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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