KUALA LUMPUR, Jan 9 ― An interesting scenario has been thrown into the royal succession equation. It is rumoured that Sultan Ahmad Shah of Pahang will make way for his son, Tengku Abdullah, to be Ruler of Pahang and consequently in the line-up to be Yang di-Pertuan Agong (YDPA). Will such an appointment be constitutional?
To answer this, some context is important. For purposes of selection of the YDPA, there are two lists in the Third Schedule to our Constitution: The “first election list” and the “reconstituted election list”. The “first election list” was the very first sequence of State Rulers slated to be the YDPA. This list operated from 1957 to 1994, whereby the first to the ninth YDPA whom originated from the nine Malay States reigned. How was this list arranged? It was arranged in an order in which Their Royal Highnesses then recognise seniority among themselves. Yamtuan Abdul Rahman from Negri Sembilan became our first YDPA, followed by others.
After 1994, the “reconstituted election list” kicked in. The “reconstituted election list” is arranged in accordance to the states in which the first to the ninth YDPA belonged. It still operates until today.
What does our Constitution say about change in the Ruler of the State? Section 4(2)(b) of the Third Schedule states: “Whenever there is a change in the Ruler of a State then on the list, that State shall be transferred to the end of the list (and if on the same day there is a change in the Rulers of more than one such State, those States shall be so transferred in the order in which they are then on the list).”
Simply put, Section 4(2)(b) states that whenever there is a change in the Ruler of a State, that particular State will be pushed to the bottom of the election list (the “Change of Ruler Exception”).
However, Section 4(2)(b) only applies to the “first election list”. As explained, the “first election list” is no longer applicable today and we have moved on to the “reconstituted election list”.
Incidentally, the “reconstituted election list” does not have a similar “Change of Ruler Exception” as provided in Section 4(2)(b). It is silent on what will happen when there is a change in the Ruler of the State. What is the position in law then?
In law, it is a cardinal rule of interpretation that a proviso to a particular provision only embraces the field which is covered by that particular provision, and to no other. Further, there is a latin maxim called espressio unius est exclusio alterius ― simply put, a specific exception in a provision is deemed to be the only exception intended by statute.
In other words, since the “Change of Ruler Exception” only applies to the “first election list”, then by legal implication the “Change of Ruler Exception” does not apply to the “reconstituted election list”.
It would appear that seniority of the individual State Rulers was paramount during the “first election list”. But when it came to the “reconstituted election list”, the emphasis was no longer on individual seniority but adherence to the order of the States (regardless of how junior the Ruler of such States are).
Therefore, if Sultan Ahmad Shah abdicates and paves the way for Tengku Abdullah to become Ruler of Pahang before the Conference of Rulers are scheduled to meet on January 24, then it appears that everything would be in order for the young prince to helm as the 16th YDPA.
* Lim Wei Jiet is an advocate and solicitor of the High Court of Malaya.
*A previous version of this story contained an error which has since been corrected.