COMMENT While absolute power corrupts absolutely, one must remember that absolute powerlessness mars the hard-fought peace absolutely, too.

Perhaps, it is most opportune for all of us to patiently walk down the historical lane and revisit the past narratives that have morphed our motherland into a burgeoning nation that upholds the preservation of royal sanctity and at the same time vouchsafes the constitutional scheme. This is known as constitutional monarchy.

The arrival of Raja Melewar, the first prince of the Minangkabau Pagar Ruyong dynasty to reign in the peninsula in 1773, had since painted the Minangkabau political setting with a brush of a unique system of governance.

This can be seen by the shared responsibility of its three rulers - Raja Adat, Raja Ibadat, and Raja Alam - kings of cultural, religious, and temporal spheres, all of whom would assume their own jurisdictional roles and responsibilities, and at the same time acted as checks and balances to each other to ensure the stable continuation of the Minangkabau dynasty since its inception in the 14th century.

Do note that by the time the theory of separation of powers propounded by the French philosopher Montesquieu had surfaced; such practice had long been in place, and evolving gloriously across the Minangkabau.

It is important that the upkeep of the administration not only requires royal blessing to build them, but executive sagacity to maintain them. In this respect, the monarchical relationship with the executive authority to safeguard the sovereignty of the nation must be maintained at all costs.

This can be achieved only through the  adherence to the pillar called the constitution which lays therein the abecedarian rules that serves as a bastion against any villainous attempt to infiltrate into the system and subsequently, to obliterate it entirely.

The contemplated tabling of the much embattled Johor Housing and Property Board Bill 2014 had initially sent most, if not, all of the citizens into an utter state of fear and tumult. Its purported objectives notwithstanding, many were allegedly outraged by the royal interference in the administrative governance of the state.  

Such concern was, however ephemeral.

It was envisaged that the revised bill, which was thereafter passed, vested the executive powers and the responsibilities in the ruler of the state of Johor who, by virtue of the said powers and responsibilities, would, among others, be constructively involved in the appointment of the members of the board and other executive administration of the state on the advice of the menteri besar.

It is worth noting that the advice to be sought from the menteri besar or the state authority in appointing the board members was not contemplated at first. It is such omission that has caused a considerable hullabaloo amongst fellow citizens and constitutional polymaths alike.

Shedding constitutional insight  

Both the federal and state constitutions in Malaysia establish a constitutional monarchy and a Westminster-model executive, the latter of which has its root in the democratic parliamentary system of government modelled after the politics of the United Kingdom. Constitutional monarchy is a system that empowers the king as a head who graces the state that he reigns.

Professor Emeritus Dr Shad Saleem Farouqi (left) in his article ‘Providing check and balance’ rightly argues that a constitutional monarch reigns, but he does not rule. This is because the powers vested in the ruler as a head of the state are contained in both the federal constitution and the constitutions of the states. He is bound by the advice dispensed by the elected executive in any decision-making processes.

The executive authority vested in the ruler pursuant to Article 2 of the constitution of the state of Johor 1895 means that the ruler has the power to oversee the administrative governance of the state but its operation lies with the executive members to perform their ‘executive functions’. This is found in the same provision.

Apart from several specified matters carefully provided in the federal constitution or the constitution of the state, the roles of the ruler are very limited and largely ceremonial.

In the exercise of the ruler’s functions under the Eighth Schedule of the federal constitution, the ruler shall act in accordance with the advice of the executive council or its agency and be entitled to any information concerning the government of the state which is available to the executive council.

Under the same Schedule, the powers of the ruler to act on his own behest range from the appointment of the menteri besar to the regulation of royal courts and palaces. The powers and responsibilities of the ruler are also enshrined in the state constitution and in this case, the constitution of the state of Johor 1895 is worthy of closer examination.

In the constitution of the state of Johor 1895, several forms of discretion are given to the ruler in the administration of the executive authority. For example, in appointing a menteri besar, the ruler may, at his discretion, dispense with any provision in Article 3 (3) of the constitution restricting his choice of a menteri besar, if he deems necessary.

Apart from that, this range of specified powers and responsibilities to be exercised by the ruler on a discretionary basis contained under the Eighth Schedule of the federal constitution are also found verbatim in the state constitution with similar effect - Article 7 (2) of the constitution of the state of Johor 1895 in particular.

However, pursuant to the Article 6 (1) of the constitution of the state of Johor 1895, the ruler’s powers to act on advice of the menteri besar are limited to the appointment of the state secretary, the state legal adviser, and the state financial officer.

This means that unless otherwise specified in the state constitution in respect of the matters where a ruler may appoint on the advice of his menteri besar, it is argued that any forthcoming provision that vests the power of appointment in the ruler other than that of the state secretary, the state legal adviser, and the state financial officer, such provision would be contradictory to the constitution of the state of Johor 1895.

It is the writer’s further argument that liberalising the power of appointment to be vested in the ruler on the advice of the state authority is tantamount to a blatant disregard to the spirit and the letter of the state constitution. It is also feared that royal intervention by virtue of such appointment in a manner against the intent and desire of the state constitution would put the former in a state of gratuitous embarrassment and censure from other humble subjects.

Treading the Middle Path

In spite of the constitutional brouhaha over the tabling of the bill and its subsequent approval, its underlying intention indeed deserves fair credit and must not be entirely left out unrecognised.

It is understood that the state government’s priority has always been to focus on the needs of the people of Johor. The said bill is thus sought to address the predicament of the people who have become victim of booming price of properties in Johor.

The argument in respect of the royal intervention in the bill is grounded upon the need to crystallise checks and balances. Indeed, checks and balances are undoubtedly important. Be it as that may, royal independence is necessary and must, without fail, be seen to be so too.

In the absence of a legislated power vested in the ruler with a view to maintaining stability in the administrative governance of the state, it is submitted that the ruler is still not bereft of any avenue in safeguarding the interest of the people under his patronage.

By virtue of convention, the ruler has an opportunity of consulting with the menteri besar in respect of any matters prior to the state exco meetings on Wednesdays as the latter will have an audience with the former and submit the state exco meetings thereafter.
Now that bill has been passed, it is difficult to say for certain that the legal quandary has now been put to rest once and for all.

Given the power of appointment vested in the ruler on the advice of the menteri besar, one might wonder the possible solution of yet another labyrinth in the event of differing positions between the ruler and the menteri besar in that the advice of the menteri besar is against the will of the ruler, or that the outcome of the exco state meeting is not presented to the ruler since the conventional practice of seeking the audience with the ruler has no basis in the state constitution and can therefore be bypassed.

It is thus the writer’s personal view that mutual consensus and relationship between these two figures are of crucial importance as the interest of the people must be placed on the highest both legal and political pedestals.

In the end, the light that is sought at the end of the tunnel is meant to shine the lives of the people.

This is indeed a Herculean task unless all interested parties put aside their differences and begin to act on the advice of wisdom.


AZLAN ABDUL RAZAK is a fervent advocate for women’s rights who is currently an Advocate and Solicitor of the High Court of Malaya.