Saturday, August 22, 2020

Can the Governor Of Sabah ever be admitted to the pantheon of Malaysia's Devarajas?

by Ganesh Sahathevan

There have been a number of recent decisions in Malaysia where the role of state governors has been, apparently, clarified.
Central to these decisions is the determination by Malaysia's Court Of Appeal that governors are equal to the nine hereditary sultans.

In the latest decision, in the matter of Tan Sri Musa Bin HajiAman & Ors v Tun Datuk Seri HajiPanglima Haji Juhar HajiMahiruddin & Ors the applicant, the former chief minister of the State Of Sabah sort a declaration (and other orders) that the respondent, the Governor and head of state's decision to dissolve Parliament on 30 July 2020 was invalid. 

The respondents were represented by the state's Attorney General Brendan Keith Soh who argued that the Governor's decision to dissolve Parliament was not justiciable. Judicial Commissioner Leonard David Shim agreed and held that the Governor has discretionary powers to dissolve the state assembly and the decision by the head of state is not justiciable.

The decision is curious given Sabah's history of governors being taken to court, since the 1990s, by chief ministers and others unhappy with the governors exercise of their discretion. Indeed, the applicant in this matter has recently taken the governor to court for dismissing him as chief minister. That matter has gone as far as the Court Of Appeal and may well end up in the Federal Court, Malaysia's highest court. 

The governor (or Yang di-Pertua Negeri in Malay) is appointed by Malaysia's King ( the Yang di-Pertuan Agong ) subject to the advice of the state's chief minister as provided for by the Sabah State Constitution. The Governor's powers are set-out in Article 10 of the Constitution which states: 

10. Yang di-Pertua Negeri to act on advice.
(1) In the exercise of his functions under this Constitution or any other law, or as a member of the Conference of Rulers, the Yang di-Pertua Negeri shall act in accordance with the advice of the Cabinet or of a member thereof acting under the general authority of the Cabinet, except as otherwise provided by the Federal Constitution or this Constitution; but shall be entitled, at his request, to any information concerning the government of the State which is available to the Cabinet.

(1A) In the exercise of his functions under this Constitution or any other law or as a member of the Conference of Rulers, where the Yang di-Pertua Negeri is to act in accordance with the advice or on advice, the Yang di-Pertua Negeri shall accept and act in accordance with such advice.

(2) The Yang di-Pertua Negeri may act in his discretion in the performance of the following functions -
(a) the appointment of a Chief Minister;

(b) the withholding of consent to a request for the dissolution of the Legislative Assembly:

As one can see, power to dissolve parliament and the power to appoint  a chief minister are both derived from Article 10 so it is hard to see why the power to dissolve parliament alone is not justiciable. 

The decision does however appear to consolidate a view that seems to be gaining a foothold in at least Sabah, that the governor, while not a sultan, has nevertheless extra-constitutional powers like a sultan. This view appears to have had its genesis in the  matter of Tan Sri Musa HJ Aman v Tun Datuk Seri Panglima HJ Juhar HJ Mahiruddin & Anor.

This vesting of powers in a governor is problematic for two reasons.First, there is absolutely no basis for the assertion, it is not to be found in either the state or Malaysian Federal Constitution. Nowhere does the Federal Constitution provide for the King, who appoints the governor, the power to vest in the governor any power whatsoever.

Then, importantly, Malaysia's sutlan's from among whom the king is elected derive their powers from the Malay Muslim belief that the sultans have a divine right to rule. The sultans are the leaders and defenders of the Islamic faith in their own states. Clive Kessler describes them as Malaysia's Devarajas(god-kings),so as to explain how the modern belief is rooted in Malaysia's Hindu-Buddhist past. Sabah and the other non-sultanates, Sarawak, Melaka and Penang, do not share in that history and culture, and neither do their heads of state. 

Given that socioreligious context the real question for Malaysia's courts with regards the powers of the Governor of Sabah and all the other state governors is really this: can the Governor of Sabah and the other governors ever be admitted to the pantheon of Malaysia's devarajas? 

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