Does a Ruler Have the Prerogative Power to Appoint and Sack a Menteri Besar in Malaysia's Constitutional Monarchy System ?

MUST READ !

The following is a posting by lawyer Art Harun on lawyer Malik Imtiaz Sarwar's blog disputing the argument that the ruler has the "prerogative" to appoint the Menteri Besar with regard to the Trengganu crisis in 2008.

This debate took place in the aftermath of the March 2008 election when there was a looming crisis on the appointment of the Menteri Besar, involving the ruler who is at the same time the Yang Di Pertuan Agong.

Malik Imtiaz Sarwar quoted extensively the Trengganu Constitution and wrote :

" As I see it, Chapter Six vests an absolute discretion in the Sultan to appoint ministers and officials. This would necessarily include the Chief Minister or Mentri Besar.Article 63 of the First Part...is significant as the absolute power of the Raja to appoint a Mentri Besar is preserved except where otherwise expressly provided."

(Read Here details of Malik Imtiaz Sarwar's arguments based on the Trengganu Constitution.)

However, lawyer Art Harun disagreed in his response to Malik Imtiaz Sarwar's interpretation.

The thrust of the debate between Malik Imtiaz Sarwar and Art Harun in March 2008 is very much relevant to the current crisis in Perak involving the sacking of a sitting Menteri Besar and the appointment of a new Menteri Besar.

We therefore take full liberty of reposting Art Harun's arguments made in March 2008 and Malik's follow-up response.

Art Harun also commented in his blog "ARTiculation" on the current Perak constitutional crisis, in particular, on controversial sacking of the sitting Perak Menteri Besar.

We strongly recommend to our readers to read this posting to better understand the legal and the constitutional underpinnings of the crises in Perak now and in Trengganu in 2008.
-Malaysian Unplug

From ART HARON - INITIAL COMMENTS: 25 March 2008

(emphases and word-highlights in the write-up are ours -Malaysian Unplug)

".... I beg to differ, Imtiaz.

The Federal Constitution - and all the States Constitutions - are drafted in such a way to ensure that the Rulers play NO part in the nation's (and the states') political arena.

Thus in most cases, the Rulers are required to act "on the advice" of the Executive. That kind of provisions take away whatever discretion the Rulers may have over the matter.

On the appointment of the Menteri Besar, it is of course noted that the power rests with the Sultan, and in Trengganu's case, with the Regent as the Sultan is now the Agung.

Although it is within the Ruler's sole ambit to appoint a Menteri Besar, I would not venture to call that power as a "prerogative".

A prerogative power denotes an absolute power which may then be exercised by the Ruler at his sole and absolute discretion. However, in matters concerning the appointment of the Menteri Besar, the Ruler's discretion is a guided discretion, which makes the discretion a qualified one.

In my opinion, (well, I don't know how much my opinion is worth on this subject as I don't practice Constitutional Law at all!), when one speaks of the prerogative of the Ruler to appoint a Menteri Besar, one meant to say that only the Ruler ALONE can appoint a Menteri Besar and not anybody else. That is true to that extent.

But the exercise of that appointing power is tampered with a guided discretion, namely, the Ruler must appoint some one whom the Ruler thinks commands the confidence of the majority of the State Legislative Assembly. The Ruler cannot willy nilly appoint anybody he likes at his own whims and fancy.

With all due respect, I DISAGREE with you when you say that past practice does not bind the Ruler. I say this because apart from the written provisions of the Constitution, "convention" also forms an inalienable part of our Constitution (well, at least, in the Commonwealth countries).

Take the Federal Constitution for example, there is NO provision saying our Prime Minister must be a Malay and a Muslim. But by convention, it is already argued by learned authors that the PM must always be a Malay and a Muslim. WE shall save that argument for later.

My point is, CONVENTION may dictate the exercise of the Ruler's power to appoint the Menteri Besar as long as that convention is NOT repugnant in any way against the written provisions of the Constitution. The involvement of convention in our Constitutions gives the notion that our Constitution is in fact a living and breathing document and not a document which is carved in stones and lying somewhere in the archive.

So, how does the Ruler form his judgment on who commands the confidence of the majority of the State Legistlative Assembly?

The Constitution does NOT have any provision on this.

Here comes the CONVENTION.

The convention is that the PM would issue a watikah to the head of the BN of that state declaring that he should be the Menteri Besar. There is practical simplicity to this exercise. The PM is the head of BN. If the state is under BN, then the PM should be able to know who commands the confidence of the majority in that state. That is the presumption.

Armed with that watikah, the Ruler would then form an opinion or judgment that the person named in the watikah commands the confidence of the majority and the Ruler would then appoint him as the Menteri Besar.

