The Malays Rulers’ loss of immunity

 

In light of what happened in Perak recently and against the backdrop of the pro-Monarchy and anti-Monarchy demonstrations and the impending police investigation into the 200 or so police reports made against the opposition with regards to the allegation of sedition against the Sultan of Perak, it is timely we recap on what happened in 1983 and 1993.

THE CORRIDORS OF POWER

Professor Mark R. Gillen

Background

From its inception in 1957, the Constitution of Malaysia has provided an immunity to the Malay Rulers (or Sultans) against civil actions or criminal prosecutions. Early in 1993, the Constitution of Malaysia was amended to remove this immunity. Although the federal Constitution of Malaysia and the constitutions of the states of Malaysia leave the Rulers as mere constitutional monarchs, they have wielded considerable influence due, in part, to the traditional reverence of the Malay people for their Rulers.

The ability of the Government to bring about these constitutional amendments is noteworthy in light of the traditional reverence Malay people have for the Malay Rulers. The apparent public support for the changes suggests a shift in traditional Malay cultural values that appears to have irrevocably reduced the significance of the Malay Rulers in Malay society and in the politics of Malaysia.

The 1983 Constitutional Crisis

In 1983, the government proposed amendments to the Constitution, which for the first time brought the Rulers openly into conflict with the government and with UMNO, the party that had claimed to be the protectors of the Rulers since the time of the Malayan Union struggle. The proposed amendments altered the provisions with respect to the King's assent to bills deeming the King to have assented to any bill, which the King had not given his assent to within fifteen days. A similar amendment would have been required in each of the state constitutions.

The proposed amendments would also have provided for a change in the power to declare an emergency. The emergency powers give broad powers, upon the declaration of an emergency, to promulgate ordinances having the force of law at any time Parliament is not sitting. Prior to the proposed amendment it was the King, upon satisfaction that a grave emergency existed, who had the power to declare an emergency. The King was to act on the advice of cabinet. The proposed amendment would have given the Prime Minister the power to instruct the King to declare an emergency.

The amendments were apparently considered necessary because of an upcoming election for King in which the two potential candidates for the Kingship, following the order set out in the Third Schedule to the Federal Constitution, were Rulers who had caused problems for their respective state governments. It had been reported that one of the candidates for the Kingship had suggested that on becoming King he would exercise the power to declare an emergency and then seek to exercise governmental powers him self. Further, each of these Rulers had taken exception to the ten Chief Ministers of their states and had taken steps that ultimately led to the resignation of the Chief Ministers. Of particular concern was the forced resignation of a Chief Minister after two years of refusals by the Ruler to give assent to state legislation. The proposed amendments were sought to avoid any similar problems, which either of the two candidates for the Kingship might cause for the federal government upon becoming King.

The King, at the behest of the Conference of Rulers, refused to give his assent to the amendment bill. This was followed by political rallies by the Prime Minister and a media blitz which portrayed UMNO as the protector of the Rulers against radicals seeking the abolition of the monarchy and which exposed the allegedly extravagant lifestyles of the Rulers of the states of Perak and Johor. Eventually a solution acceptable to both the government and the Rulers was found. The final amended version of the Constitution provided that the King, within 30 days of the passing of a bill by both houses, would either give his assent to the bill or, if it was not a money bill, return the bill to Parliament with a statement of reasons for his objection to the bill.

If, on the return of a bill, the bill was again passed by both Houses it would again be presented to the King for his assent and the King would have 30 more days to assent to the bill after which time the bill would become law "in like manner as if [the King] had assented to it". The requirement for similar provisions to be adopted in state constitutions was dropped in return for an oral assurance that assent to bills passed by state legislatures would not be unreasonably delayed by the state Rulers. The amendments with respect to emergency powers were withdrawn. The compromise also included oral assurances that the Rulers of the states would not unreasonably withhold assent to state legislation and that the proclamation of an emergency would not be exercised unilaterally by the King.

The ability of the government to mount sufficient public support for a change to the assent provisions that would more clearly limit the powers of the King and, at least through an oral assurance, the powers of the Rulers, indicated a change in Malay society with respect to the importance of the Rulers. It suggested a decreasing importance of the Rulers as a symbol of, and in the protection of, Malay political supremacy. Nonetheless, there appeared to be sufficient public support for the Rulers to allow them to prevent a more substantial incursion into their powers.

UMNO's Justification for the Amendments and Opposition to the Amendments

UMNO's justification for the amendments was that they were necessary to protect the Rulers and preserve the institution of the Rulers as constitutional monarchs. In response to claims that the amendments represented the first step towards the creation of a republic, UMNO pointed to the amendments on sedition, which continued to make persons liable for statements in Parliament or a Legislative assembly advocating the abolition of the monarchy. Otherwise, amendments to the provisions on sedition were said to be necessary because although abuses by Rulers were known of in the past, little could be done because no one could voice criticisms of the Rulers even in Parliament or the State Legislatures and thus the public could not be made aware of the problems faced by the Government.

