Search the Constitution of Negeri Sembilan for the word ‘remove’, in any of its forms, set beside its Ruler.

You will not find it.

The word ‘remove’ is there for the Undang and the other Ruling Chiefs. It is not there for the Yang di-Pertuan Besar.

So how, in law, does a reign in Negeri Sembilan end?

That is the whole question of this essay, and it has a clear answer. The answer lies in the text.

WHERE THE LAST ESSAY LEFT OFF

The last essay in this series ended at a door. On 19 October the Court of Appeal decides whether any court may open a file about the Undang of Sungai Ujong.¹See Negeri Sembilan: Can a court even look? What the Court of Appeal decides on 19 October [20/NS], gkg.legal.

Why should one seat on one council matter so much?

Because in Negeri Sembilan the Undang are not only chiefs. The Constitution gives them their own part in the throne.

This essay sets out that part, word by word.

It does not say whether any step it describes was taken, or taken properly, by anyone, at any time this year.

That question belongs to the courts, and to the Constitution’s own machinery. This essay teaches the rules.

It does not referee the match.

AN ELECTED THRONE

In most Malay states the throne passes by descent. In Negeri Sembilan, it passes by election.

The Yang di-Pertuan Besar is “such person as shall be elected by the Undangs” of Sungai Ujong, Jelebu, Johol and Rembau, in the manner the Constitution provides and in accordance with the custom of the State.²Laws of the Constitution of Negeri Sembilan 1959 (Reprint 1979, as amended), First Part, art VII(2). The Federal Court described the arrangement in Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 (FC).

The Constitution fixes who may be chosen. It also fixes, class by class, where the Undang must look first when a Ruler dies.³Constitution of Negeri Sembilan (n 2) art VII(3)–(4).

Electors who make a Ruler. Hold that thought. It explains everything that follows.

THREE WAYS A REIGN ENDS

Apart from death, the Constitution knows three.

By the Ruler’s own choice

Article IX lets the Ruler abdicate voluntarily. He signs an Instrument of Abdication under His Sign Manual, the Royal Seal and the State Seal, in the presence of the Undang and the Menteri Besar. The Instrument is then gazetted.⁴ibid art IX(1)–(4).

By conviction

Article XA, added in 1994, deals with a Ruler charged in the Special Court. If convicted and sentenced to more than a day’s imprisonment, He ceases to reign unless pardoned.⁵ibid art XA, inserted by N.S. P.U. 2/1994.

At the request of the Undang

Article X is the provision this series has been circling. It is the only one in which the initiative lies with someone other than the Ruler or a court.

Whichever way a reign ends, Article XI then places a duty on the Undang: to choose and elect a successor.⁶ibid art XI, as amended by N.S. P.U. 2/1994.

ARTICLE X, STEP BY STEP

Read slowly, Article X has six working parts.

Who acts

The Undang. Not the Dewan Keadilan dan Undang. Not the Assembly. Not the Menteri Besar.

How many Undang? A separate article answers that. Powers given to the Undang in this Part are “deemed to have been duly exercised” if exercised by at least three of them, or by as many as are living.⁷ibid art XXIX.

After what

Only “after full and complete enquiry by the Undangs”.⁸ibid art X(1). The Constitution names the enquiry. It does not describe its procedure.

On what grounds

Four kinds, in the Article’s own order.

A great and serious defect, such as insanity, blindness or dumbness.

A base quality on account of which the Hukum Syarak would not permit Him to be Ruler.

An overt act detrimental to the sanctity, honour and dignity of the office.

Or a deliberate disregard of the provisions of the Constitution.⁹ibid.

With what choice

The Undang may call upon the Ruler to do one of two things. To withdraw from His duties for a period they fix, while a Regent acts. Or to abdicate.¹⁰ibid art X(1)(a)–(b), (2).

With what effect

On being called upon to abdicate, “He shall thereupon cease to be Yang Dipertuan Besar”.¹¹ibid art X(2).

