Monarchy 3.0: The Survival of Tradition in the Modern Malaysian ‘Eastminster’

by Andrew Harding*

It is interesting that in Europe we do not notice and sometimes hardly even know whether a given state embodies constitutional monarchy. We know that Denmark does not behave significantly differently from Austria by virtue of having a monarchy rather than a presidential republic. On the other hand it is noticeable that in the Arab spring of 2010 several presidents were toppled - but not a single monarch. Monarchies seem to survive (anachronistically perhaps) simply by close adaptation to new circumstances. I believe this is indeed largely true in Malaysia, although as we will see the adaptation of monarchy resembles neither the Arab nor the European example. Indeed it reflects an appeal both to modern values of good governance and multiculturalism and to Malay traditions of royal power. Hence the ‘3.0’ in the title, which is intended to convey the latest of three stages: pre-colonial sovereignty; colonial (Westminster) constitutionalism; and a melding of the two under what I will argue, tracking Harshan Kumarasingham, is a contemporary Malaysian ‘Eastminster’.[1]

During the 21^st century we have witnessed a revival in the Malaysian monarchy system[2] under the influence of what I call ‘Nazrinian’ monarchy after its leading light, Sultan Nazrin Shah of Perak,[3] and also a variant of Nazrinism which we find in Johor. The latter is the subject of a case-study later in this paper. This idea of monarchy sees the traditional Rulers as enlightened and exemplary; serving a community defined by multiculturalism; Heads of Islam and protectors of the Malays; and not necessarily limited by constitutional texts or Westminster-style conventions.[4] This is despite the fact that an examination of the Malaysian Federal Constitution and the various Malaysian state constitutions would appear to confirm that all we see is a monarchy system defined by these Westminster conventions. Indeed, Schedule 8 of the Federal Constitution actually requires the state constitutions to conform to the Westminster pattern in terms of conventions such as the obligation to act on executive advice and assent to bills passed by the legislature.[5] In practice, however, we will see in this paper a monarchy system that is more ‘Eastminster’ than ‘Westminster’. This I will explain in more detail in the balance of the paper. Having in a previous paper[6] explained the emergence of a modern ‘Nazrinian’ monarchy I propose here to enlarge on the even more interesting, indeed colourful, example of Johor and its Ruler, Sultan Ibrahim Ismail. Later in the paper we will look at some recent examples of the emergence of the Malaysian Eastminster in relation to constitutional conventions.

This paper therefore examines the changing nature and role of Malaysia’s monarchy system and its continuing constitutional relevance. This traditional institution has survived centuries of challenges: constitutional interference with the Rulers’ powers during the colonial period and during decolonisation; then again in the late 20^th century via constitutional amendments restricting the Rulers’ powers and privileges; the increasing intensity of party politics, especially after 2000; and the advent of intrusive news media intent on finding scandal around every corner. On Nietzsche’s principle that that which does not destroy something makes it stronger, it looks as though this institution will be around for a long time to come. It has not since independence in 1957 seemed to be so buoyant with potential and self-confidence as at the present time. The broader interest of what I have to convey is that constitutional text cannot entirely capture an institution of this kind; tradition continues to speak with resonance and relevance, even as the institution experiments with new issues and new forms of messaging.

The paper will proceed to discuss the significance of the newly-defined monarchy in terms of recent controversial instances (I will focus on those occurring in Johor, but there have been many in other states too, as we will also see later) where the constitutional limits of this new monarchy have been established or tested. It will also attempt to provide insight into why this has occurred and how it is significant in terms of contemporary constitutionalism in Malaysia in light of the contending elements of democracy, ethnicity, and religion.[7]

Historical Background

Some factual background is necessary in order to follow the later sections of the paper.

Malaysia has no less than nine functioning monarchies (or ten if one includes its unique, rotating, federal monarchy),[8] or more than a fifth of those still extant across the world. These monarchies date back at least to the splintering of the Malacca Empire in the early 16^th century.[9] During the British intervention in Malaya (1875-1957) they were preserved under the system of indirect rule, in which the Rulers were responsible for religion and Malay custom but had to follow British ‘advice’ on all other matters.[10] The ambiguous constitutional position of the Rulers may be seen already even in that brief statement. Johor was a late entrant to this system in 1910, and stressed its independence at every opportunity.[11] This was indeed recognised in the Court of Appeal in London in 1896 in a case in which Sultan Abu Bakar, ancestor of the present Sultan, being sued for breach of promise of marriage, successfully claimed sovereign immunity.[12]

In 1946 the British government planned to abolish the Rulers’ powers as a means of creating a unitary state, viewed as necessary to accomplish independence. A concerted rebellion against this plan (referred to as the Malayan Union) resulted in its abandonment in favour of a federal arrangement (the Federation of Malaya 1948) that retained the monarchy system.[13] This Federation was the entity that achieved independence in 1957; a new Federation was created in 1963 to include Sarawak, which had been under the so-called ‘White Rajahs’ for more than a century before a brief period as a Crown colony (1946-63), and Sabah, which had been under the rule of the North Borneo Company before also becoming a Crown colony.[14] The Yang di-Pertuan Agong, or Supreme Head of the Federation, holds office for five years, following which there is an election in which the Rulers choose one of their number (normally by rotation) to succeed, and a regent is appointed at the state level.[15]

The Federation of Malaya became independent in 1957 under a Westminster-style constitution drafted by Commonwealth jurists.[16] Amongst other constitutional functions, the Rulers[17] are the Heads of Islam in their States.[18] 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, royal, and religious traditions. It embodied Westminster-type constitutional conventions and parliamentary democracy, but also embraced constitutional supremacy, federalism, and a constitutional bill of rights.

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. The monarchies survived because the states could not be abolished to create a unitary structure; and the states survived because the monarchies could not be abolished. The condition of having a Raja (kerajaan) has always been an aspect of Malay governance traditions,[19] and it is for most Malays even now unimaginable that the monarchies would ever be abolished. As we will see, far from being in danger of abolition, monarchy is a flourishing and even developing concept.[20] In Johor, for example, the local culture’s very identity depends to a large extent on the monarchy: signs bearing the motto ‘Daulat Tuanku’ (‘Long Live His Majesty’), are in evidence everywhere, as is the state flag. Johoreans (those born in Johor) are given precedence in public housing projects to an extent greater than some other states.[21] As we will see, this sense of a special Johor identity is both deeply historical and keenly maintained.

