Despite his political faux pax on the appointment of Abdul Gani Patail as attorney general which has not gone through (in his words) the "rigmarole" of kingly approval, Rais Yatim, the de facto law minister has managed to stay ahead of the game.

The announcement by Rais that the deputy Yang di-Pertuan Agong had given his approval days before the Malay rulers were to meet to elect a new king on Dec 12 was timely.

All and sundry did wonder as to why the matter was not settled earlier but almost at the eleventh hour when the office of the deputy Yang di-Pertuan Agong was about to expire.

Under the constitution, the office of the deputy Yang di-Pertuan Agong expires "on the cessation of the vacancy" in the office of the Yang di-Pertuan Agong (Article 33 (3)). That will be on December when the Conference of Rulers meets to elect the new king.

The appointment of the AG is an appointment by the executive. The king as the de jure head of the executive appoints the AG on the advice of the prime minister who is the de facto head of the executive.

It would be an ordinary executive act except that the office of the AG has come under public scrutiny in recent years. This calls for prudence all around in the choice of the next person for this office.

The appointment of Ainum Mohd Saaid this year was seen as a turning point and a clean-up exercise of the sullied reputation of the AG's Chambers marred by scandals of cronyism and selective prosecution.

Rudely interrupted

This hope for change, however, was rudely interrupted when Rais announced the appointment of Abdul Gani Patail as AG when Ainum tendered her resignation short of her two-year appointment.

Perhaps Rais was too busy being legal adviser to the government and did not solicit the views of madame AG - who is according to the constitution, is the de facto and de jure legal adviser to the government - on the correct procedure to be followed.

The king as constitutional monarch (and the deputy in his absence) acts on the advice of his ministers as a general rule.

Article 40 (1) makes it super clear that the king in carrying out of all of his functions under the constitution or federal law must act "in accordance with the advice of the cabinet or a minister under the general authority of the cabinet, except as otherwise provided".

Article 145(1) which deals with the appointment of the AG, provides that the king acts on the advice of the prime minister. There is no express mention of approval by the king.

Accordingly, Rais is willing to cross swords with the speaker of the Dewan Rakyat who has knowledge that the king was not informed or has not yet approved of Patail's appointment.

For Rais it is just a case of going back to the king once the Conference of Rulers appoints the new king this Dec 12. In fact, this appears to be the agenda when the prime minister announced on Dec 7 that the appointment would be presented before the king.

Timely dash

The timely dash for approval to the deputy Yang di-Pertuan Agong has nevertheless averted Rais's faux pas from developing into a constitutional crisis.

The Conference of Rulers act in their absolute discretion in the election and removal of the king and his deputy under Article 38 (6) (a).

Had the approval not been obtained in the nick of time, the Conference of Rulers may just show their royal disaffection of Rais's machinations by appointing a new king who might delay the appointment as a sign of disapproval or displeasure.

The de facto head of the executive, the prime minister advises but the king as de jure head of the executive appoints and the Conference of Rulers gets to decide who the next king shall be. The proceedings of the Conference of Rulers in the appointment of the king are secret.

While the constitutional monarch does not refuse advice it has always been the custom, loyal courtesy and constitutional convention that the king is first advised of the appointment of the AG.

The king is the king and the legal argument becomes redundant when the King manifests his disapproval of the advice of the prime minister. A crisis erupts in such a situation, the resolution of which is political rather than legal.

His Royal Highness, Sultan Azlan Shah writing in 1982 is of the opinion that a "king is a king, whether he is an absolute or a constitutional monarchBut it is a mistake to think that the role of a king, like that of a president, is confined to what is laid down by the constitution. His role far exceeds those constitutional provisions." (The Constitutional Role of the Rulers, 1982)

All law students know the cryptic paragraph from Sheridan & Groves, "The Conference of Rulers is a body whose constitutional position is hard to pin down. Its functions are miscellaneous it stands outside the federal cabinet system, yet can pass judgment on certain executive appointments; it can make or break a Yang di-Pertuan Agong." (The Constitution of Malaysia, 1987).

Progressive curtailment

We have perhaps very little appreciation of the powers of the Malay Rulers, an institution which predates the Merdeka constitution over the king whose office was created on Merdeka day.

We have seen the progressive curtailment of the constitutional powers of the king and the rulers, by His Majesty's and Their Royal Highnesses' ministers since Merdeka day.

There has been little appreciation of the impact of some of these amendments that may be intended to rein in a run-away executive in control of the legislature and the judiciary.

It has been said that the amendments to the constitution have turned a hallowed document into a periodical. The fact that we are young democracy should not be a licence for the executive to whip Parliament and cut down constitutional safeguards in the name of representing the rakyat.

It falls on us to re-educate ourselves on our constitutional processes and participate more effectively in building our democratic culture. Just voting once every five years or less is not enough.

Writing in 1982, His Royal Highness, Sultan Azlan Shah stated that "it may be that the sentiments of Malaysians as regards to the Yang di-Pertuan Agong may not be as strong as that of Britons towards their queen. This is quite understandable as the office is barely 25 years old. It may be that because of this factor, Malaysians may not as yet able to say 'we can damn the government and cheer the king' But there is no denying that the office is the symbol of unity, the fountain of justice, mercy and honour. "

The situation before the approval by the deputy king did offer a window of opportunity for Malaysians opposed to the appointment of Abdul Gani Patail to throw in our lot with His Majesty and the Conference of Rulers to maintain honour and integrity in the office of the AG.

But as Rais has learnt in this situation, nothing is too late.

We will remain vigilant in the defence of the rule of law and the system of checks and balances lest we lose the very institutions and values that protect us from the caprice of power.