Thursday, 27 November 2008

Constitutional (Amendment) Bill 1983, revisited

“Immunity is quite essential. Take the situation where we have a hung Parliament, the Ruler comes in to decide on a Prime Minister from one side of a political party and imagine if the other side of the political party opposes it and takes the Ruler to court”
- Tunku Naquiyuddin

Well, well, well - first it was TM Pahang who said this.
Now we have Tg. Naquiyuddin asking for "immunity". Is it simply because of this immunity that the Rulers aren't able to "perform their duties" in defending the Federal Constitution?
It escapes me, if the Rulers can be charged in court for carrying out their duties as per the Constitution. Here I was thinking that they are not immune from the law, only in their conduct in their personal capacity. Shouldn't it be a source of pride that the Royalties in their personal capacity, are bound by the laws of Humanity? I cannot say if just possibly, maybe - Tg Naquiyuddin feels otherwise.

It is sad that some people are quick to request that they are given "powers to defend the constitution", when they have hardly raised a whimper when the people's rights have been subverted repeatedly all these years (even in the immunity years).

While I may not exactly be a fan of Mahathir, this was probably one of the best things he's done - impressing upon all that none is above the law. However, that he erred in that he took that privilege for the executive is regrettable. It shouldn't have been to the extent that after 30 days, the King's assent was insignificant to the passing of Laws. There should have been some middle way, where neither the King nor the Executive held absolute power.

It's strange that the most outspoken, publicly respected and erudite of the Royals - HRH Raja Nazrin - who has been at the forefront of this struggle for socio-political reform, isn't too concerned about "power" or "immunity from the law".
I wonder why anyone would want absolute "immunity" from the Law - what have they got to fear? Maybe we should ask Bruce Willis, StanChart or maybe we should ask all those who have been in the limelight for "various reasons" .... that should answer many questions, I suppose.

Anyways, I did some checking up on the matter of the Ammendments ....

"The immunity of the Malay Rulers and the royalty in the performance of their official/state duties has never been taken away. They continue to enjoy that immunity.
.......Although their private immunity was taken away, they continue to enjoy the privileges of being tried by special courts.
So, in my humble view, the question of restoring royal immunity does not arise because they have never lost that protection."

- Kadir Jasin, Royal Immunity is Never Withdrawn

"But R.S. Milne and Diane K. Mauzy, in Malaysian Politics Under Mahathir, citing interviews with Umno ministers, suggest that what became known as the 1983 constitutional crisis “was precipitated by reports, received by Mahathir, that the Sultan of Johor stated at a gathering that when he was elected Agong he would unilaterally declare a state of emergency, and with the aid of the army, throw out all the politicians.

“Compounding this were stories that the Sultan was close to certain key military men, and that the army chief, General Tan Sri Mohd Zain Hashim, had criticised Mahathir’s approach and had questioned where the army’s loyalty rested.”

Whatever the case may be, on Aug 1, the Government brought the Constitution (Amendment) Bill 1983 before both houses of Parliament, and it was quickly passed.

The bill put forward 22 amendments to the Federal Constitution, including three very significant changes to the position of the Malay Rulers.

First, it removed the need for the Agong to give his Royal Assent to a piece of legislation before it could be gazetted as law. Instead, it stipulated that if the Agong did not give his Assent within 15 days, he was deemed to have done so, and the law could come into effect.

Second, it introduced parallel provisions removing the need for a Sultan to give his Assent to State laws.

Third, it transferred the power to declare an Emergency from the Agong (who was, in any case, supposed to act on the advice of Cabinet in this regard) directly to the Prime Minister, who was not obliged to act on anyone’s advice.

The Prime Minister’s Department had ordered a press blackout on the Constitution (Amendment) Bill 1983 and, so, while the fact of the bill’s passing was mentioned, its significance was downplayed, and the debate – including an impassioned speech in opposition to it by DAP’s Lim Kit Siang – did not appear in local media.

