Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Parallelewelten.
The executive branch of government is the administrative branch which controls the various state agencies and apparatus. It is often convenient to divide the executive into three separate parts: the head of state, the political Executive and the bureaucracy, Most of the cases and materials in this chapter deal with the Head Of State and his power. This is because his functions, duties and powers are the most clearly defined in the Constitution. The Political Executive, which includes the power of Cabinet and the minister is appropriately dealt with under Administrative Law and studies of the bureaucracy are conducted under the rubric of Public Administration.
The Head Of State
Every country, be it a monarchy or republic, has a Head Of State. The Head Of State is usually distinct from the head of government who is usually a Prime Minister. However, in countries such as the United States of France, where there exists a presidential executive form of government, this distinction is blurred. In these countries, The Head Of State is also the chief executive. Under the Westminster system of government, the Head Of State is a titular one. He possesses no real political power and must usually act on the advise of the cabinet. He represents the nation and serves as a focal point for the loyalty and patriotism of the people he represents. While both Malaysia and Singapore adopted the Westminster model of government at independence, the office of The Head Of State in Singapore has developed quite differently.
Malaysia has a constitutional monarchy, with the Yang di-Pertuan Agong as The Head Of State. Unlike most other monarchies were the crown is hereditary, Yang di-Pertuan Agong is elected every 5 years. This system of rotating office of The Head Of State among the royal houses of the state, is unique to Malaysia. This novel system was introduce under the recommendations of the Reid Commission who felt that the Agong would be ‘a symbol of the unity of the country’. Under this system, only the nine rulers( from Johore, Pahang Negri Sembilan, Selangor, Kedah, Perlis, Kelantan, Trengganu and Perak) which form the Conference of Rulers or Majlis Raja-Raja are eligible for election.
Provisions pertaining to the office of the Yang di-Pertuan Agong and his powers are found in Part IV of the federal Constitution. The Agong is a constitutional Head Of State and though the executive authority of the federation is vested in him, it is, in most instances exercisable only by him acting on the advise of the cabinet or any minister who is authorized by the Cabinet. There are however, certain area of law where the yang di-Pertuan Agong may act in his personal discretion. Over the years, the Agong discretion has been whittled down by amendments to the Constitution. These are dealt with below.
The position of the president from 1965 to 1990 was essentially the same as that of the Yang di-Pertuan Agong in Malaysia. The President was a constitutional Head Of State with vry little discretionary powers, save in the appointment of the Prime Minister and the dissolution of the Parliament at the request of the Prime Minister. This was changed with the passing the amendments to the constitution in January 1991 which had the effect of turning the office of the President into an elected one. The elected President in Singapore possesses substantial powers in certain matters, but remain a titular chief executive in countries such as United States and the Philippines. Most of the President’s powers are negative rather then positive ones. The President’s main power comes from his constitutional right to refuse to give his assent on key issues and appointments in the public service. He has no constitutional power to initiate or implement his own policies. For a more extensive discussion on his role, see “elected Presidency in Singapore” below.
Discretionary Powers of the Head of State
In keeping with the Westminster system of government which both Malaysia and Singapore inherited from the British, all acts of the State are carried out in the name of the Head Of State. None of these actions are carried out by the Head Of State themselves since they are constitutionally required to act on the advise of the Cabinet and its minister. In England, however, the Queen is required to the same, by reason of a constitutional convention. Constitutional conventions have been used to control the use of the royal prerogative, and though conventions are mere political rules, they are regarded by the relevant political actors as being binding on them. Since they are not rules of law, any infraction cannot be remedied by an action in court of law.
This is the basic difference between the British system and ours. In a country with a written constitution, the constitution is supreme, and the courts must interpret the provision of the document from the words alone, without importing extraneous rules of law, practise or convention. In the case that follow, we examine 2 key questions: first, what discretionary powers does the Head Of State possess? The second question pertains specifically to Malaysia; does the Yang di-Pertuan Agong possesses prerogative powers outside the Constitution? The following cases necessarily deal with the Yang di-Pertuan Agong’s powers under the Federal Constitution. In the case of Singapore;s Elected President, see the section on “The Elected Presidency In Singapore”
(1)The Head State’s Discretionary Powers To Appoint And Dismiss The Chief Minster Or Prime Minister.
