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Discretion 'not absolute' Print E-mail
Wednesday, 26 March 2008

Roger Tan©New Straits Times
by Santha Oorjitham and Regina Lee

KUALA LUMPUR: A ruler must choose a menteri besar wisely in order not to go against the principles of parliamentary democracy and cause a crisis, legal experts said.

Senior lawyer and Bar Council member Datuk Muhammad Shafee Abdullah said provision for the ruler to exercise his discretion "is only applicable in a situation where the sultan may need to invoke the exception to requirements that the MB must be a Malay and a Muslim".

"If a ruler persists in appointing a person from the winning party who does not command the confidence of the majority, the democratic process is put in jeopardy," he said.

"This unpleasant state of affairs ought to be avoided in order to bring harmony between the various institutions."

Gua Musang member of parliament Tengku Razaleigh Hamzah was reported as saying on Monday that the Terengganu Regency Advisory Council's appointment of Datuk Ahmad Said, in opposition to a majority of state assemblymen, as menteri besar should not be questioned.

"The sultan acted within his powers in appointing the person who, in his judgment, is likely to command the confidence of the majority of the members of the state assembly," he said.

He described the impasse as not a constitutional crisis, but a crisis of government.

Shafee rebutted that while the impasse over the appointment of the Terengganu menteri besar was not a constitutional crisis, it could lead to one if not resolved quickly.

Retired Court of Appeal judge Datuk Shaik Daud Md Ismail agreed that the ruler had the discretion in appointing the menteri besar but stressed "it is not his personal discretion".

"The ruler has to pick someone who commands the confidence of the majority of the assembly," he said.

In the appointment of the Terengganu menteri besar, he said "the ruler appears to have appointed someone who may not have the support of the majority of the assembly".

"The assemblymen are the people who will support the menteri besar in his office, not Umno divisions or Umno leaders," Shaik Daud said.

Another senior lawyer and Bar Council member, Roger Tan, said the words "in his judgment" in the Eighth Schedule of the Federal Constitution were not to be taken in the literal sense.

"To say that it is an absolute discretion means a ruler can appoint anyone, including an independent, if he thinks that that person is likely to command the confidence of the majority of members of the state assembly.

"If so, this is contrary to the foundation of parliamentary democracy which practises constitutional monarchy. In a democracy, the ruler cannot frustrate the will of the people," he said.

Tan said the Constitution was, however, silent on the manner in which command of the confidence of the majority is determined.

"In the absence of an express constitutional provision, one always relies on conventions which have developed since independence, which is that the leader of the party with the majority number of seats is appointed, in this case the chairman of the Barisan Nasional at state level," he said.


'Ruler has right over choice of MB'

KUALA LUMPUR: Former Bar Council president Sulaiman Abdullah said the ruler of a state may act in his discretion to appoint a menteri besar.

He said Section 1(2)(a) in the Eighth Schedule of the Federal Constitution stipulated that "the ruler shall first appoint as menteri besar to preside over the executive council a member of the legislative assembly who in his judgment is likely to command the confidence of the majority of the members of the assembly".

"The ruler has the discretion and it is his judgment," the constitutional expert said.

"The constitutional theory is the legislative assembly is made up of individual members. The ruler has to look at these diverse members and decide who would command the confidence of the majority."

Commenting on the appointment of the menteri besar of Terengganu, Sulaiman argued that "the constitution requires him to exercise discretion according to his judgement and he has done so".

"If he has made the wrong choice, the test is the first meeting of the legislative assembly, when a vote of no-confidence could be passed," Sulaiman said.

If that happens, "the menteri besar either resigns or advises the ruler to dissolve the legislative assembly," he said.

He said the ruler also had the discretion to withhold consent for a request to dissolve the assembly.

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