Monday, March 24, 2008

Crisis In Trengganu? What Crisis?

It may be that in all the posturing that is happening within UMNO, within the Federal Government and the Attorney General’s chamber concerning the events in Trengganu, some of the actors in the unfolding saga have lost sight of the obvious. In the absence of the Sultan, His Royal Highness the Regent of Trengganu has the absolute power and discretion to appoint the Menteri Besar of the state. Put another way, the choice is that of the Regent, and no one else. It is as simple as that.

The Constitution of Trengganu is a document in 3 parts: Laws of the Constitution of 1911, Laws of the Constitution of Trengganu (First Part) and Laws of the Constitution of Trengganu (Second Part). In determining the constitutional position on any matter pertaining to the state, all 3 parts must be read harmoniously. Put another way, all three parts must be reconciled.

It follows therefore that in determining the ambit of powers of the Sultan (referred to as Raja in the constitutional documents), or the Regent as the case may be (and for ease of reference, only the Sultan shall be referred to in this comment), reference must be made to all 3 documents.

Chapter Six of the 1911 Laws emphatically provides that His Royal Highness is empowered as the sole authority for appointing ministers and officials. The chapter does not qualify the power of His Royal Highness to do so nor does it set out any criteria by which His Royal Highness is required to exercise his power. As I see it, Chapter Six vests an absolute discretion in the Sultan to appoint ministers and officials. This would necessarily include the Chief Minister or Mentri Besar.

Article 63 of the First Part expressly preserves the prerogatives, powers and jurisdiction of the Sultan except where expressed otherwise in the First Part. This is significant as the absolute power of the Raja to appoint a Mentri Besar is preserved except where otherwise expressly provided.

Article 14 of the First Part provides for the appointment of the State Executive Council including the Mentri Besar. The appointment is made by His Royal Highness. The language of the provision does not detract from His Royal Highness’ power to appoint. Criteria are however provided as follows: the candidate selected must be a member of the Legislative Assembly AND must be a member who in His Royal Highness' judgment is likely to command the confidence of the majority of the members of the Legislative Assembly.

The Second Part is silent on this aspect of the powers of the Sultan.

Reconciling Chapter Six of the 1911 Laws with Article 14 of the First Part, two points are manifest. The power to appoint the Mentri Besar is that of the Sultan and only that of the Sultan. In exercising this power, His Royal Highness must choose a member of the Legislative Assembly who in His judgment commands the confidence of the majority of the Legislative Assembly. Put another way, it is the subjective view of the Sultan that matters and not of anyone else. Though expressions of support are factors that should be taken into consideration, the Constitution does not bind the Sultan to act only in accordance with such expressions of support.

Furthermore, it is unreasonable to suggest that all that matters are the numbers. The Sultan cannot be expected, nor does the Constitution require His Royal Highness, to act as a rubber-stamp

In this context, I am of the view that the Sultan may take into consideration all matters that His Royal Highness may reasonably view as having a bearing on the question of confidence. What if the Sultan formed the view that he was not confident that a particular member who seemingly had popular support would not make a suitable Chief Minister. Statements issued by the Palace indicate the concerns of the Palace over the handling of the Pantai Batu Burok episode as well as events that occurred during the recent General Election by Idris Jusoh. These are matter that are evidently bearing on the minds of those who advise the Regent.

These are considerations of weight that go to the question of confidence more so for the fact that it is glaringly obvious that twenty UMNO assembly-men who have endorsed the appointment of Idris Jusoh may not necessarily be acting in accordance with their own conscience but rather the dictates of the party. There is, in a manner of speaking, a dimension of duress in the saga, made obvious by the threats of disciplinary action that have been leveled against Ahmad Said by UMNO. To this end, it is questionable whether it can be said that Idris Jusoh truly commands the confidence of the majority of the Legislative Assembly.

These factors go to show that there is basis for doubt in the mind of the Regent and the advisory council as to the appropriateness of appointing Idris Jusoh. If so, this doubt may reasonably undermine the belief of the Regent and the advisory council that Idris Jusoh truly commands the confidence of the majority.

