Constitutional Law - Position of Head of State

Although in our Constitution System the function and role of YDPA/Rulers and Governors have the similar functions but the basis of legitimacy of YDPA and Rulers are not similar to Governors because they are hediatary and historic.

In the case of Tun Dato’ Haji Mustapha (No. 2) it was decided that the powers are similar is very much doubtful.

Reid Commissioner stated that the position of Rulers as Constitutional Monarchy in his state similar to YDPA at Federal level.

Reid Commissioner further stated that Governors position are as follows :-

i. Governors will be the constitutional Head of State and represent the unity of the state and should be above politics. 

ii. Governors should be independent from Federal like Rulers for equality. 

iii. Section 19A (1) 8th Schedule stated that after his appointment the Governor is responsible to the power of the state and not Federal Government or YDPA. 

iv. YDPA appoint with recommendation from Chief Minister. He can be terminated by YDPA after pursuant from Legislature of State Assembly and by majority of 2/3.

Position of Yang di Pertuan Agong

According to The Reid Commissioner :- 

i. YDPA is the symbol of unity of his country and focal point of allergiance particularly for the public service. 

ii. Although the YDPA is constitutional monarch (act on advise) but the comm. allow him to be given a measure of independent. 

iii. He will entitle to be kept informed on important public affair and to make his views known to Prime Minister. 

iv. Entitled to confor honours and commission under his name. 

v. He must be supported by a Civil List.

*In Negeri Sembilan the power to appoint is on the Undangs.

Appointment of Prime Minister

1. Article 43(2) of Federal Constitution stated that YDPA shall first appoint a member from House of Representative to be a Prime Minister, who is in his judgment likely to command the confidence of the majority of the members of that house. This is one of the truly prerogative power of the YDPA. 

2. So far at Federal Level the matter of appointment of PM had not been tested since the Barisan Nasional having strong majority.

State Level

The appointment of Menteri Besar or Chief Minister are similar but at state level there are several cases reported. 

1. 1986 – In Penang General Election – Umno 12 seats & Gerakan 9 seats. CM from Gerakan don’t want to give ways to UMNO and treathen to withdraw from BN. UMNO give ways.

2. In Perak please refer to Ghazali Jawi v Sultan 

3. Johor – Datuk Othman Saat v Sultan 

4. Tun Dato Haji Mustapha v YDPN Sabah & Dato’ Pairin Kitingan (Leading Case)

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