By Tunku Naquiyuddin Tuanku Ja'afar.
(Published in The Edge Daily of December 02, 2008)
People have often been mesmerised by royalty, kings and queens, princes and princesses. It's because royalty is often placed on a pedestal and has to set a regal and exemplary way of life. In the Middle Ages, many of the ancient kings were tribal chiefs leading their hordes into battle and defending their territories. Reverence for these kings and rulers became such that for a period, kings were associated with "Divine Right". Indeed, some of them really believed they had divine powers as per King Ethelred the Unready, who believed he could stop the waves from pounding the shores. And he got thoroughly soaked trying to prove it.
Over time, these kings had different names to reflect the political or territorial set-up they represented. From the Caesars of the Roman Empire to the Tsars of Russia, Emperors of the Austro-Hungarian Empire, Kings and Queens of various countries in Europe, Emirs, Shahs and Sultans - they all have one common trait. They are all hereditary and sovereign rulers.
Of course the extent and measure of their political power was always tested through time. In England, there were regular conflicts between the king and Parliament, with Parliament trying to curb the king's demands and the king conversely either trying to curtail Parliament's powers or win favour from Parliament for his policies and plans. At one point, Charles I lost his head literally when his opposition to Oliver Cromwell's Commonwealth and parliamentary rule became a major point of contention.
As political systems matured, the extent of the kings' powers was often determined by political evolution. This fine-tuning of power often arose through a mix of rhetoric, confrontation, mitigation and conciliation. It was a mark of political maturity that many monarchical systems have evolved into what is termed today as constitutional monarchy. However, at times when there was great dissatisfaction, it was revolution that determined the outcome. Most famous of these was the French Revolution in 1789 when subsequently, Louis XVI was beheaded. Other well-known revolutions include the massacre of the Tsar and his family in 1917, the execution of Emperor Haile Selassie and the ouster of the King of Greece.
However, most monarchies have evolved peacefully. As parliamentary democracy took hold, constitutional monarchy evolved to give official sanction to Acts of Parliament, to participate in ceremonial duties, to receive heads of states and to act as head of the country's main religions. While many monarchs have taken to their duties with great pomp and ceremony, there have also been those who have taken a more political role. Recently, the King of Nepal lost his throne after declaring a state of emergency and suspending Parliament for too long a period. This infuriated the populace and parliamentarians alike who eventually voted him out.
In Malaysia, our system evolved through negotiations with the British government prior to independence to establish a parliamentary system and rotational system of monarchy. Although the British had earlier advocated and formed the Malayan Union on April 1, 1946, which in effect abolished the sovereignty of the Malay rulers, this however was duly shelved after much protest from the rulers and Umno.
This struggle against the Malayan Union was the battle cry of Umno in uniting the country and safeguarding the interests of the rulers.
Despite this short-lived bid to undermine the sovereignty of the Malay rulers in 1946, the British were in fact largely responsible for the nurturing and development of the Malay rulers into a structured and revered institution. In the 19th century, from the signing of the Pangkor Engagement in January 1874, the British protected the rulers' sovereignty, respecting them as the highest authority. The Raja was King to all intents and purposes and his "kerajaan" was bolstered by sound British administrative practices. Palaces were built by the British administrators, royals and courtiers were educated, and British-style ceremonies were introduced, like birthday parades, which are still largely practised today. Perhaps the legacy of a proper administrative machinery is probably the best that the British can be remembered for.
A little historical note you may be interested to know is that my great-great-grandfather, Yam Tuan Antah, actually objected to the appointment of the first British Resident in Negeri Sembilan in 1875. A brief battle ensued and he was in exile for about two years until the British Governor General in Singapore recommended to Queen Victoria that he be reinstated. This was the last battle fought against the British in Malaya by a Malay ruler and certainly reflects the fact that Malay rulers were proud of their sovereignty and were prepared to defend the rights of the kingdom and its people.
