Yesterday, in Malaysiakini - A new dimension of constitutional monarchy?, Param Cumaraswamy did what Perak MB had done, used the words of Lord President Raja Azlan Shah to question the words of Sultan Azlan Shah wakakaka.
Nizar had of course reminded HRH of a passage from the Sultan's own book titled 'Constitutional Monarchy, the Rule of Law and Good Governance' which had been (ironically) given to him by the ruler on his appointment as MB - this calls for another wakakaka.
The passage stated: "Under normal circumstances, it is taken for granted that the Yang di-Pertuan Agong would not withhold his consent to a request for the dissolution of the Parliament. His role is purely formal."
But alas, we all know what happened ... despite Zaid Ibrahim (former Law Minister) stating: "Many, including the Bar Council have said that His Highness's decision not to dissolve the Perak legislative assembly although advised to do so by the menteri besar (Mohd Nizar Jamaluddin) is beyond question or in legal parlance non justiciable."
Back to Param who is a former Malaysian Bar president, and has 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.
Param has been worried about HRH's recent statement that "the role of the constitutional monarchy goes beyond what is stipulated in the constitution".
HRH claimed "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".
Param believes that’s going a bit too far and termed HRH proposition, probably sarcastically, as a ‘new dimension of constitutional monarchy’ that may have far reaching conseuqences.
Param said: 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.
Then Param pounced on Chief Justice (wakakaka) Azlan Shah's judgment of the Federal Court in 1979 re: Sri Lempah.
The then CJ 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."
I think highly respected (former) Judge NH Chan’s succinct words, which I blogged in All that is Silver does not glitter, would be very apt in describing HRH’s proposition "... the role of the constitutional monarchy goes beyond what is stipulated in the constitution ..."
No, not a ‘bridge too far’ ….
… but 'This is no more than a pretended show of power when, in fact, there is no such power.'