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EXECUTIVE POWER BASED ON FEDERAL CONSTITUTION OF MALAYSIA Executive in general refers to that branch of the political system which is in charge of the execution of the policies and the determination of general rules. In its wider sense, execution refers to the aggregate of all functionaries or agencies concerned with the execution of the will of the state as that will has been formulated and expressed in terms of law. In this sense, it includes heads of government as well as the entire staff of officials know as civil servants. The branch of government essentially concerned with the execution of laws and polices is, therefore, called the executive. Thus, the executive branch is composed of (1) the Yang di-Pertuan Agong, (2) the Cabinet and (3) the Civil Servants. While in the states, the executive it is composed of (1) the Sultan/Raja/Yang di-Pertuan Besar/Yang Dipertua, (2) Menteri Besar & State Cabinet (Exco), and (3) State administrative services.

In modern governments, executives perform numerous functions which, among others, include formulation and execution of governmental policies. They also direct relations with foreign governments, command the armed forces, approve or disapprove legislative acts and recommend legislations. They also issued ordinances, often supplementing legislative acts and may interpret statutes for the guidance of officials. Federal Constitution had highlighted the executive authority in article 39, 40, 41, 42, and 43.

ARTICLE 39 - Executive authority of Federation In our system of constitutional monarchy and parliamentary democracy, the Yang di-Pertuan Agong is the formal head of executive branch. Article 39 of Federal Constitution vests ‘the executive authority’ of the Federation in the Yang di-Pertuan Agong. However, the executive authority is also exercisable by the cabinet or by any minister authorized by the cabinet. It is exercisable subject to the provisions of the Constitution and law.

On a literal reading of these laws the lay person would get the impression that the monarchy is the real seat of power in the country. But the legal position is quite different. The Yang di-Pertuan Agong is head of state but not head of government. He is repository of vast authority and dignity but very little power. Save in some exceptional, crisis situations, the real wielder of political power is the Prime Minister.

'ARTICLE 40 – Yang di-Pertuan Agong to act on advice' Article 40 Clause 1 in Federal Constitution state that Yang di-Pertuan Agong shall act with the advice from the Cabinet or a Minister that acting under the general authority of the Cabinet except if provided by the Federal Constitution but shall be entitled by his request to any information about the government of the Federation that is available to the Cabinet itself.

The Yang di-Pertuan Agong has to act in accordance with advice, on advice, or after considering advice and shall accept and act in accordance with such advice in the context of exercise of his functions under the federal law or this Constitution like stated in Article 40(1A). According to the Article 40(2) of Federal Constitution, Yang di-Pertuan Agong may act in his dicretion to the functions and that is the appointment of a Prime Minister, consent to a request for the Parliament to dissolve. Yang di-Pertuan Agong also can make a request to the meeting of the Conference of Rulers regarding the position, honours, dignities and the privileges of Their Royal Highness and any other action to such a meeting and also in any other case that has been mentioned in the Federal Constitution. In exercise of any functions of the Yang di-Pertuan Agong, a provision may make from the federal law to requiring Yang di-Pertuan Agong with or on the recommendation of any person or body of persons other than Cabinet after the consultation and that must be other than the functions exercisable in his discretion and the functions with respect to the exercise of which provision is made in any other Article that has been stated in Article 40(3) of our Federal Constitution.

As a constitutional Ruler, the Reid Commission had started that the Yang di-Pertuan Agong must act on advice of the Ministers regarding to all the executive action. During the emergency started, Justice Chang Min Tat in Madhavan Nair in discussing the promulgation of Ordinance has stated, “According to Article 39 in our Federal Constitution, Yang di-Pertuan Agong has the power to the executive power of the Federation and subject to any provisions of the federal law and also of the Second Schedule by the Yang di-Pertuan Agong himself or by the Cabinet. However, the executive authority has been limits by the Article 40 that the Yang di-Pertuan Agong to act on the advice of the Cabinet or the Minister that act under the general authority of the Cabinet. In only certain matters, spelt out to be the appointment of a Prime Minister, the dissolution of Parliament and the requisition of a meeting of the Council of Rulers that the Yang di-Pertuan Agong hasa a discretion. The legislative power that has been passes by the emergency rues from Parliament to the Yang di-Pertuan Agong has not displaced his position as the Constitutional Monarch that bound by the Constitution to act at all times on the advice of the Cabinet.”

