I WISH to express my legal opinion on the power of a Sultan to appoint a mentri besar (MB).
Since 1957, our country has been an elected, representative democracy and a constitutional state. Everybody, including the Rulers, Executive, Legislature and the Judiciary, is under the Constitution. Nobody has absolute powers because the age of absolute feudal powers is gone.
The Yang di-Pertuan Agong’s power to appoint a prime minister and the Sultan’s discretion to appoint the MB is structured and limited by the federal and state constitutions.
Taking Johor as an example, the Constitution of Johor in its Second Part, Article 3(1) says that the MB must have some qualifications which are specified in Article 4(2). He/she must be a member of the Assembly. He/she must, in the
judgment of the Sultan, be likely to command the confidence of the majority of the members of the Assembly, and he/she must not be a citizen by naturalisation or registration: Article 4(3).
These requirements imply that the discretion is not absolute.
The words “who in his judgment is likely to command the confidence” may, on literal interpretation, suggest that the Sultan has unfettered powers. However, constitutions and laws are not interpreted literally but holistically in light of all other relevant provisions.
In Article 4(2), it is expressly
stated that the appointee must be “likely to command the confidence of the majority of the members of the Assembly”. The Sultan’s judgment on this point cannot be arbitrary and must be related to the electoral result.
Administrative law over the last half century has developed to the point that it is accepted that discretions can be used but not abused. Discretions cannot be exercised in bad faith or by taking into consideration irrelevant facts. If a party or coalition has an absolute majority, its politically chosen
leader has a right to be appointed as MB.
I quote the learned words of our revered Sultan Azlan Shah in the article “The Role of Constitutional Rulers in Malaysia” in 1986: “While it is true that the appointment of a Mentri Besar is a prerogative of the Sultan, the Ruler is not free to appoint anybody he likes. When the party which obtains a majority of the seats decides to nominate one of its members, the Ruler has no choice but to appoint him.”
Failure to follow this convention will involve the Sultan in partisan politics. It will pit the monarchy against the people, and the Assembly may pass a vote of no confidence in the newly-appointed leader. That will embarrass His Majesty and will lead to a constitutional crisis.
The Sultan’s discretion under Articles 4(2) and 7(2)(a) to appoint the MB must be read in the light of the overall democratic legal system and the rest of the Constitution, which contains the following
> The Sultan is a constitutional monarch who must act on advice save in some situations when discretion is conferred: Art 7(1) &7(3);
> The MB is not a personal wazir to the Sultan but an elected member of the Assembly;
> There is an Assembly elected by the people, not appointed by the Sultan: Article 15;
> The MB and Exco are answerable to the Assembly, not to the Sultan: Article 4(5); and
> The MB can be dismissed by the Assembly on a vote of no confidence: Article 4(6).
Despite the above, it must be noted that in some situations, His Majesty does indeed have personal discretion.
Thus, if the Assembly is a “hung Assembly” and no one has a majority; if the majority party is split on the choice of its leader; if there is a coalition and it is split on the choice of its leader; if during a dissolution, the MB who called the election dies or resigns, the Sultan has wide power to choose the caretaker MB.
Does the Sultan have power to dissolve the Assembly on his own? He does not. In relation to summoning and proroguing, he must act on advice under Article 7(1). In relation to dissolution, he has under Article 7(2)(b) the discretion to refuse a request for premature dissolution, but he cannot dissolve an Assembly on his own. No law allows that. If the Sultan can dissolve an Assembly at will, then elections are of no use and the will of the people is of no consequence.
Finally, what is the role of the Prime Minister in the choice of the MB? In a federal system, the PM may belong to a different political party than the one that won the state election. In such a case, the PM has no role.
But if the PM’s coalition also controls the majority in a State Assembly, then surely the PM’s coalition has the right to nominate the MB? However, the PM has no power to “appoint”, as that is the clear, constitutional function of the Sultan.
EMERITUS PROFESSOR DATUK DR SHAD SALEEM FARUQI