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 21st 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 20th 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 16th
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 21st
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
* 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 (2nd
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).
[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 (7th ed, London, Hutchinson, 1966).
[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).
[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’.
[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).
[28] BL Berger, ‘White fire: Structural indeterminacy,
constitutional design and the constitution behind the text’ (2008) 3 Journal of Comparative Law 249.
[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).
[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).
[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).
[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).
[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).
[47] FE Hutchinson and VP Nair, ‘The Johor sultanate: Rise or
re-emergence?’, 16 Trends in Asia
(Singapore, ISEAS-Yusof Ishak Institute, 2016, 4.
[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.
[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.
[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.
[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).
[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).
[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).
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