In his judgement Justice Chang Min Tat later said, “Executive power is in the hands of the Yang di-Pertuan Agong and his Cabinet. Even though the Yang di-Pertuan Agong asked to be pleased to promulgate the Ordinance with customary and loyal courtesy, it is clear that he does not refuse as the Constitutional Monarch. He has no discretion in the matter.” If there is a provision to the particular function provides that they have to act on advice, there would be no problem to make a conclusion that the Rulers and the Yang di-Pertuan Agong are bound to act on that advice. Vice versa, if the function fall under the Article 40(2) or the equivalent under the State Constitutions, there would be no problem to say that Rulers and the Yang di-Pertuan Agong may act in their discretion regarding those article and State constitutions. For an example, the provision of Article 150(1) that provides Yang di-Pertuan Agong to proclaim emergency.

We can see that the position was apparent in the case of Stephen Kalong Ningkan when the Federal Court make a decision that the Yang di-Pertuan Agong is the “sole judge”. However, in the case of Teh Cheng Poh seems to vice versa with the decision of the court in Stephen Kalong Ningkan. However, it has to be noted that unlike in 	Stephen Kalong Ningkan case where the emergency proclamation was central in Teh Cheng Poh it was essentially about a regulation made under emergency proclamation.

Regarding this point, the latest decision from the highest court would be the case of Abdul Ghani bin Ali when the Federal Court decided that the Yang di-Pertuan Agong must act on advice of the Cabinet in proclaiming emergency. It also should be noted that in some cases the court recognize the existence of prerogative powers of the monarch for instance regarding the power of granting pardon.

There are a few cases that the courts have emphasized that if the Yang di-Pertuan Agong has to act on advice, he has no option but to accept the advice given. For instance in Dato’ Seri Anwar Ibrahim in discussing the authority in appointing judges, the Court of Appeal stated pointedly that the actual appointing authority is the Prime Minister. The Yang di-Pertuan has to follow the decision or advice made by Prime Minister. The court said that,

“The Yang di-Pertuan Agong must act upon the advice of the Prime Minister. The advice envisaged by article 40(1A) is the direct advice given by the recommender and not advice obtained after consultation. So in the context of article 122B(1) of the Constitution, where the Prime Minister has advised that a person be appointed a judge and if the Conference of Rulers does not agree or withholds its view or delays the giving of its advice with or without reasons, legally the Prime Minister can insist that the appointment be proceeded with.” Thus, it is clear from the Constitution that the Yang di-Pertuan Agong is the nominal executive and the Prime Minister and the Cabinet are the real executives. This is because the Yang di-Pertuan Agong may voice any opinion on any matter he likes but, in the final analysis he follows the convention of acting on the advice of the Cabinet.

ARTICLE 41 – Supreme command of armed forces The Yang di-Pertuan Agong is the Supreme Commander of the armed forces of the Federation. This does not include their operational use which is under the control of the government. The Armed Force Council established by article 137 is responsible under the general authority of the Yang di-Pertuan Agong for the command, disciplined and administration of, and all other matters relating to, the armed forces, other than matters relating to their operational use. ARTICLE 42- Power of Pardon by Yang di-Pertuan Agong Yang Di-Pertuan Agong has the power conferred by clause 1 and clause 2 in Article 42 Federal Constitution to grant pardons, reprieves and respites for the offences that have been tried by court-martial in elsewhere in Malaysia, and offences that was committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya. However, It is not mean that Yang-di Pertuan Agong can grant pardons, reprieves and respites in respect of all offences as Yang di-Peruan Agong does not have such power for the other offences that the power is hold by Ruler or Governor. “Notwithstanding anything in this Article, the power to grant pardons, reprieves and respites in respect of, or to remit, suspend or commute sentences imposed by any court established under any law regulating Islamic religious affairs in the State of Malacca, Penang, Sabah or Sarawak or the Federal Territories of Kuala Lumpur, Labuan and Putrajaya shall be exercisable by the Yang di-Pertuan Agong as Head of the religion of Islam in the state”-

