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ariff.sabri@gmail.com

Sunday, 28 September 2014

The Emerging Constitutional History of Our Country.



When the MP for Alor Star proposed that MB Azmin Ali streamline the constitutional procedures of appointing the MB, he was viciously criticised by a Malay group. He was accused among other things, trying to challenge the institution of the monarchy.
The defence of the institution is one of the 4 Malay institutions which must be defended to the last drop of Malay blood. This was declared by the minister in charge of the Police and security of the country. We all know who he is. His name is not Himmler.
Call me unpatriotic, but nobody wants a return to absolute monarchy. I support constitutional monarch. It is part of my cultural heritage. I think all Malays, even those with some republican inclinations, support the existence of the Malay monarchy in its current form. The Monarchy itself may adapt to emerging trends later. If it does that, it is due to its enlightened self-interest.
But let them remain as constitutional monarchs. We have no problems with that.
We have a good system already. The primary right is with the people. We have chosen to accommodate constitutional monarchy which means a limited monarchy. It is limited by the applicable rules of law (we already accorded special rules and courts when dealing with members of Malay royalty). More important the conduct of rulers is censored by public opinion. A ruler, who does not heed the voice of the people, cannot endure.
An example of such public opinion is the very public expression of disapproval of a development in Johor. The development is said to involve the Sultan of Johor. The developer has claimed his proposals are above board. If so, he has nothing to fear from a public disapproval of a peasant or a fisherman.
But we all know the usual story. He is not hiding behind the above board argument but actually riding on that vague concept of royal prerogative. What is that again? It is that indefinable privilege of shielding the actions of the monarchs and those representing him of accountability. Obviously the developer is representing the Sultan of Johor and because he carries the stamp of the Sultan, he has royal prerogative.
The group that assailed the Alor Star MP and like the others with the same mission, appear like instant noodles and claimed as its principal cause, the protection of the Malay monarchy against assault and attack and whatever. What is the real issue here?
The bigger issue here is about crown prerogative. Crown prerogative shields the king and his representatives from constraints that affect us mortals. Those hiding behind crown prerogative do no need to explain their action. In Malaysia, it’s even more novel- one could always hide behind the never can be questioned Malay monarchy. The cushioning, conveniencing, excluding powers of the prerogative crop up throughout our system of government, often excusing conduct that is most arbitrary, most secretive, and least accountable.
Crown prerogative is simply what's left of a once much larger edifice and as defined by Lord Dicey "the residue of the discretionary or arbitrary authority which at any given time is left in the hands of the crown." Except that, strictly speaking, it's no longer in the hands of the crown, but the hands of our political masters.
Yes the political masters. No one for a minute believes the speech given by HRH the Sultan of Selangor during the endorsement on excos appointed for Selangor, was written by him. The extraordinary length and narrative of the Selangor problem, mentioning the Kajang move and expression of anger at DAP and PKR, even citing the cessation of hostilities during the month of Ramadhan, can only be the handiwork of some political masters.
Crown prerogative of course means the monarch. Today the King retains the ancient prerogatives of choosing or dismissing the prime minister and deciding whether or not parliament should be dissolved. Today, when a party leader resigns or gets sacked, the party will choose a replacement, and only in the most exceptional circumstances would the palace look for a successor anywhere else. As to dismissing a premier, for a monarch to try to do this in the early 21st century seems inconceivable.
The Malay Monarchy to UMNO is a carte blanche. It allows the government, which UMNO controls of course, do a lot of things under near immunity. It can be used to fill a huge range of senior appointments in the armed forces, the security services, the civil service and the judiciary, without reference to the people's representatives, though also, in most cases, without anything more than a token reference to the monarch whom they are said to be serving. It is still the Royal commission, the Royal pardon when prisoners are released, the King’s pleasure when they are jailed sine die, and royal commissions to inquire into weighty issues. But the will which drives the institution is that of Putrajaya, not the palace.
But here is the good news. Crown prerogative can be, and is being, rolled back. It helps if there is an outcry against the way it frustrates a clear public interest, as in the case of the Mega development project in Johor. The immunity from accountability is challenged, because we must realise that crown prerogative is a residuum. Where statutes exist, it retreats. We have laws protecting the Malay monarchy. As such we do not require the raucous defence of the Malay monarchy against challenge. No need to invoke immunity.
The emerging constitutional history of this country is going to be the history of the prerogative powers of the crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body. The prerogative powers of the crown remain in existence to the extent to which parliament has not expressly or by implication extinguished them.
Politicians come and go, monarchs in so many countries come and go, but the people, they remain. 

15 comments:

Anonymous,  28 September 2014 at 09:19  

Dato',

Specifically with respect to the Selangor MB case, the main culprit representing UMNO was Hadi, without whom the subsequent development would not have taken place.

This is the only conclusion one can draw when the whole sequence of events is sieved through thoroughly.

bruno 28 September 2014 at 09:57  

Dato,when Umno's Trengannu MB candidate was rejected by the sultan and Md Said got the post,there were loud noises from the rejected popular candidate's supporters and Umno big guns.