That is the convention.

The mere fact that the drafters of our Constitution were at pains to ensure that the Rulers do NOT venture into our political arena demands the ABSOLUTE DETACHMENT of any kind of political maneuvering by the Ruler in the exercise of the Ruler's power to appoint a Menteri Besar.

Otherwise, there would come a day when a Ruler would have a vote opened among all the state legislative assembly members under the pretext of trying to form a judgment on who commands their confidence. That in my opinion is not acceptable and should not be the practice at all.

Having said the above, I only have a question which is left unanswered.

When the Constitution says the person must command the confidence of the majority of the members of the state legislative assembly, does it mean to refer to the whole assembly or only to the members of the ruling party? If it was the later, then the plot thickens...

MALIK IMTIAZ SARWAR' s RESPONSE : 25 March 2008

Dear Art Harun,

I can see the contrary view.

We must keep in mind that the Federation is exactly that, a federation of pre-existing nation states. Before Merdeka, the various states of Malaya were colonies of Britain. Before that, they were independent states.

The Federal Constitution was drafted to cement the relationship between the various states and to determine the delineation of powers - state and central or federal. The Federal Constitution preserves the validity of the state Constitutions (to the extent that the same are not inconsistent with the former).

The Federal Constitution does NOT provide for state governance other than through the legislative scheme - again state and federal.

I accept the validity of constitutional convention. I do not know whether the practice of BN led state governments with or without the agreement of the Sultan can amount in law to a constitutional convention in the same way as, say, the independence of the judiciary does. You make an interesting point though.

As for prerogatives and power, we must agree to disagree.

I am guided by the clear expression of the state constitution though there is obviously room for some argument.

The bottom line is that the no one but the Sultan appoints and there is no expression of an obligation on the part of the Sultan to follow dictates other than his.

Your closing comment is insightful - the majority is of the entire assembly and not just one party.

ART HARON' s FOLLOW-UP COMMENTS: 27 March 2008

Dear Imtiaz,

Thank you for your response. If you would allow me to express my thoughts further.

I think the Federal Constitution and the respective state’s constitution ought to be read within the context of the framework which was set in place prior to our independence.

Permit me to now refer to a bit of history.

Historically, Tanah Melayu consisted of feudal states, which like any other part of the Malay Archipelago, were ruled by Sultans or Rajas. The Malayan Union concept was introduced by the British at the end of the Japanese occupation as a prelude to our independence. Amidst protests from UMNO and others, and amidst threat from MPAJA, which had then transformed itself into a communist party (MCP), Malaya was declared to be an independent country.

It became a federation with constitutional monarchy.

Being an independent country practising democracy, the monarch plays absolutely NO role in the administration and governance of the country. Save for some powers concerning the status of Islam, the Rulers have NO executive powers.

Whatever “powers” the Rulers may have , are exercised “at the advice” of the executive.

I would venture to say that the Rulers mainly exercise CEREMONIAL functions.

The notion that the Rulers are a part of check and balance mechanism to the wide powers of the executives, is to me, wishful at best.

The reality is the Rulers are NOT part of the administration of the country.

The check and balance mechanism embedded into our system (and every democracy with a constitutional monarch) only consists of the EXECUTIVE, LEGISLATIVE and of course, the JUDICIARY (in some Scandinavian countries, an ombudsman is an integral part as well).

However, within a sociological standpoint, where culture and the layperson’s perception of the position of the Rulers come into equation, the position might be different.

It is within our local (especially the Malays) mentality and perception, that the Rulers do have the rights to “tell off” the executive when the later goes astray.

And to act in any way which is repugnant to the Rulers’ wishes may be regarded as rude or even treasonous. However, in my humble opinion, this has NO legal basis whatsoever and is NOT reflective of legal REALITY.

The REAL power in our country and under our constitution (states and federal) rest with the PEOPLE. We elect our representatives and consequently, our executives and legislatives.

Viewed within the context of the Rulers’ detachment from the administration of our country, I would NOT call the Ruler’s “power” to appoint the MB as a PREROGATIVE. It is ceremonial in nature.

The guiding principal in making such appointment is testament to the democracy system that we practise, namely, the leader which takes the persona of an MB, should command the confidence of the majority of the state legislative assembly.

The Ruler MUST conform with that requirement.

To do otherwise, or to permit the Ruler to do otherwise, is to create a situation where the will of the Ruler may override the will of democracy.

That will result in a reversion towards feudalistic ideals!

Even if the Terengganu state constitution contains an article permitting the Sultan to dispense with the guiding principal, surely it cannot be argued that the Sultan may do so willy nilly without any proper reason. That is to adopt a literal approach in the interpretation of a very important “power” which may bring far reaching consequences.

