PETALING JAYA: The stalemate in Terengganu over the appointment of the Mentri Besar poses extremely difficult and embarrassing questions, says UiTM Professor of Law Dr Shad Saleem Faruqi.
The bypassing of incumbent Datuk Seri Idris Jusoh by the palace and its choice of Datuk Ahmad Said raises definite questions about constitutional propriety.
A Sultan is a constitutional monarch, and is not expected to rule in person, he noted.
Under Article 34(1) and 34(8) of the Federal Constitution, a Sultan who is elected as the Yang di-Pertuan Agong is not permitted to perform the functions of the Sultan except in relation to Islam, amendment to his Constitution, and appointment of a Regent or Council of Regency.
In his absence, the Regent or the Council of Regency must make the necessary decision and appointments. However, it is understandable – and not legally wrong – for the Regent or the Council to consult with the Sultan.
Shad Faruqi discusses the various possibilities the issue can throw up. Among them:
Scenario #1: Ahmad could be suspended or expelled from Umno. Expulsion from Umno will not affect his position as assemblyman or as Menteri Besar.
Scenario #2: Under Article 44(4) of the Terengganu Constitution, Ahmad could delay the convening of the Assembly for 90 days from the date of its dissolution.
In the meantime, he could try to cobble together majority support – 17 of the 32 members – in the Assembly.
Even if the eight PAS members support him unconditionally, Ahmad would still need eight Umno members to “defect” to his side. Eight Executive Council posts plus one Speaker’s post would enable him to dangle the carrot.
Eight PAS and eight Umno defectors plus one Speaker and including Ahmad himself total 18 – which makes it a very tight, though nevertheless, workable situation.
Scenario #3: A compromise between the palace and Umno could see the withdrawal of the appointment letter to Ahmad.
There is a precedent involving revocation in Tun Datu Mustapha Datu Harun v Tun Datu Haji Mohamed Adnan Robert [1986] 2 MLJ 391.
But that Sabah case appears not relevant here because, unlike in Sabah, the palace was under no duress to appoint Ahmad.
A more relevant precedent is Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli [1966] 2 MLJ 187 where it was held that once the Chief Minister is appointed, the Governor cannot dismiss him unless the Assembly passes a vote of no confidence.
Scenario #4: The Assembly passes a vote of no confidence in Ahmad. Under Article 14(6) of the state Constitution Ahmad will have two choices.
First, he can submit his resignation. The matter will revert to the Regency Council, which will have the discretion to appoint a new Mentri Besar.
Ahmad’s second alternative is to advise dissolution of the 32-member Terengganu Assembly under Article 14(6) of the state Constitution.
The Regency Council has the discretion to accept or reject the advice, as provided for under Article 12(2)(b). The Federal Government cannot stop the election.
If the Assembly is dissolved, Ahmad will remain caretaker Mentri Besar for a maximum of 90 days pending the election and summoning of the new Assembly.
The election results cannot be predicted. But what is certain is that the nation, Terengganu, the Constitution and parliamentary democracy will pay a high price.
Scenario #5: The Federal Government could declare an emergency or employ its powers under the existing 1969 emergency to tackle the “collapse of civil government” in Terengganu.
This is what happened in Sarawak and in Kelantan. In 1966, there was a stalemate between Sarawak Chief Minister Stephen Kalong Ningkan on the one side and the Assembly and the Governor on the other.
In Kelantan in 1977, PAS Assemblymen voted out their own Mentri Besar (Datuk Haji Mohd Nasir). He resigned but advised dissolution. The Regent refused the dissolution request. Instead, the King who, incidentally, happened to be the Sultan of Kelantan imposed emergency.
A top civil servant was sent from Kuala Lumpur to administer Kelantan for a few months before elections were called. The Barisan Nasional triumphed at the polls.
If the Prime Minister advises the King to declare an emergency, the King is bound by law to accept the advice: Teh Cheng Poh v PP [1979] 1 MLJ 50.
In the matter of declaration of emergency the King has no personal discretion. But what if the King refuses?
Scenario #6: Idris could go to the High Court to seek a declaration and or injunction that Ahmad’s appointment was not in accordance with the Terengganu Constitution.
The court may rule against Ahmad’s appointment but will almost certainly refrain from ordering the Regency Council to appoint Idris. The discretion to appoint remains with the palace.
Alternatively, the court may decline a ruling and say “a political question of this sort must be decided by the Assembly in accordance with the State Constitution”.
Scenario # 7: The Barisan Nasional and Umno could come to terms with Ahmad and accept him. A vote of no confidence, a new election and a confrontation with the palace will end. Hopefully lessons will be learnt about palace-politician relationships.
Whichever way things will turn out remains to be seen, said Shad Faruqi.
“Terengganu is a test of statesmanship,” he added. “It is a demonstration of the complex dynamics of decision-making. It is an illustration of the emergence of multiple sources of power and authority in the country.
“After all else is said and done, the diffusion and dispersion of power has to be regarded as a positive development,” said Shad Faruqi.
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