The Rulers were compelled to accept constitutional amendments in 1984 and 1994 clarifying that the royal assent was not discretionary, removing the Rulers’ immunity from suit, and expressly requiring them to act on executive advice.[22] As against a monarchy under threat during the 1980s and 1990s, the new ‘Nazrinian’ monarchy marked a revival of the monarchy post-2003. ‘Nazrinian’ is a term that I have coined after the name of the Sultan of Perak, Sultan Nazrin Shah, a prime mover in this project of revived monarchy, along with Tunku Zain Al-abidin Muhriz, a Prince of Negri Sembilan. Over the last 15 years or so, as Raja Muda (Crown Prince) and then Sultan of Perak, Nazrin Shah and other royals have sought to establish a new and expanded role for this ancient institution.[23]

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 and contradict the Westminster conventions to some extent. Historically, the Rulers are identified with both of these strands of constitutionalism. However, Westminster dyarchy[24] has not always proceeded smoothly in Malaysia and the assertion of increased royal power grates, as it did before the constitutional amendments, against the power of elected politicians.[25] 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 amongst many Commonwealth states and precedents in constitutional law. But as a form of what is essentially customary public law, these conventions are not always easily transplanted, and they will inevitably acquire localised understandings and precedents even if the Westminster model is understood as the governing concept, which of course it may not be in an ‘Eastminster’ state.[26] The federal and state constitutions follow closely Westminster-style terminology. But when it comes to interpretation or significance of the text we increasingly see that ‘Eastminster’, more accurately than ‘Westminster’, describes the lived constitutional experience of contemporary Malaysia. Indeed as we will see in one recent instance, that of Selangor in 2014, the conventions clearly operated in a wholly different way from the edicts of the Westminster model.[27]

Sovereigns and Sovereignty: The Constitution’s ‘Black Fire’

Benjamin L Berger in a useful article refers to the ‘black fire’ of the constitution and its ‘white fire’. The black fire represents the text and the white fire represents the ideas that inform the understanding of the text. Both written and unwritten elements of the constitution are important in any given instance, even if the relationship between the two may vary.[28]

The Federal Constitution of 1957, which was preceded by the formal assent and blessing of the Rulers,[29] appeared to place the matter of their sovereignty beyond doubt. Article 181(1) 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’.[30] 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.

By securing these provisions, the Rulers had rescued their constitutional position from virtual abolition in 1946 to constitutional entrenchment in 1957. Nonetheless, they are clearly constitutional heads of state, and the constitutional system has sometimes seen a struggle between Westminster norms on the one hand, and the traditional status and powers of the Rulers as guaranteed (or perceived as being guaranteed) in Article 181(1).

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.[31] 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: these are the Westminster conventions enacted as written constitutional law. Parliament can, if necessary, amend a 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 yet 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.[32]

The executive powers of the Yang di-Pertuan Agong are set out expressly in the Federal Constitution.[33] 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.[34] 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 last pieces of constitutional background that need mentioning here are those that arose during 1983-94, when the monarchy system was under attack by the executive power during Dr Mahathir Mohamad’s tenure as Prime Minister. This resulted in amendments to the provisions on the royal assent in 1984 that effectively ensured that, at the federal level at least, the assent became a pure formality and its refusal could be overridden by Parliament. In 1993 further amendments removed the Rulers’ immunity from legal suit and instituted a special court to deal with cases involving them.[35] A 1994 amendment also required the Rulers to accept executive advice. These measures were controversial at the time, and are still resented among some royals.[36]

White Fire and the Nazrinian Renaissance

Since the end of Dr Mahathir’s tenure as Prime Minister in 2003 the Rulers have 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 some outrageous royal actions in the past, which included in one or two cases actual violence used against their subjects. This development may be attributable to the existence of the Special Court[37] 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 proposition. Sultan Ibrahim on the other hand has mainly relied on Johor’s constitutional traditions to legitimise a distinctly anti-federal and anti-Westminster stance. For him Eastminster is alive and well in his state as it always has been.[38] In what seems a continuing battle of ‘princes v politicians’,[39] whereas it used to be 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.[40]

The ironic result of public anger concerning the Rulers’ and their families’ behaviour in the past, and the constitutional amendments that forced them onto the narrow path of constitutional convention, has been to improve their behaviour and image beyond recognition. This development has increased not just their standing and influence, but even, as we will see, their constitutional power, at least as a matter of everyday practice and royal perception. 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,[41] the trend has seen 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 over-fulfil – the ideal of the Ruler as the meritorious and neutral guardian of the constitution and justice.

Kobkua Suwannathat-Pian[42] 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.

Sultan Nazrin at a conference on ‘Royal Revival’ at Putrajaya in August 2017 described the Rulers’ role in these terms:

The King is not a monumental ornament – without life – without soul … everything that happens is in the vision and hearing of the King … it is a mistake to think that the role of a constitutional monarch is just like a President, limited to what is written in the constitution. The role of the constitutional monarch is beyond what is contained in the constitution.[43]

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.[44] In an incident in December 2017 the Sultan of Johor severely criticised a Muslim launderette owner who excluded non-Muslims from using his launderette; this stance – to considerable public applause - was backed by a statement of all the Rulers emphasising multi-culturalism and opposition to extremism in religion.[45]

The New Monarchy: Sultan Ibrahim and ‘The Order’

How far can this Nazrinian monarchy be extended? How easily can it sit with the Federal Constitution and the institutions and assumptions of a parliamentary democracy? There are many examples from various states where the Ruler has asserted power going beyond the texts of the federal and state constitutions and the expectation of those imbued with Westminster constitutionalism.[46] In this paper, however, in order to test the effect of the new monarchy I examine some recent events in the state of Johor, where we can see monarchy taking a particular form of Nazrinism that is somewhat distinct from the ‘Nazrinism’ evident in Perak. We could even call it ‘Johorism’.

Johor is and always has been the state of Malaysia proudest of its identity and traditions, and the least amenable to toeing the federal line. In the colonial era, ‘Johor … had a reputation for modern and efficient administration, multi-ethnic subjects, and a significant degree of autonomy’.[47]

The present Ruler, Sultan Ibrahim Ismail, enjoys a large presence on the public stage. He is the proud owner of a collection of 300 cars, and a Boeing 737 which he purchased in 2016. Also in 2016 he purchased an aeroplane for the Johor soccer team, which is owned by the Tunku Mahkota Johor (the Crown Prince, or ‘TMJ’), who is as vocal as his father in maintaining the dignity and uniqueness of Johor. In the same year the Sultan purchased one of the world’s most expensive trucks, ‘outfitted with a six-camera CCTV system, two flat-screen televisions, a kitchen as well as a bed and seats with 72,000 stiches of gold thread’.[48] Sultan Ibrahim is not a man to do things by halves.

