Raja Petra’s view an outdated one going back to 1948

On Sept 6, Raja Petra Kamarudin argued that ultimately it is a matter for the Sultan of Selangor to decide as to who becomes the menteri besar of the state.

He also claimed that the palace would like to have a Malay menteri besar from PKR, someone who would be there with the support of the Malay dominated parties in the Selangor Assembly.

The royal blogger is known as someone who likes to provoke the public with explosive headlines on his blog; such as his claim that it is actually the Special Branch of the police force who actually determines who becomes the Prime Minister of Malaysia.

Raja Petra may have been influenced by events that led to the appointment of Azmin Ali as the Selangor MB in late 2014.

For the record, Pakatan Rakyat had agreed on PKR president Dr Wan Azizah Wan Ismail as the MB-designate.

Somehow the palace did not like it and insisted on more names for the head of the Selangor state administration.

So when eventually it was Azmin – who was actually one of the 30 members of the House who signed the statutory declaration supporting Wan Azizah – who got the nod, it was not really surprising.

Be that as it may, let us state the law on the matter.

For a start it has to be made clear that the scope for the power of appointment vested in the Yang di-Pertuan Agong, the rulers and the Yang di-Pertua Negeri is the same.

And it must be pointed out that despite the term “discretion” used in the provisions concerned, it is not the same as the ordinary meaning of the word in the dictionaries.

In fact the meaning of “discretion” under the Constitution is different from the same word as found in ordinary legislations, be they in the form of Act of Parliament or state enactment.

As has been pointed by the Reid Commission in their report, the meaning of “discretion” on the part of the Yang di-Pertuan Agong, the rulers and the Yang di-Pertua Negeri has to be understood within the parliamentary context, namely the way it is exercised within the Westminster system whose prototype is the United Kingdom.

Having said this, it needs to be remembered that this power is not included in the provisions which require the Yang di-Pertuan Agong, the rulers and the Yang di-Pertua Negeri to act on the advice of the sitting government.

This is part of the ordinary and routine governance that takes place after the appointment of government; most of which is done after the general elections.

The so-called “discretionary” power to appoint the prime minister, menteri besar or chief minister only comes into being in a situation called a “hung parliament”, where no one party has a clear majority of seats in the House.

But this rarely happens. In fact no political party would let that happen.

They would normally form a coalition and submit a name to the head of state.

That is why for all intent and purposes, the so-called “discretion” has become purely a ceremonial power as the palace has generally been denied, through political process, the real power of “kingmaker”.

That is the phenomenon we have been seeing throughout the Westminster world.

In London, Putrajaya, Singapore, New Delhi and our state capitals the appointment ceremonies have virtually become the occasions whereby the leader of a majority party of members in the House “collected” the letter of appointment.

To say otherwise would virtually render elections insignificant and a waste of money and time.

More importantly it runs counter to the notion of popular sovereignty as well as the basic concept of constitutional monarchy.

The notion claimed by Raja Petra was actually the one that prevailed in the Federation of Malaya Agreement 1948.

Under this legal regime a menteri besar was just a royal appointee; a civil servant whose hold to office is subject to royal pleasure.

The menteri besar in pre-independence Malaya could be hired and fired at will by the rulers.

Now this regime came to an end in 1957; in the states it became operative in 1959 after the first state elections were held.

What was claimed by Raja Petra that the palace was the ultimate factor is not even the practice.

In constitutional law the practice stands as a good source of legitimacy; especially when the provision is silent, insufficient or absurd.

We have seen how the Yang di-Pertuan Agong consented to a change of premiership over the years; from the time of Tunku Abdul Rahman in 1970 to the latest one in 2009 which saw the handing over of national reins from Abdullah Ahmad Badawi to Najib Razak.

We have seen the same in the states.

Some like Sultan Idris Shah protested to Umno leader Razak Hussein over the nomination of Ghazali Jawi as Perak menteri besar in 1974.

Somehow the former relented and grudgingly toed the line.

In Selangor it was even much easier as Sultan Salahuddin Abdul Aziz patiently waited for Umno to submit the name following the forced resignation of Muhammad Muhammad Taib in 1997.

What was done in 2014 by Sultan Sharafuddin Idris was perhaps the exception rather than the norm.

And it is not likely to happen again as the palace would unnecessarily put itself in a spot once more.

For one thing the palace, by dictating who is to lead the state, is virtually taking over the state.

Under the Constitution, the government belongs to – and thus is answerable to – the House.

By taking it over means that the palace would have to be responsible, for example, for the DEIG, water woes and so many other mundane matters that are virtually beyond the control of the palace.

That is why it is often said that politics would drag the palace into the mud.

We despise this not out of disrespect but simply that we want, in the words of that great Walter Bagehot, the monarchy to remain as the dignified element of the Constitution.

In any case back to the Selangor appointment in 2014, one might say that the Sultan was quite within the confines as Azmin Ali was the deputy president of PKR.

It would have been different if the palace had appointed someone from DAP or PAS.

Or to ask the Malay lawmakers in the House to form a coalition to make sure that the menteri besar comes from a Malay coalition.

Dr Abdul Aziz Bari used to be a law professor at IIUM where he taught law for more than 22 years.