MB must be constitutionally, not democratically, appointed

By Mohamad Hafiz Hassan (The Malaysian Insider)

MAY 18 –  Let’s be clear on this. The appointment of a mentri besar (or chief minister) by a state Ruler (or Governor) is governed by the respective state constitution and is not based on democratic principles.

It is the constitution that matters and “not any general principle outside it” (per Raja Azlan Shah FJ, as His Royal Highness the Sultan of Perak then was in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, quoting Frankfurther J).

We do not doubt that democratic principles had influenced the framers of state constitutions, and the Federal Constitution as well. So we find in state constitutions provisions for the democratic process of elections.

And we find also in state constitutions that a mentri besar must be a member of the state legislative assembly (LA) , i.e, a democratically elected representative of the people.

But all these do not make democratic principles the basis for the appointment of a mentri besar.

The basis lies in the constitutional provisions that the appointee firstly must be a member of the state LA, as mentioned above, and secondly that he (or she) must be “likely to command the confidence of the majority of the members of the Assembly”.

The state constitutions are explicit in not requiring that the mentri besar belong to any political party, or that he must be the leader of, or belong to, the party with the biggest majority in the state LA.

Prof Dr Shad Faruqi, a leading constitutional scholar, has shed a few thoughts on the matter. In his book “Document of Destiny: The Constitution of the Federation of Malaysia” (2008) at p 476, in reference to the Federal Constitution on the appointment of the Prime Minister, he writes:

“In India, it is common for the party presidency and the prime ministership to be held by two different persons. All that the Constitution requires is that the Prime Minister-designate must belong to the Lower House and must be likely to command the confidence of that House …. In circumstances in which a General Election does not produce an outright winner and no party captures an absolute majority in the Lower House, it is conceivable that a non-party man or woman or a leader of a minor faction may be chosen as the compromise candidate for the premiership.”

So, even if a mentri besar-designate has no political party to stand behind him or her, that fact is constitutionally irrelevant.

Aside from requiring that the mentri besar must belong to the state LA and must be likely to command the confidence of the majority of the members of the assembly, the state constitution also specifies that the mentri besar does not hold office at the Ruler’s pleasure.

So, while the mentri besar is appointed by the Ruler, he cannot be dismissed by the Ruler unless he (the mentri besar) ceases to command the confidence of the majority of the members of the state LA.

The test to determine the loss of confidence in a menteri besar has already been decided by the Kuala Lumpur High Court to be a vote of no confidence in the state LA. That remains good law until reversed by the higher court.

So, while a successor mentri besar might have been appointed based on democratic principles, it might contravene constitutional provisions and, therefore, be null and void.

Again, in determining the constitutionality of the appointment of a mentri besar under a state constitution, it is the provisions of the state constitution that matter, not some extraneous principles. (see judgment of Abdul Hamid Mohamad, President of Court of Appeal, as he then was, in PP v Kok Wah Kuan [2008] 1 MLJ 1)

* Mohamad Hafiz Hassan, is a researcher at IAIS Malaysia. The views expressed here are entirely his own.