‘It’s wrong as sultan still has a say’

(NST) – Separation of powers: Ruler must not be involved in executive decisions, say law experts

KUALA LUMPUR: THE proposed amendments to the Johor Housing and Property Board Bill 2014 to replace the word “ruler” with “state authority” in all but one clause will not make any difference in terms of upholding the doctrine of separation of powers between the monarch and the executive.

Former Malaysian Syariah Lawyers’ Association president Datuk Mohamad Burok said even by limiting the powers of the Johor ruler to only appointing members of the board on the advice of the menteri besar, the monarch was still involved in executive duties.

“What difference will it make? There is no clear separation of powers if you still have the sultan of Johor involved in appointing members to the board, even if he is to be advised by the menteri besar on the matter. Such appointments should be made by the executive and not the ruler.

“By logic, the sultan is still there to make decisions. That is wrong,” he said yesterday.

Mohamad said while the amendment clearly did not absolve the bill from contravening the Federal Constitution, one must realise the importance of establishing a separation of powers.

“What is happening in Johor is a bad precedent and has never taken place anywhere else.

“I just want to know whose idea it was (to involve the sultan in executive duties)?

“In a democratic country, the separation of powers brings forth check and balances. But what is happening now is a transgression of the Constitution.”

Another law expert, Universiti Malaya’s Professor Gurdial Singh Nijar, said the Federal Constitution stated unequivocally that the ruler, in exercising his functions under the constitution of a state, must act in accordance with the advice of the state executive councillor.

“He (the ruler) is allowed to function in his absolute discretion only in a very limited number of situations, such as head of the Islamic religion or matters relating to Malay customs and in the choice of menteri besar, which is limited, in turn, by constitutional conventions.

“Of course, he is entitled to ‘any information concerning the government of the state which is available to the executive council’. But no more than that.”

However, constitutional expert Datuk Mohd Hafarizam Harun said if the amendments were kept in line with the spirit of constitutional monarchy, then it was within the permitted laws.

“If the menteri besar advises the names to be included on the board, the sultan must make the necessary appointments. It is not the other way around.

“Honestly, it should model other states’ enactment to the fullest, but not mere cosmetic changes (as lip service).”