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KOTA KINABALU, April 26 ― Constitutional lawyers seem to be in agreement that in a dispute between state rulers and the Constitution, the latter reigns supreme when it comes to the rule of law.
Lawyers polled by Malay Mail agree that while state constitutions used to play a big role in the state, Prime Minister Tun Dr Mahathir Mohamad is right about the constitutional monarch not having executive power in the democracy.
However, the lawyers did point out that it was incorrect of Dr Mahathir to say that the state constitutions ― referring to Johor and Terengganu ― were “nullified”; they were just “modified” according to the new Federal Constitution then.
“The pre-Merdeka Johor Constitution gave wide powers to the monarch. But when we came together as a Federation, all state constitutions were streamlined in accordance to the principles of constitutional monarchy and parliamentary democracy,” said lawyer Lim Wei Jiet.
Both constitutions were modified in line with the 8th Schedule of the Federal Constitution which provides for the state constitution’s powers.
“One important change is that the Sultan must act on the advice of the mentri besar. No more absolute monarchy,” he said, adding that the constitutional monarchy system was reinforced vide several amendments to 8th Schedule in 1993.
“If you look at the Johor Constitution today, it still has many pre-Merdeka references, eg: Sultan Abu Bakar ― the famous monarch who promulgated the Johor Constitution.
“But remember, Article 71 of the Federal Constitution gives power to Parliament to discipline and keep states in check so they obey the 8th Schedule. If State Constitutions are amended to reassert more monarch powers beyond the 8th Schedule, Parliament can intervene and nullify such amendments,” said Liew.
“Long story short, the Johor Constitution is not ‘nullified’ ― but it is ‘modified’ substantially.
"The modification provides that, among others, the sultan must act in accordance to the advice of mentri besars,” said Liew.
Another lawyer, Ananth Surendra, also agreed that the interpretation of the state rulers’ powers would go to Dr Mahathir’s argument for constitutional democracy.
“Pre-independence, the state rulers had played a more influential role in governing the state where the ruler would preside over the executive council. The mentri besar would have to report back to the ruler and in some instances the ruler could even overrule the decision of the mentri besar.
“However, all this changed with the Federal Constitution. Article 71 expressly requires all states to ensure that the provisions in part 1 of the 8th Schedule are included in their respective constitutions,” he said.
If the states did not adopt the provisions in the 8th Schedule, Parliament had the power to enact laws to ensure that the said provisions are included or to remove the inconsistent provisions in the state constitutions.
However, all the states did adopt the provisions and one of the key provisions in the schedule is that the ruler must act on the advice of the state mentri besar.
“Thus, the ruler plays no role in the exercise of governmental power, except in the few scenarios provided for in the Federal Constitution,” he said.
Lawyer Nizam Bashir said that although the Federal Constitution was never intended to supercede state constitutions, and provides many guarantees to the state rulers, Parliament had the power to secure power if the state is in non compliance.
“In simpler words, while it is clear that state constitutions are not nullified when the Federal Constitution comes into effect, this is not to say that due regard is not to be given to the Federal Constitution. That much is clear from my reading of Article 71,” he said.
In the war of words between Dr Mahathir and the Johor monarchy, the Crown Prince Tunku Ismail Sultan Ibrahim had last night posted excerpts of the Federal Constitution on the rights of state rulers accorded by the country’s supreme law to the rulers.
Tunku Ismail cited Article 71(1), and 181 (1) which guarantees the right of a state ruler to enjoy and exercise his constitutional rights and privileges in accordance with the state’s constitution.
It was presumably in response to a blog post by Dr Mahathir who said the state constitutions of Johor and Terengganu, which came into effect in 1895 and 1911, were nullified once the new Federal Constitution was accepted by all the Malayan states in 1957.
Tensions first rose after the sudden resignation of former Johor Mentri Besar Datuk Osman Sapian due to royal interference and subsequently, Tunku Ismail insisted that the right of selecting a mentri besar was that of the Sultan’s.
Tension rose again recently with the Johor exco line-up which included three new members, despite Dr Mahathir’s announcement earlier that there would be no change to the line-up after the appointment of the new Mentri Besar Datuk Sahruddin Jamal.