Article 42(10) In respect of the sentences imposed by Muslim courts in Malacca, Penang and the Federal Territories, and since 1976 in Sabah and Sarawak, Yang di-Peruan Agong do have such power to grant pardons. Power of Pardon by Ruler or Governor Apart of Yang-di Pertuan Agong, a Ruler or Governor also has the Power of Pardon. However, a Ruler or Governor only has such power which is to grant pardons, reprieves and respites for the offences that is only committed in their ruling state. There are exception for the power of pardon in the hand of a Ruler or Governor which are a Ruler or Governor could not grant pardons on the sentences imposed by Muslim courts that is located in Penang, Melacca and the Federal Territory of Kuala Lumpur, Labuan and Putrajaya. Besides, a Ruler or Governor do not have such power on the offences tried by court-martial.The Yang-di Pertuan Agong has this power in respect of offences tried by court-martial. Doubtful where an offence was committed Article 42(3)-If there is any doubt which state that an offence was committed as it involve more than one State, it is deemed to have been committed which territory that it was tried. In Article 42(4), state that to exercise such power of pardon, it is not based solely on the decision of a Ruler or Governor itself. However, a Ruler or Governor before exercise their power would need to make decision on the advice from Pardons Board for theirs state. The Pardons Board for State Article 42(5), (6), (7) & (8) These clauses clearly expressed the composition of the Pardon Boards for each State. A Pardon board consists of the Attorney General of the Federation, Chief Master and not more than three other members that are appointed by the Ruler or Governor for the board. Appointed members can hold the office for three years and the requirement of the appointed member should not be a member of Parliament or a member of a state Legislative Assembly. Even in the constitution, there is no provision clearly highlight that an active politician should not be appointed as a Board member. However, in practice, there are no active politicians are ever appointed. Based on clause 5 of Article 42, a Ruler or Governor can appoint a temporary member if an appointed member of the board is unable to attend. Not to mention that, a Ruler or Governor shall presides over the Pardon Board and the Board always has to meet with the presence of the Ruler or Governor. Attorney General of the Federation However, even there are provisions that shows that Attorney General is one of the member for the Pardon Board, but Attorney General seldom attends in person. According to clause 5, it conferred the power to Attorney Federal to delegate his functions. In practice, Attorney General would always exercise this power to delegates them to a state legal advisor. (9) Before tendering their advice on any matter a Pardons Board shall consider any written opinion which the Attorney General may have delivered thereon. Aside from the power of delegating his functions to the others, a Pardon Board before tendering any advice to a Ruler or Governor, is bound to duty to consider the written opinion from Attorney General on any matter. The Pardon Boards for Federation In clause 11, it is mentioned that the provision of clause 5, 6, 7 and 8 for Pardon Board for State are the same for Pardon Board for the Federal Territories but the reference of Ruler or Governor should be change to Yang di-Pertuan Agong. Hence, there would be a Pardon Board to advise the Yang-di Pertuan Agong on exercising his power to pardon on the offences that was committed in the Federal Territories, or tried in court-Martial or the sentences imposed in Muslim court in Sabah, Sarawak, Federal Territories, Malacca and Penang. In this Pardon Boards, it consists of the Attorney-General who may delegate his functions to other person, Minister who responsible for each of the Federal Territories and not more than 3 others members that are appointed by Yang di-Pertuan Agong which they may hold their office for three years. If a appointed member is absent or unable to act, Yang di-Pertuan Agong may appoint a temporary member to hold his place. However, a member of Pardon Boards shall not be a member of the Legislative Assembly or a member of the House of Representatives. For the pardon board to meet, Yang di-Pertuan Agong must present. Any written opinion submitted by Attorney General shall be considered by the Pardon Boards before tendering their advice to Yang di-Pertuan Agong to exercise his power of pardon. In Article 42 Clauses (12) and (13) were inserted through the constitutional (Amendment) Act 1993 together with the amendment to art. 181 which abolished the immunity of Rulers in their personal capacity. In 1993 there was a constitutional crisis regarding monarchy in which among others it was highlighted that a past Ruler of a state had granted pardon to his prince who was convicted for an offence in relation to a death of a person. Subsequently the prince succeeded his father as the Ruler of the State. Before this, there was an issue arising from a power of pardon vested on Rulers in their personal capacity. In 1993, there was a constitutional monarchy in which among other it was highlighted that a past Ruler of a State had granted pardon to his prince who was convicted for an offence in relation to death of a person. Subsequently, the princes succeeded his father as the Ruler of the State. At first, The Reid Commission’s recommendation that the Yang di-Pertuan Agong should have exclusive power to grant power. However, the recommendation was not accepted by the Government. In the white paper, it was recommended that the proposal will be continue in a modified form that the power of Pardon will be exercised by Yang di-Pertuan Agong on such advice of a Pardons Board which will be established in each State.

