‘Nazrinian’ Monarchy in Malaysia: The Resilience and Revival of a Traditional Institution
[This piece is chapter 4 of Andrew Harding and Dian AH Shah (eds), Law and Society in Malaysia: Pluralism, Ethnicity and Religion (Abingdon, Routledge, forthcoming). The 'Editoral thread' that prefaces the chapter is written by Dian and myself as editors (we have done this for all the chapters) and ought to provide a suitable introduction to the chapter. The book has taken a long time in the works and my special thanks to brilliant and tireless Dian for helping me to get it sorted. I am now taking this work on Nazrinian monarchy further by looking at its Johor variant for a conference paper to be delivered in Cambridge in July 2017. I will upload a draft of that when the convenor, Harshan Kumarasingham, lets me have some comments.]
Editorial Thread No. 4: ‘Nazrinian’
Monarchy in Malaysia: The Resilience and Revival of a Traditional Institution, by Andrew Harding
The position and role of the monarchy in public affairs are
increasingly important questions in Malaysia that deserve more attention. In
this chapter, Andrew Harding engages with these questions through a shrewd
examination of the evolving role of Malaysia’s monarchy and its continuing
relevance in the public sphere. This traditional institution has, as Harding
emphasizes, survived through centuries of challenges posed not just by
colonialism but also by subsequent power struggles and constitutional crises.
In this respect, this chapter illustrates the ways in which the Malaysian
monarchies have developed and strengthened their domain of influence at a time
where one would expect monarchies to be waning in relevance.
Harding’s story about the changing role and powers of
the monarchy is presented in a chronological sequence, which helps readers to
situate subsequent arguments about the monarchy’s revived public importance. It
begins with the historical background and constitutional foundations of the
Malaysian monarchies and their powers, before turning to an assessment of the
ups and downs faced by the institution throughout the 1980s and 1990s. These
tales about inter-branch politics of power and control, as well as personal
mischiefs involving members of the royal families, set the stage for this
chapter’s main focus: the revival of the monarchy’s constitutional, political,
and social influence.
Harding’s arguments, to be sure, are not bereft of any
analysis of the monarchy’s impact on law and society. In fact, apart from
demonstrating how the conduct of the royalty has triggered specific
constitutional amendments, he also argues that the society has increasingly
turned to the monarchy when law and the political process have not proved to be
availing to popular concerns. And although traditionally it is the Malays who
are seen as ‘attached’ to the monarchy, there is some evidence that even the
non-Malays are turning to the monarchy to weigh in on national issues such as
corruption, inter-ethnic relations, and pluralism. Thus, the dynamics in the
relationship between the monarchy, law, and society, and the emergence of the
‘Nazrinian’ monarchy, are shaped not just by the changing attitudes amongst the
royals themselves; they also respond to particular political and social
exigencies of the day.
The Malaysian public may well still be divided on
whether the monarchy ought to assert itself more prominently in everyday
political and social matters. However, this chapter might inspire further
inquiries and studies on the factors driving the rise (or fall, as the case
might be) of the Malaysian royalty. An interesting question, for instance,
involves the role of social media. This seems to be one of the primary tools
through which the royals – especially the younger and the more tech-savvy
amongst them – have reinvented themselves and reinforced their public influence
and engagement with the society. And this begs another important question,
which adds another dimension to Chapter 10’s analysis of freedom of expression:
with the growing (self-imposed) publicity around monarchies, are the royals
prepared to face greater free and fair scrutiny and criticism of their actions
and ideas?
Chapter 4
‘Nazrinian’ Monarchy in Malaysia: The Resilience and Revival of a
Traditional Institution
Andrew Harding[1]
Introduction
The study of monarchy might seem an unpromising way of understanding
law and society in the globalised world of the 21st century. While
this is no doubt true in Europe with its constitutionally functional
post-Habsburg ‘cycling’ monarchs, it is not necessarily true in Asia where, in
Thailand and Cambodia for example, the King still plays a very large role in
public affairs both symbolically and sometimes politically. It is also
noteworthy that the Arab Spring of 2010 toppled several Presidents but not one
of the Middle East and North African regions’ several monarchies. This chapter,
looking at the changing role of the monarchy as an aspect of law and society in
Malaysia, which has no less than nine functioning monarchies (or 10 if one
includes its unique, rotating, federal monarchy), argues that since the
millennium there has been an ambitious attempt to recreate a positive image of
monarchy, which had become tarnished in the 1980s and 1990s. As against a
monarchy under threat during those times, the new ‘Nazrinian’ monarchy (named
so in this chapter after His Royal Highness the Sultan of Perak, Nazrin Shah, a
prime mover in this project of revived monarchy)[2]
seeks to establish a new and expanded role for this ancient institution (Milner
2011). The chapter will proceed to discuss the significance of the
newly-defined monarchy in terms of recent controversial instances where the
limits of this new definition have been tested. It will also attempt to provide
insight into why this has occurred and how it is significant in terms of
contemporary law and society in Malaysia in light of developments relating to
democratic constitutionalism, ethnicity, and religion, which are major themes
of this book.
Historical and
Constitutional Background of the Malaysian Monarchies
In order to appreciate the social
and political resonance of the changes that are the subject of this chapter, as
well as their constitutional significance, we need first to etch in the
historical and constitutional background.[3]
The Federation of Malaya
became independent in 1957 under a Westminster-style constitution drafted by
Commonwealth jurists (Fernando 2002). It gathered under its wing the Straits
Settlements of Penang and Malacca; and the nine Malay States, Federated[4] and Unfederated.[5] The Malay States alone
had, and retain, their traditional monarchies within the complex constitutional
architecture of contemporary Malaysia (Harding 2012). Amongst other
constitutional functions, the Rulers[6] are the Heads of Islam in
their States, a role which they guard zealously. The 1957 Constitution became
the Federal Constitution of Malaysia when Malaysia was formed in 1963 with the
addition of three new states,[7] making fourteen altogether
(now thirteen), and the passing of some consequential amendments to the
Constitution. The Constitution reflected the Anglo-Indian constitutional ideas
of the 1950s, but adapted in some respects, including with regard to the
traditional monarchies, to the local situation with its particular ethnic
tensions, as well as local legal and religious traditions. It embodied
Westminster-type constitutional conventions and parliamentary democracy, but
also embraced constitutional supremacy, federalism, and a constitutional bill
of rights, as well as other ideas squarely based on the Indian Constitution of
1950 and its precursors.[8] This structure was, in
addition, modified according to the perceived needs of a new polity divided by
race and religion, and confronted by terrorism in the form of a communist
insurgency (1948-1960). Although amended frequently, and being the site of
continual and intense struggle, the Constitution survived to celebrate its 50th
anniversary on 31 August 2007 (Harding and Lee 2007).[9] Malaysia’s 50th
anniversary was celebrated on 19 September 2013 (Harding and Chin 2014: chapter
1).
Despite its colonial
origins and its continually disputed interpretation and relevance, Malaysia’s
Constitution has achieved, due to its longevity and in spite of its colonial
origins, a status quite rare in the contemporary world – that of an
autochthonous constitution. It is in other words meaningful after half a century
to refer to ‘Malaysian constitutional traditions’. The
ancient monarchies of the nine States, which together with the four former
British colonies (Penang, Malacca, Sabah and Sarawak) form modern Malaysia, are
deeply related to the constitutional architecture, in particular to federalism.
Their role in relation to Islam remained intact despite colonial intervention
during the period 1874–1957. The
condition of having a Raja (kerajaan)
has always been an aspect of Malay governance traditions, and it is still for
most Malays unimaginable that the monarchies would ever be abolished (Milner
1982). As we will see, far from being in danger of abolition, monarchy is a
flourishing and even developing concept (Milner 2011; Suwannathat-Pian 2012).
This chapter studies the remarkable revival of an
institution that has actually survived more than four centuries of colonialism
following the fall of Malacca to the Portuguese in 1511; constitutional
interference with their powers during decolonisation and then in the late 20th
century via constitutional amendments; inter-ethnic and inter-religious strife;
the increasing intensity of party politics; and the advent of intrusive news
media intent on finding scandal around every corner. In a world in which
monarchy has become increasingly rationed, confined, and subjected to
especially critical scrutiny, the Malaysian monarchies have gone against the
trend, becoming in recent years probably more powerful than they have been at
any time since 1945, or even perhaps since 1895 when the first attempts at
federalising Malaya were made under British rule. They constitute nearly a
quarter of all the world’s existing monarchies. That they have survived is
attributable to their centrality in Malay culture and government, their association
with Malay nationalism in the 1940s, and the fact that Malay leaders of the
independence struggle, such as Dato Onn Jaafar and Tunku Abdul Rahman, were
themselves aristocrats – indeed the first Prime Minister Tunku Abdul Rahman was
himself a prince of Kedah. Beyond that, the Rulers, along with Islam, are seen
as essential to the maintenance of the Malay character and traditional features
of the Constitution, and at the same time as meeting the need for a
multi-ethnic, multi-religious society to have a vivid symbol of unity that lies
beyond politics and constitutional law.
Malaysian constitutionalism seems to be a unique
interweaving of two strands: on the one hand, Westminster-style constitutional
structures that require the separation of the head of state from the head of
government; and, on the other hand, traditional and symbolic elements that
speak of Islam and Malay culture. Historically, the Rulers are identified with
both of these strands of constitutionalism. There is also the practical point that
in a country with a highly developed sense of protocol, Government leaders can
safely leave a good deal of time-consuming official duty to neutral but
high-profile figures such as the Rulers and notable members of their (sometimes
large) families. However, as we will see, Westminster dyarchy (Harding 2005)
has not always proceeded smoothly in Malaysia. The Westminster conventions, in
order to be effective, need to be clearly understood and supported by the
actors involved, and also operated with some care, having regard to their
general currency in the Commonwealth and some problematical issues and
precedents in constitutional law (Harding 2004; Quay 2010).[10]
But as a form of what is essentially customary public law, these conventions
are not easily transplanted, and they will inevitably acquire localised
understandings and precedents (Harding 1991). Like the British, the Malays are
known to have an acute sense of protocol, especially where royal status is
involved. It cannot be assumed in practice that the Westminster conventions
will operate in Malay state capitals as they would in London, even though one
might think that the provisions of both the federal and state constitutions
appear to demand precisely that, so closely do they follow Westminster-style
terminology (Lee 1999). Indeed as we will see in one recent instance, they
clearly operated in a wholly different way despite constitutional provisions
(Federal Constitution 1957, Schedule 8) that indicate the Westminster model
itself as a kind of deep structure to Malaysian constitutionalism.
Of the thirteen States of the Federation (Singapore left
it in 1965), as has been explained above, nine have a traditional Ruler as Head
of State; every five years one of their number becomes the Yang di-Pertuan Agong (‘Supreme Head of the Federation’, or King)
at the federal level. This involves an election by the Conference of Rulers
that in effect rotates the position of Yang
di-Pertuan Agong between the Rulers, a system that is in turn based on the
traditional adat (customary)
constitution of the State of Negri Sembilan (Harding 1996: 10, 72ff). The Yang di-Pertuan Agong can be removed by
a majority vote within the Conference of Rulers. The other four States
(Malacca, Penang, Sabah and Sarawak) due to their colonial history do not have
a Ruler but a Yang di-Pertua Negeri
(Governor), who is appointed by the Yang
di-Pertuan Agong (acting in his discretion, rather than on government
advice) to a four-year term, after consulting with the Chief Minister of the
State, , and can be removed only by a two-thirds majority in the State
Legislative Assembly. It will be noted that as a result of an almost invariable
practice in appointing bumiputera
(Malays or natives of Sabah or Sarawak) as Yang
di-Pertua Negeri, all Heads of State in Malaysia to date save one have been
bumiputera (i.e., Malay or native of
Sabah/ Sarawak).[11]
However, both Governors and Rulers are constitutional heads, as is required by
Schedule 8 of the Federal Constitution, which imposes on the state constitutions
the usual Westminster conventions, such as the requirement for the head of
state to act on government advice.
With the MacMichael Treaties of 1946, creating the
(short-lived) Malayan Union, the Rulers supposedly surrendered their
sovereignty to the Crown. But in the Federation of Malaya Agreement 1948, which
substituted a federal for a unitary structure, their sovereignty revived, and
was actually a precondition for the Agreement itself.[12]
The Federal Constitution of 1957, which was preceded by the Rulers’ formal
assent and blessing,[13]
placed the matter of sovereignty beyond doubt by Article 181(1), which
preserves the ‘sovereignty, prerogatives, powers and jurisdiction of the Rulers
... within their respective territories as hitherto had and enjoyed’. Article
71(1) guarantees the right of a Ruler ‘to succeed and to hold, enjoy and
exercise the constitutional rights and privileges of Ruler of that State in
accordance with the Constitution of that State’ (Hickling 1975; Harding 1986).
Moreover, Article 38, which relates to the Conference of Rulers, provides that
legislation directly affecting the privileges, position, honours or dignities
of the Rulers may not be passed without the consent of the Conference of
Rulers.[14]
By securing these provisions, the Rulers had rescued
their constitutional position from virtual abolition in 1946 to complete
constitutional entrenchment in 1957. Nonetheless, they are constitutional heads
of state, and the constitutional system has sometimes seen a struggle between
Westminster norms on the one hand, and the traditional respect – and even awe – in which the Rulers are held by Malays and non-Malays alike on
the other hand. We will see several examples of this struggle in progress and a
remarkable turn-around in the Rulers’ fortunes, leading to fears that the
power, or at least influence, of the Rulers is perhaps becoming, not so much
under threat as perhaps too great.
The Powers and Position of
the Rulers
In order to understand the evolving position of the Malaysian
monarchies through smooth and troubled waters, we have to work through some
basic constitutional law.
The Rulers are subject – as we have seen –
to the constraints of Westminster-style conventions that are set out explicitly
in both the Federal and State Constitutions (Azlan Shah 1986; Trindade 1978;
Lee 1999). The State Constitutions, although pre-existing the Federal
Constitution, are regulated by it. Not only is the Federal Constitution itself
supreme law under Article 4, so that any inconsistent law is rendered invalid;
but in addition, Article 71(4) and Schedule 8 of the Federal Constitution
provide that the State Constitutions must include what Schedule 8 calls ‘the
essential provisions’, or else provisions substantially to the same effect
(i.e., the Westminster conventions enacted as written constitutional law).
Parliament can, if necessary, amend the State Constitution to enforce Article
71(4), and under Article 71(3), if it appears to Parliament that State or
Federal constitutional provisions are being habitually disregarded in any
State, Parliament may by law provide for securing compliance with those
provisions; these provisions have not seen any occasion for their use. In an
extreme case, as occurred in Sarawak in 1966, the State Constitution can be
temporarily amended by emergency law.[15]
The essential provisions are in effect equivalent to the Westminster constitutional
conventions in the UK and many other Commonwealth states. The Ruler is required
to act on the advice of the Executive Council (equivalent to the cabinet at
state level). He[16]
may act in his discretion only in prescribed circumstances such as the
appointment of the Menteri Besar
(Chief Minister); the withholding of consent to a dissolution of the
Legislative Assembly;[17]
and the performance of his functions as the Head of Islam. He is also required,
as we will see, to assent to bills passed by the Legislative Assembly.
