Replacing and appointing the Johor MB: A Constitutional Monarch’s Role — Lim Wei Jiet

APRIL 10 — 

  1. Can the Sultan decree (“menitahkan”) for the MB to be replaced/resign?

First and foremost, Malaysia is a constitutional monarchy. It is not an absolute monarchy. As a general rule, at the state level, all acts of the Sultan must be done in accordance with the advice of the MB (Art 7, Second Part, Johor Constitution). Only in very limited areas does the Sultan exercise his discretion.

In this respect, the Sultan does not have power to decree (“menitahkan”) a MB to be replaced or to resign in the midst of the MB’s term in office. This is unless there is credible evidence presented to His Highness that the MB has lost the confidence of the majority of the State Legislative Assembly (SLA) – as occurred in Perak in 2009 and Sabah in 2018.

In fact, the Johor Constitution states that an MB shall resign if he loses the confidence of the majority of the SLA (Art 4(6), Second Part, Johor Constitution) – there is no other circumstance where he is required to do so.

With respect, such a decree would be inconsistent with the Constitution. If the Sultan can sack an MB anytime, that MB would be ultimately beholden to the Sultan in all his policies and actions – not to the SLA and voters. The Palace would then be, directly or indirectly, unceremoniously dragged into the arena of state administration and politics. There is wisdom in the principle that the monarchy should be above, and not in the centre, of politics.

  1. If the MB resigns from office, who nominates a candidate to be the new MB?

By convention, the leader of the political party or political coalition which commands the majority of the SLA. He/she is required to nominate a candidate whom the rest of the party or coalition would support as MB. It must be remembered that there is no requirement in the Constitution or the law to nominate more than one candidate.

  1. Does the Sultan have unfettered power (“kuasa mutlak”) to appoint whomever he wants to be MB?

It is true that the Sultan appoints the Johor MB (Art 3, Second Part, Johor Constitution). But such power is explicitly qualified (Art 4, Second Part, Johor Constitution) – a person can only be appointed a Johor MB if he, inter alia: (1) is a member of the Johor SLA and (2) commands the confidence of the majority of the Johor SLA.

In that sense, the Sultan’s discretion to appoint an MB is not unfettered (“mutlak”) and limitless – it must follow the aforementioned constitutional requirements. For example, if His Highness appoints an esteemed PH Member of Parliament but who is not a Johor SLA assemblyman, such decision can certainly be challenged in Court.

One can learn from history & case law. In 1985, Sabah faced a constitutional crisis. Tun Mustapha was sworn by the Yang di-Pertua as the CM. But later on the same day, the Yang di-Pertua revoked his appointment and sworn in Pairin Kitingan as the CM. The Supreme Court held that the Yang di-Pertua’s appointment of Tun Mustapha “in the first instance must be lawful and made in bonam partem” and the Judiciary has the power to determine if the Yang di-Pertua’s judgment in making such appointment was impaired (see [1986] 2 MLJ 420).

One would expect certain lawyers to conduct proper research before making blatant assertionsthat the Sultan has “the absolute right in appointing the Mentri Besar”.

  1. Can the Sultan act on his own to dissolve theSLAif an MB resigns?

The Opposition Barisan Nasional is reportedly attempting to meet the Sultan to convince His Highness to dissolve the SLA in light of recent developments. This is untenable in law and disingenuous on the part of the Opposition.

They know full well that only the MB can call for a dissolution of the SLA. When that happens, the Sultan can affirm such call or His Highness can choose to reject the MB’s request to dissolve the SLA (Article 7(2)(b), Second Part, Johor Constitution) – this is one of the limited areas aforementioned which he can exercise his discretion.

In other words, the Sultan has the prerogative to reject a call to dissolve the SLA, but His Highness himself cannot trigger a dissolution of the SLA unilaterally.

In Malaysia, including the State of Johor, the Constitution is supreme. All entities and subjects must adhere to our document of destiny – if we depart from its sacred blueprint, our democratic system of governance will be brought to naught.

*Lim Wei Jiet is an Advocate & Solicitor of the High Court of Malaya.

**This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.

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