By Param Cumaraswamy
Sultan of Perak Sultan Azlan Shah has expressed his displeasure in no uncertain terms over comments and criticisms expressed by various quarters on the actions he took on Feb 5 over the removal of Mohammad Nizar Jamaluddin as the Perak Menteri Besar and the appointment of Zambry Abd Kadir in his place.
While Sultan Azlan Shah’s remarks are understandable, there is however one matter which is of concern.
That being his exposition, as reported in the media, that “the role of the constitutional monarchy goes beyond what is stipulated in the constitution”.
And also (of the sultan saying) “that rulers have a far wider responsibility ensuring that the spirit of the constitution, the philosophy behind the written law and the interests of the country and the people are safeguarded at all times”.
With respect, this new dimension of constitutional monarchy maybe seen as far reaching.
We have in this country nine sultans under nine separate state constitutions and one king under the federal constitution.
Again with respect, if these heads of states begin to interpret their powers, rights, discretions and privileges under their respective constitutions in accordance with the ‘spirit of’ and ‘philosophy’ behind the constitutional provisions and framework, what becomes of any certainty in the constitutions?
Again with respect, how could rationality, reasonableness and consistency of the decisions on interpretations be secured?
In that event the independent judicial review of such decisions will be inevitable.
The institution of the monarchy may fall under the purview of the courts.
In this regard Sultan Azlan Shah’s own words in the judgment of the Federal Court in 1979 when he was acting Chief Justice (Malaya) re: Sri Lempah is noteworthy.
He said, inter alia:
“Every legal power must have legal limits otherwise there is dictatorship. In particular it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably.
“In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene.”
PARAM CUMARASWAMY is a former Malaysian Bar president (1986 - 1988). He also served as the United Nations Special Rapporteur on the Independence of Judges and Lawyers by the UN Commission on Human Rights from 1994 to 2003.