The executive powers of the Yang di-Pertuan Agong are set out expressly in the Federal
Constitution. Under Article 39, the executive authority of the Federation is
vested in him, but is exercisable by him or by the Cabinet or any Minister authorised
by the Cabinet. However, under Article 40(1), the Yang di-Pertuan Agong must act in accordance with the advice of the
Cabinet, except as otherwise provided in the Constitution. Both he and the
Rulers at the state level are also subject to the requirement of accepting the advice given, imposed on
them as a result of a 1994 amendment to Article 40 and Schedule 8.[18]
Article 40(2) goes on, however, to list the main situations in which, by way of
exception, he may act in his personal discretion. They are: the appointment of
the Prime Minister; the withholding of consent to a request for dissolution of
Parliament; and the requisition of a meeting of the Conference of Rulers
concerned solely with their privileges, position, honours and dignities. Thus,
the position of the Rulers at the state level is mirrored by that of the Yang di-Pertuan Agong at the federal
level.
The Monarchy Crisis of
1983
With regard to legislative powers, before 1984, the Yang di-Pertuan Agong had no role to
play – and the same was true of
the Rulers at the State level –
except to signify assent to Bills duly passed by the legislature and to summon
and prorogue the legislature as advised by the Head of Government. However,
there had been several instances of Rulers simply failing to assent to bills
passed by State Legislative Assemblies, which was usually a way of showing
displeasure towards, or disagreement with, the state government. In 1983, the
Federal Government, fearing that the next Yang
di-Pertuan Agong might interfere in federal politics even more
deleteriously – in fact he had made a speech saying he would ‘declare an
emergency and throw out all the politicians’ (Milne and Mauzy 1999: 32) – introduced a controversial
constitutional amendment bill relating to the powers of the Rulers. For bills
passed by Parliament or State Legislative Assemblies, the amendment provided
for automatic royal assent if assent was not forthcoming fifteen days after a
bill’s presentation. The bill also vested the power to proclaim an emergency,
exercised hitherto, on Government advice, by the Yang di-Pertuan Agong, in the sole hands of the Prime Minister.
This may be seen as an ambitious attempt by the then Prime Minister Dr Mahathir
Mohamad, to assert the primacy of the elected government and Parliament over
potentially troublesome monarchs, while placing the power to proclaim an
emergency squarely in his own hands as Prime Minister (Rawlings 1986).
The result of this was, ironically, the precipitation
of the very mischief the amendment was designed to prevent. The Yang di-Pertuan Agong, with the
agreement of the other Rulers, refused his assent to the amendment, and the
five-month constitutional crisis that followed resulted in an embarrassing
climb-down by the Government. A compromise was reached under which the Yang di-Pertuan Agong was given the
right to refer bills back to Parliament with his reasons, and the Government
withdrew the provision concerning emergency proclamations.[19]
The Rulers on their part undertook not to withhold their assent to bills at the
state level, although this was not specifically dealt with in the agreed
amendment (Lee 1984; Barraclough and Arudsothy 1985; Rawlings 1986).
As a result of this crisis, the Constitution (Amendment)
Act 1984 gave the Yang di-Pertuan Agong
power to send a bill that had been passed by Parliament back to the House where
it originated within thirty days, with a statement of the reasons for his
objection to the Bill or any provision in it. If the bill was passed again by
both Houses, then it became law automatically if the Yang di-Pertuan Agong did not assent to it within another thirty days
after it was presented to him. Following a further constitutional amendment in
1994, the position has been greatly simplified, and the powers of the Yang di-Pertuan Agong reduced. Now he
must assent to a Bill within thirty days, otherwise, on expiry of the thirty-day
period, it becomes law as if he had assented to it. There has, as a result,
been no further difficulty over the royal assent at either level of government,
with the exception of the 1993 crisis, to which we now turn.
The Monarchy Crisis of
1993
The 1983 crisis did not resolve the position of the monarchies
entirely. Rulers continued to interfere in politics, occasionally falling out
with the Menteri Besar (the head of
the state government), and in Kelantan the Ruler even campaigned for the
opposition parties in the 1990 general election. In 1988, the Yang di-Pertuan Agong himself was
involved in a public furore over the controversial dismissal of the Lord
President of the Supreme Court, Tun Salleh Abas (Harding 1990). Alleged
criminal acts by the late Sultan of Johor, both when he was the Crown Prince of
Johor and when he was the Yang di-Pertuan
Agong, were the subject of extensive speculation. A member of parliament
listed no less than fifteen allegations of criminal acts by the Sultan and six
by two of his sons (Suwannathat-Pian 2012: 363, n.51). The press highlighted
the luxurious lifestyle of the Rulers, and their occasional flouting of the
law; in one instance the Sultan of Pahang was criticized for spending RM4000
per day maintaining his horses in a luxurious life-style including air-conditioned
stables (Suwannathat-Pian, 2012: 363). Allegations of unlawful conduct could
not be pursued in the courts because of the Rulers’ constitutional immunity
from suit. Under Articles 32(1) and
181(2) the Yang di-Pertuan Agong and
the Rulers were not liable to any proceedings whatsoever in any court. This
immunity related to the Rulers acting in their personal capacity and did not of
course mean that the Federal or State Government enjoyed legal immunity from
acts done in the name of the Head of State. This had been clarified by local
cases and in 1980 by the Privy Council itself.[20]
In sum, this constitutional crisis illustrated both the
problem and the difficulty of finding a solution: any solution would
potentially work detrimentally to the Rulers’ elevated status. Despite the fact
that the executive power of the Federal Government had hardly ever been greater
than at this juncture (the zenith of Mahathir’s premiership), it was clearly,
as a matter of legal culture, as impossible for the Federal Government to inflict
a significant defeat on the Rulers as it had been for the British Government in
1946. In this 1983 crisis, the executive power had an excellent case, but was
unwilling to push it to the logical limit, in effect giving the Rulers a
victory on points in this brief but intense struggle. For all that, the
underlying problem of keeping the Rulers within the rule of law and the
Constitution remained to be addressed. It took almost another decade following
the 1983 crisis before the issue of the Rulers’ powers arose once more.
First of all, the Government attempted to get the Rulers
to agree to act within the law and the Constitution by a self-regulatory Proclamation of Constitutional Principles
dated 4 July 1992. This was designed, after some negotiations between the
Rulers and the Government, to place the Rulers in a straitjacket of their own
making by clarifying the operation of constitutional conventions and affirming
the Rulers’ intention of acting within the law (Suwannathat-Pian 2012, Appendix
1). However, the document that emerged was itself rather unclear on some
points, and it was signed only by the Yang
di-Pertuan Agong and altogether six of the nine Rulers. Moreover, it was
clearly not constitutionally binding. Realising that the consensual approach
had failed, the Government used an assault by the Sultan of Johor (again) on a
hockey coach to signal its intention of hardening its approach and using its
two-thirds’ majority in Parliament to amend the Constitution (Shad Saleem
Faruqi 1993). The narrow defeat in 1983/4 had not apparently spoiled Prime
Minister Mahathir’s appetite for another round of constitutional struggle.
A bill to amend the Constitution was tabled in
Parliament and was passed by both Houses in January 1993. The bill removed the
immunity of the Yang di-Pertuan Agong
and the other Rulers from suit when acting in a personal capacity. It gave the
jurisdiction in such cases (criminal and civil) to a Special Court consisting
of the Lord President of the Supreme Court (now the Chief Justice of the
Federal Court) as Chairman, the Chief Justices (now Chief Judges) of the two
High Courts, and two other Judges or former Judges of the Supreme Court (now
Federal Court) or the High Court, appointed by the Conference of Rulers. The
bill also conferred parliamentary privilege in respect of anything said during
proceedings in Parliament or a State Legislative Assembly concerning a Ruler,
except for advocating the abolition of the Ruler’s constitutional powers
(Gillen 1995).
However, since legislation affecting the powers and
privileges of the Rulers – as we
have seen above – requires the assent
of the Conference of Rulers (the Government nonetheless disputed this), the
Conference met and issued a statement saying that it had unanimously decided not
to consent to the bill, on the grounds that further consultation was required
in respect of such an unprecedented measure; that the bill was
unconstitutional as it trespassed on states’ rights; and that the Special
Court was an unsuitable forum for dealing with matters relating to the Rulers.
It also suggested, instead of a Special Court, an Advisory Board, which would
have power to recommend the removal of a Ruler. Just as in 1983, the inevitable
outcome was that an accommodation was reached. In February 1993, following a
crucial meeting of the Conference of Rulers, the Rulers and the Government
issued a joint declaration saying that an agreement had been reached whereby
amendments to the bill would be returned to the Dewan Rakyat by the Yang
di-Pertuan Agong, and the Rulers would notify at the same time their assent
to the amended bill (Harding 2012: 120).
The bill in its amended form was passed by Parliament in
March 1993. It provided for a new Part XV of the Constitution entitled
‘Proceedings against the Yang di-Pertuan
Agong and the Rulers’. Article 182 provides for a Special Court,
constituted as in the original version of the bill. The Special Court has
exclusive jurisdiction (similar to that of the inferior courts, the High Court
and the Federal Court), under the Constitution or any federal law, to try all
offences committed in the Federation by the Yang
di-Pertuan Agong or a Ruler, and all civil cases by or against them,
wherever the cause of action arose. However, there are two limitations. First,
proceedings may only be taken by or against the Yang di-Pertuan Agong or a Ruler in his personal capacity. Second,
proceedings may not be brought against them except with the consent of the
Attorney-General. If the Ruler is convicted of an offence and sentenced to more
than one day’s imprisonment, he ceases to be the Ruler of the State unless he
receives a free pardon. Otherwise, the amendments are in the same terms as the
original version of the bill (Harding 1993). Since 1993, there have been only
two cases dealt with by the Special Court, both civil cases against a Ruler.
The first in 1996 failed for lack of jurisdiction because the plaintiff was not
a Malaysian citizen; the second, in 2008, succeeded, when the Yamtuan of Negeri Sembilan was ordered
to honour the terms of a letter of credit (Lee 2010).
The result of this crisis was, on this occasion, a
victory for the executive power over the Rulers. The principle had been
established that the Rulers were not above the law and the cloak of sovereign
immunity was no longer one that could hide any misdeeds on their part. It is
true that they are still not answerable to the ordinary courts and the
Attorney-General’s discretion remains as a potential obstacle to full
application of the rule of law. Nonetheless, the Special Court is clearly not a
dead letter, and has, arguably, achieved the desired result merely by its
existence.
The Renaissance of
Malaysian Monarchy
If the 1983 crisis was a narrow victory for the Rulers and the 1993
crisis a defeat, they have since that time proved able to reassert the role of
the monarchy both in terms of constitutional power and in terms of their
influence in society. Partly this has resulted from subsidence of public
disquiet concerning outrageous royal actions. This, in turn, can be attributed
to the existence of the Special Court (Lee 2010) and to a realisation by the
Rulers that their public behaviour must be, not just lawful, but exemplary.
Indeed, Sultan Nazrin has based the legitimacy of the Rulers’ position on precisely
this basis.
Since the end of their bête-noir Mahathir’s period in
office (1981-2003), the Rulers have improved their position in a turn-around
even more remarkable than that of the 1940s, when their very existence was
threatened. That which failed to destroy them, appears to have made them even
stronger. Indeed, whereas previously –
especially under Prime Ministers Tunku Abdul Rahman and Mahathir – it was the task of politicians to
guard the Rulers ‘against weaknesses and follies’, it seems now to be, more
accurately, the Rulers’ perceived role to guard politicians against their weaknesses and follies
(Suwannathat-Pian 2012: 339-44). The ironic result of public anger concerning
the Rulers’ and their families’ behaviour, and the two constitutional amendments
that forced them onto the narrow way of the rule of law and constitutional
government, has been to improve their behaviour and image beyond recognition,
increasing not just their standing and influence, but even, as we will see,
their constitutional power, at least as a matter of everyday practice. Although
there have been isolated examples of recidivism, such as allegations of
domestic violence and an ugly succession dispute in the royal family of
Kelantan,[21]
the trend has been the replacement of the Rulers of the previous generation
with a new generation of more educated, and more politically adroit, Rulers and
princes, who have gone out of their way to fulfil – or perhaps even worryingly over-fulfil – the ideal of the Ruler as the meritorious and neutral guardian
of the constitution and justice.
These royals include their Royal Highnesses the Rulers
of Perak, Selangor, Terengganu, Perlis, and Johor. The signal example, however,
and leader of this trend is His Royal Highness (HRH) Nazrin Shah, the Sultan of
Perak, who started this trend as the Raja
Muda (Crown Prince) of Perak, prior to the death of his father and his own
accession in 2014. Sultan Nazrin Shah is the son of HRH Sultan Azlan Shah, who
was himself the Lord President of the former Supreme Court before becoming the
Sultan of Perak and later the Yang
di-Pertuan Agong. Although criticised with regard to his handling of the
Perak constitutional crisis in 2009,[22]
Sultan Azlan Shah was not only the country’s former highest judicial officer
but also a prominent writer on constitutional law (e.g., Azlan Shah 1986;
Sinnadurai 2004). Sultan Nazrin Shah, who holds a PhD in Political Economy and Government
from Harvard University, has in the last few years, in both writing and
speeches (Nazrin Shah 2004), outlined a version of the monarchy that diverges
as far as is perhaps conceivable from the public image that was massaged to its
own political advantage by the government during the Mahathir era.
This ideal sees the Ruler as a check on government and a
father-figure for society in general; as a kind of roving ombudsman who will
not stop short of sharp criticism of corruption, mismanagement, abuse of power,
lapses from religious virtue, and socially destabilising behaviour.
Kobkua Suwannathat-Pian expresses the new ideal of
monarchy in the following words:
… the ugly and
unacceptable side of the old traditional lifestyle whereby the Rulers and
princes could indulge in socio-economic excesses and vices [has] no place in
the modern Malaysian world. As Rulers of their individual states, the Malay
royalty is required to act responsibly, legally, compassionately, and be
racially-blinded in both their private and public capacities. As constitutional
monarchs, the [Yang di-Pertuan Agong]
and the Rulers are expected to be fountains of justice and mercy, and to
perform their fundamental duties of advising, warning and being consulted, in a
manner which would help to bring balance to the administration of the country,
and to safeguard the wellbeing of all Malaysians. The new royal role certainly
goes beyond what was understood to be the responsibility and role of a
constitutional monarch ever practised in the country. (Suwannathat-Pian 2012:
383)
In performing these functions, note that the Ruler is seen as
‘racially-blinded’ – in other words, combining Malay and Islamic leadership
with a role as protector of minorities. There is more than a hint here of
learning the lesson of Thailand’s King Bhumibol Adulyadej, who reached
unassailability through Buddhistic virtue (Harding and Leyland 2011: chapter1).
In a further comparison with the monarchy to the North, there is an increasing
tendency also to see criticism of a Ruler as a breach of the Sedition Act (read
lèse-majesté).[23]
This represents an extraordinary reversal from the pre-2003 position in which
free criticism of the Rulers was not just licensed by the executive, but
encouraged and egregiously indulged in by the Prime Minister and other
politicians (Amoroso 2014: 227-8).
The ‘Nazrinian’ theory of monarchy also suggests a new
role for the Rulers as potential mediators in inter-communal disputes. The
Rulers have clearly started to take a more active and somewhat less strictly
formal role in Malaysian society. Whereas in the past they have tended to be
remote and sometimes even feared, they are now just as likely to be seen in
shirt sleeves engaging with the poor and with social problems or religious
conflicts. This trend has been marked since the 2008 elections dented the
political dominance of the ruling coalition (the Barisan Nasional or ‘BN’) that goes back to 1955. It is indeed of
great interest that the power of the monarchy has risen almost in exact
proportion to the decline in ascendancy of the BN government. During the
current prolonged crisis over the 1Malaysia Development Berhad (‘1MDB’)
scandal, it is noteworthy that attention has turned to the Rulers in search of
leadership that might compel accountability for the alleged missing billions of
ringgit, which neither law nor political process has thus far managed to
achieve.[24]
How far can Nazrinian monarchy be extended? The problem
is neatly highlighted by an incident in 2011 involving constitutional law
professor Abdul Aziz Bari. This well-known and accomplished scholar, formerly a
professor at the Kulliyyah of Laws,
International Islamic University Malaysia, mildly criticised the way in which
the Sultan of Selangor handled a highly controversial incident in which the
Selangor State Islamic religious department (JAIS) mounted a raid on Damansara
Utama Methodist Church (DUMC).[25]
The raid itself is relevant to the new role of the monarchy.
The facts were as follows. JAIS
raided the DUMC where a dinner was being held that included twelve Muslims. It
was alleged that attempts were being made to convert Muslims, although the
organisers claimed that the dinner was to raise funds for HIV/AIDS patients.
Non-Muslims were offended by the invasion of a sacred place. The Sultan of
Selangor issued a statement saying that nobody would be prosecuted as a result
of this incident, but also indicated that the JAIS had acted properly within
their powers (this latter proposition was disputed). The Sultan’s statement
appeared to reduce tension over the incident, but left questions as to the
legal rights involved, the interpretation of the law, and the appropriate
policy with regard to policing the issue of religious proselytisation. It also
raised questions as to the role of the Rulers in dealing with religious
disputes. The twelve Muslims were sent for counselling ‘to restore their faith’,
and the Sultan, echoing relevant constitutional provisions, warned non-Muslims
not to propagate their religions amongst Muslims, but to realize the
limits of their religious freedom. The Ruler’s intervention left some questions
unanswered: What was the status of the Ruler in relation to such incidents,
when he is also the Head of Islam? Was his statement that nobody would be
prosecuted really a concession or did it assume that wrongful acts had been
committed (this was strenuously denied by DUMC)? Was the raid itself
unjustified and unlawful and should the weight of blame fall on JAIS rather
than on DUMC? Abdul Aziz Bari (an expert on Malaysian monarchy) suggested that
the Ruler had been wrongly advised on this matter. He was later suspended
briefly by his university pending investigation of possible Sedition Act
offences, and students from another university, protesting at what they saw as
an interference with academic freedom, were ‘hauled up’ and verbally
disciplined by their university.[26].
Bari later received a death threat.[27]
He subsequently resigned his university position and went into politics with
the opposition.[28]
Further instances suggest that Nazrinian monarchy is
becoming accepted. Nazrin Shah himself set an example by refusing an offer from
the State to pay for his wedding celebrations in 2007. In 2007, also to great applause, the Sultan
of Selangor stripped of their State honours (Datukships, for example) public figures that had proved themselves
unworthy of holding them (Suwannathat-Pian 2012: 382). In 2010 the Sultan of
Pahang commuted to community service a sentence of caning imposed on a model
for drinking beer in a bar, following a personal interview.[29]
Even the Yang
di-Pertuan Agong has been assumed to have an arbitral role. For example,
there was an attempt
by the Yang di-Pertuan Agong to
mediate an escalating dispute in July 2011 between the ‘Bersih’ coalition,
protesting for free and fair elections, and the Government; the latter then appeared
to allow the Bersih rally to take place in the National Stadium. Nonetheless, a
police permit was then refused, and despite attempts by the police to prevent
the rally on the ground that it was an illegal assembly,[30]
and more than 1700 arrests, it went ahead and was adjudged to be a success in
mobilising opinion on these electoral issues. If this
enhanced Nazrinian role for the Rulers is acceptable in contemporary Malaysian
society, one question that seems to arise is whether the Rulers are to enjoy
increasing immunity from public criticism of the way they perform this role,
even though their legal immunity from
suit has been removed. Recent use of the Sedition Act, which has intensified
during the current ‘1MDB’ crisis, indicates that criticising a Ruler may now be
off-limits.[31]
State Government Formation
and the Limits of Royal Powers
Problems in the operation of constitutional conventions with regard
to the Rulers’ role in Government formation and survival at the State level
have been perennially a problem in Malaysia, and more so since the 2008 elections.
This seems to have given impetus to Nazrinian monarchy by presenting a sharper
competition for votes between the ruling BN coalition and the opposition. In
Perlis, the BN’s choice of Menteri Besar
was rejected by the Ruler, and when a Member of the Assembly with majority
support amongst BN members was selected, the Prime Minister backing down from
his own choice. In Terengganu, a constitutional crisis erupted when the Ruler
rejected the BN’s sitting candidate for the position of Menteri Besar, who had overwhelming BN support, after the BN won
the state election. Another BN Assemblyman was appointed by the Ruler, the
Prime Minister complaining that the appointment was unconstitutional. Amidst
threats of dissolution of the Legislative Assembly and support for the Menteri Besar from the Islamic party PAS,
who were actually in opposition in the Assembly, the Prime Minister again
backed down, and the palace’s candidate for Menteri
Besar survived. In these instances, the Ruler did not even feel obliged to
explain his preference. In both Selangor and Perak, the appointment of the
Member of the Assembly proffered by the Federal opposition, which was
successful in the State election, was not automatically endorsed but the
subject of searching inquiry by the Ruler (Suwannathat-Pian 2012: 388-90).
One instance, arising from the political convulsions of the
2008 elections, when opposition parties took control of some states, the issue
of state government appointment is particularly instructive in the light of the
new politics and Nazrinian monarchy, and eventually went to the highest court.
In March 2008, the Federal opposition coalition – PR (Pakatan Rakyat) –won control of the State Government of Perak with
a slim majority. The State Constitution in those States that have a Ruler as
Head of State usually requires the Menteri
Besar to be Malay. The Ruler is, however, empowered, in his discretion, to
override any provisions in the State Constitution restricting his choice of Menteri Besar if in his opinion it is
necessary to do so in order to comply with the duty to appoint whoever has the
confidence of the Assembly. In this instance,
instead of asking the Ruler to override the constitutional provision
regarding the appointment of the Menteri
Besar by appointing the leader of the party with most seats, which would
have meant appointing a Chinese Menteri
Besar, the PR proffered a Malay PAS Member, Dato’ Seri Mohammad Nizar
Jamaluddin, who was acceptable to all three parties in the PR, even though PAS
had the least number of seats. Nizar took office but was soon in trouble with
the Ruler when he purported to transfer a religious official without consulting
the Ruler, who is the Head of Islam in the State.
As explained at the outset of this chapter, the
Constitution of Perak, along with the other State Constitutions, provides for
the operation of Westminster-style conventions. Under Article 16(2)(a), in the context of appointment of the Executive Council:
‘His Royal Highness shall first of all 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
a majority of members of the Assembly …’. Article 16(6) goes on to state: ‘If
the Menteri Besar ceases to command
the confidence of the majority of the members of the Legislative Assembly,
then, unless at his request His Royal Highness dissolves the Legislative
Assembly, then he shall tender the resignation of the Executive Council.’ There
is no express provision for the dismissal of the Menteri Besar.
In a fifty-nine member
Assembly, the PR held thirty-one seats, while the BN held twenty-eight seats.
In February 2009, three PR Assemblymen apparently announced their resignations
from the assembly, leaving the assembly apparently deadlocked at 28-28; the
three defectors then switched sides to the BN. Chief Minister Nizar approached
the Ruler on 5 February 2009 for a dissolution ‘to resolve the deadlock’ in the
Assembly. The Ruler refused the request, but before informing Nizar of his decision
he had met with thirty-one assemblymen and satisfied himself that these thirty-one
members (including the three defectors) supported the BN leader, Dato’ Zambry
Abdul Kadir as the Menteri Besar.
Accordingly, the Ruler, immediately following his refusal of a request for
dissolution, informed Nizar that he no longer commanded the confidence of a
majority of the Assembly and asked for his resignation. This was not
forthcoming, but later the same day the Ruler’s office issued a press statement
stating that the office of Menteri Besar
had fallen vacant and that Zambry had been appointed as he commanded the
confidence of a majority in the Assembly. Thus, Nizar was ousted without any
vote being held in the Assembly. He sued Zambry for declarations to the effect
that he, Nizar, was still the Menteri
Besar of Perak. The courts had to decide whether the Ruler had power in
effect to dismiss the Menteri Besar
by declaring the office vacant and appointing another Member, there being no
express power of dismissal in the Constitution; and whether such power, if it
existed, could be exercised on the basis of events occurring outside the
Assembly, there having been no motion of no confidence or similar event in the
Assembly.
The case caused
considerable excitement across the country (Quay 2010). A High Court decision
in favour of Nizar was appealed to the Court of Appeal successfully by Zambry,
who again succeeded on a further appeal by Nizar to the Federal Court.[32] The outcome was that the
courts read into the Constitution a power to declare the office of Menteri Besar vacant and found it was
constitutionally valid for the Ruler to take such action even without a vote in
the Assembly. The decision breaks new ground in allowing the Ruler considerable
latitude, which is not apparent in the constitutional text or in general
understandings of constitutional conventions, to reach his own judgment as to
the issue of the legislature’s continued confidence in the Head of Government.
It is not only a highly problematical understanding of the notion of confidence
and the proper role of the Head of State in a Westminster-style constitution
conceived as such; it also appears to be contrary to Malaysian precedent which
suggests that confidence can only be ascertained on the floor of the
legislature.[33]
It also conjures up the possibility of royal interference in the operation of
the Constitution at both State and Federal levels, and of the monarchy becoming
a political football as competition continues to increase between the governing
BN and the opposition PR. In terms of constitutional precedent, the Perak decision seems to be a high-water mark for expansion of
the Ruler’s constitutional powers and creates some uncertainty as to where this
kind of reasoning could lead. In the current ‘1MDB’ crisis it has even been
suggested that the Yang di-Pertuan Agong
could simply dismiss the Prime Minister for cause as opposed to ceasing to
enjoy the confidence of the legislature.[34]
Nonetheless, the decision carries legitimacy within the monarchy system when
viewed from a Nazrinian perspective.
Further incidents give some support to this as a concern
for the viability and legitimacy of Nazrinian monarchy. An occasion on which
the Sultan of Selangor instructed members of the Selangor State Legislative Assembly
to pass a bill relating to his powers over Islam created an adverse reaction
and appeared to take matters beyond the Ruler’s constitutional role.[35]
In another issue concerning State Government formation in 2014, the Sultan of
Selangor was faced with an acute crisis in the State Government when the
sitting Menteri Besar (from the federal opposition party Parti Keadilan Rakyat) lost the support of members of his own party
and was faced with an attempt by the leader of his party, Datuk Seri Anwar
Ibrahim, to insert himself, and then subsequently his wife, as the Menteri
Besar. Instead of resolving the matter, Westminster-style, on the floor of the
Legislative Assembly as a matter of confidence, the Ruler took it upon himself
to interview three candidates put forward by the Pakatan Rakyat (the governing coalition at the state level) for the
position and decide whose merits were most compelling. The selected candidate
was then endorsed by the state assembly.
Not all the issues have arisen in Selangor and Perak.
Johor has seen two interesting incidents in recent years. In the first, a draft
legislation on housing and property proposed to give the Ruler a direct and
personal legal role in administering the statute. Although this was without
precedent in Malaysian statute law, it was seriously contemplated before – at
the last hurdle and in the face of statements that the bill would be
unconstitutional – the relevant provision was substituted with one requiring
the Sultan to act on government advice, thus restoring constitutional
rectitude.[36]
In another case, which involved instructive difference of opinion between a
federal minister and a prince of Johor, the minister appeared to back down when
criticised for disrespecting the prince in his remarks over the prince’s
criticism of the Prime Minister over the ‘1MDB’ affair. During this brief spat,
in which the minister was attempting to defend the Prime Minister, the prince
uploaded on Instagram a picture of a page from Johor’s agreement to join the
Federation in 1948. He also organised a public show of support for the ‘Bangsa Johor’ (nation of Johor),
emphasising that Johor could leave the Federation if the Federation breached
any of the conditions upon which Johor joined the Federation. These conditions
include Johor’s power to maintain its own armed forces, which the Federal
Government previously attempted, and failed, to abolish (Hutchinson and Nair
2016: 22). Following this, the Sultan himself repeatedly made political
statements endorsing the same line of reasoning. In some cases, he made policy
pronouncements on which the state government then acted; in others, he
emphasised the multi-cultural nature of Johor society and told ‘racists’ to
‘get out’ of his state.[37]
These events appeared to enjoy widespread support in Johor, which continues to
sport, somewhat pointedly, thousands of Johor flags in public places.
These all appear to be examples of a Ruler (or royal
family) taking into account the judicially and (largely) politically approved
increased leeway for royal intervention in constitutional processes. The
obvious difficulty with this approach is that it tends to encourage the royal
families to participate more overtly in politics in the sense of voicing
opinions, to undermine the democratic process in government formation, and to
encourage covert plotting to overthrow executive heads and manipulation of the
Rulers’ assumed powers. These incidents may seem colourful rather than
dangerous, but in reality they have already created political instability even
without being seriously tested at the federal level, where their legitimacy
would likely be tested in extremis.
The Conference of Rulers
In 1897, meetings of the Rulers or Durbars were instituted. This led
to the creation of the Conference of Rulers under the Federation of Malaya
Agreement 1948, and its retention in the Merdeka
Constitution as an expression of the Rulers’ resistance to any erosion of their
sovereignty, where they saw some strength in numbers and constitutional
entrenchment.