In modern Malaysia, constitutional monarchy is one of four basic governmental structures of the Constitution; the other three being the executive, the judiciary and the legislature. As a constitutional monarchy, it is important that each is independent and one of the roles is to ensure that politicians respect these institutions. One of the underlying assumptions of this doctrine of separation of powers is to prevent absolute power. As we know, absolute power corrupts absolutely. It is vitally important, for example, that the judiciary is independent of political considerations. For most investors, this independence is the ultimate test that will decide whether or not a country is safe to invest in. The appointment of judges is clearly within the purview of the Yang di-Pertuan Agong. Recently, the appointments of the new Chief Justice, President of Appeals Court and Chief Judge Malaya were unanimously confirmed by the rulers at their 215th meeting having taken into consideration all aspects of the respective judges' service and career after consultation with the prime minister and Conference of Rulers. But the prime minister himself must also consult the heads of the respective courts before tendering his advice. So in this way, the independence of the judiciary is supposedly maintained.
You will recall that in 1983 and again in 1993, there was a confrontation with the rulers in respect of the proposal by Tun Mahathir Mohamad to curb the royal assent on legislation in Parliament and the indemnity of rulers respectively.
In respect of the event in 1983, what eventually was resolved was that the Agong was given 30 days to assent to a Bill. If the Agong were to refuse to give his assent to the Bill, this legislation would be returned to Parliament for further debate (incorporating the Agong's objections) and if passed a second time and after another 30-day period would automatically become law. My observation is that this amendment actually gave the Agong a say in the legislative process as the Agong could include his reasons for consideration. It is interesting to note though that up to this time, there has never been any attempt by the Agong to withhold such consent. So, this amendment of the Constitution, effected in a rather confrontational way, was in retrospect really not necessary after all.
In regard to the 1993 amendment, the removal of immunity of the ruler is a more serious matter as Malaysia is probably the only monarchy in the world without such immunity.
Following this 1993 amendment, it was provided that legal suits against the rulers were subject to permission of the Attorney-General. A special court was to be provided to hear such cases. Finally, the Conference of Rulers could nominate two out of five judges for the special court. It is regrettable that no procedures have been written for the special court and instead of being "in camera", members of the press and the public are allowed to witness the proceedings. It is quite lamentable that procedures for the special court have not really been properly drawn up befitting proper respect for the ruler.
This loss of immunity is perhaps the single biggest setback for the institution of rulers. Sovereignty and immunity have always been symbiotic. It really becomes nonsensical that a sovereign ruler can be taken to court for trying to protect the best interests of the nation and the people. He must also be protected at all costs from pecuniary embarrassment so that his sovereignty is not tarnished or undermined. (To put it another way, can we afford to have a ruler incarcerated or even made a bankrupt?) As the highest authority in the land, it is incumbent upon the administration to protect the ruler's integrity and dignity so that the throne is respected without question.
It appears that the overall effect of the abolition of immunity and the setting up of the special court is indeed quite revolutionary. With no more immunity, rulers can be sued by ordinary citizens and even by the state. If convicted, they could be imprisoned. And if they are imprisoned for more than one day, they automatically lose their throne. Previously, rulers relied very much on Article 71 of the Constitution in that the federation shall guarantee the right of the ruler "to hold, enjoy and exercise the constitutional rights and privileges of a ruler of the state". It appears now that this guarantee is flawed for without immunity, this guarantee cannot be effected.
Ironically, we now have a situation in the country where judges are immune in exercising their judicial functions but rulers are not. Judges are fully protected from both civil and criminal processes in the course of their judicial functions.
Let us now look at recent events which have actually given the Malaysian monarchy an opportunity to come to the fore in the wake of the March 8 general election. The electorate expressed its displeasure with the ruling government, resulting in the opposition taking control in five states and leaving the federal capital monopolised by the opposition. Even in Negeri Sembilan, Barisan Nasional's majority in the state assembly was by a mere three representatives. A close shave by any standards.
This decimation of Barisan Nasional that had ruled since 1957 was a reflection of the deep dissatisfaction of the rakyat in respect of many issues. I shall not endeavour to go through these issues to avoid misrepresentation. Even rulers have to be discretionary at times.
