COMMENT The disquiet expressed by the Palace over remarks regarding the Selangor MB crisis is perfectly understandable, and to some extent, even justified.
The limits of a monarch’s discretionary powers in a functioning democracy has exercised the minds of many a constitutional lawyer the world over.
The debate always intensifies and burnishes when there is intense political contestation; and a party feels that its mandate, so painstakingly won through elections, may be at stake.
Our own courts have several times adjudicated on the legality and propriety of a ruler’s exercise of discretionary power. Malaysian law reports attest to the abundant legal jurisprudence in this regard.
Indeed as recently as 2010, our highest Federal Court in the case of the 2 MBs – Nizar v Zambry - solemnly pronounced on the limits of a monarch’s discretion; and when and how the royal prerogative in the choice of MB should be properly exercised.
This is the precise question that is presented in the present episode.
Not unsurprisingly then, this has ignited a rather animated debate; in the course of which, no doubt, considerable heat has been generated.
And this is how it should be.
The rakyat's needs
As the Palace statement, with respect, correctly points out: "The sultan wants someone who will take care of the rakyat's needs and develop Selangor to higher levels".
And what better way to gauge the “rakyat’s needs” than have the rakyat itself provide its feedback - through the media and other recognised channels.
The rakyat chose the party that must govern. And their expectations as to who must helm the government to develop the state “to higher levels” must rank at par with that of the Ruler’s.
That’s why an orderly and smooth transition – consonant with respect for the ‘constitution and established conventions’, which is how the federal Court phrased it in the Nizar case, is vital. And that, precisely, is what is being advanced.
In this context, it may be felt by some that the extension of the tenure of an MB who tendered his resignation on the basis that he had lost the support of the majority of the members of the Legislative Assembly – may be at odds with conventional practice and our judicial pronouncements.
Our Federal Court said that once this loss of majority confidence is made clear, then resignation must follow; indeed the Chief Judge said if the MB refuses to tender his resignation (as happened in the Perak case) “… the fact remains that the executive council is dissolved (which include the Menteri Besar) on account of the MB losing the confidence of the majority of the members of the Legislative Assembly”.
The Court went on to say: “Therefore, it is not necessary for the DYMM Sultan of Perak to remove Nizar and other members of the executive council”.
In short the MB and his exco lose all legitimacy to continue to govern.
The challenging constitutional poser then is: in the light of this clear statement of the law, can the power to govern be extended? Indeed an intriguingly novel question.
Perhaps we can refer then to constitutional conventions established by the country on which our Westminster model of the constitution was crafted.
An authoritative constitutional authority says this, of the practice in England:
“In the event of … resignation of the Prime Minister, the governing party would doubtless expedite its election procedures. If there were still to be substantial delay before a successor could be chosen, the Cabinet could be expected to bring forward a minister who would assume temporary leadership of the government, the Queen being invited to confirm his or her authority to act. Otherwise the Queen might call on the deputy Prime Minister or, if there were none, the Minister ranking highest in precedence to take this responsibility”.
Practically, this convention seems to suggest that it may not be quite appropriate to appoint in the interim a person who has lost majority support of the members of the Assembly.
For then in whose name does the person rejected by majority of the Assembly and the exco, rule?
GURDIAL SINGH NIJAR is professor at the Law Faculty, Universiti Malaya.
The limits of a monarch’s discretionary powers in a functioning democracy has exercised the minds of many a constitutional lawyer the world over.
The debate always intensifies and burnishes when there is intense political contestation; and a party feels that its mandate, so painstakingly won through elections, may be at stake.Our own courts have several times adjudicated on the legality and propriety of a ruler’s exercise of discretionary power. Malaysian law reports attest to the abundant legal jurisprudence in this regard.
Indeed as recently as 2010, our highest Federal Court in the case of the 2 MBs – Nizar v Zambry - solemnly pronounced on the limits of a monarch’s discretion; and when and how the royal prerogative in the choice of MB should be properly exercised.
This is the precise question that is presented in the present episode.
Not unsurprisingly then, this has ignited a rather animated debate; in the course of which, no doubt, considerable heat has been generated.
And this is how it should be.
The rakyat's needs
As the Palace statement, with respect, correctly points out: "The sultan wants someone who will take care of the rakyat's needs and develop Selangor to higher levels".
And what better way to gauge the “rakyat’s needs” than have the rakyat itself provide its feedback - through the media and other recognised channels.
The rakyat chose the party that must govern. And their expectations as to who must helm the government to develop the state “to higher levels” must rank at par with that of the Ruler’s.
That’s why an orderly and smooth transition – consonant with respect for the ‘constitution and established conventions’, which is how the federal Court phrased it in the Nizar case, is vital. And that, precisely, is what is being advanced.In this context, it may be felt by some that the extension of the tenure of an MB who tendered his resignation on the basis that he had lost the support of the majority of the members of the Legislative Assembly – may be at odds with conventional practice and our judicial pronouncements.
Our Federal Court said that once this loss of majority confidence is made clear, then resignation must follow; indeed the Chief Judge said if the MB refuses to tender his resignation (as happened in the Perak case) “… the fact remains that the executive council is dissolved (which include the Menteri Besar) on account of the MB losing the confidence of the majority of the members of the Legislative Assembly”.
The Court went on to say: “Therefore, it is not necessary for the DYMM Sultan of Perak to remove Nizar and other members of the executive council”.
In short the MB and his exco lose all legitimacy to continue to govern.
The challenging constitutional poser then is: in the light of this clear statement of the law, can the power to govern be extended? Indeed an intriguingly novel question.Perhaps we can refer then to constitutional conventions established by the country on which our Westminster model of the constitution was crafted.
An authoritative constitutional authority says this, of the practice in England:
“In the event of … resignation of the Prime Minister, the governing party would doubtless expedite its election procedures. If there were still to be substantial delay before a successor could be chosen, the Cabinet could be expected to bring forward a minister who would assume temporary leadership of the government, the Queen being invited to confirm his or her authority to act. Otherwise the Queen might call on the deputy Prime Minister or, if there were none, the Minister ranking highest in precedence to take this responsibility”.
Practically, this convention seems to suggest that it may not be quite appropriate to appoint in the interim a person who has lost majority support of the members of the Assembly.
For then in whose name does the person rejected by majority of the Assembly and the exco, rule?
GURDIAL SINGH NIJAR is professor at the Law Faculty, Universiti Malaya.
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