Sultans do not have absolute power to appoint the menteri besar, as they are now constitutional monarches says constitutional law expert Abdul Aziz Bari.

 

Abdul Aziz was responding to former Court of Appeal judge Mohd Noor Abdullah 's statement yesterday that the Selangor sultan has absolute power in deciding on who should lead the state as MB, based on Article 51 of the Selangor state constitution 1959.  

In debunking Mohd Noor's position, the former Law professor from the International Islamic University said the position cited by the former judge was prior to the Federation of Malaya agreement in 1948.

"The Sultan of Selangor has absolute power on two matters and can make a decision without any advice, that is, in the selection of the MB and secondly, in the dissolution of the State Legislative Assembly.

"In making a decision on these two matters, the sultan does not have to act on the advice of anyone," Mohd Noor ( right ) was quoted as saying.

Abdul Aziz however said historians have noted that Umno has started to put pressure in the rulers - whom they claimed were saved by the party during the Malayan Union of 1946 - to appoint MBs from among their leaders.

 

“The constitutional regime laid down by the Reid Commission became operational in 1959 after the first state elections together with the 1959 parliamentary elections,” he added.

 

His statement follows speculation that opposition leader Anwar Ibrahim's intention to contest in the Kajang by-election following the resignation of Lee Chin Cheh, could pave the way for Anwar to be the next MB replacing incumbent Khalid Ibrahim.

D ifferent meaning s of discretion

 

Abdul Aziz, who is now with Universiti Selangor, said the former appellate court judge applied the wrong formula in deriving to the conclusion.

 

He said even though the constitution termed the power as “discretion” it is actually different from the ordinary discretionary power where the holder can take whatever option he thinks fit.

 

“Discretionary power in the constitutional context, especially when it comes to appointing government posts like this, has to be seen within the essence and practice of parliamentary democracy. This was explained by the Reid Commission in their report.

 

“To say that the ruler has absolute power means that the notion of responsible government that is inherent in the provision is thrown out of the window.

"That also means that the government is answerable to the ruler and not to the house (i.e. the Parliament or state assembly).

Abdul Aziz further asked if the ruler going to be responsible for the economic slowdown or government inaction?

 

“The view put forward by the former judge raises lots of serious problems about constitutional government. The view also renders elections unnecessary. Why waste time and money when it is the ruler's absolute authority to appoint the government?” he asked

 

“If the ruler has absolute power to appoint the government, the judge was basically proposing that we go back to the 1948 constitutional regime.

 

Abdul Aziz said it has to be reminded that the notion of a ruler having absolute power was opposed by former premier Dr Mahathir Mohamad when he was in office.

 

Mahathir had then proposed limiting the powers of the sultans as well as establishing special courts to hear their cases should they commit offences.