22 March, 2010
By NH Chan
The reality is neither the King nor the Sultan has any power to sack the Prime Minister/Menteri Besar or the other cabinet ministers/executive councillors
I have divided this primer to a monarch’s powers in two sections.
Section One deals with the appointment of the Prime Minister/Menteri Besar and other Cabinet Ministers/Executive Councillors by a constitutional monarch.
Section Two will deal with the constitutional monarch’s power to dismiss the Prime Minister/Menteri Besar or other Ministers/Executive Councillors.
Before I embark on the basic or known law on the dismissal of a Prime Minister/Menteri Besar and of the rest of the Cabinet Ministers/Executive Councillors by a constitutional monarch, I should first explain the known law on how they are appointed by the monarch.
Section One
The appointment of the Prime Minister/Menteri Besar and the Cabinet/Executive Council
The Federal Constitution
Article 43(2) says:
(2) The Cabinet shall be appointed as follows, that is to say:
(a) The Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House; and
(b) He shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament (The emphasis is supplied by me)
Article 43(2)(a) deals with the appointment of the Prime Minister by the Yang di-Pertuan Agong (King) who in his judgment is likely to command the confidence of the majority of the House of Representatives.
Article 43(2)(b) deals with the appointment of the other Ministers by the King on the advice of the Prime Minister.
The Laws of the Constitution of Perak
Now, compare Article 43(2) of the Federal Constitution with Article 16(2) of the Laws of the Constitution of Perak.
Article 16(2) says:
(2) The Executive Council shall be appointed as follows, that is to say:
(a) His Royal Highness 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; and
(b) He shall on the advice of the Menteri Besar appoint not more than ten nor less than four other members from among the members of the Legislative Assembly; (I have supplied the emphasis)
Article 16(2)(a) deals with the appointment of the Menteri Besar by the Sultan who in his judgment is likely to command the confidence of the majority of the Legislative Assembly.
Article 16(2)(b) deals with the appointment of the other Executive Councillors by the Sultan on the advice of the Menteri Besar.
You will notice the striking similarity between the Federal and the Perak State Constitutions on the appointment of the Prime Minister and the Menteri Besar, and the appointment of the other Ministers and Executive Councillors.
The King/Sultan appoints the Prime Minister/Menteri Besar “who in his judgment” is likely to command the confidence of the majority of the House of Representatives/Legislative Assembly
The question here is, does the phrase “who in his judgment” confer on the constitutional monarch a discretion to appoint any person to the post of Prime Minister/Menteri Besar as he pleases?
Both Article 43(2)(a) of the Federal Constitution and Article 16(2)(a) of the Perak Constitution use the same wording, viz.: The King/Sultan shall appoint a Prime Minister/Menteri Besar to preside over the Cabinet/Executive Council a member of the House of Representatives/Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the House/Assembly.
The phrase “who in his judgment” by itself means nothing more than “who in his opinion.” It carries no further meaning than what is stated by Lord Diplock in Teh Chang Poh v Public Prosecutor [1979] 1 MLJ 50, at 52 where he explains the concept of a monarch in a constitutional monarchy. However, when it concerns the appointment of a Prime Minister or a Menteri Besar the phrase “who in his judgment” must be read together with:
Article 40(2) of the Federal Constitution:
(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:
(a) the appointment of a Prime Minister;
(b) the withholding of consent to a request for the dissolution of Parliament;
Or in the Perak Constitution, Article 18(2):
(2) His Royal Highness may act in his discretion in the performance of the following functions … that is to say:
(a) the appointment of a Mentri Besar,
(b) the withholding of consent to a request for the dissolution of the Legislative Assembly,
The combination includes the phrase “may act in his discretion” and it means – according to the dictionary meaning of the word “discretion” – the King/Menteri Besar has the freedom to decide what should be done in a particular situation, freedom or authority to make judgments and to act as one sees fit.
The King/Sultan, therefore, has the discretionary power to appoint any person to be Prime Minister/Menteri Besar as he pleases subject only to his own perception of the person most likely to command the confidence of the majority of the members of the House of Representatives/Legislative Assembly.
But, it is necessary to point out that in the Perak case of Nizar v Zambry, the Sultan has no power to appoint Zambry as the Menteri Besar because Nizar was still the holder of the office. It is only when the office is vacant would the Sultan be able to appoint another person to the office of Menteri Besar.
The unconstitutional appointment of Zambry to the post makes him an imposter. This is a blatantly unconstitutional exercise of a non-existent executive power by a pretentious constitutional monarch. Are we back to the days of the pretensions of King Charles I?
A constitutional monarch has no executive power except that which the law allows him. And the Constitution of Perak would only permit the Sultan to act in the performance of a few discretionary functions stated in Article 18(2). In relation to the office of Menteri Besar Clause (2)(a) applies. It says:
(2) His Royal Highness may act in his discretion in the performance of the following function … that is to say:
(a) the appointment of a Mentri Besar,
Clause (2) (a) is clear enough. The Sultan only has the discretionary function to appoint a Menteri Besar. So that as long as Mohammad Nizar Jamaludin is still in office as Menteri Besar, the Sultan has no other discretionary function to appoint another person. Therefore, the Sultan’s appointment of Zambry Abdul Kadir is an unconstitutional exercise of a non-existent discretionary function to appoint a second Menteri Besar.
In reality the Sultan has no executive power to sack the incumbent Menteri Besar, Nizar Jamaludin at all (see my critique on the judgment of the Federal Court in Nizar v Zambry).
The King/Sultan shall on the advice of the Prime Minister/Menteri Besar appoint other Ministers/Executive Councillors from among the members of either House of Parliament/the Executive Council
Article 43(2)(b) of the Federal Constitution states:
(b) He shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament. (The emphasis is supplied by me)
And Article 16(2)(b) of the Perak Constitution states;
(b) He shall on the advice of the Mentri Besar appoint not more than ten nor less than four other members from among the members of the Legislative Assembly; (The emphasis is supplied by me)
As you can see in both the Federal and the Perak Constitutions the King/Sultan appoints the Cabinet Ministers/Executive Councillors on the advice of the Prime Minister/Menteri Besar.
What does “on the advice of” mean?
It means the King/Sultan has to act on the order of the Prime Minister/Menteri Besar. The constitutional monarch has no option. He must act as he is told. This is how Lord Diplock explains it in Teh Chang Poh v Public Prosecutor [1979] 1 MLJ 50, at 52:
Although this, like other powers under the Constitution, is conferred nominally upon the [King/Sultan] by virtue of his office … and is expressed to be exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch … he does not exercise any of his functions under the Constitution on his own initiative but is required by Article [43(2)(b) or 16(2)(b) of the Federal and Perak Constitutions, respectively] to act in accordance with the advice of the [Prime Minister/Menteri Besar].
So that the phrase “on the advice of” the Prime Minister/Menteri Besar means “on being told or notified” by the Prime Minister/Menteri Besar.
The King/Sultan does not act on his own initiative. He can only act as he is told or instructed or notified by the Prime Minister/Menteri Besar.
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