SELANGOR- A CONSTITUTIONAL MISUNDERSTANDING

INTRODUCTION

A primary consideration which escapes the minds of all those who argue against the Sultan’s exercise of his discretionary powers under the constitution vis a vis the appointment of the Mentri Besar is this:

There is a science (an art) to reading and interpreting the constitution. An inability to read the constitution in context that  is evident in the suggestion by some (‘constitutional experts‘ included) that the Sultan is bound to accept blindly the wishes of the majority when deciding on who the candidate is to lead the state assembly.

All things being equal and in a perfect world, the Sultan would normally act in a manner that would suggest that his role in such matters (as appointment of the Mentri Besar and cabinet) is purely ceremonial. However the Sultans and the Agung are far from ceremonial rubber stamping monarchs. They have an active role to play in the governing of the country, a matter which when misunderstood as it is could have very serious consequences for government, political parties and the legal profession.

EXERCISE OF THE SULTANS CONSTITUTIONAL POWERS IN CONTEXT

The Sultan’s constitutional discretion (which is what it is) does not exist in a vacuum or in isolation from his many other obligations and duties under the constitution.

Paramount or at least coming a close runner up to all his other duties is the sultan’s position as “defender of the faith of Islam” (the English equivalent of the Queens corresponding duties as defender and head of the Church of England in this regard).

In short the Sultan has two paramount duties and obligations to consider in the exercise and execution of his other functions above all else.

The first of these is as ‘defender of the faith of Islam”, the other being as ‘protector and guardian of Malay culture’. Neither of these two duties which reside in the powers of the Sultan under the constitution can be ignored or side stepped for convenience for the consequences it will  bring to bear on both the religion of Islam and Malay culture.

Wan Aziza’s conduct, by her comments, her silence, her alliance with people like Anwar Ibrahim and those opposition political parties who have brought ridicule and disrepute to the courts, the judiciary, parliament, the rulers and Islam, would have weighed heavily against her appointment to the post of Mentri Besar by the sultan. The Sultan’s decision in th appointment of the Mentri Besar had nothing to do with her gender or the Sultan being wrong. Far from that.

THE SULTAN’S CONSTITUTIONAL AND MORAL OBLIGATIONS

In weighing up the choices of who the most suitable candidate for the post of Mentri Besar would be, the Sultan has an overarching obligation to consider before making the appointment the context of his two paramount duties.

After all the Mentri Besar is ‘his Mentri Besar‘ just as ministers in England and Australia are ministers of the crown and not ministers of any particular political party. The subtleties of these points are lost on those “experts” who claim to know all there is to know about the constitution, Tommy Thomas included.

More important to note, the constitution does not expressly recognize political parties. It recognizes representatives of constituencies who assemble in parliament on behalf of the people. These representatives then nominate a single person from their ranks with the confidence of the majority of the house to be Prime Minister in federal parliament or as it is the case of the states the Mentri Besar.

The PM (as with the Mentri Besar) then forwards a list of names to be sworn into cabinet as ministers of the crown. They are ministers of the crown not of the Mentri Besar or his party.

These are conventions that have developed over centuries and practiced by like governments over time though not cast in stone. It can be said that in Westminster and in Canberra there is tacit recognition of political parties in the constitution because out of the consolidated fund the chief whips of each party receives a special payment. But that’s neither here nor there in this argument.

WHERE THE “EXPERTS” GOT IT WRONG

Tommy Thomas’s ( constitutional law expert?) analogy and analysis of the Sultan’s position and the Sultan’s decision in the context of the Selangor Mentri Besar appointment, (which he says the Sultan got wrong) suffers from a number of embarrassing defects Thomas himself appears oblivious to.

In citing the example of the Queen’s involvement in what he claims was a “refusal” by the sovereign to have Mrs. Thatcher removed from office Thomas is misinformed a far as the facts relating to that particular event is concerned.

Whether the Queen agreed to the move to remove Margaret Thatcher (in his example) or not (as was the case) was a question of the exercise of her “discretion” under a constitutional power she enjoys just as the Sultan enjoys in Selangor under the Selangor constitution. It had nothing to do with gender issues as is suggested by Thomas.

The details of this power and discretion Thomas does not explain properly because he understands little about the constitution I suspect. Yet it is all about a discretion and a power the Queen, like the Sultan enjoys under the constitution.

In fact by providing this example Thomas answers the very question he poses with the example he provides. Likewise the Sultan has a discretionary power he exercised and that is that. Nothing to do with gender issues as Thomas appears to suggest was the case in denying Wan Aziza the Mentri Besar’s job..

THE AUSTRALIAN EXAMPLE

In the case of the second example  posted by Thomas, that of the deposing of Kevin Rudd in Australia by Julia Gillard his successor in office, it was the same situation.

The discretion exercised by the governor general of Australia in accepting Gillard’s appointment over Rudd as expressed by the labour government in office at the time pleased some but not everybody.

But that did not make the governor general’s decision illegal or a demonstration of his affirmation on the subject of gender equality as Thomas appears to suggest.

What Thomas is suggesting in his ‘analysis’ of the constitution is that the governor general of Australia appointed Julia Gillard over Kevin Rudd inspite of her being a woman as if that was a conscious act by the governor general underwritten by an emphasis on gender equality. That’s a nonsense and sheer drivel which Thomas has no evidence to support.

Gender played no part in that decision of the governor general. Gillard herself would disagree vehemently with Thomas’s suggestions in this regard as she has in numerous interviews and in her memoirs released just recently said otherwise.

Thomas is attempting to push the misogynist barrow for a failed Wan Aziza who failed on the merits of her attempts to become Mentri Besar of Selangor. Again her gender is a point she raises to attempt to explain her failings as a politician.

In 1975 the governor general sacked an entire popularly elected government in Australia. It was not wholly unprecedented but it rattled a nation who believed till then that the Queen was nothing more than a figure head.

Thomas should inform himself of the powers that reside within the monarch before condemning him. The Malaysian Bar ought to do the same.

Sultans may lie dormant like volcanoes erupting in a demonstration of their  dormant (discretionary) powers from time to time. That does not mean their exercise of that power that lies dormant within them makes them wrong or deserving of comments like Thomas’s. Instead they ought to be applauded for being more than simple puppets of tradition and convention especially when they are required to make a decision that is above politics.

The Sultan of Selangor’s decision in difficult circumstances is a sign of Malaysia’s political maturing.

The old phrase in the constitution “The King can do no wrong” is misunderstood by many like Thomas and his “learned friends” at the Malaysian Bar. Its elementary my friends, elementary.

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