Regrettably the rhetoric of the Prime Minister and the Attorney General lend to a conclusion that the Regent and the advisory council are expected to rubber stamp the wishes of the majority. Though this may have been how appointments were made in the past, this does not bind the Sultan or the Regent in the present, more so where the past practice may not have been Constitutionally thought through.

In the same vein, I would say that there is no basis for the assertion that the Regent is acting unconstitutionally. In the circumstances, such statements verge on being disrespectful.

For purposes of argument, I would go further. Even if the Regent had decided for no apparent reason to appoint Ahmad Said as Mentri Besar instead Idris Jusoh, there would be no basis for challenging the decision to appoint the said person. The decision is solely that of the Sultan and as such, is in my view not justiciable in a court of law. The only recourse for those members of the Legislative Assembly who disagree is to move a vote of no confidence in the Legislative the Assembly. This is clearly envisaged under the Trengganu Constitution (Article 14(6)).

Significantly, if that were to happen, a new State Executive Council would be appointed unless the Sultan is requested by the Mentri Besar to dissolve the Legislative Assembly in which event elections would have to be held. This may not be politically expedient for those who complain.

And perhaps that is what this is all about in the final reckoning.

MIS

24 comments:

Chong Zhemin said...

I have read so many different opinions on this issue. The AG is definitely a BN man, the fact that he is going to "advise" the sultan to accept Idris Jusoh as MB already proved that.

Anonymous said...

Brilliant! Most sensible comment thus far. Please advise the Sultan of his rights and our unwavering support. Daulat Tuanku!

malayamuda said...

UMNO kurang ajar dan menderhaka kepada raja raja melayu.

raja perlis dan sultan terengganu harus membubarkan dewan undangan negeri and call for pilihanraya once again so that the rakyat can teach the biadap BN a lesson

DAULAT TUANKU !!!

Anonymous said...

Like the conclusion: And this may not be politically expedient for those who complain. Ha!

Deepblue_dude said...

Hi MIS,
May i put it across to you that if the Sultan holds the power to appoint his ministers and officials, definitely, it would also mean that he has the powers to remove them? Would it not be so?

Anonymous said...

Whats the point of royalty in this day and age anyway? I personally feel the fact that the sultan has any kind of power over the country is kind of messed up. We live in a democracy as in the people chose who has the power. If we don't like you we change you, as in what happened in the last elections. Thats how it should be. Sultans are just for decoration.

Anonymous said...

Hi MIS,
First time I ever dare leave a comment here.
Thanks for this insightful posting. One question pls: What/when exactly is a constitutional crisis?
Thank you

art harun said...

I beg to differ Imtiaz.

The Federal Constitution - and all the States Constitutions - are drafted in such a way to ensure that the Rulers play no part in the nation's (and the states') political arena. Thus in most cases, the Rulers are required to act "on the advice" of the Executive. That kind of provisions take away whatever discretion the Rulers may have over the matter.

On the appointment of the Menteri Besar, it is of course noted that the power rests with the Sultan, and in Trengganu's case, with the Regent as the Sultan is now the Agung. Although it is within the Ruler's sole ambit to appoint a Menteri Besar, I would not venture to call that power as a "prerogative". A prerogative power denotes an absolute power which may then be exercised by the Ruler at his sole and absolute discretion. However, in matters concerning the appointment of the Menteri Besar, the Ruler's discretion is a guided discretion, which makes the discretion a qualified one.

In my opinion, (well, I don't know how much my opinion is worth on this subject as I don't practice Constitutional Law at all!), when one speaks of the prerogative of the Ruler to appoint a Menteri Besar, one meant to say that only the Ruler ALONE can appoint a Menteri Besar and not anybody else. That is true to that extent. But the exercise of that appointing power is tampered with a guided discretion, namely, the Ruler must appoint some one whom the Ruler thinks commands the confidence of the majority of the State Legislative Assembly. The Ruler cannot willy nilly appoint anybody he likes at his own whims and fancy.

