CONSTITUTIONAL lawyers today agreed with Prime Minister Dr Mahathir Mohamad that the federal constitution is the supreme law of the country which supersedes state constitutions.

While state constitutions are in force, the federal constitution is the supreme law of the nation, to which the states must adhere, they said.

Former professor at Universiti Malaya’s Law Faculty, Dr Gurdial Singh Nijar told The Malaysian Insight the federal constitution stipulates that all states must include in their respective constitutions the provision that the ruler has to act on the advice of the executive council or any of its authorised member.

“If a state does not include this provision in its constitution, then Parliament is authorised by law to introduce the provision or remove any that is inconsistent with it,” Gurdial said.

Dr Mahathir said in a blog post recently that the federal constitution supersedes the state constitutions that have been in place for a longer period.

“The constitutions of Johor and Terengganu, which were promulgated earlier, were nullified by the new constitution which was accepted by all the states of Malaysia,” he said in the post.

The remarks follow disagreements with the Johor palace over who decides on the menteri besar and members of the state executive council.

In what was seen as a reminder to the Johor palace, Dr Mahathir narrated the historical facts on the birth of the federal constitution and reminded everyone that they should adhere to the rule of law and the federal constitution.

“The federal constitution guarantees rights of the ruler to exercise his constitutional rights and privileges in accordance with the state constitution,” said Gurdial.

“But when it comes to exercising any executive function, the ruler’s rights are governed by the federal constitution.

“He has no discretion in the matter. He must follow the advice of the menteri besar or the state executive council with regard to any matter regarding government functions and duties.

“In short, the state constitution reflects constitutional monarchy and not absolute monarchy.”

Dr Mahathir had also said that in preparation for independence in 1957, the Reid Commission was tasked with drawing up the independent federal constitution.

It was agreed that Malaya would be a democracy where the people would choose the government.

The rulers, he said, would be constitutional heads without executive power. 

Nevertheless, their positions would be guaranteed by the constitution which would be the supreme law of the country.

Gurdial said the prime minister is right and the powers of the sultans are reduced with the consent of constitutional rulers. 

“The Reid Commission report makes it clear. Under its terms of reference, it must include a provision for ‘safeguarding of the position and prestige of their highnesses the rulers as constitutional rulers of their respective states’.

“It said that in its judgment, their highnesses are not constitutional rulers at present,” said Gurdial.

The commission was of the view that a constitutional ruler has limited powers and bound to act on the advice of the menteri besar and the executive council, he said.

The executive council and menteri besar are ultimately responsible to a parliamentary assembly and should not hold office at the pleasure of the ruler.

Gurdial added that as the executive council is to be collectively responsible to the legislative assembly, the appointment of its members must be in the hands of the menteri besar and a new menteri besar must be free to appoint a new executive council in the same way as the prime minister appoints his ministers.

Lawyer Lim Wei Jiet, in a series of tweets, said while Dr Mahathir is right on the federal constitution being the supreme law of the country and on the constitutional monarchy, it is wrong to say that the constitutions of Johor and Terengganu were nullified by the federal constitution.

Both were merely modified to be in line with the federal constitution, he said, adding that the pre-Merdeka Johor constitution gave wide powers to the monarch.

However, this was streamlined to be in line with constitutional monarchy and parliamentary democracy when the federation was formed.

The important change was the sultan having to act on the advice of the menteri besar.

“Constitutional monarchy system was reinforced vide amendments to the 8th Schedule in 1993,” Lim said.

“If you look at Johor constitution today, it still has many pre-Merdeka references, eg: Sultan Abu Bakar (who promulgated the Johor constitution). So, Johor constitution (was) not ‘nullified’ – only ‘modified’ substantially.”

The 8th schedule explains the provisions to be inserted in state constitutions.

But Article 71 of federal constitution gives power to Parliament to discipline and keep states in check, he said.

“If any state constitution wants to reassert more monarch powers beyond the 8th Schedule, Parliament can intervene and nullify such amendments.”

Article 71 explains the federal guarantee on state constitutions.

Johor crown prince Tunku Ismail Sultan Ibrahim posted on his social media accounts two articles from the federal constitution relating to state constitutions and the rights of Malay rulers.

These are Article 71 on federal guarantee of state constitutions, and Article 181 on the rulers’ sovereignty.

Tunku Ismail, an active social media user, said nothing when he posted the articles on his Twitter or Facebook pages.

But it is understood that the posts were in response to what Dr Mahathir said about the federal constitution superseding the state constitutions. – April 26, 2019.