His vehicles and aeroplanes may anticipate but they do not of course define his constitutional position. In this respect the Johor royal family has tilted against the constitutional restraints imposed by the Federal and State Constitutions. The Sultan and the TMJ have also made policy interventions that would be unthinkable in a strictly Westminster system, and are ambitious even in Malaysia’s Eastminster.

In another instance, which involved an instructive difference of opinion between a federal minister and the TMJ, the minister appeared to back down when criticised for disrespecting the Prince in his remarks over the Prince’s criticism of the Prime Minister concerning the ‘1MDB’ affair. During this brief spat, in which the minister was attempting to defend the Prime Minister, one of the Johor princes, the Tunku Temenggong, uploaded on Instagram a picture of a page from what purported Johor’s Agreement to join the Federation adding that if the Federation breached any of its provisions Johor would secede from the Federation.[49] The TMJ also organised a public show of support for this position.

The royals also make frequent reference, as they did in the above instance, to the ‘Bangsa Johor’. This is a concept worth examining a little further. The word bangsa translates as ‘nation’ in English, although it retains some ambiguity: one could translate it as ‘race’ rather than nation. The English word nation itself carries similar ambiguity, being derived from the same root as ‘native’ and ‘natal’. This ambiguity can be turned to advantage. The word bangsa carries both ethnic undertones going far beyond the mere fact of having one’s own Ruler and state government; at the same time it identifies all the people within the state as part of a nation (Johor has and has had for about 200 years substantial numbers of non-Malays, especially Chinese).[50] Given that Johor has always been more multi-ethnic than other states in Malaya, and that the Sultan and the TMJ have repeatedly made statements in support of multi-culturalism and against racism, the use of ‘Bangsa Johor’ is a usage that gains much support amongst Johor people of all kinds. It is clearly meant by them in the multi-cultural rather than the ethnic sense. A recent survey by the Institute of Southeast Asian Studies/ Yusof Ishak Institute showed that three quarters of Johoreans wish the Sultan to intervene in politics when necessary.[51]

One might of course ask what defines the ‘Bangsa Johor’. Citizenship attaches to the Federation not to individual states, so that one cannot find any legal essence in the term ‘Bangsa Johor’. The nearest thing to that would be the rule that enables the state government to offer public housing by preference to those who are born in Johor. Other states do not have such a policy; and one might therefore reasonably conclude that their policy is more ‘federal’ in nature than that of Johor.

Policy issues generally have indeed attracted royal attention; these include education, housing, public health and amenity, and religion. In January 2018 he intervened when the state government demolished a Hindu temple, ensuring the temple’s rebuilding in a new location and providing his own funding for this to be done.[52] One issue, relating to Johor’s Real Property and Housing Board Enactment 2014, became highly controversial and turned out in an interestingly ambiguous manner that sheds light on our inquiry into the new monarchy.

Land is a function guaranteed to states under Schedule 9 of the Federal Constitution. The Bill as originally tabled in Johor’s State Legislative Assembly was to create a new executive agency to oversee land and housing development in Johor, which has both rapid development and issues with basic housing provision. The idea was for the former to subsidise the latter. The Sultan was given powers in the Bill to appoint Board members, dissolve the Board, and oversee its accounts. Nothing was said in the Bill about the Ruler acting on the advice of the state government.

The Bill provoked a hostile response across a broad band of the political spectrum. UMNO politicians on the government side objected to this expansive role for the Ruler; so did opposition members and the Bar Council. The objections were based squarely on Westminster principles: the Ruler would be exposed politically by exercising such personal discretion, and Johor’s Chief Minister was criticised for allowing the Bill to be tabled in such form.[53]

The state government back-pedalled to the extent that the Ruler’s powers were in effect removed from the Bill completely, in that although he would be able to appoint four members of the Board, he would only be able to do so acting on the advice of the state government.

This of course is classic Westminster, and if we paused at this point we would have to say that Westminster principles prevailed as envisaged by Schedule 8 of the Federal Constitution. However, this was not the end of the story. Sultan Ibrahim apparently conceded the position, adding that he would not interfere in government issues.[54] But he also added that he would not be able to assent to the Bill unless the political leaders went round the state to explain its provisions to the people of Johor. In relation to the royal assent, note that everything that was discussed above on this issue applies to the royal assent at the federal level, but it has no application at the state level, where the matter is left to convention rather than written constitutional law.

The implication of Sultan Ibrahim in the instance under discussion was that removing the Rulers’ powers vis-à-vis the original Bill would be something the bangsa would find difficult to understand. The Bill was duly passed as amended in June 2014. About a year later the Sultan, who had not by then granted his assent to the Bill, stated that it should be reviewed, because it had been ‘amended through pressure from outsiders who were narrow minded … and do not understand power of the Ruler in Johor’s State Constitution’.[55] There is no evidence that any such review has taken place; equally the Sultan has not actually assented to the Bill, which remains in a kind of constitutional limbo. At the state level as opposed to the federal level, a measure that does not receive the royal assent is not deemed to come into effect by operation of law where the assent is not forthcoming.[56] This position goes back to the 1984 crisis where the Rulers indicated, as part of a constitutional deal to resolve the issue and get the amendment passed, that they would observe the convention governing royal assent at the state level. They appeared to be sufficiently chastened by the behaviour of some of their number in regularly failing to assent to state bills that they would in future not act in such a manner.

The conditions attaching to Johor’s membership of the federation include its power to maintain its own armed forces, which the Federal Government previously attempted, and failed, to abolish.[57] Following this, the Sultan himself repeatedly made political statements inconsistent with what one would expect under Westminster government. 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.[58] These statements appeared to enjoy widespread support in Johor, which continues to sport, somewhat pointedly, thousands of Johor flags in public places where Malaysian flags seem pointedly few or even totally absent.

On other issues Sultan Ibrahim has been vocal in stating purely policy positions, but in most cases he has some legitimacy based on history or on his actual constitutional powers. For example as Head of Islam he adopted the Islamic week in 2013, making Friday instead of Sunday a day of rest.[59] This caused lack of coordination of activity with the private sector, which being largely controlled by non-Muslims tended to ignore the dispensation as a matter of commercial practice. He has also made pronouncements against ‘Arabisation’ of the Malays; against deviant Islamic teachings; in favour of the use of English in the education system; and in favour of improved communications with Singapore. He and his wife the Sultanah have pointedly attended non-Muslim festivals such as the Hindu Thaipusam and Chinese Chingay processions, emphasising that Johor is multicultural and not extremist in Islamic belief. He also called for the banning of ‘vape’ shops on grounds of public health, and the government immediately acted on this call, as if acting on the advice of the Ruler rather than the Ruler acting on their advice. He called for increased size and use of the state’s armed force; this was not acted upon. This force is the only one existing at the state level and the guarantee of its existence was one of the issues discussed above regarding Johor’s status within the Federation. The Sultan has also been very active in property development, joining forces with Chinese concerns to create an enormous Forest City project in the strait between Johor and Singapore. Most significantly, perhaps, he has called for repeal of the constitutional amendments affecting the monarchy that were enacted during Dr Mahathir’s time.

This all leads to the question, what actually is the theory of sovereignty to which Sultan Ibrahim cleaves? What is the ideology of the Johorean variant of Nazrinism? Fortunately Sultan Ibrahim has set out in a blog posting his perspective on the role of the Rulers and Malaysian history, which reflects, but is also somewhat different from, Nazrinian monarchy, and very different from that which is assumed by federal politicians and many constitutional experts. It is worth quoting in extenso:[60]

Johor will never allow the role of the sovereign to be diminished to a mere “rubber stamp” … Johor Will Always Be Johor. With everything that is happening in this country today, it seems that it's time to show the powers instilled in the state of Johor.

 The plan to install the 'order' had started since 1893 when Sultan Abu Bakar introduced this brainchild of his at the World Fair, held in Chicago. The history of the creation of the state legislative assembly in Johor was a modernisation phenomenon for the state of Johor and was triggered by my ancestor, Sultan Abu Bakar in 1868 … Johor's state constitution 1895 marked the beginning of the constitutional monarchy system. This constitution has been amended several times, but the legislative powers still fall under the state assembly and … [are] subjected to the consent of the sovereign.

In the Federal Constitution and each state's constitution, the legislative assembly is made up of two main components. They are the Agong and the house of Parliament for the federal and the sovereign and state assembly for the state … With this, it would be unwise should the powers of the Agong or sovereign be limited or eliminated entirely when it comes to analysing and permitting any legislation.

With the implementation of these limits and elimination of powers, the role of the Agong and sovereign will be diminished to a mere "rubber stamp" when granting the royal seal on the legislations [sic] that has been passed by the Parliament or the state assembly.[61] Know that this is already occurring in the federal level as well as in a handful of other states, but this will not occur in Johor. Back then, the Malays were united in opposing the Malayan Union when the powers of the Rulers were diminished and [they] were forced to accept a British adviser.

Now, however, the Malay political parties are the ones who have imposed these limitations on the powers of the Agong in considering any legislation presented to them and even worse, forcing the Agong to accept and act according to any advice given by the cabinet.[62] … [By] amendments made to Articles 40(1A) and 66(4A) of the Federal Constitution [it] was amended by the Malaysian Parliament. With this, Act 885 which took effect on June 26, 1994, successfully stripped the Agong of his powers … All of this for their political and personal gains. Johor has a mission. The mission is to restore the 'order'.

From this one concludes that the mission to ‘restore the order’ is a mission to restore the constitutional order as it was in earlier times (i.e. after the enactment of Johor’s Constitution in 1895, where the Ruler exercises real power, not acting merely as a constitutional figurehead). This, the Sultan believes, is in line with the historic traditions of his state, and when he refers to Johor’s ‘sovereignty’, he clearly envisages a return to this original, pre-independence, or at least pre-amendment, constitutional arrangement – ‘the order’. One notes that returning to ‘the order’ would be in effect a rejection of post-independence, in favour of colonial, constitutionalism, rather than a return to pre-colonial constitutionalism. This seems remarkable, but presumably the royal house of Johor sees the glory days of Johor as being those in which the Sultan’s ancestors were able to befriend Queen Victoria, or drive Prince George, the future King George V, to the races in Singapore. These Rulers saw themselves as modern monarchs, acting as the very equal of others, even those of the colonial power. The English Court of Appeal, no less, affirmed as much in Mighell v Sultan of Johor in 1896.[63] At the same time it may be noted that there was at that time also a notion of portraying the Johor royal house as having Islamic credentials.[64]

State Government Formation and the Limits of Royal Powers

We now turn to look more widely at problems in the operation of constitutional conventions with regard to the Rulers’ role in government formation (and survival) at the state level. These problems have been perennially a problem in Malaysia, even if not in Johor, and more so since the 2008 elections. These elections, which broke the dominance of UMNO and the ruling BN coalition, taking Malaysia towards a two-party state, seem to have given impetus to Nazrinian monarchy by presenting a sharper competition for votes between rival coalitions. In Terengganu, for example, a constitutional crisis erupted when the Ruler rejected the BN’s sitting candidate for the position of Menteri Besar (Chief Minister), 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 backed down, and the palace’s candidate for Menteri Besar survived. In this instance, and a similar one in Perlis, 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.[65]

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. It 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 (MB) to be Malay. The Ruler is, however, empowered, in his discretion, to override any provisions in the State Constitution restricting his choice of MB 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 MB by appointing the leader of the party with most seats, which would have meant appointing a Chinese MB, 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.

As explained at the outset, the Constitution of Perak, along with those of 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 MB’s dismissal.

In a 59-member Assembly, the PR held 31 seats, while the BN held 28 seats. In February 2009, three PR Assemblymen apparently announced their resignations from the assembly, leaving the assembly apparently deadlocked at 28-28; the three assemblymen then switched sides to the BN. The MB, Nizar, approached the Ruler to request 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 31 assemblymen and satisfied himself that they (including the three defectors) supported the BN leader, Dato’ Zambry Abdul Kadir as the MB. 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 MB 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 MB of Perak. The courts had to decide whether the Ruler had power in effect to dismiss the MB 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.[66] 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.[67] The outcome was that the courts read into the Constitution a power to declare the office of MB 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 Westminster 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.[68] 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 political competition continues to heighten.

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 and prolonged ‘1MDB’ crisis it has even been suggested that the Yang di-Pertuan Agong could simply dismiss the Prime Minister for cause as opposed to for ceasing to enjoy the confidence of the legislature.[69] Nonetheless, the Federal Court’s decision carries legitimacy within the monarchy system when viewed from a Nazrinian perspective. Eastminster it is, in spite of strenuous objections by lawyers and opposition politicians.