And then

A proviso follows. “As soon as possible thereafter”, a proclamation to that effect is to be issued “under the hands of the Undangs and the Menteri Besar”.¹²ibid art X(2), proviso.

Notice the verb. The Undang do not remove. They call upon. The Constitution’s drafters chose a word of request, and attached to it a consequence of law.

TWO NUMBERS, OFTEN CONFUSED

Much public argument this year has turned on numbers. Two different numbers sit in this Constitution, and they belong to different rooms.

The first is the quorum of the Dewan Keadilan dan Undang. It may do no business except adjourn unless at least half its members are present, besides the member presiding.¹³ibid art XX. The Dewan’s membership is set by art XVII.

The second is Article XXIX’s three Undang.

The Dewan advises on custom, including the election and removal of the Ruling Chiefs.¹⁴ibid art XVI(1), substituted by G.N. 546/1982. Article X is not addressed to the Dewan at all. It is addressed to the Undang.

This is why a seat among the Undang matters beyond its own luak. Who holds it decides who is counted when Article XXIX is applied.

That link is a fact of the text. Who holds any seat today is not something this essay decides.

WHAT A BROKEN STEP COSTS

Every procedure raises the same further question. If one step is missed, or done badly, does everything built on it fall?

For a long time lawyers asked whether a rule was “mandatory” or merely “directory”. The House of Lords retired that habit in 2005.

In R v Soneji, Lord Steyn agreed with the High Court of Australia that the rigid distinction had “outlived their usefulness”. The emphasis, he said, ought to be on the consequences of non-compliance, asking whether the lawmaker “can fairly be taken to have intended total invalidity”.¹⁵R v Soneji [2005] UKHL 49, [2006] 1 AC 340 [23] (Lord Steyn), adopting Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [93] (McHugh, Gummow, Kirby and Hayne JJ).

The Australian court had put it more plainly still. The question is “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.¹⁶Project Blue Sky (n 15) [93], as quoted in Soneji (n 15) [23].

So a missed step is not a verdict. It is a question, and the answer is found in the purpose of the particular rule.

Which of Article X’s six parts go to validity, and which merely record what has already happened, is exactly that kind of question. No reported Malaysian case has yet answered it.

WHAT THE COURTS HAVE SAID SO FAR

Very little, directly.

In 1980 a dispute over the election of the Undang of Jelebu reached the Federal Court. The Court treated the Dewan as the proper body for a question of custom, and did not decide the election itself.¹⁷Dato Menteri Othman (n 2).

In Kelantan, a claimant to the throne once asked the High Court to declare him the lawful Sultan. The court held that the State Constitution had given that decision to the Council of Succession, whose decision it would not disturb.¹⁸Tengku Iskandar ibni Almarhum Tengku Ahmad v Majlis Perajaan Negeri Kelantan & Anor[1997] 2 MLJ 555 (HC).

Both cases concern a different article, or a different State. Neither construes Article X. A search of the reported cases turns up no decision that does.

Article X, in other words, is a provision the courts have not yet read aloud.

THE ANSWER

So, how does a reign in Negeri Sembilan end?

By death. By the Ruler’s own abdication. By conviction in the Special Court.

Or under Article X: at least three Undang, after full and complete enquiry, on one of four named grounds, call upon the Ruler to abdicate. He then ceases to reign. A proclamation follows, under the hands of the Undang and the Menteri Besar.

Then the Undang must choose again.

Every one of those words is a door.

Whether any door was opened, and opened rightly, is not for an essay to say.

That is for the courts to say, and for the Constitution’s own machinery.

∞§∞

 

 

This is for general information only, not legal or technical advice. Obtain independent legal advice where needed.

Thanks to KN Geetha, TP Vaani, JN Lheela and Lydia Jaynthi of GK Legal, and Sai Madhav of Unsplash for the image.

Claude assisted with drafting; Perplexity Pro fact-checked. The views and any errors are the author’s.

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