Are state constitutions mirroring federal discretionary powers justiciable?

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State Constitutional Discretionary Powers and Justiciability

The question of whether state constitutions, in mirroring federal discretionary powers, are subject to judicial review is a complex one, with differing legal interpretations. While historical precedent and certain constitutional interpretations suggest these powers are non-justiciable, an opposing argument posits that the acts of dissolution and appointments by the Yang di-Pertua Negeri (TYT) are, in fact, justiciable and not beyond constitutional scrutiny. This debate centres on the scope of discretionary powers vested in heads of state and their amenability to legal challenge.
Historical Precedent of Non-Justiciable Powers

For decades, the discretionary powers of heads of state, encompassing the Yang di-Pertuan Agong, state Sultans, and TYTs, regarding the dissolution of Parliament or state assemblies, have not been challenged in the Malaysian courts. This long-standing practice has led to the widespread recognition of these actions as non-justiciable, meaning they fall outside the purview of judicial review. The argument is that if the process leading to a decision is considered non-justiciable, then the final decision itself should also be deemed non-justiciable.
Constitutional Provisions on Discretionary Powers

Several constitutional articles highlight the discretionary powers of leaders. Article 40(2) of the Federal Constitution, for instance, addresses the Yang di-Pertuan Agong's discretionary powers. Similarly, state constitutions often contain similar provisions. For example, Article 10(2)(b) of the Sabah State Constitution and Article 36(2) of the Perak State Constitution are cited as examples of clauses that vest discretionary powers in state leaders. These provisions are understood by some legal scholars to reflect the non-justiciable nature of the powers they confer.
Argument for Justiciability of Dissolution and Appointments

Conversely, a counter-argument has been presented suggesting that the act of dissolution and appointments made by the TYT is, in fact, justiciable. This perspective challenges the notion of unfettered constitutional power, asserting that such actions can be subject to judicial review. Proponents of this view argue that if a chief minister advising for dissolution no longer commands a majority in the state assembly, their advice might not be constitutionally sound. This could lead to the court examining whether the TYT's decision to dissolve the assembly was made in accordance with constitutional principles, rather than being an absolute, unchallengeable power.
Legal Interpretation of State Constitutional Clauses

The interpretation of specific state constitutional clauses, such as Article 10.4 of the Sabah State Constitution, is central to this debate. This article, along with Clause 2 of Article 10, relates to the confines of the TYT's discretionary power concerning the appointment of a chief minister and the withholding of consent for the dissolution of the Legislative Assembly. While some argue that dissolving the assembly falls within the TYT's authority, others contend that the circumstances surrounding the advice to dissolve, particularly if the chief minister has lost majority support, warrant judicial scrutiny to ensure the exercise of discretion is not unconstitutional.

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Are state constitutions mirroring federal discretionary powers justiciable?

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