What Westminster system discretion means 23 September 2014

 Given what has happened in Selangor, it is perhaps instructive for us to go through the law and practice that regulate the appointment of, as well as the change in, a government.

Both the federal and state levels of government in Malaysia practice the Westminster mode of governance. 

As some of the states in the federation do not have hereditary monarchs, we actually have some little republics – namely Malacca, Penang, Sabah and Sarawak – within the same system.

Such is indeed an interesting subject for study. That, notwithstanding the powers given to the Yang di-Pertuan Agong, the rulers and the Yang di-Pertua Negeri, when it comes to appointing government, are actually the same.

For one thing such power is a creation of the Federal Constitution. Unlike the power pertaining to religion, for example. It is of course found in the constitution, but its origin is not from the Westminster convention.

As far as the power to appoint the government is concerned, it is the Westminster convention and practice that stand as the benchmark.

Indeed, this was the formula left behind by the Reid Commission. Such is also the case with the so-called discretion to dissolve the House. 

 What is crucial here is that these powers should not be understood literally, unlike the notion of discretion in ordinary legislation. It goes without saying that the concept of discretion in the constitutional sense is quite different.

To argue otherwise would virtually render elections unnecessary. Such would also run counter to the principle of responsible government that is central in the parliamentary system like ours.

It also goes, within saying, that it is also within this framework that we have to discern the idea of constitutional monarchy.

As far as the rulers are concerned their power to appoint a menteri besar is different from the one they had in the constitutions framed under the Federation of Malaya Agreement 1948, under which they could just appoint anyone they pleased.

Under such a legal regime, the mentri besar appointed essentially holds office at the pleasure of the ruler concerned.

Then came constitutional monarchy

The position ceased to exist immediately after the constitutional monarchy came into being in 1959, the year the post-independence general election was held.

The notion of discretion on the part of the palace, as well as the power to dissolve the House, has to be understood within the framework of the parliamentary system, for which the prototype is the United Kingdom. Reference, the commission recommended, may also be made to other Commonwealth jurisdictions.

Having said that the law on the matter, whatever the provisions of the constitution say, is essentially this: that the Yang di-Pertuan Agong, the rulers and the Yang di-Pertua Negeri, have no say when there is a majority in the House and that majority group has indicated in whom their support for the head of government lies.

Their job in these situations is just to hand over the letter of appointment to the member of the House concerned. Sultan Azlan Shah of Perak (1984-2014, right) summed up the role of the palace here as merely “giving constitutional endorsement to the decision of the party in power”.

To say otherwise would run counter to the one provision that exists in all the federal or state constitutions: that the head of government – namely the prime minister, the menteri besar or the chief minister – does not hold office at the pleasure of the head of state.

This is the provision that stands as the pillar for the concept of responsible government in the cabinet system; something that differentiates the British system from the American one.

It was the adherence to the essence of the Westminster system that explained the reason why Queen Elizabeth II stayed in the background when Conservative leader David Cameron (left) and Liberal Democrat leader Nick Clegg negotiated the terms for a coalition government after the 2010 British general election, where no party held an absolute majority to form the new government.

And as soon as the two parties agreed to their terms, the Queen just sent for the Conservative leader to form the government, upon which the caretaker government led by the outgoing Prime Minister Gordon Brown ceased to exist.

This incident was particularly significant for, at least from the perspective of the Malaysian constitution, as it could have revived her prerogative powers. But such was the discernment and tact the British Sovereign had; something that explained why she has often been said as “never put her foot wrong”.

It must be pointed out that, from the point of the palace as a constitutional monarch, it is unconstitutional for him to ignore the majority and to start screening the “candidates”.

Job of palace in a clear majority

A constitutional monarch has a crucial role to protect the constitution, but in order to do that he must not allow himself to be dragged into the mud. A monarch that is no longer seen as reigning above party politics would not be able to play the role of the father figure assumed by monarchs such as King Bhumipol Adulyadej of Thailand.

In situations where there is a clear cut majority and one of them has already been named as the head of the government, the job of the palace is just to appoint that person.

In the words of Sultan Nazrin Shah of Perak, “(The Yang di-Pertuan Agong) appoints (and does not select) the Prime Minister. Correspondingly the Rulers at the state level appoint (the Menteri Besar).”

It was said that there was a certain amount of apprehension, given the personality of Labour leader who won the post-War general election in Britain. But somehow, the then British Sovereign – King George VI – set aside his personal feelings and chose to follow democratic dictates.

Similar patterns of ceremonies have prevailed in Malaysia at the federal level and these are indeed an overwhelming evidence of how the law is understood and practised in the country.

Thus it was not a mere coincidence that the Yang di-Pertuan Agong chose to stay aloof over the transfer of power between Tunku Abdul Rahman Putra and Abdul Razak Hussein in 1970.

As the former head of judiciary  Raja Azlan Shah said, His Majesty was just giving a constitutional approval for the decision made by Umno leaders. Another round of ritual was put on display when Razak died and his deputy Hussein Onn filled the shoes left by him.