With all due respect I disagree with you when you say that past practice does not bind the Ruler. I say this because apart from the written provisions of the Constitution, "convention" also forms an inalienable part of our Constitution (well, at least, in the Commonwealth countries). Take the Federal Constitution for example, there is no provision saying our Prime Minister must be a Malay and a Muslim. But by convention, it is already argued by learned authors that the PM must always be a Malay and a Muslim. WE shall save that argument for later.

My point is, convention may dictate the exercise of the Ruler's power to appoint the Menteri Besar as long as that convention is not repugnant in any way against the written provisions of the Constitution. The involvement of convention in our Constitutions gives the notion that our Constitution is in fact a living and breathing document and not a document which is carved in stones and lying somewhere in the archive.

So, how does the Ruler form his judgment on who commands the confidence of the majority of the State Legistlative Assembly? The Constitution does not have any provision on this. Here comes the convention. The convention is that the PM would issue a watikah to the head of the BN of that state declaring that he should be the Menteri Besar. There is practical simplicity to this exercise. The PM is the head of BN. If the state is under BN, then the PM should be able to know who commands the confidence of the majority in that state. That is the presumption. Armed with that watikah, the Ruler would then form an opinion or judgment that the person named in the watikah commands the confidence of the majority and the Ruler would then appoint him as the Menteri Besar. That is the convention.

The mere fact that the drafters of our Constitution were at pains to ensure that the Rulers do not venture into our political arena demands the absolute detachment of any kind of political maneuvering by the Ruler in the exercise of the Ruler's power to appoint a Menteri Besar. Otherwise, there would come a day when a Ruler would have a vote opened among all the state legislative assembly members under the pretext of trying to form a judgment on who commands their confidence. That in my opinion is not acceptable and should not be the practice at all.

Having said the above, I only have a question which is left unanswered. When the Constitution says the person must command the confidence of the majority of the members of the state legislative assembly, does it mean to refer to the whole assembly or only to the members of the ruling party? If it was the later, then the plot thickens...

My 2 remaining credit's worth...

Letting the time pass me by said...

If the MB appointment need the consent of the Sultan, definitely the candidate for the MB job need to have a good rapport with the Sultan.

If he failed to get the Sultan consent, then the Sultan will not choose him. Like a CEO, must have a very good realtionship with majority shareholders or he will be removed...

PM said...

Very informative, thank you. Lets see what the idiot Idris can do. It will be a slap in the face for AAB and the arrogant UMNO.

Anonymous said...

MIS
Well argued. The practical reality is that the one of the MB's primary roles is to advise the Sultan in matters relating to the state. Logic dictates therefore that the Sultan must have trust in such an advisor. Evidently, Idris does not command that trust and I would have thought UMNO would be smarter than to take on the Sultanate, for whom many Malaysians would readily take up arms to defend. Tengku Razaleigh's view on how matters should be handled (which meets with your assessment), to me, seems to be the most practical way of addressing the impasse.
IM Phee

Malik Imtiaz Sarwar said...

Dear Art Harun,

I can see the contrary view. I do have a point in response. We must keep in mind that the Federation is exactly that, a federation of pre-existing nation states. Before Merdeka, the various states of Malaya were colonies of Britain. Before that, they were independent states. The Federal Constitution was drafted to cement the relationship between the various states and to determine the delineation of powers - state and central or federal. The Federal Constitution preserves the validity of the state Constitutions (to the extent that the same are not inconsistent with the former). The Federal Constitution does not provide for state governance other than through the legislative scheme - again state and federal.

I accept the validity of constitutional convention. I do not know whether the practice of BN led state governments with or without the agreement of the Sultan can amount in law to a constitutional convention in the same way as, say, the independence of the judiciary does. You make an interesting point though.

