The Sultan of Selangor, Sultan Sharafuddin Idris Shah. It is for the elected representatives to decide who is most likely to command the assembly’s confidence. While the Sultan should not take a role in that process, he must be satisfied that the majority no longer support the incumbent MB. – The Malaysian Insider pic, July 24, 2014.
Frequently asked questions on the powers of the Sultan if a menteri besar (MB) is shown to have lost the confidence of the majority of the State Assembly under the Selangor State Constitution.
Q. If a sitting MB loses the confidence of the majority of the legislative assembly, what happens?
Then he must tender his resignation together with the members of the State Executive Council.
Then he must tender his resignation together with the members of the State Executive Council.
Is this the only thing that could happen?
No, he may also request the Sultan to dissolve the legislative assembly. If the Sultan so decides, it means that fresh state elections will have to be held.
No, he may also request the Sultan to dissolve the legislative assembly. If the Sultan so decides, it means that fresh state elections will have to be held.
Is the Sultan bound to act upon the request of the MB to dissolve the assembly?
No.
What must the Sultan do then?
He should assess whether the loss of confidence of the MB creates a situation that suggests that the affairs of the legislative assembly cannot be conducted by the election of a replacement MB and the appointment of a new executive council. If this can be done, then he should not dissolve the assembly.
He should assess whether the loss of confidence of the MB creates a situation that suggests that the affairs of the legislative assembly cannot be conducted by the election of a replacement MB and the appointment of a new executive council. If this can be done, then he should not dissolve the assembly.
If the dominant party – supported by a majority of the members of the party – has already named a replacement for the incumbent MB, and together they constitute the majority of the members of the assembly, this indicates that the legislative assembly and the newly appointed MB and its new executive council can rule the state without any difficulty. In this situation the Sultan has to exercise his powers to require the MB to resign. The option of dissolving the assembly will not then arise.
Is this stated in the State Constitution?
No, but it is a convention. In our Federal Constitution based on the Westminster model, (which is replicated in State Constitutions), we follow practices and usages to make the constitution work. These are called conventions and must be followed. Conventions regulate the manner in which government is to be conducted; in this case, how discretionary powers are to be exercised.
No, but it is a convention. In our Federal Constitution based on the Westminster model, (which is replicated in State Constitutions), we follow practices and usages to make the constitution work. These are called conventions and must be followed. Conventions regulate the manner in which government is to be conducted; in this case, how discretionary powers are to be exercised.
Although conventions are not enforced by courts, the existence and content of a convention may form part of a judge’s reasoning in coming to a decision, as confirmed by leading constitutional law authorities. As an example, see Turpin and Tomkins in their book, British Government and the Constitution: 7th edition (2011), page 198.
How can the MB be "proved" to no longer command the confidence of the majority of the legislative assembly?
One, is by a vote in the assembly on a resolution to declare that fact. Alternatively, the loss of confidence of the MB may be communicated to the Sultan by any other means – by letter, by oral communication or a combination.
One, is by a vote in the assembly on a resolution to declare that fact. Alternatively, the loss of confidence of the MB may be communicated to the Sultan by any other means – by letter, by oral communication or a combination.
The important thing is that the Sultan must be satisfied that the majority no longer support the incumbent MB.
What if the incumbent MB refuses to resign or approach the Sultan when it is clear that he has lost the confidence of the majority of members of the assembly?
The State Constitution provides that in such a situation, he must tender his resignation. If he refuses, this may constitute an exceptional circumstance, justifying the Sultan to declare that the MB no longer commands the majority of the assembly and declare his position as vacated.
The State Constitution provides that in such a situation, he must tender his resignation. If he refuses, this may constitute an exceptional circumstance, justifying the Sultan to declare that the MB no longer commands the majority of the assembly and declare his position as vacated.
What happens then?
The Sultan can then proceed to appoint as MB 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 Sultan can then proceed to appoint as MB 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.
If the dominant party names a candidate, then he has no option but to appoint that person. The candidate must, of course, fulfil the other qualifications set out in the Constitution – namely he is of the Malay race and professes the Muslim religion, and is not a citizen by registration or naturalisation.
The Sultan may in his discretion dispense with "any provisions in the Constitution restricting his choice of a MB if in the sultan’s opinion it is necessary to do so". This mainly relates to these "qualifications" for appointing a MB.
The golden rule is that, in such a clear situation as this, it is for the elected representatives to decide who is most likely to command the assembly’s confidence; the sovereign should not take a role in that process. This accords with the principles of a functioning democracy; and ensures that the monarchy’s role as a neutral arbiter is preserved.
* Gurdial Singh Nijar is Professor at Law Faculty, University of Malaya.
- TMI
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