For the following two months, nothing appeared. But a right royal storm was brewing.

Immediately, the liberal intelligentsia opposed the provision that allowed the Prime Minister to unilaterally declare an Emergency.

On Aug 2, 1983, Aliran issued a statement condemning the Bill, claiming the proposed amendment “opens the way to political abuse. For the Prime Minister is, in the ultimate analysis, a political personality very much involved in the conflicts and compromises of party politics. There is no constitutional mechanism for ensuring that he will not use his emergency powers against his political foes from any quarter.

“It is simply not possible to prevent an ambitious Prime Minister in the future from emerging as a ‘supremo’ after the proclamation of an emergency.”

But, under the strict press blackout, it was not reported.

Meanwhile, unbeknownst to the public, the Agong, under pressure from his fellow Rulers, refused to give his Assent to the Bill.

The Rulers maintained that the Bill contravened Article 38(4) of the Constitution, which stated that “No law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed without the consent of the Conference of Rulers.”

The Rulers had also come to understand the full legal implications of removing the need for Royal Assent to legislation. It meant that if Parliament voted to abolish the monarchy, the Rulers would be powerless to stop them.

Tensions continued to build behind the scenes. It was only in October, when Senu Abdul Rahman circulated a letter condemning the amendments, followed by Tunku Abdul Rahman defying the gag order by writing about them in the pages of this newspaper, that Malaysians woke up to the crisis.

There were also disagreements within Umno; as Gordon P. Means notes in Malaysian Politics: the Second Generation, “? many in the ruling coalition were distressed by the contents of the amendments and the confrontational style of Dr Mahathir towards the Malay Rulers.”

Some establishment figures believed the Prime Minister had far-reaching aims. In a 1988 interview transcribed in K. Das & The Tunku Tapes, Tunku Abdul Rahman and the veteran journalist discuss the constitutional crisis.

If one can look past the bitchy, surat layang (poison pen letter) tone of their stories about Dr Mahathir’s children, one can get a snapshot of the groundswell of suspicion.

Tunku: “You see, the Malays have a cause for adat, resam and so on ? tradition. I have a respect for it but he has none. He dislikes it. You see, his whole aim is to upset the constitution and turn this country into a republic. His son was in London talking quite openly amongst the students that his father is going to be the first President of Malaya.”

Das: “I heard his daughter was also talking about it here. Apparently she was caught talking about it at a party not knowing that behind her was one of the Tengkus from Negri Sembilan who overheard it. She said that as soon as the constitution amendment is signed, it is finished, we can become a republic.”

Against this background of suspicion, the 1983 constitutional crisis "
-Huzir Sulaiman, The Mahathir years, StarOnline

A major constitutional crisis broke out in 1983 when the Mahathir government sought to amend the constitution to clip the assumed power of the King (Yang di-Pertuan Agung) to confer royal assent to parliamentary bills before they became laws. When the Conference of Rulers objected to the government's bill of 1983 which required compulsory granting of royal assent by a period of 15 days, the Prime Minister went on a country-wide campaign to drum up support for the government's position.

Thus, four years later when the Judiciary came under siege, the Prime Minister had a very compliant set of rulers on his side. This set of events led to the removal of the Lord President, the highest ranking official of the judicial branch, the suspension of five Supreme Court judges and the eventual sacking of two of them. The events that brought this about were a complex intertwining of politics and litigation, which led to the accusation that the judges, including the Lord President had become embroiled in politics (See box).

In truth it was the chagrin and hubris of a Prime Minister who was unable to accept legal decisions working against his party's political and economic interests that led to the bizarre developments. Various interpretations of these events have been written but the main outcome, all will agree, has been the further strengthening of the hand of the executive vis-à-vis the Judiciary to the extent that judicial independence has become a chimera in the Mahathir period (Lee, 1995, Lawyers Committee for Human Rights, 1990). This together with the emasculation of the role of the traditional Rulers has made executive dominance in government a stable and underlying feature of the state.

-Executive Dominance,