As for prerogatives and power, we must agree to disagree. I am guided by the clear expression of the state constitution though there is obviously room for some argument. The bottom line is that the no one but the Sultan appoints and there is no expression of an obligation on the part of the Sultan to follow dictates other than his. Your closing comment is insightful - the majority is of the entire assembly and not just one party.

Look forward to your next comment.

MIS

nightcaller said...

Appreciate if someone can confirm that in the event the 22 elected representatives from UMNO carry our their threat to resign, is it true that all the 22 of them cannot seek re-election for 3 years as stated in the election rule /act?

And if this is true, do u think that the 22 elected representatives wanted to risk their political future for some lost cause?

Till then...G'nite M'sia...wherever u are...

Anonymous said...

I believe that the confusion as to the discretionary power of the Sultan lies with Art.10 & Art.14(2)(a) of the Laws of the Constitution of Trengganu (First Part) whereby it explicitly provides that His Royal Highness in exercising his power of appointment of the MB, has to appoint a person "who in his judgment is likely to command the confidence of the majority of members of the assembly".HOWEVER,the Sultan "may in his discretion dispense of" such criteria "in order to comply with the article" (Art.14(4).Lets say that if its true that the Sultan in foregoing the requirement of choosing the person who has the support of the Assembly, he has the right to do so as this discretion is given by the law i.e.Art.14(4). This is to enable HRH the Sultan to comply with Art.14 i.e. appointing the State Executive Council amongst the Assembly, which is critical after an election.Moreover, as MIS has correctly pointed out, the Sultan, the Regent of Terengganu has the absolute power & discretion to appoint the MB (Art.12(2), so much so that the state has no powers to make laws requiring His Royal Highness to act only after consultation with or recommendation of any advisors pertaining to matters provided under Art.12 (2), which include power to appoint the MB. Thus, the argument that the appointment of YB Ahmad Said as MB as unconstitutional cannot stand.

Academia

Ben Nordin said...

Hi MIS. Thanks for a very informative article. You're an asset to Malaysians.

Anonymous said...

As was argued in the case of MB Perak selection, MB of Terengganu shall have backing from majority of Terengganuians, not just ADUNs. In this case, definitely Tuanku Sultan has the majority backing of Terengganuians proven by street interviews conducted by various (even BN-biased) media such as Utusan Malaysia and TV9, therefore whomever the Sultan chooses will have the backing of majority of Terengganuians - hence no crisis.

Anonymous said...

Where could we get a copy of the Constitution of Trengganu? Is it available online?

Gan said...

Hi MIS,

I am sure the PM as well as the Sultan must have a team of very learned legal advisers - so, isn't it strange that both parties is uable to come to a consensus?

Or, is either parties interpreting it to justify their decision and action?

In that case, will it have to be fought out through the Judiciary?

Just a thought.

Anonymous said...

If DAP is 'biadap' in the Perlis MB issue, why nobody say UMNO also 'biadap' in the Terengganu MB issue?

I'm not politician supporter, but I hope that all of the politicians will have fair environment to show what they can do for Rakyat.

For me, "siapa jadi MB Terengganu" is not an issue; the important point is: "the MB must be able to bring good future to Terengganu and of course the MB must be clean".

azmi said...

nice one. again. see, i read your blog!

art harun said...

Dear Imtiaz,

Thank you for your response. If you would allow me to express my thoughts further.

I think the Federal Constitution and the respective state’s constitution ought to be read within the context of the framework which was set in place prior to our independence. Permit me to now refer to a bit of history.

Historically, Tanah Melayu consisted of feudal states, which like any other part of the Malay Archipelago, were ruled by Sultans or Rajas. The Malayan Union concept was introduced by the British at the end of the Japanese occupation as a prelude to our independence. Amidst protests from UMNO and others, and amidst threat from MPAJA, which had then transformed itself into a communist party (MCP), Malaya was declared to be an independent country. It became a federation with constitutional monarchy. *

Being an independent country practising democracy, the monarch plays absolutely no role in the administration and governance of the country. Save for some powers concerning the status of Islam, the Rulers have no executive powers. Whatever “powers” the Rulers may have are exercised “at the advice” of the executive. I would venture to say that the Rulers mainly exercise ceremonial functions.

