• Legal experts say the Negeri Sembilan state government can still run normally, despite what appears to be a standoff by the state’s “Undangs” or traditional ruling chiefs against the state ruler.
• But an ex-judge said there might be difficulties in some situations, if the Undangs don’t work with the Negeri Sembilan ruler.
• For example, when the Yang di-Pertuan Besar decides on appointing a menteri besar or whether to dissolve the state assembly to pave the way for elections, the Undangs are required to be part of these decisions.

KUALA LUMPUR, May 6 — Legal experts say the Negeri Sembilan state government will be able to operate and function as usual, despite recent attempts by traditional ruling chiefs (Undangs) to remove the state ruler Tuanku Muhriz Tuanku Munawir and Menteri Besar Datuk Seri Aminuddin Harun.

Despite the Undangs’ current stand against both the state ruler and the Menteri Besar, former Court of Appeal judge Datuk Seri Mohd Hishamudin Md Yunus said this would not disrupt the state government’s affairs.

“The state administration can still run in the day-to-day running of government where it does not involve the Undangs.

“However, there could be difficulties in some areas of administration where they involve the Undangs,” he told Malay Mail.

He explained that this is because of the “unique” governance of Negeri Sembilan, where the Undangs have a role to play together with the Yang di-Pertuan Besar in certain situations.

“Unlike the Sultans of other States, in Negeri Sembilan the Yang di-Pertuan Besar is not the sole ruler of the State.

“In Negeri Sembilan, the Yang di-Pertuan Besar and the Undangs are, constitutionally, co-rulers of the State; meaning that in some instances, His Highness constitutionally cannot act alone,” he said.

He pointed to the Negeri Sembilan State Constitution’s Article XL(2), which lists when the Yang di-Pertuan Besar’s decisions would require the Undangs’ participation, including the appointment of a menteri besar and on whether to say no to a request to dissolve the state legislative assembly.

Hishamudin said that this means in these specific instances, “since His Highness has to make a decision jointly with the Undangs, there could be difficulties where the Undangs do not give their co-operation to His Highness”.

Hishamudin cited the example of the State constitution’s Article XXVIII(2) or 28(2), which says the word “Ruler” in Article XL(2) or 40(2) would mean a combination of the Yang di-Pertuan Besar “and at least three of the four Undangs” or at least two of the Undangs (if there are only three Undangs in office at that time).

“This means the expression ‘Ruler’ means not just the Yang di-Pertuan Besar; it refers to His Highness plus the Undangs (either three Undangs or two Undangs as the case may be),” he said.

Constitutional lawyer Datuk Malik Imtiaz Sarwar said the state government can continue to run normally now, as Datuk Mubarak Dohak is said to have been removed as an Undang on April 17 during the “Dewan Keadilan dan Undang” meeting.

“Until and unless Datuk Mubarak proves the contrary (i.e. that he was not removed, as the Undangs suggest), the status quo remains. I understand the Undangs have requested the minutes of the proceedings of the Dewan on 17th April,” he told Malay Mail.

Mubarak was one of the four Undangs who had on April 19 declared the purported sacking of Tuanku Muhriz as Yang di-Pertuan Besar, but his status as an Undang has been disputed. 

Imtiaz had previously told Malay Mail that the Undangs’ April 19 declaration to remove Tuanku Muhriz would be invalid, if Mubarak had participated in the Undangs’ decision despite having already lost his Undang position.

On April 20, the Menteri Besar said the state government cannot accept and does not recognise Mubarak’s declaration to remove the state ruler, as Mubarak is no longer an Undang and as the State Constitution had not been followed.

On the same day, Mubarak and the other Undangs issued a letter to say that the menteri besar should be changed.

But Hishamudin said “the Undangs’ call for the removal of the Menteri Besar has no legal effect.” 

“Legally, the Undangs have no power to remove the Menteri Besar. The Menteri Besar could only be removed via the process as prescribed by the State Constitution,” he said, having previously said that a vote in the state legislative assembly (DUN) is the only way to decide if a menteri besar has lost majority support.

Can the Negeri Sembilan disputes be resolved in court? 

1. Can the validity of Mubarak’s removal as an Undang be determined in court? 

While the Negeri Sembilan state government views Mubarak to no longer be an Undang, he and the other Undangs are disputing this.

Citing the State Constitution’s Article XVI, Hishamudin said whether the dispute on the validity of Mubarak’s removal can be litigated in court is a “debatable legal point”.

Under Article XVI(3), the Dewan Keadilan dan Undangs’ (DKU) advice including on the removal of an Undang “shall be final and shall not be challenged or called in question in any court on any ground”.

