Firstly, I do not know who gave the title “Constitutional Expert” to Professor Aziz Bari. The fact that he used to lecture at the law faculty of the International Islamic University does not make him one. It is like saying every soldier is a demolitions expert. However, everyone can safely deduce that he leans more towards Pakatan Rakyat, especially PKR, politically.
Probably every Tom, Dick and Harry might have responded to Aziz Bari’s claim that the Sultan of Selangor has no right to ask for more names for the latter to choose as the next Menteri Besar of Selangor. He said this as reported by Malaysiakini’s Pakar: Sultan Tiada Kuasa Minta Banyak Nama (27th August 2014). In his statement, Aziz said that in a Parliamentary system, the (state) government is responsible to the state assembly, not to the Sultan. He added that the Sultan only has to agree to appoint the candidate with the most support in the state assembly as the Menteri Besar.
“Majority,” he said to Malaysiakini, “is the only (appointment) criteria, therefore the Sultan has no right to request for more names since there is already majority.”
Perhaps our “Constitutional Expert” does not know much on the history behind the Constitution. The Rulers may be Constitutional Monarchs but ours is not the same as the Westminster Monarch that they have in England. In England, the monarchy was reinstated with the installation of King Charles II by Parliament after the failure of Oliver Cromwell’s Republic that followed the decapitation of King Charles I. All laws are passed by Parliament without the Queen’s Consent (or King’s Consent if the Ruler of England is male) save for four things: bills affecting the royal prerogative (whatever the royal prerogatives are, are quite shady due to the nature of the uncodified Constitution in England). The second is bills affecting the hereditary revenues of the Duchy of Lancaster or the Duchy or Cornwall. Third, bills affecting the personal property of the monarch, and lastly, bills affecting the “personal interests” of the monarch.
To understand the role of the Rulers in Malaysia one must take several steps back in the history of this nation. The mistake made by the government since those days is to instill the spirit of nationalism into every Malaysian. The simplest way is to say that we were colonised by the British, and that we gained independence for them – which would only be true for Pulau Pinang, Melaka and Singapore. When Malaya gained “independence” only Pulau Pinang and Melaka rejoined Malaya while Singapore remained a British colony. The British were here by virtue of the various treaties made with the respective Malay rulers. British advisers were appointed and were paid by the Sultan who appointed them to administer the state on behalf of the Sultan. They basically administered everything except for matters that affected Islam and the Malay customs, which remained the Sultan’s sole prerogative. When the British administration left in 1957, this role was taken over by the Menteri Besar and the state executive assembly that form the administration part of the state government through elections. The executive power remains with the Sultan. This is evident in Article 181(1) of the Federal Constitution that says:
“Subject to the provisions of this Constitution,” the “sovereignty, prerogatives, powers and jurisdiction of the Rulers…as hitherto had and enjoyed shall remain unaffected.”
The same was noted by Mark R Gillen of the Faculty of Law, University of Victoria (Gillen 1994:7). In the words of the late Sultan of Perak, Sultan Azlan Shah, former Lord President, it is:
“a mistake to think that the role of a King, like that of a President, is confined to what is laid down by the Constitution, His role far exceeds those constitutional provisions” (Azlan Shah 1986:89)
On Aziz Bari’s claim that the (state) government is answerable to the state assembly and not to the Sultan, may I remind Aziz Bari that in Article 50 of the Selangor Constitution, 1959, it says;
“The executive authority of the State shall be vested in His Highness and exercisable, unless otherwise provided by the Federal Constitution or this Constitution, by him or by the State Executive Council or any member of the State Executive Council authorised by the State Executive Council, byt executive functions may by law be conferred on other persons or authorities.”
You cannot form a government without the consent of the Sultan; hence the need for the Menteri Besar and members of the Executive Council to take an oath of office before the Sultan to administer the State on behalf of the Sultan.
On Aziz Bari’s claim that the Sultan is only to appoint as Menteri Besar whoever has the support of the majority in the state assembly, Aziz Bari should go back to where he read law and ask for his money back. The Selangor State Constitution explicitly states in Articles 51 and 53(2) that the appointment of the Menteri Besar is the prerogative of the Sultan. The person to be appointed as Menteri Besar is a person, IN HIS MAJESTY’S JUDGMENT is likely to command the confidence of the majority of the members of the Assembly. Therefore it is right for His Royal Highness to ask for more than two names to be submitted by each political party that has the majority command of the state assembly.
The same happened in Terengganu when UMNO wanted Idris Jusoh to continue on as the Menteri Besar after the 2008 General Election but the Sultan overruled and insisted on Ahmad Said instead.
The above is the form of democracy with the Sultan having the right to choose whom to head the executive branch of his government to administer the state on His Majesty’s behalf. What is not democratic is Rafizi Ramli’s instruction to Selangor State Assemblymen under PKR except Wan Azizah and Azmin Ali to decline if nominated as the Menteri Besar by the other parties.
This is to choose a state government FOR THE PEOPLE, not for PKR. Rafizi should just shut up and hide behind his boss, while Aziz Bari ought to ask for his law school fees back, find a better law school and stop this masquerade.