|Understand the role of Rulers|
|Tuesday, 26 February 2013 08:54am|
©The Star (Used by permission)
by By Datuk Salehuddin Saidin
The Malaysian public generally still lacks proper understanding as to the role and powers of a Ruler in the administrative function of a country practising a Constitutional Monarchy system.
As a result, unsavoury comments have surfaced in blogs, online portals and websites which scorn and ridicule the institution of Rulers.
The country is on the verge of a general election which will be held in a matter of weeks. As the political temperature shoots up, leaders and those in the political circle are busy campaigning by raising issues related to the rakyat, Government and Rulers.
Many issues, whether current or old, are being intensely debated. Political statements, announcements, pledges and promises are being voiced out almost daily by politicians. This highly intense political contestation sometimes crosses the boundary of our civilised people, reaching to an extent whereby the ends justify the means.
This is primarily due to the attitude of certain groups who have the strong desire to achieve their aim of holding the reigns of power, and also due to the lack of knowledge on the basic principles of the law of the country.
Among the issues that are always highlighted each time elections are held are those relating to the dissolution of Parliament at the Federal level as well as the State Legislative Assemblies.
The question of when Parliament and State Legislative Assemblies would be dissolved and who will take the lead has often been discussed. In recent times, there have been questions raised on which party has the power under the law in dissolving a State Legislative Assembly or the Parliament.
Recently, the Selangor Mentri Besar had made a statement that he would consider announcing the date of the dissolution of the Selangor Legislative Assembly after Chap Goh Meh. It is interesting to note whether the Selangor Mentri Besar has consulted his party leaders and the legal adviser before making such a statement, which has drawn flak from various quarters.
In light of the statement, it is appropriate to discuss and analyse the provisions of law as stipulated in the Laws of the Constitution of Selangor, 1959, (Constitution of Selangor) and also to look at other States’ Constitution and of course the supreme law of the land being the Federal Constitution.
Article 52 (2)(b) of the Constitution of Selangor provides the Sultan of Selangor (His Royal Highness) with absolute discretion to consent or withhold consent to a request by the Mentri Besar to dissolve the State Legislative Assembly.
Article 52 (2)(b) of the Constitution of Selangor provides as follows:
(2) His Highness may act in His discretion in the performance of the following functions (in addition to those in the performance of which He may act in His discretion under the Federal Constitution) that is to say:
(a) the appointment of a Mentri Besar;
(b) the withholding of consent to a request for the dissolution of the Legislative Assembly.
The above provisions, in particular (2)(b), clearly state that His Royal Highness has absolute discretion in deciding whether or not to give consent to a request by the Mentri Besar to dissolve the State Legislative Assembly. The literal meaning of the provision is that in exercising the discretionary power vested in him, His Royal Highness does not act on the advice of the Mentri Besar or the Executive Council.
It is of course not disputed that in the exercise of His executive functions under the Constitution of Selangor, His Royal Highness shall act in accordance with the advice of the Mentri Besar or the State Executive Council.
In exercising His functions on the advice of the Mentri Besar or the State Executive Council, His Royal Highness is entitled to receive any information concerning the Government of the State. This is provided for under Article 55(1) of the Constitution of Selangor.
Nevertheless, it is important to note that the Constitution of Selangor itself provides some functions which His Royal Highness exercises in his absolute discretion such as the dissolution of the State Legislative Assembly as mentioned earlier.
The above position of law is supported by the Federal Court decision in 2010 in the case of Datuk Seri Nizar Mohammad Nizar Jamaluddin vs Datuk Seri Dr Zambry Abdul Kadir (2010) 2 CLJ. The Federal Court had deliberated at length on the issue whether the dissolution of the State Legislative Assembly is within the absolute discretion of His Royal Highness.
This case was initiated at the High Court before it was brought at the appellate stage to the Court of Appeal and was finally deliberated in the Federal Court.
Looking at the extent of arguments raised by both parties and the presence of experienced lawyers from both parties, in addition to the panel of five experienced Federal Court judges presided over by the then President of the Court of Appeals who heard the matter, we can rest assured that the issues were well deliberated by all parties before the apex court reached its finding.
The Federal Court went on to state:
“In this regard we would, however add that the power to dissolve the LA is vested in HRH by art.
XXXVI(2) no matter in what circumstances it was made. This is clear from our reading of the said article which provides :
(2) His Royal Highness may prorogue or dissolve the Legislative Assembly.”
The decision in this case has no doubt put an end to any dispute, doubts or questions on who actually has the authority in deciding whether or not to dissolve the State Legislative Assembly.
Although the Mentri Besar can make a request to His Royal Highness for the dissolution of the Legislative Assembly before the expiry of the five-year term or in a situation where the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, it is pertinent to note that the final decision is vested in His Royal Highness who has absolute discretion. In this regard, we are guided by the decision of the highest court on the land.
Until and unless the State Consti-tution is amended, the said decision stands and is applicable to the respective states which have similar provisions on the issue in question.
Hence, when the Sultan of Selangor recently stated that the dissolution of the State Legislative Assembly must follow rules and procedures, we can appreciate that what His Royal Highness meant is that the dissolution of the State Legislative Assembly must adhere to the provisions of the law.
In other words it must be presented before His Royal Highness to request for consent before any announcement is made.
The Sultan of Selangor has absolute discretion and prerogative to accede to the request of dissolving the State Legislative Assembly.
Generally, Federal and State elections are held simultaneously to save time and costs and in considering the request to dissolve the State Legislative Assembly, time and cost factors could well be taken into consideration by His Royal Highness.
At the Federal level, similar provisions can be found in the Federal Constitution.
Article 40 (2) of the Federal Constitution states that the Yang di-Pertuan Agong may act in His discretion in withholding of consent to a request for the dissolution of Parliament.
Article 40 (2) of the Federal Constitution states that:
(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:
a) The appointment of a Prime Minister;
b) The withholding of consent to a request for the dissolution of Parliament; and
c) The requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,
And in any other case mentioned in this Constitution.
Looking at the Selangor Constitution and Perak’s Constitution and provisions in the Federal Constitution together with the ruling by the Federal Court in 2010, we must accept the fact that the States’ Constitution and Federal Constitution confer absolute power to dissolve the State Legislative Assembly and Parliament upon the Rulers of the State and the Yang di-Pertuan Agong.
The role of the Rulers is very much relevant in our country which practises a system of Constitutional Monarchy, and will remain relevant for so long as the Federal Constitution remains the supreme law of the country.
The rakyat must be provided with a clear understanding of the basic principles of law with respect to the powers of the Rulers and the Executive.
Every Malaysian, including political leaders and those providing explanations to the rakyat while campaigning during this elections season, must be responsible to state the actual position of the law and to explain to the rakyat the decision of the Federal Court.
This is essential for the preservation of a peaceful elections and to prevent the rakyat from getting confused and in turn giving rise to feelings of unhappiness towards the institution of Rulers.
The writer would like to invite Malaysians to adhere firmly to our Constitution and to respect the decision of the Federal Court on the issue.
The writer believes that although in the upcoming general election, seats can be expected to be keenly contested, the polls can be held in a civilised and orderly manner if all of us are responsible enough to conform to the law and regulations.
Let us prove to the world that as Malaysians, we are united although we may have different political ideologies.
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