Further incidents give some support to those concerned as to 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.[70] 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 MB. 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. He was not in favour of Anwar’s wife, Wan Azizah, becoming MB. The selected candidate was then endorsed by the state assembly. In effect the state constitution was put into reverse gear: the assembly had appointed the member of the assembly whom it was satisfied enjoyed the confidence of the Ruler.[71] On other occasions the Sultan of Selangor has made statements concerning the party-political situation in his state.[72]

These instances 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. This royal intervention has been intelligently pursued so as to encourage the belief, despite the Nizar case, by opposition as well as government politicians, that it is a useful device. 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 only in extremis.

Royal Arbitration

My final example is one that adds to the picture of the new monarchy in an area that is not related to constitutional conventions, but is nonetheless important. There is a growing notion that the Rulers can engage in arbitration of contested issues. The example comes from Selangor, and the facts were as follows.

In 2011 state religious department (JAIS) enforcement officers raided the Damansara Utama Methodist Church (DUMC), where a dinner was being held that included 12 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.[73] The Sultan of Selangor (it will be recalled that the Rulers are heads of Islam in their states) issued a statement which appeared to reduce tension over the incident, but raised questions as to the legal rights involved, the interpretation of the law, and the appropriate policy with regard to policing the issue of religious propagation. This is what he said:

For the JAIS issue, after consulting the legal department and religious authorities, I called for no court case to avoid the matter getting dragged on for years without closure. Whatever the judge decides, one party will not be happy. So, I advised the Christians to be sensitive, you follow your religion and similarly we do the same with ours. To JAIS, I told them to strictly adhere to procedures and conduct themselves in the right manner. For such situations in the future, I advised them to engage retired police officers with expertise in people skills. We should respect each other's religion. Do not interfere. You pray your way, I pray mine. I am sure God will know.[74]

As the Head of Islam in Selangor, it is my wish that politics be kept out of mosques. Many have complained to me about sermons in some mosques. For the first four or five minutes, the talk is about religion, but after that it veers into politics. I have suggested that those who want to gather, go ahead and do it at the stadium. Then, during prayer time, put aside differences and go pray as brothers and sisters in the mosque. But no, they still insist on holding ceramah [political meetings] in mosques. They also want to go to stadiums to gather and later, pray there as well. I feel sad. The stadium is a place for concerts and sports, it is not suitable for prayers. I believe very much that politics and religion cannot mix. Among Muslims, it creates a split. Among other religions, even worse, it can cause clashes.[75]

This statement raised questions as to the role of the Rulers in dealing with reli­gious disputes. The 12 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 is 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 assumption 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? Dr Abdul Aziz Bari (an academic expert on Malaysian monarchy) suggested that the Ruler had been ‘wrongly advised’ on this matter; he was 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; Bari later received a death threat.[76] He subsequently resigned his university position and went into politics with the opposition.[77] The investigation of Bari did not proceed to prosecution.

The Ruler’s attempt to arbitrate this controversy was partially successful in that both sides to the dispute were reprimanded and the problem itself did not escalate beyond his intervention, being in essence diverted into an issue of possible sedition. It was also however partially unsuccessful, for although both sides were rebuffed, a sense prevailed that an injustice had somehow been condoned. As one with a vested interest, could the Ruler really arbitrate such an issue with any finality? In most other cases involving religious controversy, it must be said, the courts, not the Rulers, have – rightly or wrongly - been the place to resolve the problem.[78] Perhaps, nonetheless, Rulers can successfully anticipate controversy, as we have seen with Sultan Ibrahim’s pointed visits to non-Muslim festivals in Johor.

This incident seems quite typical of the way in which such conflictual issues are dealt with in Malaysian society: the problem on the ground is handled pragmatically; the underlying issues remain unresolved; the controversy moves to something else or somewhere else.

Analysis and Conclusion

This paper has attempted 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, in a conceptually fraught and ideologically challenged 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, in De Gaulle’s famous expression – 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 and its Johorean variant.

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 positively approve of the development; but it does seem that there is a consensus around general acquiescence. 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 such politics 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 adverse reaction to the Perak crisis shows. On the other hand in Johor there appears to be no real dissent from the legitimacy of ‘the order’ in that state. Currently, not just liberal politicians and civil-society groups but the public at large seems actually favourable to the idea of the Rulers stepping in to resolve the impasse over issues such as the ‘1MDB’ scandal and the laundrette discrimination.[79] This might be explained by the failure of other mechanisms rather than the acceptance of royal solutions as such. One obvious point here is that the Rulers enjoy in effect complete freedom of speech. They cannot in practice, due to their status, be held personally liable in regard to constitutional matters (the Nizar case was brought against Zambry under quo warranto, not the Ruler who dismissed him); nor for sedition; nor for civil defamation. On the other hand those who criticise a Ruler are very much exposed to liability on sedition charges for what is in effect lese majeste.[80] For example, in December there occurred a conflict between Dr Mahathir and the Sultan of Selangor over allegedly insulting references to the Bugis community, which were a thinly-veiled reference to Prime Minister Najib, whom Mahathir has been attempting to topple. The Sultan (himself of Bugis descent) took exception to his remarks; Mahathir and his wife then returned to the Selangor palace the honours they had received in earlier years from the Sultan. An opposition politician, lawyer Zaid Ibrahim, advised the Sultan to be careful with his words; this in turn was responded to by a division chief of the ruling party calling for action to be taken against Zaid Ibrahim for insulting the Sultan, and burning and sledge-hammering his effigy at a party assembly. The division chief’s actions and words were taken as a threat of violence against Zaid, and he was briefly arrested. No action was taken against Zaid or Mahathir, or ultimately against the division chief.[81] Zaid’s intervention was similar to Aziz Bari’s, discussed above. In another case, that of opposition politician and lawyer Karpal Singh, Karpal was convicted of sedition after criticising the same Ruler. Thus verbal conflicts between politicians are turned into instances of what it is in effect lese majeste, classified as sedition under Malaysian law.[82] Sedition has been used in the past to protect policy on ‘sensitive issues’ from being criticised; more often now it is used to protect the Rulers.[83] In a further conflict between Dr Mahathir (author of the constitutional amendments disliked by the Sultan of Johor especially) the latter accused the former of ‘playing politics of fear and race’ when he criticised Chinese investment in Johor.[84]

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?

Perhaps an answer can be offered along the following lines.

