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Sunday, September 21, 2014

Appointment of the Mentri Besar

Is HRH Sultan Nazrin’s advice that the rulers formally appoint ( and do not select ) prime ministers, menteri besars and chief ministers properly understood in Selangor?

In a public lecture at the Raffles Hotel in Singapore on 27.7.2004 organised by the Institute of South-East  Asian Studies, Raja Nazrin Shah ( now HRH Sultan Nazrin Shah of Perak ) in his exposition on the Malaysian monarchy lucidly said as follows:

“The Agong formally appoints ( but does not select) the Prime Minister…. Correspondingly, the Rulers at State level appoint the Chief Ministers.” 

HRH’s words were a simple restatement of the key principle that majority support of the state legislative assembly is a fundamental precondition for the appointment of the Menteri  Besar as provided for in Article 53(2)(a) of the Selangor State Constitution.  In interpreting the identical provision in the Perak state constitution in the case of  Mohammad Nizar Jamaluddin  v Zambry Abdul Kadir [2010] 2 CLJ 925, Chief Justice Ariffin Zakaria  quoted with approval the following statements made by the President of the Court of Appeal Raus Sharif as follows:

“The DYMM Sultan of Perak in exercise of His Royal Prerogative under Article XVI(2)(a) of the Perak State Constitution is at liberty to appoint another Menteri Besar to replace Nizar.  But His Royal Highness must appoint someone who has the command and the confidence of the majority of the members of the Legislative Assembly” ( our emphasis)

This legal statement encapsulates a fundamental political principle – that it is the people who elect their elected leaders and in the Malaysian system of constitutional monarchy, that it is the majority of the elected representatives who then select their prime minster, menteri  besar or chief minister as the case may be.  And, conventionally,  in Malaysia and in other countries with a similar system, it is the political parties who command the majority in the elected legislative assembly who select  the name of the next prime minister, or menteri besar or chief minister for the states.

It is also clear in this statement of the law that majority support must be demonstrated at the time of the appointment.

Media reports suggest that three ADUNs, Iskandar Samad, Dr Ahmad Yunus Hairi ( both from PAS)  and Azmin Ali ( Deputy President of PKR ) were recently ‘interviewed” at the Istana in relation to a prospective appointment as Menteri Besar of Selangor.  Dr Wan Azizah Wan Ismail, President of PKR who has publicly demonstrated a majority of 30 ADUNs however still waits patiently for an audience.

HRH the Sultan of Selangor will of course be receiving legal advice as to his duties and powers under the State Constitution. 
As a legal advisor to PKR, I point out again as many others have done, the settled  legal position. I do so because, assuming it is true that all the three ADUNs have indeed been “interviewed” for the Menteri  Besar  position,  then serious questions arise as to whether  HRH Sultan of Selangor is being properly advised as to the proper constitutional position.

In the Perak case on 5th February 2009, the Barisan Nasional candidate for Menteri Besar Zambry was able to demonstrate to HRH Sultan of Perak in an audience with the presence of 30 other ADUNs  that he had majority support of 31 ADUNs  and that Nizar, the incumbent  Menteri  Besar, had lost the majority with support of only 28 ADUNs after three PR ADUNs crossed over to BN. The Federal Court therefore ruled that HRH of Perak had properly appointed Zambry in accordance with the State Constitution and the law.

It is obvious on the undisputable facts in the public domain for the Selangor situation that none of these three candidates purportedly granted audiences so far by HRH Sultan of Selangor have fulfilled the fundamental condition of majority support.  The PAS candidates whose names were submitted only by their party can at best claim the support of 13 ADUNs.   Azmin is in an unusual situation as his name was not even formally proposed by any party and he himself has publicly declared support for Wan Azizah and affirmed it in the form of a sworn statutory declaration.  At this point in time,  Azmin too, is not able to publicly demonstrate majority support.  
I appeal to HRH and his legal advisers to take into account the clear interpretation placed upon the identical provision in the Perak Constitution by the Federal Court in deciding who to appoint as the next Selangor Menteri Besar.

If Wan Azizah is to be refused her appointment as the next Menteri  Besar, there ought to be at the very least an explanation of which  provision of the State Constitution is being invoked to prevent her  from being considered for the appointment and why.

Sivarasa Rasiah, PKR Member of Parliament for Subang

21st September 2014


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