Lawyer: Dr M only needs support of MPs to be PM

The Star Online

KUALA LUMPUR: A senior lawyer agreed with Prime Minister-designate Tun Dr Mahathir Mohamad's interpretation that he can lead the country with the majority support of Members of Parliament (MPs).

Datuk Roger Tan (pic) said Article 43(2)(a) of the Federal Constitution refers to a member of parliament – not the party or coalition of the majority of the MPs.

"Since all the Pakatan MPs have signed a written declaration to support Tun Mahathir, it is hoped that all government institutions will immediately give effect to the sacrosanct will of the people expressed through the ballot box," he said.

Pakatan Harapan has asked the Yang di-Pertuan Agong Sultan Muhammad V to swear Dr Mahathir as the 7th Prime Minister by Thursday evening.

Dr Mahathir said he had the support of 135 MPs, surpassing the 112 needed for a simple majority.

His remarks come after outgoing prime minister Datuk Seri Najib Razak said he accepted "the will of the people" but stopped short of admitting defeat.

Dr Mahathir said that four parties in the coalition have also "written to the King, asking for a swearing-in ceremony to take place the sooner". 

Keep it colour blind

The Sunday Star 
Legally Speaking by Roger Tan
 

Respected figure: The writer with Sultan Azlan.

Our judges, regardless of their race and religion, must always be mindful that they have taken an oath to preserve, protect and defend our Constitution not for some but for all Malaysians.

I HAVE wanted to write this for some time – my tribute to the late Sultan Azlan Shah who passed away on May 28, 2014. Not so much because he had been reading my column, but rather on two occasions which I had the honour of meeting him, he had encouraged me to keep on writing.

I was also troubled that when he passed away, he had not been accorded the appropriate recognition by leaders of our legal profession of his contribution to the administration of justice in this country.

This could be due to some differences with the Sultan’s decision not to call for fresh state elections when Pakatan Rakyat lost the majority control of the Perak state assembly in February, 2009. I had at that time written extensively that the Sultan’s decision was constitutionally correct.

Interestingly, the Federal Court’s judgment which subsequently endorsed the correctness of his royal decision is now being relied upon by his then most vociferous and sometimes insolent critics in Pakatan Rakyat to justify replacement of the embattled Selangor Mentri Besar, Tan Sri Khalid Ibrahim without the need for a state assembly sitting or the dissolution of the assembly.

Sultan Azlan belonged to the generation of great Malaysian jurists including the likes of Tun Mohamed Suffian Hashim and Tan Sri Eusoffe Abdoolcader. He was, after all, the youngest ever appointed High Court Judge and Lord President.

Not many knew that whenever the Malaysian Bar stood up for the independence of the judiciary, he was always there with and for us.

I still remember the keynote address he gave at the 14th Malaysian Law Conference on October 29, 2007; of which I was the organising chairman.

The conference was held one month after 2,000 or so lawyers walked for justice from the Palace of Justice to the Prime Minister’s office to hand over a memorandum asking the government to set up a royal commission of inquiry to investigate the V.K. Lingam video tape which implicated the then chief justice, Tun Ahmad Fairuz Sheikh Abdul Halim.

Discretion 'not absolute'

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.

Good to test the Constitution

New Sunday Times
by Roger Tan

Our constitutional rulers are not mere rubber-stamps. They hold powers of check and balance. Advice given by the Conference of Rulers ‘is highly persuasive and so persuasive that it is incumbent upon the king to follow’ it.

"CONSULT" is currently the most talked-about word among legal circles.

It all started when the Singapore Straits Times reported on Aug 8 that Malaysia’s Conference of Rulers had refused to endorse the candidate submitted for the post of Chief Judge of Malaya, in place of Tan Sri Siti Norma Yaakob who retired on Jan 5.

The interest was heightened by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim’s statement two days later after the swearing-in of eight judicial commissioners that he did not know if the Conference of Rulers had rejected the government’s choice of candidate because it was under the Official Secrets Act.

Fairuz added that the prime minister was the one who made the ultimate decision on the appointment of the Chief Judge of Malaya because the Yang di-Pertuan Agong acted on the prime minister’s advice. He went on to say that under the Federal Constitution, the prime minister would consult the chief justice and the king would, in turn, consult the Conference of Rulers on the selection.

However, he stressed that consultation did not mean one was bound by the views given.

Hence, reference must be made to Article 122B (1) of the Federal Constitution which reads:

"The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122C) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the prime minister, after consulting the Conference of Rulers."

In fact, the word "consult" appears 27 times in different grammatical variations in the Constitution. Apart from being consulted in the appointment of His Majesty’s judges, the Conference of Rulers also has to be consulted over the following:

• before any change in policy affecting administrative action under Article 153 is made (in relation to the special position of the Malays and natives of any of the states of Sabah and Sarawak and the legitimate interests of other communities) (Article 38 (5)); and,

• the appointments of the Auditor- General (Article 105 (a)); the Election Commission (Article 114 (1)) and the Education Service Commission (Article 141A (2)).

In 2000, the Court of Appeal ruled that by virtue of Article 122B (1), the prime minister could insist on the appointment of a judge even if the Conference of Rulers did not agree or withheld its views or delayed the giving of its advice to the king.

This ruling came up during the hearing of an appeal from Datuk Seri Anwar Ibrahim, who claimed that when he was the deputy prime minister, he had represented the prime minister at the Conference of Rulers in which the appointment of High Court judge Mokhtar Sidin (as he then was) to the bench of the Court of Appeal was questioned; the Conference of Rulers could not agree with the prime minister’s advice with regard to the appointment. Therefore, Anwar had wanted to disqualify Mokhtar from the quorum of the Court of Appeal hearing his appeal on the grounds that there might be a likelihood of bias on the judge’s part.

