Whose power to decide on Selangor MB? – Kim Quek

The interesting press conference after a marathon PAS central committee meeting on September 7 has thrown up a crucial constitutional issue that has dominated the current Selangor menteri besar imbroglio.

PAS deputy president Mat Sabu and secretary-general Datuk Mustapha Ali gave conflicting answers to the question of what PAS will do if the Sultan decides to appoint a PAS assemblyman (instead of a PKR assemblyman as agreed by Pakatan Rakyat), as the next MB of Selangor.

Mat Sabu said the party would reject the appointment, while Mustapha said it would leave the decision to the Sultan, implying that it would accept.

This has brought up the key constitutional question of who should decide the next leader of the Selangor state government: the Sultan or the ruling coalition Pakatan Rakyat?

For the sake of clarity of thinking, before we answer the above question, perhaps we should ask ourselves: who should rule the country, the monarch or the people?

I think the answer should be pretty obvious.

Ever since independence, we have been running elections one after another, during which we elect a ruling coalition to rule the country. Since it is the people who have decided who they want to rule the country, so the people are actually the real boss, and the ruling party is only an agent selected by the people to fulfil their aspirations.

The monarch’s role is largely ceremonial with certain privileges and discretions as prescribed in the Constitution, as peculiar to Malaysia, under the ambit of Westminister style of constitutional monarchy.

Among such discretions is the monarch’s power to appoint the prime minister. Our Federal Constitution (to which the state constitutions have mirrored) stipulate that the Agong has the discretion to appoint the prime minister from “a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House.” [Article 43(2)(a) read in conjunction with Article 40@)(a)]

It is in the interpretation of the word “discretion” that controversies have arisen.

The Selangor Sultan’s press secretary Datuk Muhammad Munir Bani claimed that the Sultan has “absolute discretion” in appointing the new MB that he feels enjoys majority support in the state assembly, when he said that the Sultan had ordered each of the component parties of Pakatan Rakyat to submit more than 2 nominees for the MB post.

This implies that the Sultan can appoint who he likes as long as he feels that the candidate has majority support in the assembly.

However, most constitutional legal minds hold that the Sultan’s discretion is limited to its exercise within the context of ascertaining whether the candidate can command majority  support in the assembly.

In other words, when the ruling coalition has nominated a candidate clearly supported by the majority, he has no more discretion to appoint someone else.

The latter view must be correct, as we must appreciate that the quality and suitability of the leader to head the government is of utmost importance to not only the ruling party but also to the nation, particularly to the electorate who have elected the ruling party.

For that reason, it is always the prerogative of the ruling party to decide who it wants to head the government. In fact, the right of the ruling party to choose its head of government, just as its right to rule, is part and parcel of the democratic system that we have adopted. 

It has been the practice in Malaysia since independence, and it is also the practice among parliamentary democracies all over the world, whether they are headed by constitutional monarchs or presidents.

Imagine the havoc that will ensue, if the Sultan’s decree is carried out to the letter, resulting in a potential 9 or more nominees, and he chose a low quality candidate in preference to Pakatan’s top choice.

In addition to the ill-qualified MB possibly running the government to the ground, such an appointment may create serious intra-party and inter-party frictions in Pakatan, thus ruining the latter and bringing disaster to the people of Selangor.

Wouldn’t that be a gross injustice to the ruling coalition, and a betrayal of the electorate of Selangor?

Not by the wildest of imagination, could it have been the intention of the founders of this nation and the framers of the Constitution to create a constitution with such huge loop hole to plunge the country into chaos.

Above all, the Sultan’s decree, as conveyed by his press secretary, could not pass the test of rudimentary logic.

Surely there must be one candidate that enjoys the highest support in Pakatan and others ranking relative low in its esteem. So, what is the logic of asking for relatively low ranking candidates, knowing full well that if any of these are appointed, he will likely be rejected by the state assembly, in which event, the MB appointment process will have to be re-run?

Wouldn’t it be easier for the Sultan to appoint someone nominated by the ruling coalition?

In other words, is there an ulterior motive to reject Datuk Seri Dr Wan Azizah Wan Ismail’s nomination, since she has already secured the support of the majority of the assemblymen?

* Kim Queks reads The Malaysian Insider.