Rules for royal succession
REFLECTING ON THE LAW By SHAD SALEEM FARUQI
For the first time in royal history, a reigning Sultan ascended the Federal throne the second time. The Sultan of Kedah had previously reigned as Yang di-Pertuan Agong from 1970 to 1975.
YESTERDAY, the distinguished reign of the Sultan of Terengganu as the 13th Yang di-Pertuan Agong came to an end and the Sultan of Kedah ascended to the Federal throne.
This draws our attention to the unique rules relating to the election of the Yang di-Pertuan Agong and Timbalan Yang di-Pertuan Agong as found in Articles 32, 33, 38(2) and the Third Schedule of the Federal Constitution.
The rules are exceedingly complex and constitutional conventions have added to their richness. The salient features are as follows:
> Only the Rulers of the nine Malay states are eligible to contest or vote. The Governors of Penang, Malacca, Sabah and Sarawak are excluded.
> Voting is by secret ballot and a simple majority of five out of nine Sultans is needed to disqualify or elect a Ruler.
> Seniority (by reference to date of accession to the state throne) carries some weight but is not an overriding factor.
> Election is on a rotational basis to ensure that every Ruler (who is willing and suitable) has had an opportunity to become the Yang di-Pertuan Agong before any state occupies the Federal throne twice.
> A Yang di-Pertuan Agong cannot be re-elected to continue beyond his five-year term.
Exceptions to rotation rule: Under the Third Schedule, a Ruler is qualified to be elected Yang di-Pertuan Agong except in three circumstances.
First, if he is a minor. Second, if he has notified the Keeper of the Rulers’ Seal that he does not desire to be elected.
In 1957 the Sultan of Johor, in 1970 the Sultan of Pahang and in 1975 the Sultan of Johor stood down in favour of the next eligible Ruler. In such a case, the state’s name goes to the end of the “Election List” and the next Ruler in line is offered the post.
Third, if at least five members of the Conference of Rulers have by secret ballot resolved that a Ruler is unsuitable by reason of infirmity of mind or body or for any other cause to exercise the functions of the King.
There is no verifiable record of any such resolution though it is rumoured that there was at least one such precedent.
First election: For the first election of the Yang di-Pertuan Agong in 1957, an “Election List” was drawn up to indicate the seniority or precedence that Their Highnesses recognised among themselves. In his book, the late Lord President Tun Suffian Hashim informs us that the list had this precedence: Johor, Pahang, Negri Sembilan, Selangor, Kedah, Perlis, Kelantan, Terengganu and Perak.
Though Johor and Pahang were high up on the List, the Federal throne was offered by the Conference of Rulers to Negri Sembilan. Johor had declined and perhaps this was also the case with Pahang.
Second to ninth elections: The Election List drawn up for the first election is not permanent and is subject to constant revision in accordance with Section 4 of the Third Schedule which provides that the state that contributed the previous Yang di-Pertuan Agong should be transferred to the bottom of the list.
The state whose Ruler is elected as the current Yang di-Pertuan Agong should be omitted.
Whenever a Ruler dies or abdicates and there is a change in the Ruler of a State, then, due to the juniority of the new Ruler, his State’s name should be transferred to the end of the list.
For example, in 1958 the Sultan of Kedah and in 1959 the Sultan of Johor breathed their last. Their states were placed on the last rung of the Federal succession ladder.
If a Ruler declines or is disqualified, his State is moved to the bottom of the list. This is what happened to Johor and Pahang in 1957.
The above rules governed all elections till April 25, 1994, when the ninth Yang di-Pertuan Agong completed his term of office and the first rotation among the Sultans was completed.
Under section 4(3) of the Third Schedule new rules and a new election list took over.
Tenth and subsequent elections: When all states have taken their turn to grace the office of the Yang di-Pertuan Agong, the election list is then reconstituted in accordance with section 4(3) of the Third Schedule.
States are placed in the order in which their Rulers have occupied the office of the Yang di-Pertuan Agong.
The Malaysian Kings thus far:
1. Yang DiPertuan Besar of Negri Sembilan: Aug. 3, 1957 to April 1, 1960 (died in office).
2. Sultan of Selangor: April 14, 1960 to Sept 1, 1960 (died in office).
3. Raja of Perlis: Sept 21, 1960 to Sept 20, 1965.
4. Sultan of Terengganu: Sept 21, 1965 to Sept 20, 1970.
5. Sultan of Kedah: Sept 21, 1970 to Sept 20, 1975.
6. Sultan of Kelantan: Sept 21, 1975 to March 30, 1979 (died in office).
7. Sultan of Pahang: April 26, 1979 to April 25, 1984.
8. Sultan of Johor: April 26, 1984 to April 25, 1989.
9. Sultan of Perak: April 26, 1989 to April 25, 1994.
10. Yang DiPertuan Besar of Negri Sembilan: April 26, 1994 to April 25, 1999.
11. Sultan of Selangor: April 26, 1999 to Nov 21, 2001 (died in office).
12. Raja of Perlis: Dec 13, 2001 to Dec 12, 2006.
13. Sultan of Terengganu: Dec 13, 2006 to Dec 12, 2011.
14. Sultan of Kedah: Dec 13, 2011.
Unique features: In an age of egalitarianism and democracy, one would have expected monarchies to wither away. But they remain robust and popular and are symbols of stability, continuity and national unity in many lands including Belgium, Brunei, Denmark, Japan, Cambodia, Malaysia, the Netherlands, Norway, Spain, Sweden and the United Kingdom.
The Malaysian monarchy is rather unique because of multiplicity of sovereigns at the state level and the elective and short-term nature of the royal position at the Federal level.
Another remarkable feature is that a time lapse is allowed between the end of one reign and the commencement of another.
In England, the rule is that “the monarch never dies”. On the death, removal or abdication of one monarch, the successor assumes office retrospectively to the date on which the vacancy arose.
This is not so in Malaysia where twice in 1960, once in 1979 and again in 2001, on the death of the Federal sovereign, the new sovereign’s reign commenced a few weeks after the vacancy arose.
Perhaps this is because the Constitution provides for a Timbalan Yang di-Pertuan Agong to fill the breach temporarily till a new election is held.
On the creation of a vacancy, the Deputy King does not automatically ascend to the throne. His term is tied up with the tenure of the Yang di-Pertuan Agong.
Under Article 33(3), if the post of the King falls vacant, the Timbalan Yang di-Pertuan Agong acts on his behalf till the office of the King is filled, at which time the Deputy King’s term expires as well.
Yesterday was a unique moment in our royal history. A reigning Sultan, the Sultan of Kedah, ascended the Federal throne a second time, the first being from 1970 to 1975. May all blessings be with our new King and his consort.
Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM.