Updated: 21 September 2026
Article 38 sits in Chapter 2 of the Second Part of the Negeri Sembilan Constitution 1959, under the heading “Executive”. Article 36 governs the Instrument by which a Menteri Besar is appointed. Article 38 builds the Council itself.
It sets the test for choosing the Menteri Besar, the process for appointing the other members, the principle of collective responsibility, the resignation duty when confidence is lost, the tenure of ordinary members, and a bar on conflicts of interest.
Two definitions of “Ruler” operate inside this Article.
Article 28(1) provides that, throughout the Second Part, “Ruler” means His Highness and the Ruling Chiefs who are available and holding office at the material time.
Article 28(2) substitutes a narrower definition for the discretionary functions listed in Article 40(2): His Highness and at least three of the four Undangs, or at least two where only three Undangs hold office. The appointment of a Menteri Besar is one of those discretionary functions under Article 40(2)(a), so Article 28(2) governs Article 38(2)(a).
The remaining clauses of Article 38 use the general definition in Article 28(1).
What each clause means
Article 38(1): The Ruler’s duty to appoint an Executive Council
(1) The Ruler shall appoint an Executive Council.
The word “shall” makes this a duty. The Constitution does not contemplate the State being governed without a constituted Executive Council.
Article 38(2)(a): The confidence test for choosing the Menteri Besar
(2) The Executive Council shall be appointed as follows, that is to say:
(a) the Ruler shall first appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in His judgment is likely to command the confidence of the majority of the members of the Assembly; and
The sentence contains three requirements. The appointee must already be a member of the Legislative Assembly. The test is confidence, meaning the likely support of a majority of the Assembly’s members. The judgment on who meets that test belongs to the Ruler.
Because appointing a Menteri Besar is a discretionary function under Article 40(2)(a), “Ruler” in this clause carries the Article 28(2) meaning: His Highness together with at least three of the four Undangs, or at least two where only three hold office. Article 36(1) then requires the appointment to be made by Instrument under the Ruler’s Sign Manual and State Seal.
Article 38(2)(b): The four to ten range on the Menteri Besar’s advice, and the limits on appointments made during a dissolution
(b) He shall on the advice of the Menteri Besar appoint not more than ten nor less than four other members from among the members of the Legislative Assembly, (Enactment No. 10/1995)
but if an appointment is made while the Legislative Assembly is dissolved a person who was a member of the last Legislative Assembly may be appointed but shall not continue to hold office after the first sitting of the next Legislative Assembly unless he is a member thereof.
Once the Menteri Besar is in place, the remaining Council is built on his advice rather than the Ruler’s personal judgment, and it must number no fewer than four and no more than ten members, all drawn from the Legislative Assembly. The clause then anticipates the gap that opens when an Assembly stands dissolved ahead of an election. A person who sat in the outgoing Assembly may still be appointed to the Council during that gap, but the appointment does not survive the first sitting of the new Assembly unless that person has been re-elected as a member of it.
Article 38(3): The Executive Council’s collective responsibility to the Legislative Assembly
(3) The Executive Council shall be collectively responsible to the Legislative Assembly.
The Council answers to the Legislative Assembly, the elected Dewan Undangan Negeri (State Legislative Assembly), as a single body. The text states the principle and says nothing further about its operation.
In Westminster practice, from which the principle is drawn, collective responsibility is usually understood to require members to support Council decisions in public or leave the Council. That understanding comes from convention.
Article 38(4): The resignation duty when the Menteri Besar loses confidence, and the dissolution option
(4) If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request the Ruler dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.
A loss of majority confidence leads to one of two outcomes. The default is the resignation of the whole Council. The alternative is a dissolution of the Assembly, available only if the Menteri Besar requests it and the Ruler agrees. Article 40(2)(b) places the withholding of consent to a dissolution among the Ruler’s discretionary functions, so for that decision “Ruler” again carries the Article 28(2) meaning.
Article 38(5): Tenure at the Ruler’s pleasure, and revocation on the Menteri Besar’s advice
(5) Subject to Clause (4), a member of the Executive Council other than the Menteri Besar shall hold office at the Ruler’s pleasure, unless the appointment of any member of the Executive Council shall have been revoked by the Ruler on the advice of the Menteri Besar but any member of the Council may at any time resign his office. (Enactment No. 9/1963)
Members hold office for as long as the Ruler is content to keep them. The appointment ends when the Ruler withdraws that pleasure, unless it has already been revoked by the Ruler on the Menteri Besar's advice, and any member may resign at any time. The Menteri Besar’s own position is excluded from this clause. He is not removed by a simple revocation of appointment; his tenure runs through the confidence mechanism in Clause (4) instead.
Article 38(6): The bar on trade, business, or professional conflicts of interest
(6) A member of the Executive Council shall not engage in any trade, business or profession connected with any subject or department for which he is responsible and shall not, so long as he is engaged in any trade, business or profession, take part in any decision of the Executive Council relating to that trade, business or profession or in any decision likely to affect his pecuniary interest therein.
A member cannot hold a trade, business, or profession that connects to the portfolio he is responsible for, and even where the connection falls short of that, he must step back from any Council decision that touches his own pecuniary interest.
What Article 38 does not say
Article 38 leaves the Ruler’s judgment on ‘likely to command the confidence of the majority’ unstructured on the face of the text, without requiring a floor vote, a signed statement of support, or any other formal mechanism before the appointment itself is made.
The Article uses the word “Ruler” without defining it. Its meaning comes from Article 28, read with the list of discretionary functions in Article 40(2), and it changes between clauses.
Article 38 sets a numeric floor and ceiling for ordinary Council membership but does not fix the quorum needed to transact Council business. That figure appears separately in Article 42.
Article 38 does not describe the oath a member must take before sitting or voting. That requirement is set out in Article 39.
Article 38(4) does not specify how a loss of confidence is to be demonstrated, leaving open whether a recorded Assembly vote, a public withdrawal of support by enough members to break the majority, or some other event satisfies the threshold.
Article 38(3) does not say what follows when members of the Council publicly take a position different from the Menteri Besar’s, or from one another’s. Any consequence depends on convention, on the Menteri Besar’s power to advise revocation under Article 38(5), or on the confidence mechanism in Article 38(4).
Article 38 does not condition Council membership on belonging to any particular political party. The test throughout is confidence and Assembly membership, not partisan affiliation.
How Article 38 came under strain in 2026
Both halves of Article 38, the confidence mechanism and the appointment mechanism, have been tested this year.
On 27 April 2026, all 14 Barisan Nasional assemblymen announced they were withdrawing support from Menteri Besar Aminuddin Harun, with Perikatan Nasional’s five assemblymen expressing readiness to work with them, a combination that would hold 19 of the Assembly’s 36 seats (Malay Mail, 27 April 2026,The Edge Malaysia, 27 April 2026). Tuanku Muhriz decreed that Aminuddin continue in office until there was further clarity, in line with the law of the state (The Star, 27 April 2026).
Within days the withdrawal reversed: on 30 April, after discussions with UMNO president Ahmad Zahid Hamidi, all 14 agreed to remain within the unity government framework (FMT, 30 April 2026,The Star, 30 April 2026).
The episode ended in the clause’s second path. On 4 June 2026, Tuanku Muhriz consented to a dissolution of the Dewan Undangan Negeri on the Menteri Besar’s advice, the Assembly stood dissolved the following day (Malay Mail, 4 June 2026,FMT, 4 June 2026), and the Election Commission fixed polling day for 1 August 2026 (Bernama, 12 June 2026).
After 1 Aug polling, Article 38 runs again from the top: a Menteri Besar chosen under the Article 38(2)(a) confidence test, then four to ten members appointed on his advice under Article 38(2)(b).
Polling on 1 August returned Barisan Nasional 18 seats and Perikatan Nasional seven, with Pakatan Harapan taking the remaining 11 (FMT, 2 August 2026). Ismail Lasim, the Juasseh assemblyman, took his oath as Menteri Besar on 2 August. Because the appointment of a Menteri Besar is an Article 40(2)(a) discretionary function, the narrower composite in Article 28(2) applied, and the Undang of Sungei Ujong, Muhammad Faris Johari, and the Undang of Rembau, Hassan Ab Hamid, were in attendance (NST, 2 August 2026). With the Jelebu seat vacant, three Undangs held office, and Article 28(2) fixes the threshold at two of them in that circumstance. Writing in Malay Mail three days later, Hafiz Hassan pointed to the two Undangs visible in the Bernama photograph of the instrument being handed over as the visual record of that requirement being met (Malay Mail, 5 August 2026).
On 7 August, ten assemblymen, eight from Barisan Nasional and two from Perikatan Nasional, took the oath of office and allegiance before Tuanku Muhriz at Seri Menanti, with the same two Undangs present (The Vibes, 7 August 2026, Bernama, 7 August 2026).
On the night of 20 September, Istana Besar Seri Menanti announced that the appointments of all ten had been revoked with immediate effect. The statement cited Article 38(5), gave as its ground a breach of the oath of office and pledge of allegiance taken on 7 August through the councillors’ actions and statements of 15 September, recorded that each had been notified individually in writing, and directed the Menteri Besar to submit a list of candidates for a new Council under Article 38(2) (Malay Mail, 21 September 2026, FMT, 21 September 2026).
Footnote: The Constitution numbers its Articles in Roman numerals. This publication uses Arabic numerals for readability.
Sources:
Aminuddin to stay on as Negri MB following Ruler’s decree (The Star, 27 April 2026)
14 Umno reps still support Negeri Sembilan unity govt, says Zahid (FMT, 30 April 2026)
Negeri Sembilan assembly to be dissolved tomorrow (FMT, 4 June 2026)
Johor State Election On July 11, Negeri Sembilan On Aug 1 - EC (Bernama, 12 June 2026)
All the winners of the 16th Negeri Sembilan state election (FMT, 2 August 2026)
Ismail Lasim sworn in as new Negri Sembilan Menteri Besar (NST, 2 August 2026)
A picture that tells the constitutionality of appointment of MB (Malay Mail, 5 August 2026)
10 assemblymen take oath as Negeri Sembilan Exco members (The Vibes, 7 August 2026)
Ismail Heads Three N. Sembilan Govt Administration Portfolios (Bernama, 7 August 2026)
State exco members sacked by Negeri Sembilan ruler (FMT, 21 September 2026)
Anak Nogori is independent commentary on the unfolding constitutional crisis in Negeri Sembilan, where centuries-old Adat Perpatih, royal succession law, and modern political manoeuvring are colliding in ways Malaysia has never seen before. If you find this useful, share it with someone who should be following this, or subscribe to receive the latest articles in your inbox.
