Which is supreme: the Constitution, the monarchy or some other power?

A Ruler’s power to appoint a Chief Minister is all the rage. A blogger once wrote that the monarch could appoint his gardener as prime minister. Was he right? This minor question begets larger ones. For a start, (1) Is there a legal principle higher than the Constitution? (2) How should the Constitution be interpreted?

The debate today in Malaysia is whether a state’s Ruler or the Nation’s monarch have the power to refuse the appointment of a political leader.

Can the Ruler of a state – and on a larger scale, can the monarch of the nation – refuse to appoint a state legislature’s nominee as chief minister – or the King of a parliamentary nominee for prime minister?

When a candidate – one who commands the confidence of a majority of the members of the State Legislature – is nominated for the Ruler to appoint, can the Ruler reject him?

Having rejected him, can he ask for another candidate – or nominate a candidate of his own choice?

Or keep rejecting every candidate?

One lawyer has declared that the power of a Ruler of a state is absolute, and that his discretion knows no bounds.  Is that right?

This question is easily answered: it is a ‘No’. Well get to the Why? in a minute.

This minor issue leads us to consider more fundamental issues

Let us get the ‘absolute discretion point’ out of the way.

Those who speak of the absolute power of the state Ruler point to Article 7 of the Johor Constitution”.1Second Part, Machinery of Government, Article 7, Laws of the Constitution of Johor

Article 7(2) states:-

“The Ruler may act in his discretion in the performance of the following functions:… the appointment of a Menteri Besar [Chief Minister]”. 2Ibid, Article 7(1)

A literal reading of this article feeds the impression that the Ruler’s discretion is a royal prerogative3A royal prerogative is a privilege that only a Ruler has the power to exercise. that cannot be questioned.

We need to think about that.

The Johor Constitution makes two further points.

“The Ruler shall appoint … a Menteri Besar having the qualifications … in Article 4(2)(a)”.4IbidArticle 3(1)

Now Article 4(2)(a) states,

“The Ruler shall first appoint as Menteri Besar … a member of the [State] Legislative Assembly who in his judgement is likely to command the confidence of the majority of the members of the Assembly …”.5Ibid, Article 4(2)(a)

This means the Ruler cannot refuse to appoint a [Malay, Muslim]6This is required by Second Part, Machinery of Government,  Article 3(2) of the Laws of the Constitution of Johor candidate who enjoys the support a majority of the members of the State Assembly.

It is a simple – but decisive – point.

That the Ruler is a ceremonial head of the state is confirmed by three further points: one arises from the principle of constitutional monarchy (we shall deal with that later). The other two arise from the Johor Constitution.

In exercising his functions, the Johor Ruler is required to “act in accordance with the advice of the Executive Council”.  The Executive Council are akin to a state cabinet.7Second Part, Machinery of Government, Article 7(1), Laws of the Constitution of Johor

Who appoints the Executive Council?

One lawyer says “the Ruler”.8Ibid, Article 4(1) )

This is an incorrect reading of the constitution.

In reality the members of the Executive Council are selected  by the Chief Minister. The Johor Constitution stipulates that:

“… the Executive Council … shall be appointed as follows: … [the  Ruler] …  shall …on the advice of the Menteri Besar appoint …” members of the Executive Council.9Ibid, Article 4(2)(b)

We see that it is Chief Minister who picks the candidates: the Ruler appoints then.

Similar articles can be found in all state Constitutions.

So, in a state, who is the ‘people’s political leader’? 

He cannot be anyone other than one chosen by the people, by the exercise of their personal choice – in an election.

He is the Chief Minister.

This accords with democracy, and the Rule of Law.

So why did the [first] lawyer fall into error?

He fell into error because he misinterpreted  the Constitution. He did not use the right tools.

That the first-named lawyer is wrong has been proven by a torrent of legal opinion.10See, for a start, Lim Wei Jiet and Shad Faruqi 

The real questions

The real questions that require our discussion are: –

(1).  Is the written Constitution the highest legal authority in the land?

(2).  How should any Constitution be interpreted, and

(3). If such tools are available, how should they be used?

Might is not right

We start with some general ideas.

Our system of rule is based on democracy.

Democracy is based on consensus.

Consensus means the majority gets to select its leaders; and usually the majority gets its wish.

Do not confuse that by thinking, ‘The majority is always right’.

In a democracy, ‘might’ is not ‘right’.

The majority cannot, by consent, agree to do evil.

Suppose 90% of the population decides that raping underaged children is lawful.

Does that make it right, or lawful? What do you think?

So democracy itself is not the answer to our questions.

Democracy is only an instrument.

When the wielder of the tool does it right, there is no problem.

But an instrument abused brings nothing but injury, pain, unhappiness, and injustice.

Is there a Higher Law?

If it brings about evil, the law will not give in to the clamour of the ‘majority rule’.

So, more than consensus, there must be some higher principle.

This is where a ‘higher principle’ steps in.

What is it? It is the Rule of Law.

It is the Higher Law by which human beings rule themselves.

Such a rule must be fair, easy to understand and obey. It must apply equally to everyone: whether he be a prime minister or a  poppadom seller.

Is the Written Constitution the Supreme principle animating the Law?

Some lawyers argue that the written Constitution is supreme legal document; that there is nothing higher.  This is not entirely correct.

It is the Rule of Law that regulates the affairs of the nation.

The written Constitution is born of it.

The child cannot have greater capacity than its mother.