Semangat 46, an opposition party that was formed upon the break up of the former UMNO party, opposed the amendments, taking arguably the strongest pro-royalty stance of any party. While it agreed that some steps needed to be taken so that the Rulers could "hear the grievances of the Rakyat", it claimed that the proposed amendments interfered with the sovereignty of the Rulers and were a step towards the formation of a republic. They argued that the ultimate removal of the Rulers would take away an important aspect of Malay culture and tradition and a symbol of Malay unity.

The Democratic Action Party (DAP), a primarily Chinese opposition party, which is part of an opposition coalition with Semangat 46, originally supported the government in December when it expressed the need for action to be taken in light of the Gomez incident. It also initially supported the amendments. However, it abstained from voting when the amendments were introduced in Parliament in January. The reason they gave for the abstention was that the Constitution required the consent of the Rulers to amendments affecting their privileges and such consent had yet to be given. According to DAP, the consent was required before the amendments could be introduced in Parliament. DAP was accused of sacrificing its principles in favour of preserving their opposition coalition with Semangat 46.

The Islamic Party of Malaysia (PAS), a Malay pro-Islamic party and part of the opposition coalition, supported the government's call for action and the move to lift the Rulers' immunity in light of the Gomez incident but later abstained from voting on the amendments introduced in Parliament in January. Although it claimed to be in favour of the removal of the Rulers' immunity because it was not in accord with the principles of Islam, it said that the amendments were not "comprehensive enough" and that it did not like the manner in which the wrongdoings of the Rulers were exposed in the House. PAS was arguably in a difficult position in that it may have wanted to avoid alienating the Kelantan royal family whose support could be influential in staying in power in the state of Kelantan.

The Rulers' Compromise

The decision of the Conference of Rulers not to consent to the proposed changes to the Constitution was followed by stepped-up pressure on the Rulers. It was announced that henceforth the payment for the expenses of the Rulers would be limited to those that were expressly provided for by the law. The government would no longer pay for the building and maintenance of rest houses, additional palaces, private wards in hospitals, yachts and aircraft. The refusal of the Rulers to give their consent to the proposed amendments was followed by a barrage of media coverage exposing alleged excesses of the Rulers. There were also further reports of influence by the Rulers in government affairs.

Eventually, on February 11, it was announced that a compromise had been reached and that the Rulers agreed to give their consent to the proposed amendments but with certain changes that were agreed to. There were two changes to the amendments tabled in the House on January 18. One was that a Ruler charged with an offence in the Special Court should cease to exercise his functions as a Ruler. Pending the decision of the Special Court a Regent would be appointed to exercise the functions of the Ruler. A Ruler convicted of an offence by the Special Court and sentenced to imprisonment for more than one day would cease to be the Ruler of the State unless he received a pardon.

A similar provision was added with respect to the King. The other change was that no action, civil or criminal, could be instituted against the King or a Ruler of a State with respect to anything done or omitted to be done in his personal capacity without the consent of the Attorney General. Overall, the modifications appeared to be relatively minor. The revised amendments were submitted to Parliament and were passed by both Houses on March 9, 1993.

Cultural Change and the Struggle for Power The Struggle for Power

The government argued that the amendments to the Constitution in response to the Gomez incident, by removing the immunity of the Rulers, were a step towards increased democracy in Malaysia. Viewed in their broader context, the amendments were part of an inevitable struggle for power between the executive branch of government and the Rulers. The removal of the Rulers' immunity does not, on the face of it, directly increase executive powers. However, the focus, in the midst of the amendment debate, on the alleged orders given by Rulers to government officials, pressure put on government officials to obtain government contracts and timber concessions, alleged extravagant expenses, and alleged interference in government affairs suggests there was more to the whole affair than just the removal of the Rulers' immunity.

In part, the allegations were made to put pressure on the Rulers to consent to the removal of their immunity. However, the exposure of these alleged extravagances put the Government in a position to crack down on the influence of the Rulers. The removal of the Rulers' immunity, and the apparent public support, may put the Government in a better position to leave the Rulers to pay for unbudgetted expenditures presented to state and federal governments after they have been incurred. The Rulers can now be sued for those expenses. Many of the alleged actions of the Rulers through which they exerted influence may now be the subject of legal proceedings before the Special Court. The form, which the removal of immunity ultimately took, also appears to give the executive additional leverage over the Rulers. Three of the five judges of the Special Court are the Lord President and the Chief Justices of the High Courts who are appointed at the behest of the Prime Minister.