A distinction needs to be drawn between two kinds of
function performed by the Conference. First, it discusses questions of national
policy. Here the Rulers meet with the Yang
di-Pertua Negeri of the four States without a Ruler, as well as the Yang di-Pertuan Agong, the Prime Minister
and the Menteri Besar or Chief
Minister of each State. The Heads of State act on advice in this capacity. The
Constitution requires that the Conference be consulted before any change in
policy affecting administrative action under Article 153 (this deals with
special privileges under Malaysia’s unique social contract, under which
affirmative-action-type policies allow bumiputera
citizens to enjoy privileges in, for example, trade licences and public service
positions). In practice, the Conference is primarily a useful means of
discussing Federal-State relations outside the glare of publicity, and without
confrontation, as it has no actual powers in this regard.
Second, it performs functions of a constitutional
nature, in relation principally to the monarchy itself and religion; but here
the Conference consists only of the nine Rulers (as opposed to all the
Malaysian heads of state, including Governors) and each Ruler acts in his
discretion. These functions include the election of a Yang di-Pertuan Agong; giving consent to any law altering State
boundaries or affecting the privileges of the Rulers; and giving advice on any
appointment which requires the Conference’s consent or where the Conference is
required to be consulted. This latter function includes, most importantly, the
appointments of the Chief Justice of the Federal Court, the President of the
Court of Appeal, the Chief Judges of the High Court in Malaya and the High
Court of Sabah and Sarawak, the Judges of the High Court, the Auditor-General,
and the Chairmen and members of the Public Service Commission and the Election
Commission. In relation to religion, the Conference can extend religious
observances to the whole Federation, and it can also give rulings on some
religious issues: in one instance it was forceful in reminding the Islamic
Development Department (JAKIM) that it had no power to issue a fatwa on the propriety of Muslims
participating in yoga (Suwannathat-Pian 2012: 398). The Conference has also
begun in recent years to assert itself in relation to judicial appointments, on
one occasion successfully rejecting the Prime Minister’s nominee for a senior
judicial appointment even though its role is stated as merely that of being
consulted (Suwannathat-Pian 2012: 387-8; Fong 2008: chapter 9).
One significant power that falls under this second type
of function relates to the so-called ‘Rukunegara
amendments’ of 1971 (Harding 2007), as a result of which Article 159, which
deals with constitutional amendments, was amended to impose the requirement of
consent to the passing of constitutional amendments and ordinary laws relating
to certain ‘sensitive issues’: citizenship, the special privileges of Malays
and natives of Sabah and Sarawak, the national language, and the Rulers
themselves; and laws governing the questioning of policy on those issues. In
effect, the Conference of Rulers has been given the task of policing any
attempt to reverse the Rukunegara
amendments, as though the social contract[38]
itself is entrusted to the Rulers collectively. This indicates how the Rulers
fulfil the dual role of being guardians of Malay rights and also protectors of
the legitimate interests of non-Malays. This dual role can also be seen in the
intervention of the Sultan of Selangor in the DUMC church-raid issue discussed
above, where he appeared both to protect Muslims from attempts to convert them
from Islam while at the same time encouraging Christians to assert, but realize
the limits of, their religious freedom. In practice, the Conference has indeed
provided evidence that it sees itself as the guardian of the social contract,
as it reminded everybody in a sternly-worded ‘Special Press Statement’ dated 16
October 2008 (Suwannathat-Pian 2012: Appendix 3). More recently, the Conference
has played a role in the 1MDB crisis, demanding the settlement of the issue
with full accountability, emphasising at the same time the need for ethnic and
religious toleration and stability.[39]
The lesson of recent experience in the Conference of
Rulers is that the Rulers collectively, not just individually, appear to be in
practice implicitly endorsing the notion of Nazrinian monarchy.
Analysis and Conclusion
This chapter attempts to show how Malaysia’s traditional monarchies
are reinventing themselves. We have seen how debates about the position of the
monarchy bring us ineluctably back to the nature of constitutional governance,
the role of religion and ethnicity in a situation of conceptually fraught and
contested democracy. The ancient Malay monarchies survived colonialism because
the system of indirect rule required not just their subjection to colonial
‘advice’, but also their continuing legitimation of colonial rule. They
survived independence and nation-building because of their association with the
federal structure, that structure being itself a necessary response to cultural
demands to maintain religious structures and arcane traditions alongside
recently established British constitutional ideas based on democratic
accountability. They survived authoritarian nationalism due to the same sources
of their resilience, and despite their own-goal in treating the rule of law as
occasionally dispensable. We have also seen how from a kind of constitutional
residue – the dust, as it were – of empire, an almost entirely new institution has
been forged based on the idea of good governance and good inter-communal
relations; and how tradition and multi-culturalism have been attempted to be
seamlessly blended in the new Nazrinian monarchy.
There are clearly advantages and disadvantages in the
rejuvenated 21st century Nazrinian monarchy. Malaysians have not,
perhaps, yet made up their minds at this early stage of monarchy renewal
whether or not they actually approve of the development. Most would no doubt
welcome the distinct improvement in royal behaviour, making the Rulers into
exemplary figures. Others see the monarchy as an antidote to the arrogance and
unethical behaviour of some politicians, and (at least at the present time) as
a recourse when all else fails, especially in inter-religious matters where
politics and majorities should not necessarily rule and in issues of
kleptocracy, where they should rule but are obstructed in doing so. However, it
is uncertain whether the majority are content to see the Rulers going beyond
the strict confines of the constitutional text as envisaged by Nazrinian
monarchy, as the reaction to the Perak crisis shows. Currently, not just
liberal politicians and civil-society groups but the public at large seems
favourable to the idea of the Rulers stepping in to resolve the impasse over
the ‘1MDB’ scandal.[40]
The difficult questions are of course why this has
happened and what its significance is for constitutionalism in a plural society.
Do we live in postmodern world of constitutionalism in which even apparently
defunct or declining institutions can take on new life, taking their place
alongside both the familiar and the innovative?
My answer to this is as follows. In the current
situation in Malaysiaauthoritarianism is increasingly opposed, the majority Malay
community is politically split, and minorities feel threatened; politics looks
increasingly ugly, fractious, and uncertain. Politically neutral institutions
such as judiciary and monarchy attract attention in such circumstances as
potential power-brokers. It only needs astute leadership such as that provided
by the House of Perak, to establish a new role for an old institution. One
obvious factor is the changing cultural and political orientation of the royals
themselves as new generations succeed to the social, legal, and political
privileges of royalty. The royals are no longer politically naïve,
over-privileged, over-dressed feudal potentates. They are more likely to be politically
astute, jobbing intellectuals keen to establish a relationship with, and leadership
of, their diverse peoples and communities, justifying their powers, exercising
moral influence, and inculcating a sense of stability and political wellbeing.
In this sense, they would see the preservation or revival of their privileges
and powers as a necessary aspect of constitutionalism. The BN, mired in
corruption, mismanagement and failed attempts at reform, is no longer widely seen
as a protector of the Malays (Chandra Muzaffar 1979). This role of protector,
Chandra Muzaffar reminds us, was taken over from the Rulers by UMNO and the BN;
now that role appears in some ways to be reverting to the Rulers.
Constitutionally-sanctioned mechanisms (the judiciary
and the process of law, elections, political and parliamentary process) should
of course be the real protector in a constitutional state. When the guards fail
to perform their constitutional duty, however, who guards those guards? The
default answer seems to be that the Rulers are being asked to perform this
role. Whether they are willing to assume it and could in that event succeed in sustaining
it over the longer term is a large question, but the logic of this chapter is
that Nazrinian monarchy has not yet reached its zenith and that it enjoys
widespread support despite the obvious constitutional difficulties to which it
can give rise. In this sense, culture and tradition are seen as ensuring that
political accountability and the law take their course.