Whether Power of Pardon is discretionary or not There is some doubt about whether such power of pardon is discretionary or is to exercised in accordance with the advice of the Pardon Board. The provision of Article 42 imply that this is not a personal discretionary power from Yang di-Pertuan Agong or Governor or Ruler as Article 42(4) expressed that the powers of pardon conferred by this article requires Yang di-Pertuan Agong, Ruler or Governor to act on the recommendation of any person other than the Cabinet. However, there are judicial opinion saying that power of Pardon conferred by Article to the Yang di-Pertuan Agong, Ruler or Governor is a discretionary power as the Pardon Boards carry no binding weight. As in the case of Superintendent of Pudu Prison v Sim Kie Chon, the Supreme Court observed that the Pardons Board is only an advisory board and does not makes any decision on the matter of pardon. In order to exercise the power of pardon, the power is still hold by Yang di-Pertuan Agong, Ruler or Governor, they would only tender advice to him and they are not bound to follow. The Courts have gone to extent of describing power to grant a pardon as a “prerogative of mercy” and have held it to be totally non-reviewable in a court of law. However, the power of pardon for the Yang di-Pertuan Agong, Ruler or Governor that are exercised by the Conference of Ruler under the Article 42(12) (b) is considered as a discretionary power. This is because there is no Pardon Boards and they would not need to act in accordance to the advice tendered by them. Besides, there are no presence of Prime Minister or Chief Minister in these matter. The only procedural requirement that need to followed by the Conference of Ruler is to consider the written opinion submitted by Attorney General. Whether power of pardon is amenable to judicial review In Sim Kie Choon v Superintendent of Pudu Prison & Ors, Abdul Hamid CJ give an opinon that the power of pardon is a prerogative of mercy and is not amendable to judicial review. Suffian LP in delivering his judgment of the court in the case of PP v Lim Hiang Seoh. Sitting with four judges, said that, “When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which courts bound by the law of evidence cannot take into account.” In the case of Chiow Thiam Guan v Superintendent of Pudu Prison and the Government Malaysia, the appellant in this case was sentence to death and his right in the eye of law was ends right after his appeal to the Higher level of court was dismissed by the Supreme Court. However, Mercy begins but mercy is not a legal right. It was held that a decision by an exercise of a royal prerogative of mercy cannot be varied according to the judicial review and it is confirmed there being no jurisdiction to do so. The High Court in Juraimi Bin Hussin also considered the issue of justifiability of the power of pardon. After referring to the above cases, Faiza Tamby Chik J held, “I prefer to consider the issue from the perspective of whether the court has the power to interfere with the royal prerogative of mercy by the Sultan of Pahang. Mercy is not the subject to legal rights end. The death sentence imposed on the plaintiff here is constitutionally valid and permissible by law. I am of the view that the legality of a delayed execution cannot be questioned. By its very nature, the prerogative of mercy is not an act susceptible or amendable to judicial review”.