Under both the Fedaral Constitution and the Singapore Constitution, the Head Of State is conferred the power of appointing the Prime Minister. This is one of the truly prerogative powers possessed by the Head Of State. Whether this power includes the corollary power to dismiss the Prime Minister is a question that has come before the courts in number of situations. It should be noted that the wordings of the two constitutions differ slightly.
The Federal Constitution, for example, makes no provision for dismissal of the Prime Minister. Article 43(4) merely provides that if the Prime Minster ceases to command the confidence of the house, and unless ‘at his request the Yang di-Pertuan Agong dissolve Parliament, the Prime Minister shall tender the resignation of the Cabinet’. Under the Singapore Constitution, art(1)(6) provides that the president may declare the office of the Prime Minister vacant if he is satisfied that the Prime Minister has ceased to command the confidence of Parliament. In this respect, the cases that follow illustrate how the courts have dealt with the discretionary powers of the Head State to dismiss the Prime Minister(or Chief Minister).
The first reading comes from the leading case of Adegbenro v Akintola which is Privy Counsel decision on appeal from Nigeria. This case is regarded as locus classicus on the issue of the head State’s discretion and how it may be used. Adegbenro was, however, distinguished in the second case, Stephen Kalong Ningkan. The next case in this section deals with the Constitution convulsion in the state of Sabah following the state election of 1985. He problem arose when the two losing parties tried to force the Governor to appoint as Chief Minister, the leader of one of the defeated parties. The main issue was whether the Yang di-Pertua Negeri had exercise his discretion in the appointment. In his lengthy judgment, Tan Chiaw Thong J considered both Adegbenro and Stephen Kalong Ningkan in detail and ruled in favour of the defendants. In the course of his judgment, many other keys issue, including the formalities for the appointment of the Chief Minister, the Governor’s power to revoke the Chief Minister’s appointment, the applicable of constitutional conventions, and the meaning of ‘members of the Assembly’ under art6(3) of the Sabah constitution were also discussed. The final case involves the resignation of Datuk Pairin Kitigan of PBS who featured in the Tun Mustapha case where the High Court held that the conferring executive discretion by the constitution does not necessarily oust the jurisdiction of the courts.
(d) Datuk Amir Khar Tun Mustapha v Tun Mohamad Said Keruak
 3 MLJ 737(High Court,Malaysia)
Abdul Kadir Sulaiman J
This is the defended application by summons-in-chambers to strik out the plaintiff’s originating summons praying for various declaration arising out of the resignation of Datuk Joseph Pairin Kitingan(‘Pairin’) on 17 March 1994 as Chief Minister of Sabah and the appointment by the 1st defendant of the second defendant as the new Chief Minister the third to ninth defendants as members of the new cabinet on the advise of the Chief Minister. The plaintiff chanllanges the appointment of his new cabinet as being unconstitutional, ultra virus and valid when he and the other members of Pairin’s Cabinet had no tendered their resignation nor had their appointments been revoked by the first defendant.
It is accepted that when anyone is given the absolute discretion to decide upon certain matters, it Is not the function of the court to enquire as to how the person exercise his discretion on the matte and the factors he took into consideration in exercising such a discretion. See Tun Datu Hj Mustapha Bin Datu Harun v Tun Datuk Hj Mohamed Adnan Robert, Yang di-Pertua Negeri Sabah and Datuk Joseph Pairin Kitingan (No2)  2 MLJ 420. The subjective determination of the person is non-justiciable. However, considering the matters contained in this application of the plaintiff as a whole, those matters involved various aspect which are not all concerning the issue of questioning the exercise of the discretion of the Yang di-Pertua Negeri Sabah given by the Sabah Constitution.
…Once the court is satisfied that the condition precedent has been fulfilled, the court has no further jurisdiction to inquire as to why the Yand di-Pertua Negeri revoked the appointment of the member. The condition in the precedent here is that to revoked the member’s appointment, the Yang di-Pertua Negeri must act in accordance with the advise of the Chief Minister. Under cl(3), a member of the Cabinet, other then the Chief Minister, shall hold office at the pleasure of the yang di-Pertua Negeri but subject to certain conditions to be fulfilled, and not a pleasure at large. So in this instance, the court has the jurisdiction to enquire whether in exercising his discretion under the clause, the Yang di-Pertua Negeri has overlooked the condition precedent required by the clause. So, just that the yang di-Pertua Negeri has a certain discretion, does not mean that ipso facto the jurisdiction of the court is ousted….
