It may be difficult to prove the illegality of the controversial Johor Bill that will provide room for the Johor sultan to have a role in a state administration.
This is due to an "anomaly" in the federal constitution, said constitutional expert Abdul Aziz Bari today.
This, he said, was because the constitution has never defined what is meant by a constitutional monarchy, and nothing has been done by the ruling government to remove this "major anomaly".
He pointed out that the appointment of non-elected members to run the state government, such as state financial officer, state secretary and legal advisor, were equally as bad as the Johor Housing and Real Property Board Bill 2014, which is due to be tabled at the state assembly tomorrow.
"In the states now there are provisions to allow non-elected members to be in the exco (state cabinet).
"This is wrong from the point of view of responsible government that has been used to argue against the Johor Bill.
"Remember the power grab in Perak of 2009 and how the state secretary played a role? Also in Selangor when the appointment of the state secretary became a controversy?" he said.
"Looks like the Johor Bill is smaller an issue compared to this anomaly which has unfortunately been sanctioned by the constitution," Abdul Aziz told Malaysiakini today.
Abdul Aziz said that declaring the Bill unconstitutional would need a "very clear obstruction" of the constitution itself, which he said would be difficult to establish.
"The democracy, the notion of constitutional monarchy is abstract and fuzzy to say the least," he said.
"Does this mean an overhaul of the constitution? This is for the people out there to decide," he added.
The problematic Bill will give the Sultan powers to appoint members of the housing board which is proposed to be set up by the state government, and also powers to dissolve the board, scrutinising its accounts, and determining the members' allowances.
Curiously, the most vocal detractors of the Bill appear to be coming from within the ruling party itself.
Bar: Bill breaches constitution
Meanwhile, Bar Council chairperson Christopher Leong rebutted Johor Menteri Besar Mohamed Khaled Nordin's defence of the Bill by claiming that executive powers will still remain with him.
Leong (right)said by convention legislations would use the term "state authority", which either refers to the state government or the ruler acting on advice of the government, thus the monarch is obliged to act on advice of the government.
However, he pointed out that in the Johor Bill, it clearly distinguishes the government and monarchy by using terms such as "state government", "ruler" and "state authority".
"Therefore, the provisions in the Johor Bill that accord to the ruler specific executive responsibilities and powers mean that these responsibilities and powers are exercisable by the ruler himself, without the need to be bound by, and to act upon, the advice of the state government.
"This is in breach of the provisions of the Eighth Schedule to the Federal Constitution and Article 7 of the Constitution of Johor, which vouchsafe the concept of a constitutional monarchy," he said in a statement today.
Leong said granting the ruler executive functions would be a departure from the principles of a constitutional monarchy which is protected by the federal and state constitutions.
He urged Khaled to heed Prime Minister Najib Abdul Razak's call to ensure the Bill complies with the Federal Constitution.
This is due to an "anomaly" in the federal constitution, said constitutional expert Abdul Aziz Bari today.
This, he said, was because the constitution has never defined what is meant by a constitutional monarchy, and nothing has been done by the ruling government to remove this "major anomaly".
He pointed out that the appointment of non-elected members to run the state government, such as state financial officer, state secretary and legal advisor, were equally as bad as the Johor Housing and Real Property Board Bill 2014, which is due to be tabled at the state assembly tomorrow."In the states now there are provisions to allow non-elected members to be in the exco (state cabinet).
"This is wrong from the point of view of responsible government that has been used to argue against the Johor Bill.
"Remember the power grab in Perak of 2009 and how the state secretary played a role? Also in Selangor when the appointment of the state secretary became a controversy?" he said.
"Looks like the Johor Bill is smaller an issue compared to this anomaly which has unfortunately been sanctioned by the constitution," Abdul Aziz told Malaysiakini today.
Abdul Aziz said that declaring the Bill unconstitutional would need a "very clear obstruction" of the constitution itself, which he said would be difficult to establish.
"The democracy, the notion of constitutional monarchy is abstract and fuzzy to say the least," he said."Does this mean an overhaul of the constitution? This is for the people out there to decide," he added.
The problematic Bill will give the Sultan powers to appoint members of the housing board which is proposed to be set up by the state government, and also powers to dissolve the board, scrutinising its accounts, and determining the members' allowances.
Curiously, the most vocal detractors of the Bill appear to be coming from within the ruling party itself.
Bar: Bill breaches constitution
Meanwhile, Bar Council chairperson Christopher Leong rebutted Johor Menteri Besar Mohamed Khaled Nordin's defence of the Bill by claiming that executive powers will still remain with him.
Leong (right)said by convention legislations would use the term "state authority", which either refers to the state government or the ruler acting on advice of the government, thus the monarch is obliged to act on advice of the government.However, he pointed out that in the Johor Bill, it clearly distinguishes the government and monarchy by using terms such as "state government", "ruler" and "state authority".
"Therefore, the provisions in the Johor Bill that accord to the ruler specific executive responsibilities and powers mean that these responsibilities and powers are exercisable by the ruler himself, without the need to be bound by, and to act upon, the advice of the state government.
"This is in breach of the provisions of the Eighth Schedule to the Federal Constitution and Article 7 of the Constitution of Johor, which vouchsafe the concept of a constitutional monarchy," he said in a statement today.
Leong said granting the ruler executive functions would be a departure from the principles of a constitutional monarchy which is protected by the federal and state constitutions.
He urged Khaled to heed Prime Minister Najib Abdul Razak's call to ensure the Bill complies with the Federal Constitution.
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