From Malik Imtiaz Sarwar

The events in Negeri Sembilan relating to Yang di-Pertuan Besar Tuanku Muhriz Tuanku Munawir are a cause for concern given their constitutional implications and the suggestion that the state is embroiled in a constitutional crisis.

The Malay Rulers play a significant role in the constitutional scheme of this country. At the federal level, each of them is a member of the Conference of Rulers, a constitutional body tasked with responsibilities of great import.

It is also from among the Malay Rulers that the Yang di-Pertuan Agong and Timbalan Yang di-Pertuan Agong are elected.

Within their respective states, the Malay Rulers are vested with executive authority, being exclusively empowered to appoint chief ministers, and are the heads of the religion of Islam.

The Federal Court acknowledged in Dhinesh Tanaphll v Lembaga Pencegahan Jenayah & Ors (2022) that the Malay Rulers’ functions are a basic feature of the Federal Constitution and, together with other such features, are “central and fundamental to the peace and stability of the nation”.

It is axiomatic that the Malay Rulers must be allowed to fulfil their role without undue obstruction. Unwarranted interference would not only serve to impede their fulfilling their constitutional roles, it could also undermine peace and stability.

Chapter VII of the Penal Code criminalises a range of conduct with the aim of guarding against such interference, including the offence of wrongful deprivation or deposition of a ruler, his heirs, or successors.

This is not to say that there is no avenue for the suspension or removal of a Malay Ruler, when warranted. This turns on how the respective state constitutions prescribe the body authorised to do so, the basis for removal, and the procedure by which this is to be done.

The Negeri Sembilan constitution provides for these matters in Article X, which establishes a framework with four significant features to preclude any unwarranted interference, requiring “a full and complete enquiry by the Undangs” as to whether the Yang di-Pertuan Besar:

“… has developed any great and serious defect derogatory to the qualities of a Yang di-Pertuan Besar such as insanity, blindness, dumbness or has become possessed of any base quality on account of which he would not be permitted by the Hukum Syarak to be Yang di-Pertuan Besar or that His Highness has done any overt act detrimental to the sanctity, honour and dignity of a Yang di-Pertuan Besar or has deliberately disregarded the provisions of this constitution…”

First, it envisages that a Yang di-Pertuan Besar can only be suspended or removed where said ruler can objectively be said to have acted in a manner that can reasonably be understood as amounting to a “great and serious defect” within the meaning of the provision.

Second, such removal is conditional upon the Undangs having made “a full and complete enquiry” into the impugned conduct of the ruler.

Given the seriousness of the matter, such an enquiry must be conducted with a level of formality that is commensurate with the grave nature of suspending or removing an incumbent Yang di-Pertuan Besar.

The ruler must also be afforded a right to be heard on the allegation levelled against him, which requires that he be notified of what the Undangs consider his alleged defect to be and its factual basis. This will then allow the ruler to address the matter comprehensively.

Third, it is only upon the Undangs objectively arriving at a determination that the allegation is made out that the Undangs are empowered to call upon the Yang di-Pertuan Besar to either withdraw from performing his duties for a specified period or abdicate and relinquish his prerogatives, rights, powers, and privileges.

This must then be followed by a proclamation which is to be signed by the Undangs and the menteri besar.

Fourth, the power and authority of the Undangs are subject to the constraints imposed by the Negeri Sembilan constitution. Apart from those under Article X, Undangs can be removed from office in accordance with applicable customs, a matter which falls under the authority of the Dewan Keadilan dan Undang (DKU).

It is not fair to say that the framework ensures the suspension or removal of the Yang di-Pertuan Besar would be handled in a way that safeguards the dignity of the institution and the Undangs. But it certainly should not be used to stir scandal or conflict.

Sadly, however, this appears to have been the case in Negeri Sembilan.

It appears that, on April 17, the DKU determined that Mubarak Dohak be removed as the Undang of Sungai Ujong for having allegedly violated a number of customs and traditions.

Notwithstanding, on April 19, Mubarak purported to hold a press conference at which he declared that he and the other Undangs had determined that Tuanku Muhriz be deposed and that Tunku Nadzaruddin Tuanku Ja’afar had been appointed in his stead.

Significantly, Mubarak did not produce a proclamation signed by the Undangs and the menteri besar.

Additionally, it does not appear that Tuanku Muhriz was given notice of the alleged defect or defects relied on by the Undangs, nor was he afforded any opportunity to be heard. This raises a serious question as to how it is that Undangs can be said to have conducted the “full and complete enquiry” that Article X imposes as a pre-condition to their exercise of the power to remove the ruler.

This declaration was, however, rejected by the menteri besar, who confirmed that Mubarak had been removed as Undang and questioned his authority.

The Undangs then appear to have taken to social media to claim that no such determination was made at the DKU meeting on April 17.

The immediate question is whether there is any basis for the contention that Mubarak’s removal was determined by the April 17 meeting. If this is the case, then the matter ends there.

Although the menteri besar has confirmed the removal, further confirmation from the DKU may have a calming effect.

Understood in this light, there is in reality no constitutional crisis in Negeri Sembilan.

Malik Imtiaz Sarwar is a senior constitutional and human rights lawyer.

The views expressed are those of the writer and do not necessarily reflect those of FMT.