Whatever happened between Hussein Onn and Dr Mahathir Mohamad in 1981 the National Palace did not interfere and it just, as a matter of ritual, handed over the appointment letter to the Mahathir as the new prime minister.

And when Mahathir’s turn came in 2003, the Yang di-Pertuan Agong did not stand the in the way: his successor Abdullah Ahmad Badawi came and collected the letter of appointment without any fuss. 

The same thing took place when Umno decided that Najib Razak should take over from Abdullah in 2009.

Similar patterns of events took place at the state levels, where the heads of state merely put into effect what has been decided by the majority party in the state assemblies. This year, two such incidents took place: in Sarawak in April and then in Terengganu in May.

Palace merely stamped majority decisions

It was apparent that in all those instances, the palace merely presided a formal ceremony that gave the decision made by the majority party a stamp of constitutional approval.

And this should have also been the case in Selangor in 2014, when PKR decided to sack Menteri Besar Abdul Khalid Ibrahim. Dr Wan Azizah Wan Ismail, who has put up 30 signed declarations of support in her favour, should have been allowed to go through the rituals that took place at federal level, as elaborated above.

It is perhaps worth mentioning one incident involving former prime minister Razak Hussein and Sultan Idris Shah of Perak after the 1974 general election. Razak insisted on the appointment of one Ghazali Jawi as the state menteri besar, something that he knew was unacceptable to the ruler.

As it happened, Razak persisted and, amazingly enough, the latter relented. In Selangor too the appointments of governments have been plain sailing in the foregoing years.

In fact, when Abu Hassan Omar was submitted as the menteri besar designate to replace Muhammad Muhammad Taib, who had to resign in 1997, the Abu Hassan was not even a member of Selangor State ssembly: he was still a minister in the Mahathir administration.

Later, when the more experienced Abu Hassan but was said to be uncooperative in the acquisition of Putrajaya, Umno replaced him with a rookie, the unknown Dr Mohd Khir Toyo. On both occasions the Selangor palace could have put up some constitutional questions – but it somehow it chose to go by the Umno decisions.

As such, what has happened since early August, including the snub on Anwar’s request to have an audience on Aug 10, was rather puzzling. And more so when the palace secretary made it clear last week that it was a practice for the p[rime minister to be given an audience to present the candidate for the menteri besar’s office.

Appointment given based on party position

It must be pointed out that the audience granted to the prime minister was on the basis of his position as party leader, not as the head of the federal government. Therefore, constitutionally speaking, similar treatment should have been accorded to Anwar as leader of the Pakatan Rakyat, the majority party in the Selangor State Legislature.

Admittedly, there could be situations where the monarch, even as constitutional monarch, might assume a proactive role. Not to pursue personal interests, but to protect democracy and constitutionally.

This was the background for my answer to those who cited the refusal of the Sultan Terengganu to abide by the majority rule in 2008 to justify what happened in Selangor in 2014.

I have admitted, however, that the ruler was in no doubt wrong on the appointment rule, but he might be entitled to be given the benefit of the doubt given the character of the incumbent, the candidate submitted by Umno for the post of menteri besar.

The same could be said with regard to the Perlis case. In fact, here, the ruler might even be saved by the appointment rules themselves. The ruler of Perlis, to my mind, has a stronger ground to ignore the name submitted by Abdullah Ahmad Badawi, the then Umno president.

However, having said that, it must be admitted that those deviations must not stand as the standard rule; it has to be treated as a mere exception and this only applies when the system has yet to become fully democratic and transparent.

One has to admit that given the lack of institutional support in Malaysia, there are times when we have to rely on the palace to do the unthinkable: to prevent the corrupt and autocratic candidates from assuming the post. However, it has to be said that Wan Azizah does not fall into this category.

In any case the palace should have granted Anwar a hearing, should it have reservations about her. This was what the ruler of Perak did in 1974, though Razak went on to insist on his choice.

Speaking with the benefit of hindsight, it may be said now that given that Tunku Abdul Rahman did not take the move to unseat him lying down, the National Palace could have delayed the replacement process.

The Yang di-Pertuan Agong, the outgoing premier argued then, queried the need to impose emergency. In fact, more questions can be asked now: such as, why the deputy and not the prime minister himself, who presented the advice to declare emergency?

Whatever the answers to these questions, it has to be stated that there were two different Yang di-Pertuan Agong at that point of time. The one who declared the emergency was the Sultan of Terengganu, while the one presiding the change of prime minister was the Sultan of Kedah, who, incidentally, is now serving as the head of the federation for the second time.

Back to Selangor, it is really disturbing to see certain quarters putting up banners and organising rallies supporting the palace for reasons that may not be constitutional.

The more so when this is led by characters such as the Selangor Umno strongman Noh Omar. Does he not realise that it was Umno, after losing Kelantan in the 1990 general election, that once demanded that the rulers’ power to appoint the menteri besar be abolished?

Demi Rakyat