However, what we saw in Kedah, Perlis, Perak, Penang, Selangor and Terengganu was the rulers (and in the case of Penang, the governor) exercising their right under the Constitution to appoint the menteri besar or chief minister. In Kedah, the menteri besar is a member of PAS as PAS is the majority party. In Perak, the Sultan decided to appoint a member from PAS as menteri besar even though PKR was the major party. We are not privy to the reasons given for the selection. I understand that the menteri besar of Perak is a qualified engineer and was perhaps regarded as better qualified for the position. Whatever the reason, it is the ruler who decided under the discretion given him in the state constitution. In Perlis, the ruler actually used the occasion to stand firm to express the rakyat's dissatisfaction. Despite the prime minister's public support for the incumbent, the ruler decided to appoint a new menteri besar. Similarly in Terengganu, the new menteri besar-elect was fully endorsed by the ruler against the recommendation of the prime minister who again supported the incumbent menteri besar.
These two incidents, which took place over a period of 8 and 19 days respectively, saw the whole country gasping at the political ramifications and the forthrightness of the ruler to put his foot down. Never had a prime minister withdrawn his candidacy in the face of a vociferous ruler. In fact, on March 23, Prime Minister Datuk Seri Abdullah Ahmad Badawi actually called the appointment "unconstitutional". However, an audience with the Agong on March 25 paved the way for Barisan Nasional to fully endorse Datuk Ahmad Said as Terengganu menteri besar. In Selangor, it was a totally new experience to see an opposition member being appointed menteri besar by the Sultan. Being so close to Kuala Lumpur, Malaysians were generally pleased that the changeover went smoothly. This is a vivid example of a mature democratic action.
It is heartening to note that these issues were resolved amicably and in a magnanimous manner. Instead of a prolonged confrontation, the Terengganu selection was settled immediately after the royal audience. The winners are the rakyat who are able to get on with their lives in peace; the political leaders who can proceed with the business of the state; and the businessmen who can continue to churn the economy without the uncertainty which a political stalemate can create.
In all these instances, we see the respective ruler exerting his power during times of change. By sensing the need for change, the rulers have exercised their role to appoint new faces. In the past, when Barisan Nasional governments were in the clear majority, the rulers were often just endorsing and obliging the recommendations of the prime minister. In this instance, the ruler has actually taken stock of the situation. Some of the appointments were surely based on the feedback of the rakyat, that change was necessary and a new face in politics was the order of the day.
If you really analyse the situation, that the ruler is supposed to act upon the advice of the prime minister, then one can sense that the action of the ruler is really quite courageous, bold and almost confrontational. However, a ruler is also a personage who has a keen sense of what the rakyat wants. Every day, there is a constant flow of citizens who "mengadap" the ruler to convey their feelings about politicians, the government and more mundane matters. This closeness of the ruler to the rakyat is quite unique, unlike the aloofness of royalty in some other countries. It is the continuation of the centuries-old tradition of the ruler holding court and listening to the plight of the rakyat and offering remedies for the situation. This closeness to the rakyat, and being apolitical, gives the ruler an honest and accurate view of the situation. The ruler also thinks for the long term and what is good for the nation. Quite often, politicians look only to the next election.
We have seen rulers having to appoint menteris besar in various states. Perhaps one day, the Agong may have to select a prime minister if no one group has a majority in Parliament. Article 40(2)(a) provides for the procedures and appointment of prime minister by the Agong using his discretion. This means he is not bound by the wishes or advice of an outgoing prime minister. However, there are certain constraints and conventions which guide him in performing this role. For example, if a party has absolute majority in Parliament, the King has no choice but to appoint its leader as prime minister. But if a general election leads to a "hung" Parliament, the King may exercise his discretion to choose a person likely to command the confidence of Parliament. Thus, the Agong's ability to exercise discretion in his selection and a need to be politically impartial are very important attributes in his capacity as head of state.
During the Conference of Rulers in October this year, the rulers came up with a press statement regarding the need to respect the Social Contract that had been established to protect the rights of the Malays and the other races as enshrined in the Federal Constitution. It emphasised the constitutional role of the ruler to safeguard the special position of the Malays, Islam as the official religion, the Malay language and the rights of other races in Malaysia. Although already enshrined in the Federal Constitution, it is a timely reminder to one and all, but particularly politicians, to recognise the wisdom of those who drafted the Federal Constitution. This statement was certainly well received and most political parties, from Barisan Nasional to the opposition, came out in full support of the Social Contract. It was a unifying gesture during a tumultuous political period which had seen racial and religious issues being raised, demonstrations taking place, and politicians and NGOs pelting each other with dishonourable verbiage.
