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.