‘Command of majority’ or other criteria in choice of MB?

The Sultan has the power to select the MB, only if the person is someone who has the command and the confidence of the majority of the members of the Legislative Assembly. – The Malaysian Insider file pic, September 10, 2014.

The Sultan’s private secretary says that command of the majority support of the members of the state assembly is not the only basis for appointing a Menteri Besar (MB). Other factors may also be taken into account, such as skill, experience, integrity and ability of the state assemblyperson.

A few legal experts and commentators seem to support this view, attributing absolute discretion in the choice of an MB.

This position does not seem to be consonant with an interpretation of the state constitution, the decision of our highest court as well as by convention.

The Federal Court in Nizar v Zambry acknowledged that the Sultan had the prerogative power to select the MB: "The Sultan in the exercise of his royal prerogative under art XVI(2)(a) of the Perak State Constitution is at liberty to appoint another MB to replace Nizar".

However, it went on to say: "But His Royal Highness must appoint someone who has the command and the confidence of the majority of the members of the Legislative Assembly".

This, then, is the criteria established by our highest court for the selection of the MB, based on an interpretation of the provisions of the state constitution.

The Selangor Constitution also gives the Sultan discretion to appoint the MB in Article 55(2)(a).

However, Article 53(2)(a) provides the criteria for the selection of the MB. He "shall" (that means, "must") select a person who in his judgment is likely to command the confidence of the majority of the members of the Legislative Assembly. Hence the basis for the selection is spelt out clearly.

This was the identical provision that prompted the Federal Court to hold that this criteria applied in the case of the Perak MB crisis.

That this is the sole criteria is made clearer still when the Federal Court goes on to say that it is always open to bring a vote of no confidence against the chosen MB in the legislative assembly OR make a representation to the Sultan at any time if it is thought that the selected MB does not enjoy the support of the majority of the members of the legislative assembly.

Conventional practice also yields the same conclusion, as stated time and again by high constitutional authority in the UK. (Our constitution is based on the UK Westminster model of governance.)

"...in reality the Queen's prerogative is governed by the fundamental constitutional convention, grounded in political necessity, that she must appoint as PM the man or woman who can form a government which will have the confidence of the House of Commons. Normally this convention clearly indicates the party leader who, having majority support in the House, has an indisputable claim to be appointed".

In my respectful submission, this is the only criteria as set out in the Selangor Constitution and repeatedly declared by our highest court in selecting an MB, and further supported by convention, aside of course, from the other pre-qualifications (being of the Malay race and a Muslim and not a citizen by naturalisation).

* Gurdial Singh Nijar is a professor of law at the University of Malaya. TMI