So, the court has the jurisdiction to enquire whether the first defendant has so exercised his discretion upon the plaintiff in this case, whether he had done so subject to the fulfilment of the condition in cll(1) and (2) of the article. Under cl(10, the discretion to withdraw his pleasure is properly exercised if the Chief Minister ceases to command the confidence of a majority of the member of the assembly and his tenders the resignation of the member of the Cabinet to the first defendant, but the plaintiff refuse to vacate his office. Under cl(2), the discretion is properly exercised if the plaintiff’s appointment id revoked by the first defendant acting accordance with the advise of the Chief Minister, but the plaintiff refuse to vacate his office. In this case, what we have is the fact that the Chief Minister, resigned and the plaintiff’s appointment was never revoked by the first defendant. So, the issue revolves round the interpretation to be given by the court to the various provision of the Sabah Constitution, particularly art 6 and 7 therof, which Is clearly within the jurisdiction of the court. Therefore, he matter is not that plain and obvious to invoke the discretion of the courts to strike out the plaintiff’s originating summons summarily.
It is also said that the resignation of Pairin must be deemed to be the resignation of the Cabinet based on establish constitutional convention. Convention comes in aid of the construction and interpretation of the constitutional provision. However, convention cannot override the express provision of the Sabah Constitution. So, before a convention is invoked, the constitutional provision needs to be looked at. So the matter is not plain and simply by merely look at the convention and brushing aside the constitutional provision. It is further submitted that the appointment of the third to the ninth defendants as Ministers means in law and in fact the dismissal of the plaintiff as a Minister. Again, this involves the argument as to the interpretation to be given to art 7 of the Sabah Constitution as to whether in the absence of the resignation by members of the Cabinet and in the absence of revocation of their appointments, and in the absence of a clear reason for Pairin to resign, the said resignation is one under art 7(1) thereof. If the resignation of Pairin as Chief Minister was under cl(2), we cannot conclude that such resignation would result in the automatic loss of office of the members of his Cabinet simply on account of the appointment of the third to the ninth defendants into the Cabinet of the second defendant. Again, this is an issue of law to be resolved at the trail.
In the circumstance of what has been said above, it is in my considered opinion that the originating summons of the plaintiff has raised several issues both of law and facts which call for a full trail of the action. It is not a plain and obvious case whereupon if the courts ought to strike out the pleading summarily, I find that the plaintiff has a reasonable cause of action on the pleading and that it is in no way scandalous, frivolous or vexatious or otherwise an abuse of the process of the court. In the circumstances, I dismiss the application of the defendants by this summons-in-chambers with costs to the plaintiff. The hearing of the originating summons will proceed. Application dismissed with costs.
(2) The Discretionary Powers Of The Head State During An Emergency
In this section, we examine the nature of the discretionary power conferred on the Head Of State during an emergency. The emergency provision in Malaysia and Singapore are almost identical in so fast as they give the Head Of State certain powers to proclamation and the time parliament is summoned and sits. Key issues here concern the nature of the discretion its application, and whether the court may judicially review the exercise of this discretion.