More recently, certain rulers have also come out with timely reminders regarding peace and harmony and respect for the Constitution. We are advised that any amendment of the clauses pertaining to the Malay rulers and their jurisdiction over Islam, the national language and the special position of the Malays and bumiputeras in Sabah and Sarawak must first get their consent.
The Raja Muda of Perak also recently advised that rulers should not agree if advice was given by government leaders that went against the spirit of the Constitution, rule of law and universal principles of justice.
Several other rulers have also come out with various pieces of advice. The Sultan of Selangor is well known for his drive for a clean and efficient administration. Corruption at all levels has been condemned, environmental degradation has been brought to the attention of the authorities. Racial unity is quite often a rallying cry. There are also many speeches which go unreported.
It is heartening to know that nearly all the ruling families have their specific yayasan or foundations. May of these cater for education for the underprivileged, destitute families, homes and orphanages. In Negeri Sembilan, the three foundations of Tuanku Ja'afar Educational Trust, Tuanku Najihar Foundation and Yayasan Tunku Naquiyuddin combined to fund a project to improve English in rural schools, recognising that in rural schools, teachers need to be taught the methodology of teaching English properly in an interactive way rather than the old-fashioned "rote" method.
Even in sport, royal families have come to the fore. Sport such as football, hockey, squash, cricket and golf have been headed by royalty. The Sultan of Pahang has been president of the Asian Football Confederation and Tunku Imran (my brother) was president of World Squash for seven years. Even today, he is a member of the International Olympic Committee.
As head of the Islamic religion, rulers are duly consulted on most occasions. Recently, I read about the National Fatwa Council coming out with fatwa on tomboys and yoga. I am not at all certain that any member of royalty has been consulted on these issues and if not, I would certainly encourage the council to do so. By their upbringing, rulers are also educated, well travelled and well informed. It would be in the interest of Islam Hadhari, the moderate form of Islam that the government is propagating, that the ruler is fully involved in giving his opinion so that we can avoid the extremist tendencies that we see happening in other Islamic countries. Islam is a progressive religion and the ulama should be confident of the followers' faith rather than micro-managing their way of life.
Let me summarise the role of constitutional monarchy in Malaysia. As we proceed towards a more contentious and polemical political world, there will have to be increasingly more royal pronouncements. The ruler is like a referee or arbitrator having to come out with appropriate judicious statements at crucial times. The ruler should thus, at all times, have the best advisers, academics and philosophers so as to give him guidance during these critical periods.
Inevitably, the ruler has to assert himself in the political process while trying his best to be apolitical. If Malaysia in the future is to see a much more vibrant scenario of opposing political forces, then we can envisage the Malay ruler playing a more crucial and assertive role to ensure that peace and harmony prevails and that the laws as provided for under the Constitution are adhered to by all parties. If political parties see themselves as representatives of the people, then the rulers see themselves as guardians of the Constitution.
This leads me to the last point I would like to make regarding Malaysian constitutional monarchy. If the ruler were to exercise his duties in a fair, just and impartial manner in protecting the Constitution, his sovereignty needs to be duly protected too. Thus, full immunity from civil and criminal proceedings should be reconsidered so that he is on a par with other constitutional monarchs around the world.
As I said, it is ironic that judges are immune in the performance of their judicial functions but rulers are not.
Royal immunity has been lost for 15 years. It needs to be reclaimed and reinstated so that the constitutional monarchy can be restored its full sovereignty so as to play a more fitting and effective role in the 21st century as guardian of the Federal Constitution, so that the endeavour to safeguard the interests of all communities, to promote peace, prosperity, economic security and good governance can surely be fulfilled.
Tunku Naquiyuddin Tuanku Ja'afar is the Regent of Negeri Sembilan. He delivered his paper titled "Constitutional Monarchy in 21st Century Malaysia" at a conference in Kuala Lumpur on Nov 26, 2008.