Saleem Faruqi, UK Menon, KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi.

Acknowledgements: the image is from Aldward Castillo, Unsplash

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