PRIME Minister Dr Mahathir Mohamad was correct to asset that the ruling party in a state assembly picks the menteri besar, while the sultan’s role is to appoint the candidate that has been nominated, said constitutional experts.
Under Article 4(2)(a) of the Second Part of the Johor constitution, the ruler must 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, said Gurdial Singh Nijar, an expert in constitutional law.
“This must necessarily mean the person nominated by the majority party. The sultan does not have absolute discretion,” he told The Malaysian Insight.
He said the Johor constitution explicitly states that the menteri besar does not hold his position at the ruler’s pleasure and the sultan also cannot dismiss the MB.
Gurdial said in the case of the 2009 Perak menteri besar crisis, involving Mohammad Nizar Jamaluddin and Zambry Abdul Kadir, the Federal Court ruled that when a menteri besar has lost the confidence of most of the state assembly members, the sultan is at liberty to appoint another one to replace the incumbent.
“The Federal Court in Nizar’s case recognised the right of the sultan to declare the office of the menteri besar vacant even without a vote in the assembly,” he said.
“But this must be read in context. There, the sultan had ascertained that the existing MB had numerically lost the confidence of the majority party in the assembly.
“This means that if the numbers favour the candidate of the state’s ruling party, then that candidate cannot be bypassed for appointment as MB. Clearly, the law is on the side of the prime minister.”
Meanwhile, Bar Council constitutional law committee co-chair Andrew Khoo said the sultan is compelled to invite the person deemed likely to garner the support of the majority members of the state legislative assembly to become the menteri besar and to form the executive council.
Khoo said it was not necessary for the members of the state legislative to support the choice of the sultan out of duty.
“The members of the state legislative assembly are members of political parties and they owe their allegiance to their respective political parties.
“Trying to force members of political parties to vote for the person chosen by the sultan against the will of the political parties would be contrary to the workings of a constitutional monarchy.”
Surendra Ananth, who is also the Bar Council’s constitutional law committee co-chair, said Dr Mahathir was right in his views of the Sultan’s role in appointing the MB, as it is expressly provided in the Johor state constitution.
“This is not an unfettered decision. Only a person who commands the majority can be appointed. As to whom that person is, it is entirely up to the majority of the members of the assembly to decide,” said Surendra.
The power of the Sultan to appoint the MB was “explicitly qualified”, said deputy chairperson of the Bar Council Constitutional law committee Lim Wei Jiet.
“A person can only be appointed a Johor MB if he, inter alia, is a member of the Johor SLA and commands the confidence of the majority of the Johor SLA,” he said.
“In that sense, the Sultan’s discretion to appoint an MB is not unfettered (“mutlak”) and limitless.
“It must follow the aforementioned constitutional requirements. The party nominates a candidate for MB, and the Sultan has to choose that MB if that candidate commands confidence of majority.”
Yesterday, Dr Mahathir said the power to select a replacement for former Johor MB Osman Sapian, who tendered his resignation, lay with the ruling party, and not the Sultan.
His comments appeared to be in response to a tweet by Johor Crown Prince Tunku Ismail Sultan Ibrahim who claimed that Osman was replaced on the orders of his father, Sultan Ibrahim Iskandar, who has absolute prerogative to appoint the Johor menteri besar.
-the malaysian insight
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