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[1] Professor, Faculty of Law,
National University of Singapore.
[2] Another prime mover is a 34-year-old Prince of
Negeri Sembilan, Tunku Zain Al-abidin Muhriz, who has a masters degree in
Comparative Politics and Imperial History from the LSE, is a published author,
and leads a think tank called the Institute for Democracy and Economic Affairs.
[4] Negeri Sembilan, Pahang,
Perak, and Selangor.
[5] Johor, Kedah, Kelantan,
Perlis, and Terengganu.
[6] Styled ‘Sultan’, except for the Raja of Perlis
and the Yang di-Pertuan Besar (or ‘Yamtuan’) of Negri Sembilan. They are referred to collectively in the
Constitution as ‘the Rulers’, and in colloquial Malay as ‘Raja-raja’.
[7] Sabah, Sarawak and
Singapore. Singapore left the Federation in 1965.
[8] The British North America
Act 1867, and the Government of India Act 1935.
[9] This was the 50th
anniversary of the Federation of Malaya and the Constitution, as opposed to the
50th anniversary of Malaysia itself, which fell on 19 September
2013.
[11] We can contrast here
Singapore, whose six Presidents have been Malay, Chinese, Indian or Eurasian.
The ethnicity of the President is currently under debate in Singapore with a
view to consolidating this tradition.
[12] I.e., they could not have
entered into the Federation of Malaya Agreement if they had not enjoyed
sovereignty. For the McMichael Treaties, see ch.1 by Kevin Tan.
[13] Known
as the Wasiat Raja-Raja Melayu (Declaration of the Malay Rulers), 5 August
1957.
[14] For instances of this, see
below.
[16] I use the male pronoun given
that Malay constitutional tradition does not envisage the possibility of a
female monarch. For dynastic rules, see, further, Gullick (1988).
[17] Consent to dissolution was
refused in two cases: Kelantan in 1977 and Sabah in 1994.
[18] Constitution (Amendment) Act
1994.
[19] As things have turned out,
one might regard the royal resistance to this drastic concentration of power in
the hands of the Prime Minister as fortuitous. As things stand, the Prime
Minister could not now proclaim an emergency without the agreement of the
Cabinet. However, under the National Security Council Act 2016 the Prime
Minister has power to declare an area a security area, which amounts to
significant control over emergency powers.
[20] Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli (No2)
[1967] 1 Malayan Law Journal 46; Teh
Cheng Poh v Public Prosecutor [1980] AC 458, 467, per Lord Diplock. The
Privy Council, comprising judges of the highest judicial body of England and
Wales, exercised jurisdiction over legal questions throughout the British
empire, and even in some cases for several years after the relevant state
became independent.
[21] ‘Right Royal End to Palace Crisis’, The Star, 19 September 2010, http://www.thestar.com.my/opinion/columnists/analysis/2010/09/19/right-royal-end-to-palace-crisis/
(accessed 17 April 2017).
[22] See below.
[23] See
the case against the late DAP politician Karpal Singh, reported at: ‘Sedition
conviction against Karpal upheld’, The Star, 31 May
2016, http://www.thestar.com.my/news/nation/2016/05/31/sedition-conviction-against-karpal-upheld/
(accessed 16 April 2017). Indeed some royals have joined a number of civil-society groups in calling for a Thai-style lese majeste law
to be enacted, despite the very broad scope of the Sedition Act: Farrelly, N., ‘Lese majeste for
Malaysia?’, New Mandala, 10 March
2009, http://www.newmandala.org/lese-majeste-for-malaysia/ (accessed 16 April
2017).
[24] ‘Husam
urges Rulers to order 1MDB audit be made public’, Malaysiakini, 8 July 2016, https://www.malaysiakini.com/news/347925
(accessed 16 April 2017).
[25] ‘DUMC
maintains JAIS raid unlawful’, Free
Malaysia Today, 12 August 2011, http://www.freemalaysiatoday.com/category/nation/2011/08/12/dumc-maintains-jais-raid-unlawful/
(accessed 16 April 2017).
26. ‘Students stage demonstration against IIUM don’s suspension’, The Star, 22 October 2011, http://www.thestar.com.my/news/nation/2011/10/22/students-stage-demonstration-against-iium-dons-suspension/
(accessed 16 April 2017).
[27] ‘IIUM don gets bullet and
death threat for remarks on Ruler’, The
Star, 30 October 2011, http://www.thestar.com.my/news/nation/2011/10/30/iium-don-gets-bullet-and-death-threat-for-remarks-on-ruler/
(accessed 16 April 2017).
[28] ‘Aziz Bari to contest under
PKR banner’, Malaysia Today, 23 April
2012, http://www.malaysia-today.net/aziz-bari-to-contest-under-pkr-banner/
(accessed 16 April 2017). Later Bari joined the Chinese-dominated DAP.
[29] ‘Malaysia spares woman
from caning for drinking beer’, The
Guardian, 1 April 2010, https://www.theguardian.com/world/2010/apr/01/malaysia-commutes-caning-sentence (accessed 17 April 2017).
[30] ‘Bersih fails to get permit for Stadium Merdeka rally’, Malaysiakini, 8 July 2011, http://malaysiakinicom1.wordpress.com/2011/07/08/bersih-fails-to-get-permit-for-stadium-merdeka-rally-2/
(accessed 17 April 2017).
[32] Datuk Nizar Jamaluddin v Datuk Seri Zambry Abdul Kadir [2010] 2
Malayan Law Journal 285. For an extensive critique and discussion of the Perak
crisis, see Quay (2010).
[33] Stephen Kalong Ningkan v Tun Haji Openg and Tawi Sli [1966] 2
Malayan Law Journal 187.
[34] Teoh, W., ‘Should the Yang
di-Pertuan Agong sack Najib?’, Asklegal,
20 May 2016:, http://asklegal.my/p/should-the-yang-di-pertuan-agong-sack-the-pm
(accessed 17 April 2017).
[35] ‘Selangor upset over “royal”
intervention’, Free Malaysia Today, 9
November 2011, http://www.freemalaysiatoday.com/category/nation/2011/11/09/selangor-upset-over-royal-intervention/
(accessed 16 April 2017).
[36] ‘Johor housing bill amended
after uproar over Sultan’s powers’, Asia
One, 11 June 2014, http://news.asiaone.com/news/malaysia/johor-housing-bill-amended-after-uproar-over-sultans-powers
(accessed 16 April 2017).
[37] ‘Johor Sultan tells racist,
haters, get out of his state’, Today Online,
16 September 2015, http://www.todayonline.com/world/asia/johor-sultan-tells-racists-haters-get-out-his-state
(accessed 16 April 2017). Another report states that this enjoyed widespread
popular support in Johor: ‘Johor Sultan’s remark gets people’s support’, The Star, 18 September 2015, http://www.thestar.com.my/news/nation/2015/09/18/johor-sultans-remark-gets-peoples-support-call-against-racists-goes-viral/
(accessed 16 April 2017).
[38] See Chapter 2 by Rueban
Balasubramaniam and Chapter 3 by Wilson Tay.
[39] ‘Malay Rulers want 1MDB
issue settled soonest’, Astroawani, 6
October 2015, http://english.astroawani.com/malaysia-news/malay-rulers-want-1mdb-issue-settled-soonest-75540
(accessed 16 April 2017).
[40] ‘Zaid:
Only royalty can push for reforms’, Free Malaysia Today, 9 May 2016, http://www.freemalaysiatoday.com/category/nation/2016/05/09/zaid-only-royalty-can-push-for-reforms/
(accessed 16 April 2017).
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