Hishamudin said this phrase “shall be final and shall not be challenged or called in question in any court on any ground” is an “ouster clause”, which suggests that the matter is “non-justiciable” or cannot be brought to court.

But he also said there is another school of thought, which takes the position that ouster clauses can never take away the courts’ power of judicial review or power to decide on such cases.

Explaining this school of thought, Hishamudin said the courts’ judicial review power is viewed as “one of the basic structures of the Federal Constitution that can never ever be taken away by the Federal Constitution or State Constitution”. 

“In short, the dispute could be brought and litigated in court,” he said, also supporting this view.

But as of now, the removal of Mubarak as an Undang should be considered valid, he said.

Assuming that Mubarak disputes his dismissal and intends to bring the matter to court, and until the matter is brought to court and if the courts were to rule that Mubarak’s removal by the DKU is valid — “until that happens, the advice of the Dewan Keadilan dan Undang regarding Datuk Mubarak’s removal must be taken to be valid and must be enforced by the state authority”, Hishamudin said.

Imtiaz said it could be argued that Mubarak’s removal as Undang is not something that the courts can decide on: “If the Dewan had removed Datuk Mubarak, it is open to argument that this decision is not justiciable as it is a matter falling within the prerogatives of the Ruling Chiefs.”

2. Can it be determined in court if the bid to remove Tuanku Muhriz as Yang di-Pertuan Besar was valid?

Imtiaz cited a previous High Court decision in 2010 when the current Kelantan regent, Tengku Muhammad Fakhry Petra, had challenged his 2009 removal from the state’s succession council through a judicial review bid. The court had said this was “non-justiciable”.

But Imtiaz indicated that the courts should still be able to review how the Undangs made their decision to remove the Negeri Sembilan ruler, especially when the State Constitution’s Article X states the process that should be followed.

“While it may be argued that a decision of the Undangs relating to succession is not justiciable, this should not preclude judicial review of the process by which that determination is made, more so for that process (Article X) being provided by law (Article X),” he said.

Imtiaz and Hishamudin had said a Negeri Sembilan ruler can only be validly removed if these two requirements in Article X are fulfilled: 

• the Undangs must carry out a “full and complete enquiry” with the Yang di-Pertuan Besar given the right to an impartial hearing; 
• and a written “proclamation” signed by the Undangs and Menteri Besar on the ruler’s removal. 

Hishamudin noted that Article X does not have an ouster clause, which can be interpreted to mean that the dispute on Tuanku Muhriz’s purported removal can be taken to court.

But even if it could be taken to court, Hishamudin said there is no need for Tuanku Muhriz or the Negeri Sembilan state government to do so, as the ruler’s removal is invalid.

He pointed out that there is a “latent” defect or obvious fundamental defect in the Undangs’ proclamation, as it was not signed by the Menteri Besar.

“As such, as a matter of law, the Undangs’ ‘proclamation’ could just be ignored by His Highness and the State authority. It has no validity whatsoever,” he said.

He said the latent defect in the Undangs’ declaration to remove Tuanku Muhriz would be even more so if they had not carried out a “full and complete enquiry” — such as giving the state ruler a chance to call in witnesses and to respond to the allegations against him in a full and formal hearing.

“The question of taking the Undangs to court, from the standpoint of His Highness or the State Government, therefore, does not arise. In other words, the legal position of the Yang di-Pertuan Besar remains intact.”

While saying the Undangs do have the option to go to court to challenge the Menteri Besar’s refusal to sign their “proclamation”, Hishamudin said he seriously doubts that the Undangs have a plausible reason to challenge the refusal, based on all his explanations.

“Having said the above, I respectfully and earnestly urge all parties to endeavour to arrive at an amicable settlement rather than resorting to the courts, for the sake of good governance in the administration of the State,” he concluded.

In the Kelantan case, the High Court had said the issue of succession is non-justiciable, and that the courts would be “ill-suited” to decide the dispute on the facts in that particular case.

Former Court of Appeal judge Tan Sri Mohamad Ariff Md Yusof, who was the High Court judge in the Kelantan succession case in 2010, told Malay Mail: “As the law stands now, issues of royal succession and therefore appointment and removal of rulers, are non-justiciable.

Citing the Kelantan case, Ariff said he believes that the issue of the validity of an Undang’s removal should also not be for the courts to decide on: “However, this was taken at the highest level of rulership. Whether the removal of an Undang can be challenged in court might be another matter, although I incline to believe it should fall within the same category.”

Yesterday, Muhammad Faris Johari was reportedly appointed as the new Undang of Sungai Ujong, the position previously held by Mubarak.