[1].  Can the nation’s monarch – or a state’s Ruler – refuse to appoint a PM or a CM?

Does the nation’s monarch – or a state’s Ruler – have the power to refuse to appoint a prime minister of a political leader or a chief minister.

Can the Ruler of a state – and on a larger scale, the monarch of the nation – refuse to appoint a state legislature’s nominee as chief minister – or the King of a parliamentary nominee for prime minister?

When a candidate – one who commands the confidence of a majority of the members of the State Legislature – is nominated to the state Ruler, can the Ruler reject him?

Having rejected him, can he ask for another candidate – or nominate a candidate of his own choice?

Or keep rejecting every candidate?

One lawyer declared that the power of a Ruler of a state is absolute, and that his discretion knows no bounds.  Is that right?

This question is easily answered: it is a ‘No’. We’ll get to the ‘Why?’ in a minute.

 [2].  This minor issue leads us to consider more fundamental issues

Let us get the ‘absolute discretion point’ out of the way.

Those who speak of the absolute power of the state Ruler point to Article 7 of the Johor Constitution”.

Article 7(2) states:-

“The Ruler may act in his discretion in the performance of the following functions:… the appointment of a Menteri Besar [Chief Minister]”.

A literal reading of this article feeds the impression that the Ruler’s discretion is a royal prerogative that cannot be questioned.

We need to think about that.

Most state constitutions and the Johor Constitution make two further points.

“The Ruler shall appoint … a Menteri Besar having the qualifications … in Article 4(2)(a)”.

Now Article 4(2)(a) states,

“The Ruler shall first appoint as Menteri Besar … a member of the [State] Legislative Assembly who in his judgement is likely to command the confidence of the majority of the members of the Assembly …”.

This means the Ruler cannot refuse to appoint a [Malay, Muslim] candidate who enjoys the support a majority of the members of the State Assembly.

It is a simple – but decisive – point.

The Ruler is a ceremonial head of the state is confirmed by three further points: one arises from the principle of constitutional monarchy (we shall deal with that later). The other two arise from the respective state Constitutions.

In exercising his functions, the Ruler of a State is required to “act in accordance with the advice of the Executive Council”.  The Executive Council is akin to a state cabinet.7

Who appoints the Executive Council?

One lawyer says “the Ruler”.8

This is an incorrect reading of the constitution.

In reality the members of the Executive Council are selected  by the Chief Minister. The state Constitutions usually stipulate that:

“… the Executive Council … shall be appointed as follows: … [the  Ruler] …  shall …on the advice of the Menteri Besar appoint …” members of the Executive Council.

We see that it is Chief Minister who picks the candidates: the Ruler appoints then.

Similar articles can be found in all state Constitutions.

[3].  In a state, who is the ‘people’s political leader’?

He cannot be anyone other than one chosen by the people, by the exercise of their personal choice – in an election.

He is the Chief Minister.

This accords with democracy, and the Rule of Law.

[4].  Does an Absolute Monarchy give rise to choice?

An absolute monarchy is not based on choice.

It is based on despotism.

One group of individuals inflict their sense of right and wrong upon the citizenry.

History has proven that neither an absolute monarchy nor despotism bring about happiness.

Nor do they protect individual rights.

We are not a nation of despots.

[5].  Constitutional Monarchy

Malaysia is ruled by a Constitutional monarch. This means the Constitution reigns over the entire nation, taking below it – and regulating – all human conduct.

The royal institution has a symbolic role in it.

In certain matters, the Conference of Rulers have substantial influence: e.g. in the selection of royal heirs; or on questions of the Islamic religion.

[6].  An Organic Constitution animated by a Liberal Principle

It is the spirit of the Constitution – not the letter – that directs the life of the monarchy and national leaders.

As we saw earlier, that spirit is the Rule of Law.

So, when a state Constitution stipulates that the Ruler ‘shall appoint a Menteri Besar’ that does not mean the Ruler has absolute power over such an appointment.17

The exercise of such powers must accord with other countervailing powers within the Constitution – and all of that, must, in the end, be consistent with – and abide by – the Rule of Law.

[7].  What Hitches said…

For those of you who are a little literary minded, perhaps a word from Christopher Hitchens might suffice. Hitches was an English intellectual, polemicist, socio-political critic and journalist.

His one sentence, on the English monarchy – plucked out of a passage ripe with literary allusion and sociological satire – might illustrate the point: 

‘The English monarchy, as has been said, reigns, but does not rule.”¹“This is what you get when you found a political system on the family values of Henry VIII. At a point in the not-too-remote future, the stout heart of Queen Elizabeth II will cease to beat. At that precise moment, her firstborn son will become head of state, head of the armed forces, and head of the Church of England. In strict constitutional terms, this ought not to matter much. The English monarchy, as has been said, reigns but does not rule. From the aesthetic point of view it will matter a bit, because the prospect of a morose bat-eared and chinless man, prematurely aged, and with the most abysmal taste in royal consorts, is a distinctly lowering one.”
― Christopher Hitchens

[Gratitude: The author expresses his gratitude to the following friends for their unceasing and often Olympian efforts:  the Japanese artist, En. Samad Hassan, KN Geetha, JD Prabhkirat, GS Saran, Wan Nursalena Wan Abdullah, Nathan Sithambaram, and ‘Rajan’ Ratna Kumar]