Since 2008 politics has become increasingly fraught. Elections are increasingly a visceral contest, unlike during the period of BN dominance (1957-2008). The 1MDB scandal has exposed the constitutional system as woefully unable to deal with the issues as one avenue after another has been blocked by the use of effectively absolute powers by the Prime Minister. Malaysia faces a heady mix of growing religious intolerance, corruption on an unimaginable scale, and complex, fractious party/ coalition politics. The Rulers have managed to occupy a moral high ground amidst of this mayhem, and are looked to as figures of authority and continuity. They are naturally ambitious to preserve and even increase their constitutional powers, as we have seen, an ambition they consider, moreover, to be in the public interest. 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 Houses of Perak and Johor, to establish a new (or revived) role for an old institution. The BN, mired in corruption, mismanagement and failed attempts at reform, is no longer widely seen as a protector of the Malays, a role ascribed to them by Chandra Muzaffar in 1979.[85] This role of protector, Chandra Muzaffar reminds us, was taken over from the Rulers by the ruling party UMNO and the BN; now that role appears in some ways to be reverting to the Rulers. Where other institutions such as Parliament and the Malaysian Anti-Corruption Commission have proved ineffective, set aside by the executive branch as accountability mechanisms, the Rulers can speak with authority, legitimacy, and protection from the consequences.

Constitutionally-sanctioned mechanisms (the judiciary and the process of law, elections, political and parliamentary process) should of course be the real protector of the people in a constitutional state. When the guards fail to perform their constitutional duty, however, who guards the guards? The default answer in Malaysia seems to be that the Rulers have assumed this role. Whether they succeed in sustaining it over the longer term is a large question, but the position which I advance here 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, the culture and tradition represented by the monarchy are seen as ensuring that political accountability and the law take their course. And yet we also see that this is a potentially dangerous development if the Rulers’ revived powers are not exercised with the greatest care.

As a constitutional law scholar I feel bound to shake my head and point to egregious breaches of the Westminster-model constitution. As a law-and-society scholar I feel obliged to point out what a good example it is of culture trumping law. As a comparative law scholar I feel more inclined to see if what I have described is evidence of something more general. Of these three I could happily save up the first and last positions for another occasion. The second seems to me of slightly greater interest. If revived and expanded royal power is somehow legitimated, one might well ask why, and also whether, changes in society might as easily de-legitimate this power. As we have seen, the Rulers have been turned to in extremis, the BN having failed to deal with the current issues. But we may notice one important difference from earlier times: the Rulers no longer seem to merely represent Malay monarchic traditions. Even as they reply on the weight of Malay tradition they present themselves as Rulers for all Malaysians not as protectors only of the Malays; and this despite being also heads of Islam. Sultan Ibrahim of Johor and Sultan Nazrin of Perak in particular have clearly conceived themselves as multi-cultural symbols (or more than symbols), not just as Malay/ Muslim kings. For the future much will depend on how the Rulers perform their role individually and collectively, and how astute they are in judging public reactions to their performance.

If and when the political class itself can revive its reputation they will presumably have to be ready to revert from Eastminster to some kind of Westminster. By then it may not be possible

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* Professor of Law, National University of Singapore. The author wishes to express deep thanks to Wilson Tay Tze Vern for his close attention to the details of this piece, as well as his suggestions and corrections.

[1] H Kumarasingham,  ‘Eastminster – Decolonisation and state-building in British Asia’, in H Kumarasingham (ed), Constitution-Making in Asia – Decolonisation and State-Building in the Aftermath of the British Empire (London, Routledge, 2016).

[2] HP Lee, Constitutional Conflicts in Malaysia (2^nd ed, Oxford, Oxford University Press, 2017), ch.4.

[3] A Harding, ‘Nazrinian monarchy in Malaysia: The resilience and revival of a traditional institution’, ch.4 of A Harding and Dian AH Shah (ed), Law and Society in Malaysia: Pluralism, Ethnicity and Religion (Abingdon, Routledge, 2017). For Sultan Nazrin’s ideas in his own words, see Nazrin Shah, HRH Raja, Monarchy in Contemporary Malaysia (Singapore, ISEAS, 2004).

[4] At a conference on ‘Royal Revival’ at Putrajaya in August 2017, Sultan Nazrin made it clear that the powers and role of the Rulers are not limited by the text of the constitution, see Utusan Malaysia, 5 August 2017, <http://www.utusan.com.my/rencana/utama/institusi-beraja-satukan-warga-1.511510#ixzz4p16V8qS6> (in Malay, accessed 7 February 2018). See, further, D Amoroso, Traditionalism and the Ascendancy of the Malay Ruling Class in Malaya (Singapore, NUS Press, 2014).

[5] Federal Constitution of Malaysia, Schedule 8, paras. 1-2.

[6] Harding, above n.3.

[7] A Harding, ‘The keris, the crescent and the blind goddess: The state, Islam, and the constitution in Malaysia’ 6 Singapore Journal of International and Comparative Law 154 (2002).

[8] A Harding, The Constitution of Malaysia: A Contextual Analysis (Oxford, Hart Publishing, 2012), ch.5.

[9] R Winstedt, ‘Malacca’s century of Malay rule’, ch.4 of R Winstedt, Malaya and its History (7^th ed, London, Hutchinson, 1966).

[10] KG Tregonning, A History of Modern Malaya (London, Eastern Universities Press, 1964), 148ff.

[11] Ibid., at 138ff.

[12] Mighell v Sultan of Johore, Law Reports [1894] 1 QB 149.

[13] Mohamed Noordin Sopiee, From Malayan Union to Singapore Separation: Political Unification in the Malaysian Region 1945-65 (Kuala Lumpur, University of Malaya Press), 1974).

[14] JP Ongkili, Nation-Building in Malaysia, 1946-74 (Singapore, Oxford University Press, 1985).

[15] Federal Constitution, Schedule 8, para. 1A.

[16] J Fernando, The Making of the Malayan Constitution (Kuala Lumpur, MBRAS, 2002).

[17] 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’.

[18] Federal Constitution, Art.3(2).

[19] A Milner, Kerajaan: Malay Political Culture on the Eve of Colonial Rule (Tucson, University of Arizona Press, 1982), 9ff.

[20] K Suwannathat-Pian, Palace, Political Party and Power: A Story of the Socio-Political Development of Malay Kingship (Singapore, NUS Press, 2011); AC Milner, Malaysian Monarchy and the Bonding of the Nation (Bangi, Penerbit UKM, 2011).