And later when Md Said was asked to leave by Najib,there were also some noises.But in this two issues were over in a very short time.

Up till today,after the official appointment of Azmin as the new MB,the Selangor MB fiasco is still an ongoing issue.These PR politicians are not that matured as Umno politicians to let sleeping dogs lay,and it has now spread to Penang.

Instead of coming to a compromise of the three strange estranged bedfellows,they are still tearing each other up.If they keep going at each other's throats come GE 14 and Umnoputras will be walking over them like children playing in the park.

Anonymous,  28 September 2014 at 11:06  

The Sgor Sultan has created a very dangerous precedent by his 'political' speech. He has clearly allowed the institution of monarchy to descend into the political arena. He should be prepared to be criticized by others who clearly wanted to preserve and maintain the sanctity of constitutional monarchy.

The Sultan should be well advised that the Sgor residents had not elected him or had not voted for him to ascend to the throne. The people of Sgor do not go to him to solve problems affective their lives. And neither would they complain to him. They do so to their elected reps who will be kicked out by them if they don't solve their problem. The Sgor people knows that the ruler is only a constitutional monarch.

According to the State Constitution, the only person who can advise the Sultan on legal and constitutional matters is the State Legal Advisor and the Sultan should not take advice from any one else. Unfortunately the SLA is an officer from the AG Chambers, and exhibited the same mentality and partisanship towards a certain party as his Boss.

So, any amendment to the State Constitution should also include an amendment that the Sgor State Govt could also appoint its own State Legal Advisor from the legal fraternity and not confined only from officers of the AG Chambers; just like Sabah and Sarawak who like all the other States agreed to join the Federation of Malaya/Malaysia.

If the SLA had advised the Sultan properly, this turmoil in the resignation and appointment of the MB would not have arisen. Clearly an SLA appointed from officers of the AG Chambers lack the courage and the professional integrity to advise the Sultan properly. The Sultan had then to be advised by (ill)legal advisors and hence this mess and imbroglio; and his skewed interpretation of his role as a constitutional monarch.


The above suggestion is apart from the amendment to the provisions with regard to the appointment of the MB which must be clearly spelt out and reinforced so that the Sultan is to appoint only an Adun which has secured support of the majority and no one else.

Anonymous,  28 September 2014 at 12:46  

Assalamualaykum Dato Ariff

Bravo. I like the ending "politicians come and go, monarchs in so many countries come and go, but the people, they remain". Belum pernah ada seorang pon ketua negeri pernah menegur cara Menteri Besar BN digantikan (digulingkan) sebelum ini selantang teguran di Selangor. Kelantangan itu disambut penuh dramatik "pejuang" kuasa Melayu & Raja. Bukan salah macai-macai tersebut terutamanya golongan muda yang menyokong membuta tuli kerana mereka itu kurang pengetahuan sejarah. Akan tetapi yang sudah berusia & pernah melalui pada suatu ketika dahulu zaman-zaman sama berlakunya pada kerajaan PR Selangor hari ini dengan sengaja buat-buat tidak faham malah terus bermain wayang. Menjadi masalah besar kepada negara jika terlalu ramai rakyatnya nyanyok & suka-suka lupa! Jika mereka & kita merasa rencana & penghakiman seorang mahkluk itu baik, beringatlah rencana & penghakiman Allah jualah maha sempurna lagi maha bijaksana

noor mohamad,  28 September 2014 at 15:52  

Salam Datuk

Mahu tidak mahu, sistem sekarang sudah menghapuskan Islam, menghapuskan undang2 Allah. Kita bertopengkan pelbagai ideologi yg mengutamakan manusia lebih besar dari Allah. Kita mahu jadi lebih besar dari Allah, inilah kesyirikan yg sedang berlaku di setiap inci bumi ini.

Noor Mohamad Ismail 28 September 2014 at 15:53  

Salam Datuk

Sedikit sebanyak apa yg dinyatakan menunjukkan manusia lebih besar dari Allah swt. Sedikit pun kita tidak merujuk kepada suruhan Allah. Amalan, perbuatan, percakapan dan apa saja.

Anonymous,  28 September 2014 at 22:29  

Dato. I have two questions.
1) Khalid Ibrahim was not acceptable to PKR and DAP. He was kicked out. Azmin was not nominated by PKR and DAP. The Sultan appointed Azmin.Why is PKR and DAP keeping quiet?
2) The Sultan has acted obviously unconstitutional and against the rakyaat by appointing an ADUN that was not nominated instead of an ADUN that was proven to have a majority support of the ADUN. Why are the constitutional expert keeping quiet?

ordinary malaysian,  29 September 2014 at 03:04  

A monarchy limited by the constitution is a constitutional monarchy -i.e a monarchy constrained by the ambit of the law. It does not extend to the exercise of discretion beyond the limits of the constitution.

Prerogative is a concept that often clashes with the concept of limited powers and is often abused to cover a wide and undefined range of powers antithetical to the institution of a limited monarchy.

In Bolehland, prerogative and discretion are often equated as one and the same, when in truth, any discretion is never absolute. That is why a prerogative is not described as a discretion and vice versa.