ARTICLE 43 - Cabinet So far the three major issues that have been brought to court following some political crises are: (i)	the scope of appointment power to appoint government, (ii)	 the controversional issue of power to dismiss it and (iii)	 the position of cabinet or government members. Note that the term of head of government- Prime Minister, Menteri Besar and Chief-is used interchangeably with government of the day as they are essentially the one and the same thing. The starting should be the Reid Commission Report where it recommended that, “It should be the responsibility of the Yang di-Pertuan Besar to appoint the Prime Minister of the Federation. The Prime Minister must be a member of the House of Representative.” Since Independence, the Yang di-Pertuan Agong had appointed, after a general election, the leader of the majority party in the House of Representative. Was this envisaged by the Reid Commision? The Reid Commission continued from the above. “The Yang di-Pertuan Besar would normally appoint the leader of the majority party in the House of Representatives because no one else would be likely to command the confidence of the House…” Would there be a situation that such a leader would not be appointed as the Prime Minister? According to the Reid Commission there may be such situation when, “…it is doubtful who should be appointed, and we see no practicable alternative to the leaving the Yang di-Pertuan to choose the person whom he thinks most likely to command the confidence of the House of Representatives.” The working of article 43(2)(a) was discussed in Tun Datu Haji Mustapha (No.2)  where similar provision under the state constitution of Sabah became the issue. Tan Chiaw Thong J observed, “It is common ground that the State of Sabah operates under a party system of government, and the general election concerned here was held under the same system. The Head of State therefore cannot constitutionally exercise or make his judgement on the appointment of a Chief Minister without taking into account the number of elected seats secured by each and every political party, and for that matter by the independent candidates in the elction. It is clear that, of he omits to take into the account of seats obtained by any particular political party which participated in the election, it cannot be said that he had exercised or made his judgement under Article 6(3), for if he did so, he would be acting unlawfully and unconstitutionally by ignoring or not complying with the requirement, in particular of Article 6(3). In such circumstances, it is equally clear, in my view, that he has made no judgement under Article 6(3). In this connection, I see no difference between this situation and the case where the Head of Stat appoints as Chief Minister a person who is not a member of the Legislative Assembly, contrary to the express requirement of Article 6(3).” Article 43A In Nadarajan a test was made on the legality of a Deputy Minister performing a function of a Minister under the Emergency(Public Order and Prevention of Crime) Ordinance 1969. The court observed, “ Article 43A(2)  provides that Deputy Minister shall assist Ministers in the discharge of their duties and functions, and for such purpose shall have all powers of Ministers’. The comma and the words, ‘and for such purpose shall have all the powers of Ministers’ which appear after the word ‘functions’ in the article were inserted by s.3 of the Constitution (Amendment Act 1983 which came in force on 16 December 1983).The amendment was clearly intended to overcome the administrative difficulties faced previously which curtailed the ability of Deputy Ministers to fully assist Ministers in the discharge of their function and duty. In addition to this provision, Section 30, which is incorporated in the Eleventh Schedule to the Constitution provides as follows, ‘Construction of enabling words Where a written law consult power on any person to do or enforce the doing of any act or thing, all such powers shall be understood to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.’ Based on these two provisions, it is clear that Deputy Minister is conferred with all the powers of the Minister under the Ordinance including the power to sign the detention order as Deputy Minister as such power is necessary to enable the Deputy Minister to effectively assist the Minister in the discharge of his duty.” Similar issue was raised in Su Yu Min. Court held that given the provision in Article 43A(2), means full power to sign detention order and any arrest warrants. Having noted that however it is perhaps important to distinguish between the power following the reason why the Constitution provides for the position of deputy ministers and indeed, as one could see in the provisions for parliamentary secretary under art.43B below and whether they are full fledge member of the cabinet. As it is one is not clear whether Deputy Minister and parliamentary secretaries enjoy position and status similar to ministers or whether they are part of cabinet. Perhaps it could be said that this is arguably a matter for the Prime Minister to decide and as the Constitution is silent it appears that Deputy Ministers and parliamentary secretaries are not part of the cabinets. For one thing is the Constitution is merely created the offices to help ministers. One should not that unlike in the states of Federal Constitution is silent on the number of Cabinet members.

