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Sultan has discretionary powers to appoint MB: Ex-Bar president
©New
Straits Times (Used by permission)
by Santha Oorjitham and Regina Lee
KUALA LUMPUR: A ruler must choose a menteri besar wisely in order not to go
against the principles of parliamentary democracy and cause a crisis, legal
experts said.
Senior lawyer and Bar Council member Datuk Muhammad Shafee
Abdullah said provision for the ruler to exercise his discretion "is only
applicable in a situation where the sultan may need to invoke the exception to
requirements that the MB must be a Malay and a Muslim".
"If a ruler persists in appointing a person from the winning party who does not
command the confidence of the majority, the democratic process is put in
jeopardy," he said.
"This unpleasant state of affairs ought to be avoided in order to bring harmony
between the various institutions."
Gua Musang member of parliament Tengku Razaleigh Hamzah was reported as saying
on Monday that the Terengganu Regency Advisory Council's appointment of Datuk
Ahmad Said, in opposition to a majority of state assemblymen, as menteri besar
should not be questioned.
"The sultan acted within his powers in appointing the person
who, in his judgment, is likely to command the confidence of the majority of the
members of the state assembly," he said.
He described the impasse as not a constitutional crisis, but a crisis of
government.
Shafee rebutted that while the impasse over the appointment of the Terengganu
menteri besar was not a constitutional crisis, it could lead to one if not
resolved quickly.
Retired Court of Appeal judge Datuk Shaik Daud Md Ismail agreed that the ruler
had the discretion in appointing the menteri besar but stressed "it is not his
personal discretion".
"The ruler has to pick someone who commands the confidence of the majority of
the assembly," he said.
In the appointment of the Terengganu menteri besar, he said "the ruler appears
to have appointed someone who may not have the support of the majority of the
assembly".
"The assemblymen are the people who will support the menteri besar in his
office, not Umno divisions or Umno leaders," Shaik Daud said.
Another senior lawyer and Bar Council member, Roger Tan, said the words "in his
judgment" in the Eighth Schedule of the Federal Constitution were not to be
taken in the literal sense.
"To say that it is an absolute discretion means a ruler can appoint anyone,
including an independent, if he thinks that that person is likely to command the
confidence of the majority of members of the state assembly.
"If so, this is contrary to the foundation of parliamentary democracy which
practises constitutional monarchy. In a democracy, the ruler cannot frustrate
the will of the people," he said.
Tan said the Constitution was, however, silent on the manner in which command of
the confidence of the majority is determined.
"In the absence of an express constitutional provision, one always relies on
conventions which have developed since independence, which is that the leader of
the party with the majority number of seats is appointed, in this case the
chairman of the Barisan Nasional at state level," he said.
'Ruler has right over choice of MB'
KUALA LUMPUR: Former Bar Council president Sulaiman Abdullah said the ruler of a
state may act in his discretion to appoint a menteri besar.
He said Section 1(2)(a) in the Eighth Schedule of the Federal
Constitution stipulated that "the ruler shall first appoint as menteri besar to
preside over the executive council 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".
"The ruler has the discretion and it is his judgment," the constitutional expert
said.
"The constitutional theory is the legislative assembly is made up of individual
members. The ruler has to look at these diverse members and decide who would
command the confidence of the majority."
Commenting on the appointment of the menteri besar of Terengganu, Sulaiman
argued that "the constitution requires him to exercise discretion according to
his judgement and he has done so".
"If he has made the wrong choice, the test is the first
meeting of the legislative assembly, when a vote of no-confidence could be
passed," Sulaiman said.
If that happens, "the menteri besar either resigns or advises the ruler to
dissolve the legislative assembly," he said.
He said the ruler also had the discretion to withhold consent for a request to
dissolve the assembly.
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Just as roses come with thorns, discretions come with fetters. Of the few fetters, one that immediately comes to mind is what we call Wednesbury unreasonableness or reasonableness, if you will.
The first 50 years of our nationhood have witnessed ouster or privative clauses being almost an institutionalised feature in our administrative law.
Apart from Malaysian Courts, Common law Courts throughout the Commonwealth or former Commonwealth countries have usually and understandably read down such clauses or looked at them in a very dim light.
This is because such privative clauses usurp the rightful role of such Courts as the final arbiter on the law, specifically administrative law, or the law about (the operation of) the law and the bastion of individual freedom in a parliamentary democracy.
Malaysian law-makers will do well by their constituents if they repeal such obnoxious laws in the interests of the general good.
Stephen Tan Ban Cheng