“At the pleasure of the King” — what if the King is displeased?

The phrase is not what it seems.

Many have misinterpreted it. And a great many have given the phrase its literal meaning, forgetting and, in some cases, even in ignorance, that it is a legal phrase that has its own legal meaning. Also overlooked is the fact that it is a phrase with a long historical usage that evolved through times before finding itself retained, albeit emasculated, through practices and conventions by modern democracies, especially of the Westminster type.

In medieval times, Kings of England used to bestow titles, honours and even public offices, including that of Judges, to those whom the King favoured. To ensure complete loyalty and subjugation, such bestowal was always made for the bestowed to hold office “during the pleasure” of the King. The King therefore had absolute power and discretion to remove those appointees at his whims and fancies. Thus, the maxim durante bene placito regis or “during the pleasure of the King” became embedded in the structure of English political and administrative hierarchy.

Of course, as time went by, the practice of Kings removing officials and judges with whom they found disfavour caused consternation among the ruling elites. By 1689, the Bill of Rights castrated the King’s executive power by providing that the King cannot rule without a Parliament. Although at this time the King could still make appointments at his pleasure, he quickly learned that such appointments must be backed by the majority in the Parliament in order to ensure that the Parliament would pass laws on taxes and how to spend the taxes. The King found that he had to please the Parliament and therefore he could only appoint those whom the Parliament supported.

At the end of the Stuart era, the Act of Settlement (1701) established that judicial tenure or appointments were no more at the King’s pleasure but “during good behaviour.” This took away the power to remove judges freely.
The final nail to the proverbial coffin was later catalysed by none other than the King of England who could not speak English!

At the end of the Stuart era, all Catholic royals were barred from being the King. The closest Protestant cousin was a George Louis, who was some kind of a ruler of a member state of the Holy Roman Emperor. And yes, he was from Hanover, in present-day Germany, and could only speak German and French. He ascended the English throne as George 1.

Speaking little English, he rarely attended the Parliament. In fact, he did not even attend cabinet meetings. As the cabinet needed a leader, the ministers appointed Sir Robert Walpole as their leader and as their bridge with King George. As a result, he was widely regarded as the first Prime Minister of England. This took place in 1721.

Sir Robert, being a politician, quickly seized the moment to solidify his position within the ruling elites of England. He made sure that the Parliament was always behind him. It was easy since the King himself was absent from the Parliament and cabinet meetings.

The moral of the story thus far is this: Firstly, one needs to learn English and secondly, do not let a politician roam freely without checks.

By this time, the Prime Minister, who had the majority of support in the Parliament, dictated almost every facet of the administration of England. The King could no longer appoint anyone he liked nor remove anyone he disliked whether he was pleased or otherwise. In addition, whoever did not receive the support of the Parliament had to resign. And the King could not make people hold office at his pleasure or remove them at his displeasure anymore. Finally, all appointments had to have the support of the Parliament. Offices could only be lost if the occupant lost the support of the Parliament.

In the scheme of things then, the King realised that he could not willy nilly do anything. He could not force the Parliament to do anything which the latter objected to and, if he persisted, the Parliament would simply refuse to pass laws or sanction anything as a pushback. It couldn’t be imagined by the King that one day the Parliament might not pass taxation laws which would then threaten the very existence of the Court itself.

The scheme of things then was rewritten, rescripted and redirected. The practice of doing things at the sole pleasure of the King evolved into a tokenism of sorts. The King became what we call today a “Constitutional Monarch”, which is another way of saying “yes, you are the King, you exercise executive power, but you do so as advised by us”.

By the 19th century, legal theorists stated the practical reality, namely, that the King’s prerogative powers are only exercisable “on the advice of the Prime Minister”. Practice became convention and convention turned into the flesh that enwraps the bones of Constitutionalism.
With that, the absolute nature of “at the pleasure of the King” was dead. The coffin was nailed and buried.

In official documents however, the phrase is retained, especially in appointment documents. However, it is there just to emphasise that the appointment is made by the King at his pleasure but in practice, by convention, the power of appointment and removal is at the advice of the Prime Minister.

It doesn’t need stating that in feudal days, the Ruler of the various state-kingdoms splattered over Nusantara and, in particular, Tanah Melayu, had the same administrative modus. We just need to read the semi-fictional and part historical narratives in Sejarah Melayu to notice that. A full intellectual dissertation on the practice could be found in the seminal work of Anthony Milner, Kerajaan (please read this book — it is amazing).

Flash forward to 1957, when we achieved independence from colonial Britain. We embedded the Westminster practice into the Federal Constitution. Article 40 (1) expressly states that the powers to be exercised by the King shall only be exercised in accordance with the advice of the cabinet or a Minister who is acting under the general authority of the Cabinet.