The notion that the Rulers are a part of check and balance mechanism to the wide powers of the executives is to me, wishful at best. The reality is the Rulers are not part of the administration of the country. The check and balance mechanism embedded into our system (and every democracy with a constitutional monarch) only consists of the executive, legislative and of course, the judiciary (in some Scandinavian countries, an ombudsman is an integral part as well).

However, within a sociological standpoint, where culture and the layperson’s perception of the position of the Rulers come into equation, the position might be different. It is within our local (especially the Malays) mentality and perception, that the Rulers do have the rights to “tell off” the executive when the later goes astray. And to act in any way which is repugnant to the Rulers’ wishes may be regarded as rude or even treasonous. However, in my humble opinion, this has no legal basis whatsoever and is not reflective of legal reality.

The real power in our country and under our constitution (states and federal) rest with the people. We elect our representatives and consequently, our executives and legislatives. Viewed within the context of the Rulers’ detachment from the administration of our country, I would not call the Ruler’s “power” to appoint the MB as a prerogative. It is ceremonial in nature. The guiding principal in making such appointment is testament to the democracy system that we practise, namely, the leader which takes the persona of an MB, should command the confidence of the majority of the state legislative assembly. The Ruler MUST conform with that requirement. To do otherwise, or to permit the Ruler to do otherwise, is to create a situation where the will of the Ruler may override the will of democracy. That will result in a reversion towards feudalistic ideals!

Even if the Terengganu state constitution contains an article permitting the Sultan to dispense with the guiding principal, surely it cannot be argued that the Sultan may do so willy nilly without any proper reason. That is to adopt a literal approach in the interpretation of a very important “power” which may bring far reaching consequences. That power to dispense, to my mind, ought to interpreted, and applied, purposively. The purpose of the power to dispense is to cater for a situation of a deadlock, for instance. Imagine a situation where the seats between the BN and PAS are equal. Or where the partisan politics in the assembly has so broken down so much so it is impossible to know who commands the confidence of the majority of the assembly. Then, and ONLY then, the Ruler may, in my opinion, dispense with such criteria.

To adopt a literal approach would vest a certain level of absolute power in the Ruler where such power does not exist in the first place. Can we imagine a situation where the Ruler may decide mid-term to change an MB because he thinks that MB does not command the confidence of the majority anymore?

We are now riding the populist wave of a political reform yet unseen before. It is a result of deep rooted anger against the BN government. But lets not allow our emotion to colour our judgement by creating, or allowing to create, a dangerous precedent, a precedent which we all may live to regret later.

Thank you.

Anonymous said...

Clarity at last.

Anonymous said...

Dear Art Harun,

Do u really believe that Malaysia is turning into an absolute monarchy. How can this happen when the Constitution, both Federal & State provides that it is compulsory for the Sultan to act on the advice of their advisors. There are loads of advisors for the Sultan/Ruler from the State Exco, State religious/custom council, Jumaah Pangkuan ng to individuals/body of person appointed by State law. Did the Regent/Sultan acted on his own accord ("willy nilly"?0 without advice from any of the advisors in the appointment of Ahmad Said as MB? Of course the matter with reg to the appointment of a MB is within the discretionary powers of the Sultan of the State but this power is definitely contained. He cannot merely act at his whims & fancies unlike some of our "BN Raja", power has made them sooo bigheaded!

But one thing for sure, the T'ganu Regent has not acted in accordance the advice of the Prime Minister, as the PM as head of executive of the Federal Govt, has no power to advice on this state matter. Remember, under our Federal Constitution, there's this division of power between Federal & State Govt, and the appointment of a MB is a state matter.

Berita dari gunung said...

It is like a mock test before the real exam.

When democracy is tuned like a game then as leadership is failing and weakening, of course the King will always be there.

Long Live the king.