(a) Stephen kalong Ningkan v Tun Abang Haji Openg and Tawi Slio (No2)
 1 MLJ 46 (High Court, Malaysia)
Pike CJ (Burneo)
In the respect of making of the Proclamation by the Yang di-Pertuan Agong under art 150 of the Federal Constitution the defendants say that it purported to be made by virtue of the fact that acts of the Yang di-Pertuan Agong under this article cannot be questioned in any court. Counsel for the defendants submitted that the power conferred by art 150 is not a power delegated by Parlaiment but a power vested by the constitution in the Yang di-Pertuan Agong and that as such it is not open to question in any court. But since the federation of Malaysia is the creation of a Statute, namely the Constitution of Malaysia, and that statute was enacted by Parliament and is by art 161 defined as ‘written law’. It is difficult to see any merit in this argument. The fact that by cl92) to (6A) of art 150 Parliament imposes controls of one sort or another upon the exercise of the power seems clearly to be against his contention. Furthermore since under art 40 of the Constitution the yang di-Pertuan Agong is required to act upon the article of the cabinet in making a proclamation under art 150 ( and all indeed in all other matters except those mentioned in cll(2) and (3) of art 40), it cannot, I think, be argued that the power conferred by art 140 is a prerogative power analogous to certain powers of the British Sovereign. Counsel also argued that since the power was vested in the yang di-Pertuan Agong and since by art 32(1) the Yang di-Pertuan Agong Is not liable to any proceedings whatsoever in any court the act of the Yang di-pertuan Agong is not challengeable in any court. Article 32(1) only protects the Yang di-Pertuan Agong personally from proceedings in a court but cannot be constructed to protect the Federal Government from action in the courts in respect of its acts committed in the name of Yang di-Pertuan Agong, and when the Yang di-Pertuan Agong acts on the advise of the cabinet his act must be deemed to be the act of the federal Government.
This however, does not conclude the matter. The next question which arises is whether, assuming it to be the act of the Federal Government, the exercise of it can ever be questioned in a court. It seems clear from the cases that it is not open to a court to enquire into the sufficiency of the reasons for a declaration of emergency provided it was made bona fide. If, therefore, the declaration appears ex facie to hav been made the manner required by the statute and the bona fides of the making of the declaration is not impugned, it is not open to the court to enquire into it. I refer to the case of Bhagat Singh & Ors v The King Emperor (1931) LR 58 IA 169. On the fact of it this case seems to go further than the opinion expressed above but the bona fides of the Governor General was not questioned and it does not appear from the report that the question was considered. In the King Emperor v Benaori Lal Sharma  Ac 14, while the Board expressly approved the decision in Bhagat Singh v The King Emperor, Viscount Simon LC in delivering the judgment of the Board made it clear that the exclusion of the court’s right to enquire into the exercise of such a power depends upon whether or not the act was done bona fide. At p 21 Lord Chancellor says:
It is to be observed that the section does not require thw Governor General to state that there is an emergency, or what the emergency is, either in the text of the Ordinance or at all, and assuming he acts bona fide and in accordance with his statutory powers, it cannot rest with the courts to challenge his view that the emergency exist. In the present instant such questions are immaterial for at the date of ordinance (2 January 1942) no one could suggest that the situation in India did not constitute an emergency of the most anxious kind.
It further authority he needed for the proposition that courts have power to go behind apparently lawful order it will be found in Regina v Governor of Brixton Prison 2 QB 243 and in Liversidge v Anderson AC 206
In the former case Lord Denning said at p 302:
It is open to these courts to enquire whether the purpose of the Home Secretary was a lawful or unlawful purpose. Was there a misuse of power or not? The courts can always go behind of the deportation order to see whether the powers entrusted by Parliament have been exercised lawfully or not.
In the Liversidge case Viscount Maugham at p 224 says:
The result is that there is no preliminary question of fact which can be submitted to the courts and that in effect there is no appeal from the decision of the Secretary of State in these matters (orders of detention under reg 18B of the Defence (General) Regulations. 1930) provided only that he acts in good faith.
And Lord Atkin at page 223 says:
In all these cases it is plain that unlimited discretion is given to the Secretary of State, assuming as everyone does that he acts in good faith.
…In my opinion the plaintiff’s writ and the matters contained in… his statement of claim do disclose a cause of action within the jurisdiction of this court, and, without hearing evidence, it is not possible in my view to say whether it will succeed or fail.
The Head of State’s Discretion In Other Areas
Under art 40 of the Federal Constitution, the Yang di-Pertuan Agong may act in his discretion in the appointment of the Prime Minister, dissolution of Parliament and requisition of a meeting of the Conference of Rulers when their ‘privileges, position, honours and dignities’ are affected. In addition, he also possesses the prerogative of mercy. This pardoning power is conferred on the Agong under art 42 of the Federal power is not to be found in the 1985 Reprint of the Constitution but in the Republic of Singapore independence of Act (s 8).
In all other respects, the Head of Statute usually has to act on the advice of the cabinet or the minister authorized by the cabinet. If the Head of the state refuses to act accordingly, a constitutional crisis is inevitable.
