by Malik Imtiaz Sarwar
March 30, 2008
It may be that in all the posturing that is happening within UMNO, within the Federal Government and the Attorney General’s Chamber concerning the events in Trengganu, some of the actors in the unfolding saga have lost sight of the obvious. In the absence of the Sultan, His Royal Highness the Regent of Trengganu has the absolute power and discretion to appoint the Menteri Besar of the state. Put another way, the choice is that of the Regent, and no one else. It is as simple as that.
The Constitution of Trengganu is a document in 3 parts: Laws of the Constitution of 1911, Laws of the Constitution of Trengganu (First Part) and Laws of the Constitution of Trengganu (Second Part). In determining the constitutional position on any matter pertaining to the state, all 3 parts must be read harmoniously. Put another way, all three parts must be reconciled.
It follows, therefore, that in determining the ambit of powers of the Sultan (referred to as Raja in the constitutional documents), or the Regent as the case may be (and for ease of reference, only the Sultan shall be referred to in this comment), reference must be made to all 3 documents.
Chapter Six of the 1911 Laws emphatically provides that His Royal Highness is empowered as the sole authority for appointing ministers and officials. The chapter does not qualify the power of His Royal Highness to do so nor does it set out any criteria by which His Royal Highness is required to exercise his power. As I see it, Chapter Six vests an absolute discretion in the Sultan to appoint ministers and officials. This would necessarily include the Chief Minister or Mentri Besar.
Article 63 of the First Part expressly preserves the prerogatives, powers and jurisdiction of the Sultan except where expressed otherwise in the First Part. This is significant as the absolute power of the Raja to appoint a Mentri Besar is preserved except where otherwise expressly provided.
Article 14 of the First Part provides for the appointment of the State Executive Council including the Mentri Besar. The appointment is made by His Royal Highness. The language of the provision does not detract from His Royal Highness’ power to appoint. Criteria are however provided as follows: the candidate selected must be a member of the Legislative Assembly AND must be a member who in His Royal Highness’ judgment is likely to command the confidence of the majority of the members of the Legislative Assembly.
The Second Part is silent on this aspect of the powers of the Sultan.
Reconciling Chapter Six of the 1911 Laws with Article 14 of the First Part, two points are manifest. The power to appoint the Mentri Besar is that of the Sultan and only that of the Sultan. In exercising this power, His Royal Highness must choose a member of the Legislative Assembly who in His judgment commands the confidence of the majority of the Legislative Assembly. Put another way, it is the subjective view of the Sultan that matters and not of anyone else. Though expressions of support are factors that should be taken into consideration, the Constitution does not bind the Sultan to act only in accordance with such expressions of support.
Furthermore, it is unreasonable to suggest that all that matters are the numbers. The Sultan cannot be expected, nor does the Constitution require His Royal Highness, to act as a rubber-stamp.
In this context, I am of the view that the Sultan may take into consideration all matters that His Royal Highness may reasonably view as having a bearing on the question of confidence. What if the Sultan formed the view that he was not confident that a particular member who seemingly had popular support would not make a suitable Chief Minister. Statements issued by the Palace indicate the concerns of the Palace over the handling of the Pantai Batu Burok episode as well as events that occurred during the recent General Election by Idris Jusoh. These are matter that are evidently bearing on the minds of those who advise the Regent.
These are considerations of weight that go to the question of confidence more so for the fact that it is glaringly obvious that twenty UMNO assembly-men who have endorsed the appointment of Idris Jusoh may not necessarily be acting in accordance with their own conscience but rather the dictates of the party. There is, in a manner of speaking, a dimension of duress in the saga, made obvious by the threats of disciplinary action that have been leveled against Ahmad Said by UMNO. To this end, it is questionable whether it can be said that Idris Jusoh truly commands the confidence of the majority of the Legislative Assembly.
These factors go to show that there is basis for doubt in the mind of the Regent and the advisory council as to the appropriateness of appointing Idris Jusoh. If so, this doubt may reasonably undermine the belief of the Regent and the advisory council that Idris Jusoh truly commands the confidence of the majority.
Regrettably, the rhetoric of the Prime Minister and the Attorney General lend to a conclusion that the Regent and the advisory council are expected to rubber stamp the wishes of the majority. Though this may have been how appointments were made in the past, this does not bind the Sultan or the Regent in the present, more so where the past practice may not have been Constitutionally thought through. In the same vein, I would say that there is no basis for the assertion that the Regent is acting unconstitutionally. In the circumstances, such statements verge on being disrespectful.
For purposes of argument, I would go further. Even if the Regent had decided for no apparent reason to appoint Ahmad Said as Mentri Besar instead Idris Jusoh, there would be no basis for challenging the decision to appoint the said person. The decision is solely that of the Sultan and as such, is in my view not justiciable in a court of law. The only recourse for those members of the Legislative Assembly who disagree is to move a vote of no confidence in the Legislative the Assembly. This is clearly envisaged under the Trengganu Constitution (Article 14(6)).
Significantly, if that were to happen, a new State Executive Council would be appointed unless the Sultan is requested by the Mentri Besar to dissolve the Legislative Assembly in which event elections would have to be held. This may not be politically expedient for those who complain.
And perhaps that is what this is all about in the final reckoning.
One would have expected the Attorney-General to understand the laws of the State of Terengganu, but in stead, he was trying to please his boss, the Prime Minister. In some countries like the United States, the Attorney General would have resigned, but not in our case. It is not our tradition, some would say. But it is time we change that culture. We must develop a culture of public accountability. If you fail to give good advice, then you should resign rather than become a tool of some soon to be defunct politician (an adaptation of Keynes).
Alas, the Terengganu saga is over and the people of Terengganu are proud that their Sultan stood firm on the point of law. If the politicians have truly listened to the voices of the rakyat, there was no need for intervention by the Sultan. If there is no controversy, things would have gone on smoothly.—Din Merican