Pakatan states: A legal quandary on dissolving the assemblies?

Pakatan is confident of recapturing Perak

Currently, there is a popular perception that the states ruled by the Pakatan Rakyat -- Kedah, Kelantan, Selangor, and Penang -- need not dissolve their state assemblies even if the Barisan Nasional federal government decides to desolve Parliament to call for a snap general election.

However, the truth is that this is not such a simple matter. The ultimate decision on the matter does not lie with the state ruling party, but with the Ruler of the state concerned, who has absolute discretion on whether or not to dissolve the state assembly.

The Kedah state consitution, for example, allows the Sultan to prorogue or dissolve the state assembly [Article 53 Clause (2)] without specifying the need for an advice from the Mentri Besar or State Executive Council, meaning that the Sultan has the absolute discretion in the matter.

The Kelantan state constitution has a similar clause to that of Kedah, which allows the the Sultan to prorogue or dissolve the state assembly [Article 46 Clause (2)]. There is also no specific provision stating the need for an advice from the Mentri Besar or State Executive Council before the Ruler makes such a decision, meaning that he has the absolute discretion in the matter.

In other words, the Rulers of Kedah and Kelantan have the absolute discretion to decide to go along with the federal government, if they so wish, and declare the dissolution of their state assemblies to allow for fresh general elections in their states.

In the case of Selangor, the state constitution does not allow the ruling party to simply dissolve the state assembly without the consent of the Sultan, who has the absolute discretion in the matter [Article 55, Clause (2) (b)]. However, the state constitution is silent on whether the Ruler can decide to dissolve the state assembly on his own initiative, although he has absolute discretion to withhold the dissolution of the state assembly.

In Penang, the Yang di Pertua Negeri (Governor) may similarly act in his own discretion in "the withholding of consent to a request for the dissolution of the Legislative Assembly" [Clause 8 Article (2) (b) of the state constitution].

And, like Selangor, there is no mention on whether the Penang Governor can decide to dissolve the state assembly on his own initiative, although he has absolute discretion to withhold consent for dissolving it.

In the two states of Selangor and Penang, the consent of the Sultan and the Governor respectively is required to dissolve the respective state assembly, and they have the absolute constitutional power to withhold consent.

Does this right to withhold consent on the dissolution of the state assembly mean that by inference and illation, the right to dissolve the state assembly on their own initiative and discretion is imputed obliquely to the Sultan and Governor concerned? Can they decide to dissolve their respective state assembly on their own initiative?

If, taken at face value, the Sultan of Selangor and the Penang Governor could not on their own inititive and discretion dissolve their respective state assembly without the advice from their respective state
government, then the Selangor and Penang state governments under the control of the Pakatan Rakyat need not dissolve their state assemblies, if they so wish, when the Barisan Nasional federal government dissolves Parliament and calls for a nationwide general election.

Perhaps our constitutional lawyers should take an indepth look at the Selangor and Penang constitutions, and see who actually has the final say in calling for the dissolution of the respective state assembly.

- Sinchew