‘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 21^st 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 50^th 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 20^th 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 21^st 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.

[3]    For historical framing of this issue, see Chapter 1 by Kevin Tan.

[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 50^th anniversary of the Federation of Malaya and the Constitution, as opposed to the 50^th anniversary of Malaysia itself, which fell on 19 September 2013.

[10]   See the discussion of the Perak case, below.

[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.

[15]   Stephen Kalong Ningkan v Government of Malaysia [1968] 2 Malayan Law Journal 238, PC.

[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).

[31]   See above, n.23.

[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).