That power to dispense, to my mind, ought to interpreted, and applied, purposively. The purpose of the power to dispense is to cater for a situation of a deadlock, for instance.

Imagine a situation where the seats between the BN and PAS are equal. Or where the partisan politics in the assembly has so broken down so much so it is IMPOSSIBLE to know who commands the confidence of the majority of the ASSEMBLY. Then, and ONLY then, the Ruler may, in my opinion, dispense with such criteria.

To adopt a literal approach would vest a certain level of absolute power in the Ruler where such power does NOT exist in the first place.

Can we imagine a situation where the Ruler may decide mid-term to change an MB BECAUSE HE THINKS that MB does not command the confidence of the majority anymore?

We are now riding the populist wave of a political reform yet unseen before. It is a result of deep rooted anger against the BN government.

But lets not allow our emotion to colour our judgement by creating, or allowing to create, a dangerous precedent, a precedent which we all may live to regret later.

Thank you.
Art Harun
Posted: March 27, 2008 10:08:00 AM MYT

Friday, February 6, 2009

The Perak Crisis - an unsolicited legal opinion

by

Art Harun

Read here for more

Excerpts:

Basically I was, and still am, of the opinion that the role of the Rulers in the political arena should be approached with a degree of circumspection.

The looming constitutional crisis in Perak now underscores my sentiment exactly.

The Power of the (Perak) Sultan to Appoint the MB

1. Article 16 of the Perak Constitution
   
   Article 16 of the Perak Constitution says that the Sultan shall appoint the Executive Council ("EC"). He must first appoint as Menteri Besar from the members of the Legislative Assembly who "in his judgment is likely to command the confidence of the majority of the members of the Assembly." Then on the advice of the MB, the Sultan shall appoint other members of the EC.
   
   We stop at this juncture to consider this provision.

   The Sultan did not have to ensure that the potential MB does command the confidence of the majority. The word "likely" in the above provision gives a certain level of subjectivity to the whole process. And quite how the Sultan was to perform that function is not spelt out.
   
   Article 16 (6) is very important. It says:

   "If the MB ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council."

   If we could now look at this provision closely.

   There is no subjectivity here. It does NOT say, for example, "IF the Sultan is of the opinion that the MB ceases to command the confidence of the Assembly", or "IF it is likely that the MB has ceased to command the confidence of the Assembly".

   It says clearly that "if the MB ceases to command". That means this provision kicks in only and only if, it could be factually proven that the MB has ceased to command the confidence of the Legislative Assembly.

   In other word, the Sultan is NOT imbued with the power to make his own SUBJECTIVE judgment over this fact and matter . For this provision to operate, it must be established as a fact that the MB has ceased to command the confidence of the Assembly.
   
   How is that fact established then? In countries practising the Westminster typed democracy, this fact is established with a vote of no confidence on the floor of the Assembly.
   

2. Article 16 (7)
   
   Next to be examined is Article 16 (7). It says:
   
   

   "Subject to Clause (6) a member of the Executive Council other than the MB shall hold office at His Royal Highness' pleasure, but any member of the Council may at any time resign his office."

   It is of paramount importance to note that ONLY the MB does NOT hold office at the PLEASURE of the Sultan.
   
   From a literal reading of this article, it is clear that the Sultan may therefore sack any member of the Executive Council but not the MB.

Can the Sultan Ask the MB to Resign?

With all due respect to HRH the Sultan of Perak, I don't think the Sultan has the power to ask for the resignation of the MB.

It has been argued elsewhere that the provision of the Interpretation Act 1948 would give the power to the Sultan to dismiss the MB.

While I concede that section 94 of that Act gives the power to dismiss in every instant where a power to appoint exists, it must be remembered that the Interpretation Act does NOT apply "where there is something in the subject or context inconsistent with or repugnant to the application" of the Interpretation Act.

Where is the context inconsistent with the application of the Interpretation Act here?

The answer lies with Article 16 (7) above. It is clear that the MB does not hold office at the pleasure of the Sultan as opposed to the other members of the Assembly.

Had it been intended that the Sultan should have the power to dismiss the MB as well as the other members of the Executive Council, Article 16 (7) would not have made such a glaring and clear exception so as to expressly preclude the MB from the operation of that Article.

Exercise of the Sultan's Powers

There are 2 broad categories of powers which the Sultan is vested with.

1. The first type are powers which the Sultan shall act in accordance with the advice of the Executive Council. There is no discretionary power here. Whenever the Sultan is advised to exercise these powers, the Sultan has no choice but to exercise that power in accordance with the advice given.
   