ARTICLE 43B - Parliamentary Secretaries

The posts of Parliamentary Secretaries were provided for by an amendment in 1963. Article 43(B) of the Malaysian Constitution provides for appointment of Parliamentary Secretaries, third in terms of seniority in the hierarchy of administration after Minister and Deputy Minister. However, Parliamentary Secretaries come directly under the jurisdiction of the Minister. Parliamentary Secretaries, like Ministers and Deputy Ministers, must be members of either house of the Malaysian Legislature. Constitutionally, Parliamentary Secretaries are also appointed the Yang di-Pertuan Agong on the advice of the Prime Minister. The Prime Minister assigns one Parliamentary Secretary to each ministry. Parliamentary Secretaries act in accordance with the orders or directives of the Minister and Deputy Ministers. They may represent the Minister or Deputy Minister in any function when instructed. Moreover, Parliamentary Secretaries are expected to attend all the proceedings of Parliament and actively participate in tabling the bills and answering questions pertaining to their respective ministries. A Parliamentary Secretary, according to the Constitution, like Deputy Ministers, is not allowed to attend Cabinet Meetings.

ARTICLE 43C - Political Secretaries

In Nadarajan a challenge was made on the legality of a Deputy Minister performing a function of a Minister under the Emergency(Public Order and Prevention of Crime) Ordinance 1969. The court observed, “ Article 43A(2) of the Constitution provides that Deputy Minister shall assist Ministers in the discharge of their duties and functions, for such purpose shall have all powers of Ministers’. The comma and the words, ‘and for such purpose shall have all the powers of Ministers’ which appear after the word ‘functions’ in the article were inserted by s.3 of the Constitution (Amendment Act 1983which came in force on 16 December 1983.The amendment was clearly intended to overcome the administrative difficulties faced previously which curtailed the ability of Deputy Ministers to fully assist Ministers in the discharge of their duties and functions. In addition to this provision, s.30 of the Interpretation and General Clauses Ordinance 1948, which is incorporated in the Eleventh Schedule to the Constitution provides as follows”

‘Construction of enabling words

Where a written law confers power on any person to do or enforce the doing of any act or thing, all such powers shall be understood to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.’

In the light of these two provisions in the constitution, it is clear that Deputy Minister is conferred with all the powers of the Minister under the Ordinance including the power to sign the detention order as Deputy Minister as such power is necessary to enable the Deputy Minister to effectively assist the Minister in the discharge of his duties and functions.”

Having noted that however it is perhaps important to distinguish between the power following the reason why the Constitution provides for the position of deputy ministers and indeed, as one could see in the provisions for parliamentary secretary under Article 43(b) below and whether they are full fledge member of the cabinet. As it is one is not clear whether Deputy Minister and parliamentary secretaries enjoy position and status similar to ministers or whether they are part of cabinet. Perhaps it could be said that this is arguably a matter for the Prime Minister to decide and as the Constitution is silent it appears that Deputy Ministers and parliamentary secretaries are not part of the cabinets. For one thing is the Constitution is merely created the offices to help ministers. One should not that unlike in the states of Federal Constitution is silent on the number of Cabinet members.