Ruling party picks MB, sultan’s role is to appoint, say constitutional experts

Bede Hong Ragananthini Vethasalam Bede Hong, Ragananthini Vethasalam Updated 7 years ago · Published on 11 Apr 2019 5:54PM · 7 Comments

The sultan does not have absolute discretion and the law is clearly for the prime minister in the matter of selecting the menteri besar, says constitutional expert Gurdial Singh Nijar. – The Malaysian Insight file pic, April 11, 2019.

PRIME Minister Dr Mahathir Mohamad was correct to assert that the ruling party in a state assembly picks the menteri besar, while the sultan’s role is to appoint the candidate that has been nominated, said constitutional experts.

Under Article 4(2)(a) of the Second Part of the Johor constitution, the ruler must appoint as MB a member of the legislative assembly who in his judgment is likely to command the confidence of the majority of the members of the assembly, said Gurdial Singh Nijar, an expert in constitutional law.

“This must necessarily mean the person nominated by the majority party. The sultan does not have absolute discretion,” he told The Malaysian Insight.

He said the Johor constitution explicitly states that the menteri besar does not hold his position at the ruler’s pleasure and the sultan also cannot dismiss the MB.

Gurdial said in the case of the 2009 Perak menteri besar crisis, involving Mohammad Nizar Jamaluddin and Zambry Abdul Kadir, the Federal Court ruled that when a menteri besar has lost the confidence of most of the state assembly members, the sultan is at liberty to appoint another one to replace the incumbent.

“The Federal Court in Nizar’s case recognised the right of the sultan to declare the office of the menteri besar vacant even without a vote in the assembly,” he said.

“But this must be read in context. There, the sultan had ascertained that the existing MB had numerically lost the confidence of the majority party in the assembly.

“This means that if the numbers favour the candidate of the state’s ruling party, then that candidate cannot be bypassed for appointment as MB. Clearly, the law is on the side of the prime minister.”

Meanwhile, Bar Council constitutional law committee co-chair Andrew Khoo said the sultan is compelled to invite the person deemed likely to garner the support of the majority members of the state legislative assembly to become the menteri besar and to form the executive council.

Khoo said it was not necessary for the members of the state legislative to support the choice of the sultan out of duty.

“The members of the state legislative assembly are members of political parties and they owe their allegiance to their respective political parties.

“Trying to force members of political parties to vote for the person chosen by the sultan against the will of the political parties would be contrary to the workings of a constitutional monarchy.”

Surendra Ananth, who is the Bar Council constitutional law committee co-chair, said Dr Mahathir was right in his definition of the sultan’s role in the appointment of the MB, which matches what is expressly provided in the Johor constitution.

“This is not an unfettered decision. Only a person who commands the majority can be appointed. As to who that person is, that is entirely up to the majority of the members of the assembly to decide,” said Surendra.

The power of the sultan to appoint the MB was “explicitly qualified”, said Bar Council constitutional law committee deputy chairman Lim Wei Jiet.

“A person can only be appointed Johor MB if he, inter alia, is a member of the Johor state legislative assembly and commands the confidence of the majority of the same assembly,” he said.

“In that sense, the sultan’s discretion to appoint an MB is not unfettered (“mutlak”) and limitless.

“It must follow the aforementioned constitutional requirements. The party nominates a candidate for MB, and the Sultan has to choose that MB if that candidate commands confidence of majority.”

Yesterday, Dr Mahathir said the power to select a replacement for former Johor MB Osman Sapian lay with the ruling party and not the sultan.His comments appeared to be in response to a tweet by Johor Crown Prince Tunku Ismail Sultan Ibrahim who said Osman was replaced on the orders of his father, Sultan Ibrahim Iskandar, who has absolute prerogative to appoint the Johor MB. – April 11, 2018.

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Comments

  • This long laid system was clearly disrupted during the last BN regime.

    Posted 7 years ago by Tanahair Ku · Reply

  • Lets wait and see what the young man has to say on this

    Posted 7 years ago by Teruna Kelana · Reply

  • Looks like the Royal Families of Malaysia states needs to be re educated on their role especially more of Johore Royal Family that have over step their place in society. The law can comes down harsh on them too. Seems that history is repeating it self.

    Posted 7 years ago by Lee Lee · Reply

    • Malayan states.

      Borneo states does not have sultans, while the white rajahs have long abdicated.

      Posted 7 years ago by Luke Skywalker · Reply

    • You are absolutely correct. Juz a quick thoughts and fingers that will create error. Shud be Peninsular Malaysia

      Posted 7 years ago by Lee Lee · Reply

  • Before GE14, the political leaders on both sides were pandering to the sultans in return for their favour and/or support. Unfortunately this created a false sense of entitlement that the selection of MB is the prerogative of the sultans, and which we all know is not true.

    Posted 7 years ago by Rupert Lum · Reply

  • Sheer arrogance. Young man need to be schooled from time to time.

    Posted 7 years ago by Jebat Hebat · Reply