A discretion is necessarily constrained - a discretion must be exercise taking into consideration relevant matters attending. One that has been exercised outside of this constraint is a wrongful exercise of the limited power and in law can be struck down.

Unfortunately, in Bolehland, what is described as a discretion is often mistaken as a prerogative and any challenge to a nilly willy exercise of the same is considered questioning a prerogative.

An absolute discretion is a fiction because it is a contradiction in term.

Of course in Bolehland, anything that is done in the exercise of royal discretion cannot be questioned at all because that would be considered questioning the monarch's prerogative and that tantamounts to committing lese majeste. It is a convenient resort to silence legitimate discussion and a cloak behind which all wrongs may be justified and all indiscretions excused.

For that, of course, the self proclaimed defenders of race, country and the monarchy must take credit.

Anonymous,  29 September 2014 at 08:24  

I know the present Sultan of Selangor for more than 18 years. I know that he tells the writer to write what he wants to say. More than any other Sultan in Malaysia, he was trained for the job. He served in District offices in Selangor, he was also trained in the Police Force and in the Military. During the aftermath of May 13 as Regent, he, together with Allahyarham Dato' Harun went from village to village in Selangor, amidst all races to help restore normalcy and confidence.
There is no internationally accepted job description of what constitutes a Constitutional Monarch. The King of Morocco has more power than the Sultans in Malaysia. The Malaysian Sultans have more power than the Queen of England.
I have always respected your writings in the past. But this time you have gone beyond the pale.
Datuk, you were part of the very institution that you are now attacking. You even received a Datukship. Perhaps it is time for you to return the medals to the palace as a gesture of disgust with the Institution. For the record, I am not hankering for a Datukship from Selangor. At my age I only want to see fair play.

Anonymous,  29 September 2014 at 14:28  

"The extraordinary length and narrative of the Selangor problem, mentioning the Kajang move and expression of anger at DAP and PKR, even citing the cessation of hostilities during the month of Ramadhan, can only be the handiwork of some political masters."

That's why I am puzzled why there was a need for such a response. This has never happened in an UMNO held state.

Anonymous,  29 September 2014 at 20:43  

Dato Sak,

The problem is the Constitutional monarchy thinks it's the Absolute monarchy because UMNO let them think and behave like an Absolute monarchy when it suits UMNO's agenda.

Anonymous,  29 September 2014 at 21:25  

Tuanku Abdul Rahman Putra was a smart member of the royalty.

He also had served as District Officer and felt he had to get himself fully involved in the development of the country and to serving the people.

To realize his ambition, he joined a political party and eventually became a PM.

So you see, you can't have the cake and at the same time eat it.

A constitutional monarch must be above politics and should be apolitical so that the institution will be respected by the public.

This is the first time I am hearing that the Sultans in Msia who are constitutional monarchs have more power than the Queen of England.

The last time I read, our constitution was drafted by Lord Reid and our system of parliamentary democracy and constitutional monarchy is based on the Westminster model which is developed and practiced in England, the country of the Queen of England.

Anonymous,  30 September 2014 at 11:02  

Dato,when Umno's Trengannu MB candidate was rejected by the sultan and Md Said got the post,there were loud noises from the rejected popular candidate's supporters and Umno big guns.

And later when Md Said was asked to leave by Najib,there were also some noises.But in this two issues were over in a very short time.

Up till today,after the official appointment of Azmin as the new MB,the Selangor MB fiasco is still an ongoing issue.These PR politicians are not that matured as Umno politicians to let sleeping dogs lay,and it has now spread to Penang.
--------------------------------

The above statement emphasize on blame without providing the fact.

1) Do you know that how much has been paid to Md said to leave in peace?

2) Do you know what BN culture if you object to their rule? Either you get paid or go to jail when they expose your dirty corrupt wealth.

3) Do you know why Selangor in such a mess with Palace interference and with a” Pengkianat” from “PAS” trying to follow the Palace’s instruction to destroy PR?

A rational person with good thinking mentality should know the whole story where BN is so scare of Anwar to become the MB and disqualify him with the Sodomise case (last minute) and used palace to prevent Azizah from becoming an MB by using the religion PAS as a scapegoat.

BN only has 1 way to destroy the PR is by using the palace (because no one dare to object even the decision is against the constitution) and by using the follower (non principle) like PAS as a vehicle to kill PR and let them “fight and kill each other” with their own party.

A good move by BN to use the palace to destroy the majority 52% of Malaysian’s dream.

Anonymous,  1 October 2014 at 00:44  

Dear Dato Sak,
Your writings will be more productive if it is in BM because it would be a waste if it is not read by the Malays.
We hope you can do this so that the Malays can read both side of the story and then made a conclusion. Right now they are being fed with half truths by the gomen controlled MSM. Many thanks for your insights.

Anonymous,  2 October 2014 at 12:10  

Fantastic write up as always. Where's the "share" button for Facebook? It's such so unfortunate that this blog can't be share with more people and at a faster pace. Add "Facebook" to your list of "Choose an identity".
With fb, it'll self censor comments from haters, just like how it's working for MT now.
I really hope you'll take this into consideration.

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