In Malaysia, a unique situation exists whereby under art 38(6), the Conference of Rulers may withhold their consent to any law which alters their state boundaries or which affects their ‘privileges, position, honours or dignities’. In 1983 the Yang di-Pertuan Agong refused to assent to a bill passed by the Federal Parliament which, it was argued affected the Conference of Rulers was not sought, and a constitutional crisis ensued. Almost 10 years later, another crisis erupted when the privileges and immunities of the Malay rulers were successfully challenged by the Government.
In this section, we take a look at the Agong’s prerogative of mercy and the court’s attitude towards litigants seeking to challenge it. Also included are extracts which describe and discuss the events which culminated in the constitutional crises of 1983 and 1993-4.
(a)Karpal Singh v Sultan of Selangor  1 MLJ 64 ( High Court,Malaysia)
Abdul Hamid (CJ Malaysia)
His Royal Highness the Sultan of Selangor has sought to strike out the Originating Summons issued at the instance of Mr Karpal Singh, the plaintiff, under Order 18, rule 19 of the Rules of the High Court, 1980, and/or the inherent jurisdiction of the Court.
By his Originating Summons, Mr Karpal Singh seeks determination of this Court and a declaration to the effect that the public statement allegedly made by the Sultan on 26 July 1987, and reported I the New Straits Times and The Star newspapers of the next day, that he would not pardon anyone who has been sentenced to the mandatory death sentence for drug trafficking in the State of Selangor, is in violation of art 42 of the Federal Constitution in that the Sultan can only reject a petition for clemency after considering the advice of the Selangor Pardons Board and then applying his mind to the petition before him.
In support, Mr Karpal Singh relies entirely on the press reports as regards the statements attributed to the Sultan allegedly made at the opening of the general meeting of the Ex-Servicemen’s Association, Selangor Branch. Photostatic copies of the press reports are exhibited.
Mr Karpal Singh affirms that by publicly stating that he would not pardon anyone who has been sentenced to death for drug trafficking in the State of Selangor, the Sultan was effectively pre-empting any appeal to him for clemency thereby resulting in the negation of a constitutional right.
Before I consider the grounds, I would, in passing observe that the soled foundation of the Originating Summons is the statement allegedly made by the Sultan as reported in the New Straits Times and The Star newspapers on 27 July 1987. There is no affidavit before the Court affirmed to by the reporter concerned stating that he heard the Sultan made such statement. The press reports of what the Sultan is reported to have said would appear to be inadmissible as hearsay. The fact that the Sultan has not contradicted the press reports does not, in my view, make the slightest difference for it is well-established that inadmissible evidence does not become admissible by reason of failure to object.
I would also observe that there seems to be a flaw in the plaintiff’s case in that, it is common knowledge, the Sultan invariably speaks in Bahasa Malaysia and in that event the press reports of what the Sultan is alleged to have said would therefore have been a translation thereto. If so, who did the translation and was it accurate? Where is the translator’s affidavit affirming the accuracy of the contents of the translation? In the absence of such an affidavit, the press reports would clearly be inadmissible.
Without the press reports, what other evidence is there to show what the Sultan said on the occasion concerned? In my view, therefore, the Originating Summons founded upon such premises may be held to be groundless. The judgment I am about to pronounce, however, is not founded upon such premises.
Is the issue justiciable?
On ground (1), I recall Sim Kie Chon’s case  2 MLJ 385 where at p 386, the Court considered the nature of the power of clemency conferred upon the Yang di-Pertuan Agong and the ruler of a State and then stated that :
Such power is a power of high prerogative of mercy which is an executive act but by its very nature is not an act susceptible or amenable to judicial review.
The Court then went on to refer to the dictum of Lord Diplock in Michael De Freitas v George Romoutar Benny & Ors  AC 239,247 to the effect that ‘Mercy is not the subject of legal rights. It begins where legal rights end. ‘ To the same effect was the decision of the Supreme Court in the sequel to that case in Superintendent of Pudu Prison & Ors v Sim Kie Chon  1 MlJ 494.