   
2. Secondly there are powers which the Sultan may exercise in his discretion. These powers include:

• power to appoint the MB
  
  
• power to withhold his consent to a request for the dissolution of the Assembly.

Here lies the problem.

The MB has requested the Sultan to dissolve the Assembly but the Sultan has REFUSED to do so and had asked the MB to resign instead.

Was the Sultan Right?

1. CASE LAW: Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli [1966]
   
   A case law, decided by our Court in 1966 bears important resemblance to the crisis in Perak now.
   
   In Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187, the Governor of Sarawak received a letter signed by 21 members of the Council Negri (equivalent to the Legislative Assembly) expressing no confidence in Stephen Kalong Ningkan as the Chief Minister.
   
   The Governor then asked Stephen to resign. Stephen refused to resign.
   
   The Governor then declared that Stephen and all the members of the Supreme Council (equivalent to the Executive Council) as having ceased to hold office. A new Chief Minister was then appointed by the Governor.
   
   The case ended up in the High Court where among others, a declaration that the purported dismissal of Stephen as the Chief Minister was ultra vires the Constitution and was therefore null and void.
   
   The Sarawak Constitution contain provisions which are almost identical to the provisions of the Perak Constitution.
   
   Article 6 (3) provides:
   
   "The Governor shall appoint an Chief Minister a member of the Council Negri who in his judgment in likely to command the confidence of a majority of the members of the Council Negri and shall appoint the other members in accordance with the advice of the Chief Minister from among the members of the Council Negri."
   
   By Article 7, it is provided as follows:
   
   "(1) If the Chief Minister ceases to command the confidence of a majority of the members of the Council Negri, then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the Supreme Council.
   
   (2) A member of the Supreme Council may at any time resign his office by writing under his hand addressed to the Governor, and a member of the Supreme Council other than the Chief Minister shall also vacate his office if his appointment thereto in revoked by the Governor acting in accordance with the advice of the Chief Minister.
   
   (3) Subject to cll (1) and (2), a member of the Supreme Council other than the Chief Minister shall hold office at the Governor's pleasure."
   
   Notice the almost identical provisions. It has to be noted that the Sarawak Constitution also provides, (as do the Perak Constitution) that the Chief Minister does NOT hold office at the pleasure of the Governor.
   The Court held as follows:

   i) for Article 7 (1) to kick in, there must be a vote of no confidence from the floor of the Assembly. Mere letters signed by the members of the Assembly expressing NO confidence to the Governor was NOT sufficient.
   
   ii) the Governor had NO power to dismiss the Chief Minister under the Constitution.
   
   iii) the purported dismissal of the CM was then ultra vires the Sarawak state Constitution.

   What is even more important is the learned Judge's observation in respect of the exercise by the Governor of his discretionary power to appoint a CM and to withhold his consent when there is a request to dissolve the Assembly.
   
   This is what His Lordship said:
   

   "A lot has been said about the duty and powers and discretion of the Governor. His paramount duty is to "act in accordance with the advice of the Supreme Council or of a member thereof acting under the general authority of the Council". (Article 10(1).
   
   There are two occasions when the Governor has a discretion, that is, when he can act without, or even contrary to, the advice of the Supreme Council.
   
   Those occasions are in the performance of the following functions -
   
   (a) the appointment of a Chief Minister;
   
   (b) the withholding of consent to a request for the dissolution of the Council Negri. (Article 10 (2) ).
   
   As regards (a), nobody could be so foolish as to suggest that a Governor could appoint a second Chief Minister while there was still one in office.
   
   As regards (b), this probably has in mind a situation of splinter parties, as has been the case in France, when a general election could not be expected to show an overall majority for any one party.
   In Sarawak, it seems to me, that a Chief Minister may advise a dissolution, even though he has NOT as yet lost the confidence of Council Negri. In such circumstances, the Governor's REFUSAL to dissolve might be conventionally UNCONSTITUTIONAL , although NOT illegal."

This is still good law as this decision has NEVER been overturned by a HIGHER Court.

Conclusion

With the greatest of respect to HRH the Sultan of Perak, it would appear that the above case law does not lend support to the actions which have so far been taken in Perak.

I would like to end this post by quoting R H Hickling from his excellent book, "Malaysian Law" (Professional Law Books Publishers 1988), where he said:

"The advent of constitutional government in Malaysia marked the beginning of the end for the prerogatives of the Rulers.

While assiduously reserving these prerogatives by express savings in the state constitutions, the very act of defining rights and powers restrict them.

With the advent of formal constitutions government in Johor in 1895, limitations on arbitrary rules set in, and the pattern was set for progress to the modern concept of constitutional government: that is to say, not merely government in accordance with the provisions of the constitution, but government in accordance with the wishes of the elected Representatives of the people."