What is the difference between parents and their offspring?

They share the same DNA.

But the parents gives sustenance and protect the child.

What is the difference between the Rule of Law and the Constitution?

Look at it another way.

Assume the nation is a human body.

The Constitution is its brain.

The head is Parliament.

The limbs are the Government.

The Rule of Law is akin to the conscience that guides the body and mind.

It is that spirit of justice that animates the entire national being.

When you sleep, your conscience is awake.

That is how the Rule of Law works.

What does a road map do?

It brings you safely to your destination.

It sets out the milestones you have to cross.

But it has to be read intelligently.

A map is useless without a person who can interpret it the right way.

A wrong interpretation would send you to the wrong place. You would be lost.

A Constitution is like a road map.

The Rule of Law is that animating spirit that guides a nation in the right path.

An Objective Standard

The Rule of Law is ever recognised by its footprints.  It has but one purpose:

To bring about the happiness, and the protection of – and justice to – the people.

That is the higher purpose; and the principle behind it, the Higher Law.

Does an Absolute Monarchy give rise to Choice?

An absolute monarchy is not based on choice.

It is based on despotism.

One group of individuals inflict their sense of right and wrong upon the citizenry.

History has proven that neither an absolute monarchy nor despotism bring about happiness.

Nor do they protect individual rights.

We are not a nation of despots.

Constitutional Monarchy

Malaysia is ruled by a Constitutional monarchy. This means the Constitution reigns over the entire nation, taking below it – and regulating – all human conduct.

The royal institution has a symbolic role in it.

In certain matters, the Conference of Rulers have substantial influence: e.g. in the selections of royal heirs; or on questions of the Islamic religion.

An Organic Constitution animated by a Liberal Principle

It is the spirit of the Constitution – not the letter – that directs the life of the monarchy and national leaders.

As we saw earlier, that spirit is the Rule of Law.

It is the Rule of Law that demands accountability, and gives rise to justice and equality.

This is why it has been said that a constitution,

“… is a living and organic thing”, and must be “construed ut res magis valeat quam pereat” (literally translated, it means It is better for a thing to have effect than to be made void”).

Stated another way,

“a liberal construction shall be put upon written instruments, … and [to] carry into effect the intention of the parties“.11Herbert Broom relying on Edward Coke on Littleton

So, a constitutional provision cannot be interpreted like an ordinary Parliamentary Act.

The 5 tools tools of Constitutional Interpretation

Certain rules need to be used when interpreting a constitution.

These rules also apply to state constitutional provisions.

The first is that the Constitution itself is not merely a set of words that tell everyone (‘declare’) what the law is.  It is more than that.12Attorney-General for New South Wales v. Brewery Employees Union [1908] 6 CLR 469, per Higgins J at p. 611

Second, a constitution has to be interpreted ‘organically’, and flexibly.13Dato’ Menteri Othman Baginda & Anor v. Dato’ Ombi Syed Alwi Syed Idrus [1984] 1 CLJ 28; [1984] 1 CLJ (Rep) 98; [1981] 1 MLJ 29  What this could mean is, the law must grow and change with the times: it must become better and better. Growth means improvement, not decay.

So, any ‘literal interpretation’ is out of the question.

Third, a constitution must be interpreted in ‘a broad and liberal spirit’.14Gwyer CJ in Re Central Provinces & Berar Sales of Motor Spirit & Lubricants Taxation Act AIR 1939 FC 1

No ruler or judge can stretch or pervert the language of the constitution even for the purpose of supplying omissions or of correcting supposed errors.15Ibid

Fourthly, the constitution cannot be construed in a narrow or pedantic sense.16per Lord Wright in James v. Commonwealth of Australia [1936] AC 578 at p. 614.  This was followed in Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor  [1996] 2 CLJ 771

On the other hand, the Constitution cannot be interpreted by using ‘negative tools’: e.g. using tools like irrationality, or arbitrariness.

That would result in a tyranny.

Thus when a state Constitution stipulates that the Ruler ‘shall appoint a Menteri Besar’ that does not mean the Ruler has absolute power over such an appointment.17Article 3(1), The Laws and Constitution of Johor

The exercise of such powers must accord with other countervailing powers within the Constitution – and all of that, must, in the end, be consistent with – and abide by – the Rule of Law.

Finally, any constitutional provision – whether of the Federation of Malaysia or of any State – cannot be interpreted to interfere with basic rights.18See Keshavananda Bharati v. State of Kerala AIR [1973] SC 1461:  Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507; [2010] 2 MLJ 333; Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 5 CLJ 526

Coming back, may our leaders exercise arbitrary power?

The answer is, ‘No’.

All those vested with power – be they Rulers or political leaders – are bound by, first, the Federal Constitution, and then the State’s Constitution.  That which binds them is the Rule of Law. Any words in a State Constitution, or any State law that is contrary to the Federal Constitution is, to that extent, void.19Article 75, Federal Constitution

Those who wield power must employ it for the good of the nation –  and in accordance with the Rule of Law.

Laws must not be interpreted to oppress or petrify the people into silence and sullen obedience.

The Rule of Law is the Sentinel of the Nation

The Rule of Law stands as a sentinel over the written words of the Constitution.

It flows into the words, infusing them with a deep and abiding sense of fairness.

It ensures that these powers are justly exercised; and are not perverted to injure the people, or cause injustice.

Who can forget the words of Thomas Fuller, uttered more than three centuries ago?

“Be you never so high, the law is above you.”

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