Basically, the Originating Summons relates, at least indirectly, if not directly, to an issue concerning the process of clemency which is clearly non-justiciable. The Court had again occasion to say in Sim Kie Chons’s case at p 386 that ‘ though the Pardons Board tendered advice to the Yang di-Pertuan Agong but clearly the Yang di-Pertuan Agong himself exercised the power in accordance with art 42(1).’ Likewise, the power is that of a Sultan in a State, Clause(9) of art 42 cited by Mr Karpal Singh does not make it mandatory on the ruler to act on the advice. It only makes it obligatory on the part of the Pardons Board as constituted under cl(5) of art 42 consisting of specified persons to consider a written opinion which the Attorney-General may have delivered thereon before tendering advice.
In consideration, I form the view that the Originating Summons disclosed no reasonable cause of action and that the issue raised therein is not justiciable.
In consideration, I would hold that this Court has no jurisdiction to entertain the Originating Summons for reasons, firstly, that it raises an issue which is not jucticiable; secondly, that it does not relate to specific facts or events or if it does, these facts or events are hypothetical; thirdly, that art 181(2) of the Constitutions operates to bar the plaintiff’s claim; fourthly, that the plaintiff lacks the necessary locus standi to maintain these proceedings. I would also add that since the declaration sought is as to the future and it relates to theoretical issues, it is embarrassing and can serve no good purpose. It is, in my view, a plain and obvious case where the Court, in the exercise of my discretion, should strike out the Originating Summons as being one which I consider to be frivolous and vexatious and an abuse of the process of the Court.
The Elected Presidency in Singapore
Given the length and scope of this book, we can only summarize the most salient aspects of the Elected Presidency in Singapore. A lengthier treatment must and will be given to this important subject in another forum at a later time.
In 1984, the then Prime Minister of Singapore, Mr Lee Kuan Yew, mooted the idea of having an elected president. Although much was said about it, the proposal was only concretized by the issue of the first White Paper on the Elected President, entitled Constitutional Amendments to Safeguard Financial Assets and the Integrity of the Public Services (Cmd 10 to 1988).
The rationale for the proposals in that White Paper may be summarized as follows:
In many countries, irresponsible governments have mismanaged their nations’ finances and economically ruined their countries. This is done to win votes by providing handouts and heavy subsidies which naturally make those governments very popular.
Singapore has so far been fortunate to have a responsible government, but with over $30 billion in the national reserves, the temptation for a future irresponsible government will be very great. Indeed, in times of economic strife and flagging support, an irresponsible government will find this temptation irresistible. Hard earned money will be spent on short-term vote buying and on popular measures.
One of the cornerstones of Singapore’s success has been its public service sector. The key appointment holders in Singapore’s public service and statutory boards are men and women of the intergrity and ability. This, too. May be destroyed if an irresponsible government makes key appointments based on considerations other than merit. Nepotism and corruption may results and the public service will collapse.
There is nothing in the Constitution to prevent any such present or future government from squandering all the nation’s reserves, leaving it economically ruined. Nor is there any safeguard against the irresponsible appointment of important civil servants. The Prime Minister and his cabinet have untrammeled power.
It is therefore necessary to have some constitutional safeguard to secure the future for Singaporeans, and to prevent an irresponsible government from ruining Singapore.
In designing this new safeguard, the government also found the following considerations vital :
the Parliamentary system of government should be preserved;
the safeguard mechanism must enable quick action;
the person must have moral authority;
the person must have Ministerial or High executive or Administrative experience; and
the Constitution should require presidential candidates to have such experience and qualities.
In view of the above considerations and objectives, the government proposed to transform the office of the President into an elected one. Under the original proposal, the Presidential candidate and the Vice-President were to be voted in as a team. The President was to be entrusted with the duty of protecting Singapore’s financial assets and preserving the integrity of the public service.
Unlike a true executive President, the elected President was to have limited executive powers which were confined to these two areas. In particular, the President would have the discretion to grant or withhold his concurrence to decisions of the Prime Minister and his cabinet on (a) the spending of national reserves or assets; and (b) the appointment of key posts in the public service. Under these provisions, a legal duty will be placed on all public officers to inform the office of the President whenever assets or reserves are to be used or pledged in loans raised against them.
The Second White Paper
In August 1990, the government issued a second White Paper on the Elected President. This was presented to Parliament on 27 August 1990. At the same time, the Constitution of the Republic of
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