It has been disheartening to observe recent developments in Negeri Sembilan, where reports suggest a brewing constitutional crisis concerning a purported intent to remove the state’s Yang di-Pertuan Besar.

Jurists and politicians have weighed in on the issue, offering their perspectives on the peculiar facts and alleged breaches of natural justice. Yet, beyond the media commentary, the deeper constitutional question remains: can arbitrary exercise of power ever be tolerated within our constitutional framework?

An arbitrary decision is one made without proper reasoning, justification or adherence to established principles of law, fairness or procedure.

In constitutional and administrative law, it refers to an exercise of power or discretion that is—

• without rational basis, i.e. not supported by facts, evidence, or logical reasoning;
• contrary to legal standards, namely, it ignores the law or principles of natural justice;
• unpredictable or capricious—premised on personal whims, preferences or subjective impulses rather than objective criteria.
• Unaccountable, i.e. lacks transparency and is inconsistent with the rule of law.

The answer must be a resounding no.

Arbitrary decisions are antithetical to the very spirit of constitutional governance. They are not merely administrative missteps; they constitute illegality, irrationality, constitutional impropriety and ultimately, abuse of power.

The oath of office taken by constitutional dignitaries—whether at the state or federal level—jurisprudentially mandates them to act within the bounds of law, reason and justice. To act arbitrarily is to betray that oath.

Oath of office and judicial power

Our founding fathers understood that constitutional functionaries, however exalted, must be subject to scrutiny. They vested the courts with constitutional judicial power, enshrined in the oath of office of judges themselves, to serve as the supreme guardians of the Federal Constitution.

Judges are not passive arbiters; they are mandated to police constitutional actors, ensuring that no decision is made arbitrarily or in breach of constitutional safeguards.

Unfortunately, the legal industry has been slow to grasp this jurisprudential foundation. Many practitioners remain steeped in the doctrine of parliamentary supremacy, with only a superficial understanding of constitutional supremacy.

Yet, constitutional supremacy is not a mere slogan—it is a living doctrine, animated by the oath of office, which vests judicial power in the courts to preserve, protect and defend the constitution against arbitrary conduct.

Suo motu powers

It is often assumed that relief from the courts is limited to prerogative orders and directions—e.g. certiorari, mandamus, prohibition, quo warranto and habeas corpus — and can be obtained only through formal applications by aggrieved parties, but this is a narrow view.

The courts possess an inherent right to act suo motu—on their own motion—when the constitution or its framework is embarrassed by arbitrary exercise of power.

This is not judicial activism, as critics sometimes allege. It is judicial dynamism, a necessary function to ensure that constitutional governance is not undermined.

When constitutional dignity is at stake, the courts cannot afford to wait passively for litigants to knock on their doors. The Federal Court, in particular, must have the gumption to issue suo motu directions and orders to prevent constitutional embarrassment.

The oath of office vests in the judiciary an instant right to take judicial notice of arbitrary exercises of constitutional power. To ignore this responsibility is to abdicate the very essence of judicial duty.

India provides ample precedent for such judicial dynamism. The Supreme Court of India has, on numerous occasions, issued suo motu show cause notices to ensure that constitutional safeguards are not breached.

By adopting a direct investigative mode, India’s Supreme Court has acted promptly to preserve constitutional integrity on countless occasions. These precedents demonstrate that the doctrine of non-justiciability does not apply when the constitution itself is at risk of embarrassment.

Malaysia’s Federal Court must take heed. When a constitutional or royalty crisis emerges, the Court cannot hide behind doctrines of restraint. It must act decisively, including by directing the attorney-general to address issues of constitutional accountability and governance.

Only then can the judiciary fulfil its role as the supreme policeman of the constitution.

Arbitrary power exercise unconstitutional

At its core, any arbitrary exercise of power is unconstitutional because it violates the principle of reasoned governance.

The constitution is not a mere political document; it is a jurisprudential charter that demands accountability, transparency and adherence to the rule of law.

When constitutional office holders act arbitrarily—whether in appointments, removals, or other exercises of discretion—they undermine the very legitimacy of the constitutional order.

Such conduct is not shielded by prerogative or discretion. These must always be exercised within the bounds of legality and rationality. To act otherwise is to commit constitutional abuse.

The courts, armed with judicial power vested by the oath of office, must intervene to arrest such abuse before it metastasises into a full-blown crisis.

The judiciary’s constitutional duty

The unfolding situation in Negeri Sembilan is a reminder that constitutional crises are not abstract debates; they are lived realities with profound implications for governance and the rule of law.

Arbitrary exercise of power cannot be tolerated, whether by royalty, politicians or constitutional office holders. The judiciary, as the guardian of the constitution, must rise to the occasion.

The Federal Court must recognise that its duty extends beyond adjudicating disputes brought before it.

It has an inherent responsibility to act suo motu when constitutional dignity is threatened. This is fidelity to the oath of office. The constitution demands no less.

In the end, only the proper exercise by the Federal Court of constitutional judicial power can resolve a constitutional or royalty crisis.

That is how we ensure that arbitrary decisions are checked, constitutional safeguards preserved, and the dignity of our constitutional framework upheld.

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