Bar: Federal Constitution doesn’t give Ruler final say in govt matters

Chen Shaua Fui, fz.com

A proposal for a housing board for Johor that gives the Ruler powers to decide on the board’s status and affairs is being viewed with concern by legal experts, who say that these powers are not provided for under the Federal Constitution.

Malaysian Bar Council chairman Christopher Leong said that the draft Johor Housing and Real Property Board Enactment Bill proposed by the state government appears to have subscribed a role to the Ruler which is not envisaged by our constitution.

“Under our constitution, it provides for constitutional monarchy. It is the executive government that administers the government and the machinery of government, that would include agencies, statutory bodies and local authorities,” he said to fz.com.

“A Ruler should have no role in such governance or machinery of government, because we have a system that recognises only a constitutional monarchy, whereas even when there are provisions providing that the monarchy may act on the advice of the government, in reality, they are bound by the advice,” Leong said.

He stressed that the Ruler cannot have the ultimate say in government matters.

“It is not envisaged under our constitution that the monarchy will have an ultimate say, but the federal government or the state government will have the final say in terms of governance of the administration,” he added.

The Johor state government is scheduled to table the bill on Monday to seek the state legislature’s support to pass the bill. The bill provides for the establishment of a board that would overlook matters on housing and property in the state.

If the Bill is passed, Johor would be the first state that gives power to the Sultan to be involved in the state administration.

In the bill, Sultan Ibrahim Sultan Iskandar of Johor is given the power to appoint and dismiss the board members, to decide their allowances, to view the financial accounts and to order certain people to investigate the books. Moreover, the Ruler could order the board to be wound up by way of gazettement.

Human rights lawyer Andrew Khoo shared the view expressed by Leong and went further to highlight an imminent risk in the passing of the bill.

Khoo opined that it is somewhat unusual to give a Ruler so much specific power in what is a piece of ordinary legislation.

“While some provisions could interpret ‘Ruler’ as the Ruler upon advice of the state executive council (exco), there are other provisions that appear to give the Ruler powers in his own right,” Khoo said.

He pointed out that this could be seen as a breach of the concept of constitutional monarchy which stipulates that the Ruler should only act on the advice of the state exco. Khoo pointed out another risk underlined in this piece of law.

This risk is that any decision by the Ruler could be elevated to a level which is deemed unreviewable by or challenged in a court of law, Khoo said.

This is contrary to any decision made by the state authority that is subject to challenge by way of judicial review, he added.

“This would be contrary to the principle of the rule of law,” said Khoo.

A recent example would be the sedition case of the late Karpal Singh who was charged with sedition and convicted for saying the decision of the Sultan of Perak could be questioned in court.

“There is an argument that a decision that is the sole and absolute discretion of the Ruler cannot be challenged in court, such as whether to dissolve the Dewan or not.

“The question is whether the enactment is seeking to place certain decisions at that level so as to possibly put it beyond questioning. And indeed whether by questioning it or saying it could be questioned, you would risk being charged with sedition, as in Karpal’s case,” Khoo said.

Constitutional law expert Dr Abdul Aziz Bari agreed that the proposed bill was against the notion of constitutional monarchy as it essentially takes over the role of the government of the day.

However, he was unsure if the law is against the Constitution.

“This is a matter for the court to rule. Generally yes, but whether or not the bill is legal is a matter that must be decided by the court,” he told fz.com in an email interview.

The problem is that the Federal Constitution has no mechanism to test whether the bill is democratic or otherwise, he said.

“The issue in Johor is difficult to put in black and while although it is clearly not in line with the idea of constitutional monarchy. Under this the monarch is not taking an active role and this includes taking part in mundane and routine matters,” he added.