The proceedings, civil or criminal, can only be undertaken with the consent of the Attorney General, and, in the context of criminal proceedings, expose a Ruler to the potential loss of his position as Ruler. This seems to give the government a significant tool for bringing an unwieldy Ruler into line. Indeed, as Raja Aziz Addruse, a lawyer and editor of the Journal of the Malaysian Bar (and member of a royal family), has said, the amendments will arm the Executive with the power to subjugate the Rulers through threats of prosecution for any offences, however minor. The Rulers will be at the mercy of the Executive. … The power to prosecute is a powerful weapon, which, in the hands of the ruthless, can be abused to great advantage – not by prosecuting the alleged offender but by withholding prosecution in return for his cooperation.

Cultural Change and Why the Government Acted When it Did

Although the Gomez incident was the catalyst for the amendments, concerns about the influence and excesses of the Rulers had been raised in the past. At the UMNO generally assembly in November of 1990, a resolution was passed that sought to clarify the role of royalty in politics in light of alleged involvement of some of the Rulers in the October 1990 general election. In 1992, UMNO had drafted a set of guidelines for the Rulers to address some of the concerns. The Prime Minister also commented in his speech to Parliament on the introduction of the amendments that concerns about problems with the Rulers had been noted for quite some time. Thus, the Gomez incident was merely the opportunity the Government needed to muster political support to deal with the influence of the Rulers that had vexed the Government for some time.

The Government might have responded earlier to the increasing expense and influence of the Rulers and their interference in government. However, in the time between 1983-84 constitutional crisis and the 1993 constitutional amendments, the Mahathir government faced a serious leadership challenge in 1987 and a general election in 1990. The Mahathir government may have also felt the need for support from the Malay Rulers, particularly in the 1990 general election when they faced the challenge of Semangat 46, which claimed to be the champion of Malay causes and the true protector of Malay institutions such as the monarchy. Challenging the Rulers at that time would have risked the loss of Malay support crucial to any political coalition hoping to form the government.

By 1993, the position of the Mahathir government was more secure. The government coalition's dominant Malay political party was showing signs of increasing concern over the problems encountered with respect to the Rulers. They appear to have also felt the time was right for a challenge to the Rulers in light of even greater changes in the attitudes of Malays towards the Rulers than had been the case at the time of the 1983 constitutional crisis. In the 1983 constitutional crisis, the government had to accept substantially reduced constraints on the Rulers compared to those it had originally sought. Nonetheless, the government's success in amending the constitution to constrain the powers of the Rulers in 1983, modest though it may have been, had indicated that attitudes of some Malays towards the Rulers were changing.

The New Economic Policy (NEP) introduced in the early 1970s facilitated an increase in the number of highly educated Malays. Malays educated either overseas or in Malaysian Universities were exposed to Islamic principles or concepts of democracy neither of which squared with the notion of an un-elected Ruler with broad powers. In the ten years that passed after the 1983 constitutional crisis, the number of highly educated Malays increased. Thus, the change in the cultural attitudes of the Malays towards the Rulers apparent in the 1983 constitutional crisis had, if anything, become more pronounced.

The NEP had also encouraged the development of a Malay entrepreneurial class. This new class of successful Malay business persons may have felt less need for the privileges accorded Malays through the quota system and citizenship provisions the protection of which was vested in the Rulers by the Constitution. Their interests were also affected by the business interests of the Rulers and the influence of the Rulers in obtaining government contracts, licences and timber concessions.

The Malay entrepreneurial class, as well as the non-Malay entrepreneurs, may have felt their business potential was constrained by the competitive advantage Rulers and their royal families could obtain through their influence. Many Malays may have also come to the view that the real source of protection for their special rights and privileges, to the extent they still hold these dear, is not so much through the Rulers as it is through the leverage they hold in the political process. These changes in the cultural attitudes of Malays permitted a more substantial challenge to the position of the Rulers than had been possible in the past.

UMNO and the governing coalition appear to have sensed that the support of the Malay Rulers was no longer necessary to secure the support of the Malay population. For the Rulers the consequence of this change in the attitude of Malays is that the importance of the Malay Rulers for the Malay people and in Malaysian politics appears to have been substantially, and probably irrevocably, reduced.

Conclusion

The removal of the Rulers' immunity was a significant constitution al development in Malaysia. The move of the executive to rein in the influence and alleged excesses of the Rulers was brought about with apparent public support that is perhaps somewhat surprising given the historical reverence to the Malay Rulers and their importance as a symbol of Malay unity. The Government demonstrated a willingness to crack down on influence and extravagance, a step they would have been unwilling to take if it meant the loss of the precious support of the Malays.

Their ability to take the steps they did suggests a continuing change in the cultural attitude of the Malays to the Malay Rulers. The reduced degree of unquestioning reverence for the Malay Rulers and their symbolic significance appears to be more substantial than it was in 1983 given the relatively limited success of the Government in 1983 compared to 1993. The Malay Rulers had been exerting considerable influence in Malay society and politics in spite of the constitutional limits on their powers. However, the events of 1993 appear to have irrevocably reduced the significance of the Malay Rulers in Malay society and in the politics of Malaysia.

Professor Mark R. Gillen Faculty of Law University of Victoria, Victoria, BC Canada
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