[21] See the Johor government’s housing website at  <http://erumah.johor.gov.my/ePerumahan/home/hmSyaratPermohonan.htm> (accessed 9 February 2018).  In March 2017 a royal-funded housing scheme was announced with favourable terms, only open to Johor residents and described as being ‘for the bangsa Johor’: ‘Johoreans can now buy a house with only RM1 as deposit’, Says Malaysia, 21 March 2017, <http://says.com/my/news/rm1-deposit-and-affordable-housing-scheme-to-mark-johor-sultan-s-birthday-celebration>  (accessed 8 February 2017).

[22] HP Lee, ‘The Malaysian constitutional crisis: King, Rulers and royal assent’, 3 Lawasia (NS) 22 (1984); A Harding, The Constitution of Malaysia: A Contextual Analysis (Oxford, Hart Publishing, 2012), 116-122; S Barraclough, and P Arudsothy, The 1983 Malaysian Constitutional Crisis: Two Views and Selected Documents (Brisbane: Griffith University, 1985); HP Lee, above n2, ch.2

[23] Milner (above n.20) expresses disagreement with Suwannathat-Pian (above n.20), saying that the Rulers always exercised broad powers. My own view is that it is a matter of chronology. The monarchy is revived as against the position in the 1990s, but undoubtedly it is the very intention of some (see the discussion of Johor below) to achieve not an innovation but a return to the era of royal power. One might add that revolution is often wrapped up as a return to older ways.

[24] A Harding, ‘The “Westminster model” constitution overseas: Transplantation, adaptation and development in Commonwealth states’, 4 Oxford University Commonwealth Law Journal 143 (2004).

[25] AJ Stockwell, ‘Princes and politicians: The constitutional crisis in Malaysia 1983-4’, ch.11 of  DA Low (ed), Constitutional Heads and Political Crises (London, Palgrave Macmillan, 1988).

[26] AJ Harding, ‘Turbulence in the land below the wind: Sabah's constitutional crisis of 1984/5' XXIX Journal of Commonwealth and Comparative Politics 86 (1991).

[27] See below.

[28] BL Berger, ‘White fire: Structural indeterminacy, constitutional design and the constitution behind the text’ (2008) 3 Journal of Comparative Law 249.

[29] Known as the Wasiat Raja-Raja Melayu  (Declaration of the Malay Rulers), 5 August 1957.

[30] For discussion of the scope of prerogative powers in Malaysia see RH Hickling, ‘The prerogative in Malaysia’ [1975] 17 Malaya Law Review 207; contrast AJ Harding, ‘Monarchy and the prerogative in Malaysia’ (1986) 28 Malaya Law Review 345.

[31] For discussion, see HRH Raja Azlan Shah, ‘The role of constitutional rulers in Malaysia’, ch.5 of FA Trindade and HP Lee (eds), The Constitution of Malaysia: Further Perspectives and Developments (Kuala Lumpur, Oxford University Press, 1986); FA Trindade, ‘The constitutional position of the Yang di-Pertuan Agong’, ch.5 of Tun Suffian, HP Lee and FA Trindade (eds), The Constitution of Malaysia: Its Development, 1957-1977 (Kuala Lumpur, OUP, 1978); HP Lee, ‘Constitutional heads and judicial intervention’, ch.1 of Wu Min Aun (ed), Public Law in Contemporary Malaysia (Petaling Jaya, Longman, 1999).

[32] Stephen Kalong Ningkan v Government of Malaysia [1968] 2 Malayan Law Journal 238, in which the Privy Council upheld this use of emergency powers.

[33] RH Hickling, ‘Malaysia’, ch.8 of D Butler and DA Low (eds), Sovereigns and Surrogates: Constitutional Heads of State in the Commonwealth (London, Macmillan, 1991).

[34] Constitution (Amendment) Act 1994.

[35] M Gillen, ‘The Malay Rulers’ loss of immunity’ 29 University of British Columbia Law Review 163 (1995); AJ Harding, ‘Sovereigns immune? The Malaysian monarchy crisis’ 327 The Round Table 305 (1993).

[36] See the Sultan of Johor’s views on this recorded below.

[37] HP Lee, ‘Malaysian royalty and the Special Court’, ch.15 of A Harding and P Nicholson (ed), New Courts in Asia (Abingdon, Routledge, 2010).

[38] For the Sultan’s theory of Johor sovereignty, see below.

[39] Stockwell, above n.25.

[40] Suwannathat-Pian, above n.20, 339-44.

[41] ‘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).

[42] Above n20, 383.

[43] Utusan Malaysia, 5 August 2017 (my own translation from Malay); see further ‘Sultan Nazrin: Malay rulers protect people against usurpation’, The Sun Daily, 5 August 2017, http://www.thesundaily.my/news/2017/08/06/sultan-nazrin-malay-rulers-protect-people-against-usurpation (accessed 27 February 2018).

[44] ‘Husam urges Rulers to order 1MDB audit be made public’, Malaysiakini, 8 July 2016, <https://www.malaysiakini.com/news/347925> (accessed 16 April 2017).

[45] ‘Rulers back Johor and Perlis stance against Muslim-only launderettes’, The Malaysian Insight, 10 October 2017, <https://www.themalaysianinsight.com/s/17978/>  (accessed 9 February 2018).

[46] Harding, above n.2.

[47] FE Hutchinson and VP Nair, ‘The Johor sultanate: Rise or re-emergence?’, 16 Trends in Asia (Singapore, ISEAS-Yusof Ishak Institute, 2016, 4.

[48] Ibid.

[49] ‘Younger brother of Johor Crown Prince causes stir with Instagram post on secession’, Straits Times, Singapore, 15 July 2015, <http://www.straitstimes.com/asia/se-asia/younger-brother-of-johor-crown-prince-causes-stir-with-instagram-post-on-secession>  (accessed 25 February 2018). The post was later removed. It is not clear what document the Prince was posting, but it is clear that no provisions such as those referred to are in force. The alleged guarantees involved are in any case not actually in question. They involve Islam being the religion of the state; state control over water and land; and the maintenance of the state’s armed forces (a small ceremonial force of 200). There is no power in any relevant document, especially the Federal Constitution, for Johor or any other state to secede from the Federation.

[50] For Johor’s ethnic demography, see <https://www.citypopulation.de/php/malaysia-admin.php?adm1id=01> (accessed 27 February 2018). This shows Malays at 58.9%, Chinese at 33.6%, and others at 7.5%.

