Law experts: Sultan has no absolute discretion under state constitution

PETALING JAYA: Under the Johor state constitution, the Sultan of Johor can only appoint a mentri besar of his choice when there is a hung state assembly or a deadlock, based on rational grounds, say constitution experts.

Constitutional law expert Emeritus Prof Datuk Dr Shad Saleem Faruqi said the Johor state constitution was not unlike all the other states when it comes to the appointment of the mentri besar.

“The appointment of the mentri besar is not the absolute discretion of the Sultan of Johor.

“While the state ruler has discretion, it is limited by the state constitution as he has to abide by a number of factors.

“According to Part II of the Johor state constitution, Article 4 (2), the ruler shall appoint a mentri besar, who is a member of the legislative state assembly but he must command the confidence of the majority,” said Dr Shad Saleem.

He said the state constitution was in line with the parliamentary democracy in which the mentri besar must be an elected member of the state assembly and not just anyone the Sultan wants.

He also said that the state constitution must be read as a whole and not in parts, in line with the democratic values underpinned in the constitution.

“If there is no such state assemblyman who commands the majority, the Sultan may make the decision based on rational grounds,” said Dr Shad Saleem.

He pointed out that during the 2009 Perak constitutional crisis, the state assembly was not in session and the then Sultan of Perak the late Sultan Azlan Shah had decided on the mentri besar by talking to the three state assemblymen, who “hopped to the other side”.

“In a constitutional state, no discretion is absolute. There is also no prerogative power of the Sultan when it comes to the appointment of the mentri besar,” said Dr Shad Saleem.

He spelt out “prerogative” as having “non-statutory inherent power”.

Dr Shad Saleem said that if the Sultan appoints anyone he wants as a mentri besar, and the state assembly tables a vote of no confidence, it might spark a constitutional crisis in the state.

He said although all states have their own constitutions, the Federal Constitution still has a say.

“All state constitutions must contain in them some essential provisions by the Federal Constitution,” said Dr Shad Saleem.

He said under the Constitution, there are provisions which are inserted into every state constitution.

The Eighth Schedule of the Constitution lays down the institution of the constitutional monarch.

Dr Shad Saleem said the monarch and rulers could not depart from this and had to abide by the parliamentary democracy the country practises, which is the existence of the elected state assembly and the state executive council.

Another constitutional law expert, Dr Abdul Aziz Bari, said that constitutionally – be it under the Federal Constitution or the state constitution – the King or the Sultan cannot appoint the prime minister or the mentri besar.

“The government is responsible to the House, not to the palace. This is the law throughout Common-wealth countries. The problem is some people read the constitution literally, which is wrong.

“The notion of discretion under the constitution is different from ordinary laws,” said Dr Abdul Aziz.

After the resignation of Datuk Osman Sapian, there has been much discussion if the Sultan of Johor has the absolute right to appoint a new mentri besar of his choice.

Prime Minister Tun Dr Mahathir Mohamad stated that it was the role of the party that won the elections to appoint the mentri besar and not the state ruler.