Royal options in the MB saga

The Star
by SHAD SALLEM FARUQI

Birth in the state is not a constitutional prerequisite. Residence is sufficient. Nor is gender prescribed.

WITH PAS’ withdrawal of support to the embattled mentri besar of Selangor, it is clear that 43 out of 56 Pakatan Rakyat assemblymen are now ranged against Tan Sri Khalid Ibrahim. Clearly, the sun has set on his tenure and while he is entitled to savour the colours of the dusk, the political night is impending. Several uncertainties, however, remain.

Dissolution: Will Khalid gracefully submit his resignation when the Selangor Sultan returns from abroad or will he retaliate by invoking Article 53(6) to advise the dissolution of the assembly?

The Sultan is not bound by this advice. Premature dissolution is a discretionary power of the Sultan under Article 55(2)(b) and there is no telling how he will react. There are three well-known precedents from the states when the political executive’s advice to dissolve the state assembly prematurely were turned down by the head of state: Kelantan (1977), Sabah (1994) and Perak (2009).

Being a constitutional head, above politics, the Ruler will, undoubtedly, take all legally relevant factors into consideration.

Among them are that the ruling Pakatan coalition has 76% of the support in the assembly and is capable of providing continuity. The last election was held only 15½ months ago and the country will have to fork out an estimated RM50mil to hold a snap poll.

It is to be noted that while the Ruler can refuse the advice to dissolve the assembly, he cannot order dissolution on his own initiative.

Caretaker government: If, despite factors that weigh against a dissolution, a snap election is called, the poll must be held within 60 days of the dissolution: Article 70(4). Nomination and voting dates will be fixed by the Election Commission. The new assembly must meet within 90 days from the date of the dissolution.

Who will helm the state during the interim period? The constitution is thunderously silent. We follow the British convention that the incumbent MB continues in caretaker capacity pending the appointment of the new government after the election.

This Westminster convention is, however, qualified by Article 53(2) that during the dissolution, the Sultan is empowered to appoint members of the executive council from amongst those who were members of the last assembly.

Appointment of successor: If elections are not called, then Khalid has no choice but to tender his resignation so that the Sultan may anoint someone else with the task of leading the state.

Under the Selangor constitution the following provisions guide the MB’s appointment:

> In the exercise of this discretionary function, the Sultan is not bound by advice: Article 55(2)(a). However, the discretion is not absolute. It is regulated by Article 53(2) and by well-established constitutional conventions that supply the flesh to clothe the dry bones of the law.

> The MB must be a member of the legislative assembly: Article 53(2).

> He must, in the Sultan’s judgment, be likely to command the confidence of the majority of the members of the assembly: Article 53(2).

> He must be Malay and Muslim: Article 51(2). The Sultan may dispense with this provision: Article 53(4).

> He must not be a citizen by naturalisation or registration: Article 53(3).

It is noteworthy that birth in Selangor is not a constitutional prerequisite. Residence is sufficient: Article 63.

Nor is gender prescribed. In fact, gender discrimination would fall foul of the promise of equality in the Federal Constitution’s Article 8(2).

Despite the above provisions, some controversy is swirling around the royal power to pick the successor to Khalid. The “royalists” are putting forward a number of cogent arguments to support the existence of a wide, personal royal discretion.

Their arguments are, first, that the appointment of an MB is an explicitly conferred discretion in Article 55(2)(a) and therefore British conventions limiting royal discretion are excluded. Within the limits of Article 53(2), the Sultan is free to choose his preferred candidate.

Second, the Constitution is what happens! There is no dearth of examples to illustrate successful royal assertiveness in this area – Terengganu and Perlis after the 2008 general elections being spectacular recent examples.

In earlier decades, several former MBs, popular within their party, were, nevertheless, eased out of office due to pressure from the palace. They were Tan Sri Ghazali Jawi in Perak, Datuk Abdul Rahim Abu Bakar in Pahang and Datuk Haji Othman Saat in Johor.

According to former The Star columnist the late Dr Tan Chee Khoon, these incidents indicate that in submitting a candidate for appointment as MB, the party always takes into consideration his acceptability to the Ruler.

At the other end of the spectrum is the argument of the constitutionalists that the 1957 Merdeka Constitution launched a new era of constitutional supremacy, limited monarchy, parliamentary democracy and federalism.

If there is a party or coalition enjoying an absolute majority, the Ruler has no choice but to appoint its leader to lead the government. The Ruler’s role is primarily formal and ceremonial.

To disregard constitutional provisions or insist on alternative names or thwart a democratically elected leader would drag the Ruler into raw politics and besmirch the institution of monarchy.

“When the party which obtains the majority of seats … decides to nominate one of its members of the assembly for appointment as mentri besar,… the Ruler has no choice but to appoint him.”

These words were authored by Raja Azlan Shah (later Sultan Azlan Shah) in 1986 when he contributed an erudite essay to Trindade & Lee’s The Constitution of Malaysia.

It must be pointed out, however, that in some circumstances, the Sultan’s discretion does indeed become pivotal.

For example, if for any reason the ruling party or coalition becomes hopelessly divided over the choice of its leader; or the electoral verdict throws up a “hung assembly”; or an upheaval creates a vacancy in the MB’s post while the assembly is in prorogation or dissolution.

Barring these extraordinary situations, it is best for a constitutional Ruler to remember the advice of the great English jurist Bagehot: “The sovereign has under a constitutional monarchy three rights – the right to be consulted, the right to encourage, the right to warn. A King of great sense and sagacity would want no others.”

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.