Delivering the ruling of the court, then President of the Court of Appeal Tan Sri Lamin Yunus, who sat with Fairuz and Mohktar, said to "consult" did not mean to "consent". He added:

"So in the matter of the appointment of judges, when the Yang di-Pertuan Agong consults the Conference of Rulers, he does not seek its ‘consent’. He merely consults. So when the Conference of Rulers gives its advice, opinion or views, the question is, is the Yang di-Pertuan Agong bound to accept? Clearly he is not. He may consider the advice or opinion given but he is not bound by it. But Article 40 (1A) of the Constitution provides specifically as to whose advice the Yang di-Pertuan Agong must act upon. Clause (1A) of Article 40 reads:

"In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.

"Clearly, therefore, the Yang di-Pertuan Agong must act upon the advice of the prime minister. The advice envisaged by Article 40 (1A) is the direct advice given by the recommender and not advice obtained after consultation."

However, there are contrary views, citing various compelling reasons why the king ought to follow the advice of the Conference of Rulers.

They say, firstly, in practice, the advice given by the Conference of Rulers is highly persuasive and so persuasive that it is incumbent upon the king to follow considering that:

• the king is consulting his equals and the consulted are not those subordinate to him unlike in the case of the king appointing a judicial commissioner under Article 122AB. Further, if the king wants to go on leave for more than 15 days other than on a state visit to another country, he must seek the consent of the Conference of Rulers (Article 34 (5)). A fortiori, the king can also be removed by the Conference of Rulers if five or more of its members vote in favour of it. (Para 8, Part III, Schedule III.)

• the Conference of Rulers is an important constitutional body as it is provided in the Constitution that the consent of the Conference of Rulers is required under certain circumstances and before certain laws can be amended. (Articles 2; 33 (5); 34 (5); 38 (4), 159 (5), para 9 Schedule V, para 19 (5) Schedule VIII.)

• it is within the discretion of a ruler to appoint the chief minister of his state — see Article 71; Paragraph 2, Part I of Schedule VIII and more specifically, Article 36 of the Negri Sembilan Constitution and Article 6, Part II of the Pahang Constitution, albeit by convention the ruler will appoint the person of the party which has the majority of seats in the legislature.

Secondly, I am of the humble opinion that the ruling in the Anwar Ibrahim case is not binding on the king. This is not so much because Lamin’s views are merely obiter dicta (statements made by the way which are not legally binding), but rather it is not the opinion of the Federal Court which the king has referred to it pursuant to Article 130.

Further, in an article entitled "The Role of Constitutional Rulers and the Judiciary Revisited" in the book Constitutional Monarchy, Rule of Law and Good Governance, Perak ruler Sultan Azlan Shah responded to Lamin’s obiter dicta as follows:

"Whatever strict legal ‘distinction may exist between ‘consult’ and ‘consent’ (or even ‘advise’), the role played by the Conference of Rulers cannot be diminished by drawing such slight distinction in terminology.

"To say that appointments can be made even if the ‘Conference of Rulers… withholds its views or delays the giving of its advice’ clearly goes against the grain and spirit of the Constitution. The entire process of consultation with the Conference of Rulers cannot simply be relegated to a mere formality.

"Lamin’s statement that in the appointment of judges only the views of the prime minister are important, even if no views are expressed by the Conference (either because it had withheld its views for further consideration, or delayed the giving of its advice), seems to suggest that the prime minister may also dispense with the requirement under the Constitution to seek the views of the chief justice.

"Therefore, in this regard, it is generally difficult to rationalise why a prime minister would not want to consider, or even abide by the views of nine rulers and four governors who constitute the Conference of Rulers. These are independent persons, with vast experiences, and with no vested interest in the nominated candidates. Their duty is to fulfil their constitutional role in ensuring that only the best and most suited candidates are selected for the posts."

Sultan Azlan Shah added that actually, in practice, the prime minister submits the names of the candidates to the Conference of Rulers. The Conference then submits its views to the prime minister before he tenders his advice to the king. Therefore, Sultan Azlan Shah said the views of the Conference of Rulers are, strictly speaking, given to the prime minister who will consider them before making the final recommendation to the king. Only when such a procedure is followed, Sultan Azlan Shah said, can the Conference of Rulers play an effective role in the "advising" process.

Thirdly, if one compares this with the appointment of a judicial commissioner where Article 122AB requires the king to consult the chief justice, one is tempted to ask how often then does the king reject the chief justice’s nominees for the post of a judicial commissioner? Is it a matter of course that the list is accepted by the king? Or is the list, in fact, only submitted to the prime minister? It follows that if the chief justice’s choice is often accepted by the king, then as often it should be that the king should accept the advice of the Conference of Rulers, and that there must exist an even stronger reason if the king wishes to ignore his brother rulers’ choice.

In fact, not all legal obligations are binding from the moral point of view. For example, the law cannot be as asinine to expect the king to appoint, for example, a candidate who is notorious for his bad record of performance or faces serious allegations of misconduct or dishonesty. The consulting and the consulted must act reasonably.

This goes to show that our constitutional rulers are not mere rubber-stamps. They, like the other organs of government, hold checking and balancing powers. It is important that holders of such powers should always attempt to accommodate one another’s views and come to a compromise.

The king is obviously in a dilemma. On the one hand, he must respect the views of his brother rulers who have the power to remove him. On the other, he has to defer to the advice of a democratically elected government.

But, no one should be alarmed apropos of this imbroglio. In my opinion, it is good to test the Constitution from time to time. In this case, I am confident that eventually, our rulers and prime minister will mutually agree in the best interest of our nation and people within the spirit and proper understanding of the Constitution so that the public will be assured that the Malaysian constitutional system with its entrenched checks and balances will continue to serve the nation well.