Constitutional Supremacy

Constitutional Law is very difficult and used to be a very boring subject. Until recently, that is. All because of recent closely contested general elections.

Recent political developments in Malaysia have piqued our interest and turned almost every Malaysian into an armchair constitutional expert. Ask anyone next to you at Ali, Ah Kau, and Muthu Kopitiam, and he or she would surely have something to say. Not necessarily correct anyway. But as the popular saying goes, “I may not agree with everything you say, but I will defend you every right to say it”.

One common important nagging question would be, in a constitutional democracy, who (or what) actually reigns supreme?

There are some creatures under the constitution; namely, the YDPA, the PM, the Parliament and the Constitution itself. So, in a constitutional crisis, which one supersedes the other?

The Yang Di Pertuan Agong (YDPA) is the highest monarch in the country. His Majesty, and his fellow Sultans, make the Majlis Raja-Raja (MRR) or the Conference Of Rulers (COR) which, in turn, is the highest royal institution in the country. Their Majesties are the custodian of some very potent powers to safeguard some sensitive matters which form the very fabric of our society.

So, in that sense, the YDPA can be seen as the highest authority. But, is he supreme? In many of his powers, there is a proviso that says “upon the advice of the Prime Minister”. So, in these cases, it would appear that the PM has the power to advise.

In a previous constitutional crisis several decades ago, we have seen how a sitting PM can actually limit the immunity powers of the royalty. Of course, this did not go down well in the royal houses, but they were quite powerless and there was nothing they could do to resist.

By the way, both the YDPA and the PM are creatures of the Constitution. And in turn, the Constitution itself is a creature born out of Parliament. And the Parliament can make or amend laws. So in this sense, it looks like the Parliament has enormous powers. But then again, the PM can advise the YDPA to dissolve the Parliament, after which the Parliament is no more.

And don’t forget the rakyat themselves. They have vital powers vested in them too. Because the rakyat gets to choose who becomes their representatives in Parliament.

So, who is supreme? Confused yet?

This might seem trivial, but in the circumstances in which we are in now, it is crucial.

Malaysians have twice seen how we only had the YDPA as our last beacon of hope to resolve our constitutional conundrum. Our political impasse. Had it not been for his Majesty’s wisdom and intervention, we might not have seen a peaceful resolution.

We spent many anxious days and nights while the YDPA cracked his Majesty’s head to resolve the issue wisely and without stirring further tension. To get involved too lightly, he might be accused of indifference, to get involved too much, he might be accused of political meddling. Thus his Majesty had to be fair and impartial, and be seen so too. A very delicate balancing act indeed.

What we have now is, the rakyat has already chosen its Members of Parliament. And after some careful and prolonged deliberations, the YDPA has exercised his Majesty’s powers to appoint a PM. The rakyat was finally able to heave a sigh of relief. That should be the end of it, right?

The answer is, unfortunately, no. The drama might not be over as yet. The PM can be subject to another round of legitimacy testing once the new session of the Parliament is opened, via a Vote of No-Confidence (or a Vote of Confidence). Although he was selected and appointed by the YDPA. And you might argue that in the current circumstances, it looks as if it is a sign of disrespect towards the inherent powers of the YDPA to appoint a PM.

The truth is, under the constitution, nobody is supreme. Every organ is dependent on the other. They cannot exist and survive on their own. And generally, they all rotate over a five-year period. For the YDPA, after five years, his Majesty is replaced by another Sultan who then becomes the next YDPA. The Parliament, they have to face another round of elections to seek a new mandate.

Only the Constitution lives on as the highest law of the land. In that sense, maybe it is the supreme one after all.

We can only wish good luck to future students of Constitutional Law. But at least it is no longer dead and boring, only to be found in the lecture halls and the law books. It is now alive and kicking; all the way from the Parliament to the Palace.