[51] ISEAS, Johor Survey 2017: Views on Identity, Education and the Johor Royal Family, at <https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2017_84.pdf> (accessed 8 February 2018).

[52] ‘Johor Sultan steps in after controversial demolition of Hindu temple’,  New Straits Times, 21 January 2018, <https://www.nst.com.my/news/nation/2018/01/327413/johor-sultan-steps-after-controversial-demolition-hindu-temple> (accessed 9 February 2018).

[53]‘Johor to amend housing bill, Sultan to act on MB’s advice’, The Malaysian Bar, 9 June 2014, at  <http://www.malaysianbar.org.my/legal/general_news/johor_to_amend_housing_bill_sultan_to_act_on_mbs_advice.html> (accessed 9 February 2018).

[54] This statement does not seem to apply to other government issues, however. In February 2017 the Ruler raised the issue of late-night motorcycle racing by ‘mat rempit’ (Malay motorcycle racers) in the state capital, Johor Bahru, which he pointed out was dangerous and disturbing the peace. The police accordingly renewed action against the mat rempit: ‘Sultan Johor: Stop mat rempit races in front of hospital’, The Star, 5 February 2018, at <https://www.thestar.com.my/news/nation/2018/02/03/sultan-johor-stop-mat-rempit-races-in-front-of-hospital/> (accessed 9 February 2018).

[55] One measure of the Ruler’s popularity is that when he was criticised for spending more than 0.5m ringgit on a (not a car but its) number plate, a large crowd of 15-30,000 Johoreans turned out in a pledge of loyalty to the Ruler: Hutchinson and Nair, above n.45, at 17.

[56] Ibid., at 22.

[57] Gillen, above n35, at p181, n111..

[58] ‘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).

[59] This is applied to state functions such as education, but the private sector seems to behave as though the Islamic week is an irrelevance. The inconsistency causes issues, notably with family life; children are at home on Friday when parents are usually working if they are in the private sector, and at school on Sunday when such parents are at home. In this matter, as with the issue of the vape shops discussed above, the Ruler appeared to make the announcement without acting on government advice.

[60] ‘Malay leaders used to defend powers of monarchy, not any more’, Malaysiakini, 7 May 2016, at <https://www.malaysiakini.com/news/340662> (accessed 9 February 2018).

[61] In view of the Constitution (Amendment) Act 1993, this assertion takes the law a step beyond that in other Westminster systems, and is fair comment.

[62] This too is a correct statement in view of the Constitution (Amendment) Act 1994.

[63] Mighell v Sultan of Johore, Law Reports [1894] 1 QB 149.

[64] Iza R Hussein, The Politics of Islamic Law: Local Elites, Colonial Authority and the Making of the Muslim State (Chicago, University of Chicago Press, 2016), ch.4.

[65] Suwannathat-Pian, above n.20, at 388-90.

[66] A Quay (ed), Perak: State of Crisis (Kuala Lumpur, Loyarburok, 2010).

[67] 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, above n.66.

[68] Stephen Kalong Ningkan v Tun Haji Openg and Tawi Sli [1966] 2 Malayan Law Journal 187 (High Court, Sabah and Sarawak).

[69] W Teoh, ‘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).

[70] ‘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).

[71] ‘Azmin to be appointed Selangor MB’, Malay Mail Online, 22 September 2014 <http://www.themalaymailonline.com/malaysia/article/azmin-to-be-appointed-selangor-mb> (accessed 9 February 2018).

[72] ‘Selangor Sultan: Khalid was “so loyal” as MB’, Free Malaysia Today, 17 December 2017, at <http://www.freemalaysiatoday.com/category/nation/2017/12/10/selangor-sultan-khalid-was-so-so-loyal-as-mb/> (accessed 9 February 2018).

[73] For this episode, see Harding, above n3, at 83.

[75] CW Wong, ‘Conversations with the Sultan of Selangor’, at <http://wongchunwai.com/2011/12/conversations-with-the-sultan-of-selangor/> (accessed 9 February 2018).                                                            

[76] ‘Aziz Bari Receives Bullet, Death Threat’, The Malaysian Insider, 24 October 2011, at <www.themalaysianinsider.com/litee/malaysia/article/aziz-bari-receives-bullet-death-threat/> (accessed 9 February 2018).

[77] ‘Aziz Bari offers himself as Pakatan candidate for polls’, The Malaysian Insider, 30 December 2011, <http://www.themalaysianinsider.com/malaysia/article/aziz-bari-offers-himself-as-pakatan-candidate-for-polls> (accessed 27 February 2018).

[78] Dian AH Shah, ‘Religion, conversions and custody: Battles in the Malaysian appellate courts’, ch.7 of A Harding and Shah, above n.3. See also the landmark case of Indira Gandhi a/p Mutto v Pengarah Jabatan Agama Islam Perak and Ors, Civil Appeal No 01(f)-17-6/2016(A) (Federal Court of Malaysia), summarised in ‘Simplified: The Federal Court’s round-breaking Indira Gandhi judgment’, The Malay Mail Online, 1 February 2018, at <http://www.themalaymailonline.com/malaysia/article/simplified-the-federal-courts-groundbreaking-indira-gandhi-judgment> (accessed 9 February 2018).

[79] ‘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).

[80] 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 lèse majesté  law to be enacted, despite the very broad scope of the Sedition Act: N Farrelly, ‘Lèse majesté for Malaysia?’, New Mandala, 10 March 2009, at <http://www.newmandala.org/lese-majeste-for-malaysia/> (accessed 16 April 2017).

[81] ‘Jamal Yunos out on police bail’, The Star, 11 December 2017, at <https://www.thestar.com.my/news/nation/2017/12/11/jamal-yunos-out-on-police-bail/> (accessed 9 February 2018).

[82] Above, n.77.

[83] A Harding, ‘The Rukunegara amendments of 1971’, ch.8 of A Harding and HP Lee (ed), Constitutional Landmarks in Malaysia: The First 50 years 1957-2007 (Kuala Lumpur, LexisNexis, 2007).

[84] ‘Johor Ruler slams Dr M over Chinese investment comments’, The Star, 16 January 2017, at <https://www.thestar.com.my/news/nation/2017/01/16/political-spin-angers-sultan-johor-ruler-slams-dr-m-over-chinese-investment-comments/> (accessed 9 February 2018).

[85] C Muzaffar, Protector? An Analysis of the Concept and Practice of Loyalty in Leader-Led Relationships within Malay Society (Penang, Aliran, 1979).