The phrase “a Minister who is acting under the general authority of the Cabinet” is important. Many think that the Prime Minister advises the King at his whim and fancy. No. It is the cabinet who advises the King. The Prime Minister is just a “Minister who is acting with a general authority of the Cabinet”, meaning, he is just an agent of the Cabinet.

In 1994, we amended Article 40 to insert Clause 1A. As if Clause 1 is not clear or strong enough, Clause 1A says when an advice is given, the King shall accept and act in accordance with that advice.

There are a few things which the King could do without advice. The Federal Constitution expressly states that the King may appoint a Prime Minister; summon the Conference of Rulers and refuse a dissolution of Parliament if requested by a Prime Minister who has lost the confidence of the Parliament. These are the only things that could be exercised by the King without advice.

The power to appoint a Prime Minister, although on the face of it is unfettered and absolute, is however not so. It is a guided discretion. The King can only appoint a Prime Minister from among the elected Members of Parliament and the person to be appointed must, in the opinion of the King, be likely to command the support of the majority of the MPs. That is the guidance.

There are, however, a few other powers that are called “residual or reserved” powers. One of these is the power to pardon. Scholars and even top Judges and Courts have pronounced that the power to pardon comes from the old power to offer mercy. Being a power to offer mercy, that power is unfettered and absolute. The existence of the Board of Pardon is a mere procedural matter. In the case of the now infamous ‘sometimes you see it and sometimes you don’t see it” addendum, the High Court ruled that the procedure is to be followed before the power could be exercised. Is that right? It is a topic for another day.

So basically, the Malaysian position is as British as fish and chips.

The position is the same as in Britain. The King cannot remove the officials without advice from the Cabinet. Article 43 (5) states clearly that all the Ministers (except the Prime Minister) “shall hold office during the pleasure of the Yang diPertuan Agong”. Is that all? No. That phrase is then practically superseded and clipped immediately after with the phrase “unless the appointment of any Minister shall have been revoked by the Yang di-Pertuan Agong on the advice of the Prime Minister.”

So, there we go. The power of removal shall only be exercisable on the advice of the Prime Minister.

How about the powers of the various Sultans? Simple answer, namely, Article 40 (1) and (1A) as well as Article 43 (5) are also contained in the States’ Constitutions.

The Malaysian Courts have also on a few occasions stated this position. The case of Anwar Ibrahim v Perdana Menteri Malaysia is one of them. In that case, the Plaintiff was dismissed by the Prime Minister in a letter. It was argued that the King should be the one who removed him. The Court said that the King could only remove on the advice of the Prime Minister. Since the Prime Minister had issued the letter, he must have advised the King (there was a statement in an affidavit that said this) and so the sacking was at the advice of the Prime Minister. Therefore, it was valid.

The Federal Court decision in Nizar v Zambry also says the same. Oh, wait. The Sultan did sack the Menteri Besar in Nizar v Zambry and the Federal Court said the removal was valid. So how? Well, that was one of the “reserved powers” we were talking about earlier. What happened in Nizar v Zambry was that the MB lost the support of the majority of the Dewan. He went to the Sultan and requested the dissolution of the Dewan. The Sultan, exercising one of his absolute powers, refused to dissolve the Dewan when requested. Under the Constitution, if the Sultan refused dissolution upon request, the MB was supposed to tender resignation. He did not. So, the Sultan had a reserved power to sack him. That was what the Sultan did. The Federal Court approved it.

In the UK, breach of oath of office has never been a ground for dismissal. However, there is a Ministerial Code of Conduct. The breach of this Code may be a ground of dismissal and even criminal charge. That is within the power and purview of the Prime Minister, who will advise the King accordingly. It is not for the King to move on his own.

What about section 94 of the Interpretation Act 1947 and 1967? That section says the power to appoint shall be interpreted to include the power to remove. Yes, but subsection (2) of section 94 says if an appointment is to be made on advice by somebody else, the power to remove is also exercisable on advice by that person. In any case, Article 43 (5) of the Federal Constitution expressly says that removal is to be done on advice by the Prime Minister. Section 94 cannot go against the Federal Constitution. Period!

Whether a Minister could be dismissed for breaching his or her oath of office in Malaysia remains to be seen.

Whatever it may be, it is a part of our Constitutional basic structure — and it is also the case in every country practising Westminster democracy — that “holding office at the pleasure of the King” means unless advised otherwise by the Prime Minister or up to a date the Prime Minister thinks otherwise.

Tan Sri Azhar Azizan Harun (Art Harun) is a former Speaker of the Dewan Rakyat