The Constitution explicitly states that the Sultan must act in accordance with the advice of the State ExCo, not the MB alone, says Gurdial Singh Nijar.
The sacking of the MB from membership of his own political party — PKR — has brought to the forefront several constitutional issues.
First, the MB was appointed from the party — or in this case a coalition of parties (PR) — on the basis that he commanded the confidence of the majority of the coalition. If this ‘command of the confidence’ is clear then, by convention, the Sultan is obliged to appoint such a person as the MB.
By the same token, if the extant MB ceases to command the confidence of his coalition party, then he can no longer continue to remain as MB. He must resign, failing which he may be removed by the Sultan in the exercise of powers under exceptional circumstances.
Second, if one of the coalition component party withdraws its support from the coalition, then in so far as the remaining coalition component parties still constitute the majority (Remaining PR = 28 consisting of DAP 15 plus PKR 13; as against Pas 15 and BN 12), then again the MB has to resign or be dismissed.
Third, it follows that the person who is nominated by this remaining coalition party will then command the confidence of the party and be appointed as the MB.
Fourth: Can a meeting of the state legislative assembly be convened to deal with the issue of the confidence of the MB? Who can summon such a meeting?
The power to summon a meeting of the Assembly is vested in the Sultan. He must act on the advice — usually of the MB as the natural spokesperson of the State Executive Council (ExCo). However, the Constitution explicitly states that the Sultan must act in accordance with the advice of the State ExCo, not the MB alone.
So it is open to the State ExCo to meet and to arrive at a majority decision to request the Sultan to convene a meeting of the Assembly.
Then the Sultan is obliged to act on the advice of the ExCo; and summon the Assembly to meet.
This will be especially so if the State ExCo’s request/advice is grounded upon the reason that it has become impossible for them to carry out the functions of the state government because of their problems with the MB.
The State ExCo, like the Cabinet at the Federal level — is constitutionally ‘the supreme decision-making body in a government’ and the ‘ultimate arbiter of government policy’. It is constitutionally positioned to reassert these powers.
Gurdial Singh Nijar is professor of law at the University of Malaya