Perak BN senior exco member Hamidah Osman may have opened up a Pandora's box with her statement that female politicians cannot become menteris besar as the Federal Constitution is not only silent on that issue but also on non-Malays filling such posts.

According to renowned constitutional law expert Abdul Aziz Bari women politicians can legallly become MBs.

NONEAbdul Aziz said, "The Federal Constitution is actually silent on the gender of MB in the nine Malay states with rulers."

As such, it is legally permissible to have a woman MB so long as she is a Malay and a Muslim.

"In fact, many years ago Wanita Umno permanent chairperson Napsiah Omar was touted as Negeri Sembilan MB," said the UIA law professor.

However, he conceded that in the federal charter it is stipulated that the individual to be appointed as MB for the nine Malay states with rulers, must be a Malay and a Muslim.

But as he pointed out, even though the constitution places such prerequisites on individuals who are to be appointed MBs, "it nonetheless provides a proviso which allows the sultan or head of state to dispense with such restrictions".

Abdul Aziz explained that the framers of Malaysia's constitution did this with certain difficult situations in mind, adding that this is "either for when there is no Malay-Muslim assemblyperson or when the Malays there are, are not suitable for the post".

He added that this effectively means that constitutionally it is possible to have non-Malay and non-Muslim MBs as well, provided the sultan chooses to invoke that particular constitutional provision.

This he said, is just like in the four states without royal rulers and in the case of a federal premiership.

Hamidah, who is Sungai Rapat assemblyperson said yesterday that a menteri besar "has to meet the Tuanku where protocol is involved and one has to meet religious officers, and in such situations it is not possible for a woman to become the head of a state government."

However, she did not elaborate why is it about the 'protocol' and 'meetings with religious leaders' which could be stumbling blocks to such a move.

'Non-Malay MB loop hole'

Abdul Aziz also said that there is another loop hole for non-Malays to become MBs.

He gave the examples of Muslim converts like assemblypersons Anuar Tan of Kota Lama, Kelantan and Idham Lim of Titi Serong, Perak.

Both these politicians, he opined, can be appointed as MB as they are legally Malay even though they are Chinese by birth.

As defined in Article 160 of the federal constitution:

"Malay" means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and:

  • was born before Merdeka Day in the Federation or in Singapore or of parents one of whom was born in the Federation or in Singapore, or was on that day domiciled in the Federation or in Singapore; or
  • is the issue of such a person;

Both men, who were born non-Malay and non-Muslim fall under the constitutional definition of a "Malay" by this provision said Abdul Aziz.

'Rulers don't reign for life'

azlanIn an unrelated matter, Abdul Aziz lauded the High Court's decision not to hear the suit filed by Kelantan Temenggong Tengku Muhammad Fakhry Petra to challenge the regent's decision in removing him from the Kelantan Council of Succession on Sept 16 last year.

"Well, that is what the constitution spelled out in article 71(1). The Federal Court held likewise in 1981. And this has been consistent for the past many years," he said.

He added that the previous cases which underline this issue were the ones concerning the Undangs dispute in Negeri Sembilan (1981), the suit challenging the fitness of Sultan of Johor to be Agong (1987) and the dispute over the Terengganu throne (1996).

He said that as citizens of a constitutional monarchy, it is best for the people to understand the provisions concerning succession to the throne.

"Rulers actually can be removed should they fail to live up to  constitutional ideals. It is quite incorrect that rulers reign for life, although this notion is the accepted customary practice," he stressed.

But the problem, he said, is with the understanding of the proper mechanism (i.e. the various states' councils of succession) as defined in the constitution, compounded with the people's ignorance of these provisions, which Abdul Aziz believes has shrouded the whole issue in mystery.

This ignorance, he added, should stop.

However, the recent cases are excellent catalysts for curiosity and could strengthen the public's knowledge and awareness about the constitution, he said.

He added that the constitutional principles actually seek to accomplish a balance of sorts, between maintaining the dignity of the royals and respecting the rakyat's rights, when it retained the monarchy despite putting democracy in place.

A balance, which Abdul Aziz believes, all Malaysians, both the royals and rakyat alike, should strive to learn, respect and maintain.