June 13, 2014
The Confusion about ” Constitutional Monarchy” in Malaysia
by Clive Kessler–– 11 June 2014
Recent developments in Johor have once more suddenly impelled the notion of “constitutional monarchy” to the centre of Malaysian national politics. In this encounter, both sides, all sides, invoke and affirm that idea — the idea that Malaysia is a “constitutional monarchy” — without ever really making clear what they mean by it. What are we to make of this strange spectacle? How is this issue to be understood and resolved?
Royal politics reaffirmed
It is undeniable. True, the “traditional Malay rulers”, as they are generally called, have long been active, and even in past times focal, in “Malay politics” in the peninsula. Ever since Merdeka, once they assented to its advent and said so in their own encomium to its arrival — known as the Wasiat Raja-Raja Melayu of early August 1957 — they have insisted on their continuing “political centrality”.
They have done so not only in deeds — by the forthright manner and emphatic style of many of their actions. They have also done so by means of their assiduous promotion of their own “istana-centric” vision of how Malay national politics should work.
Hence the main post-Merdeka story line, to be outlined in this discussion. The Malay state rulers had barely escaped elimination by the Malayan Union initiative of 1946 — until their position was saved as part, and as a by-product, of a more general rescue of what was popularly seen as “the Malay stake in the country” under a different Malay leadership: a new Malay leadership of non-royal notables that coalesced within and behind UMNO and successfully mobilized the rakyat in opposition to Britain’s post-war plans for what they intended as post-communal administrative reorganization, simplification and reform.
And then the Malay rulers had almost “missed the Merdeka bus” thereafter — until they “got on board” very late in the day and then, through the Wasiat Raja-Raja Melayu, signalled their assent in early August 1957, barely three weeks ahead of the great event itself, to a deal that had already been largely made by and among others.
But after that near fatal and then faltering start, the Malay rulers soon began to apply themselves to the consolidation and then expansion of their position within the new Merdeka dispensation, under the new political regime. That decision, and how its consequences have subsequently been played out, are the subject of this present commentary.
Its focus is upon the basis, the origin, and the “main line” of that story of the post-Merdeka entrenching of royal power in Malaysia as it is and works today.
It is the story of a royalist expansionism and more recently (especially since GE12 in 2008) of a new royal activism. It is the story of the development of a “new royalist” ideology and of a bid for political leadership in the post-Merdeka period.
In 1946 the Malay rulers had proved unable to save themselves. They faced institutional obliteration, or (to use the colloquial expression) they were then “as good as goners” — until they were saved by UMNO and the rakyat. Thereafter they took umbrage and held back disapprovingly from modern politics for many years.
They looked askance at UMNO, and for a while even toyed with the idea of openly aligning themselves with Dato Onn’s Party Negara in an attempt to delay the attainment of Merdeka.
But then, whether they might like it or not, came Merdeka, and, just in time, the Malay rulers’ rather belated, even grudging, assent to it under terms that had been largely negotiated by others, mainly between Britain and the Alliance partners, especially UMNO.
One can say some things about what the rulers sought to do, and also to prevent, in the years leading to 1957, and what they achieved (or what others on their behalf may think, and may now claim, that they achieved) by their eleventh-hour Wasiat Raja-Raja Melayu.
It can be argued both ways. The rulers, or more precisely the “new royalist” theorists, take a certain view. Some support for some of their claims may even be derived and contrived from a study of some of the “official papers” and unofficial transcripts of the time.
For the moment, let us put aside all those debates about what the specific archival materials may suggest, about those matters of detail and their at times contested interpretation.Let us shift our attention instead to the “big picture” historically.
Beyond what the archives may contain and suggest, serious discussion of this question has to come back to the inherent nature and character, as the culmination of the Merdeka process, of the Merdeka Constitution itself.
It was — it was explicitly framed as and still is — a constitution of and for a nation that was to be, and is, based ultimately on a modern notion of nationality. It was promulgated as the constitution of, and as the authoritative foundation for, a modern nation-state in a world of sovereign nation-states.
It is a constitution of and for a nation that is ultimately grounded in the popular sovereignty of its people, the citizens.That is the foundation upon which the Malaysian state today rests and upon which its governments are constitutionally to be formed.
Why else would one hold popular democratic elections? And why is it — what other possible reason might there be? — that the key to state and government legitimacy lies ultimately in those popular elections and in the plausibility of the results that they yield?
Is that the kind of state that Malaysia now is? Is that the defining jurisprudential context within which the role of the Agong and the Malay rulers is to be understood?The answer to that question is “yes”.
You cannot really see the modern Malaysian state and its foundations — in the Reid Commission and then the post-Reid evolution of its deliberations in the Merdeka agreements and after — in any other way.
Four boxes, four possibilities
The matter may be simply put and resolved as follows. In the end, in the final analysis, given four boxes, which one suits Malaysia and best accords with the history of its origins and foundation as an independent state in a world of nation-states? Into which one does it fit and is it to be placed?
1. Traditional unlimited monarchy
This is a situation where rulers may, by tradition and ancient custom, do exactly as they please, without constraint.
2. Constitutionally unlimited monarchy
This is a situation where the ruler is formally empowered to do as he pleases by, and based upon, a written royalist, absolutist constitution.
3. Constitutionally limited monarchy
This term denotes a constitutional state within which a monarchy is allowed or accorded by the constitution certain powers that are beyond the constitution and external to it, that are beyond its reach and reproach, its supervision and control; it is a situation where the constitution itself recognizes explicitly that the ruler’s powers are more than those that the constitution creates, provides and establishes.
4. Constitutional monarchy
This term denotes a state in which the powers of the ruler are grounded the constitution and are those of the constitution itself, one where the ruler symbolizes and embodies and personalizes the constitution and the underlying principles of constitutionalism: for example, the principle of popular sovereignty, of a nation grounded in its people and not otherwise or elsewhere.
Malaysia, if one sees and analyses it clearly and argues the matter consistently, can only be in box 4. There is a confusion that people play upon or, more often, unwittingly succumb to which can be explained in plain terms.
There is clearly “more” — much more historically and culturally and religiously — to the position of a Malay ruler than his constitutional role and the constitutional definition of his formal position.
This is obvious, a truism, to any student of Malay culture, society and politics.But does this mean that the Federal Constitution endows the ruler with, or recognizes a ruler as enjoying, any public, official political power that is wider and greater than the Constitution, that exceeds the specific and circumscribed political role which the Constitution provides, creates and sets out? The answer here is “no”.
Under the constitution the Agong, as the representative of the rulers and their Council, lends his traditional aura and that of his royal “brothers” to the constitutional role that he plays and thereby to the entire modern constitutional order in which his position is grounded.
In that way he does two things: first, he embodies and personifies and symbolizes the Constitution and its core constitutional principles; and second, he has a specific role (or so it was intended) to act as a guarantor “in the last instance” to ensure that Islam is not sidelined, that the nation’s Malays citizens are not sidelined and so on, as well as to act upon, and at times to provide, certain kinds of specified formal advice and consent.
That is, in a system of checks and balances (which is what a system of “constitutional monarchy” pre-eminently is) the Agong is the “final balancer”, the balancing arbiter (when needed and not otherwise or before) of last resort. As the Constitution intended, his position was not to be anything substantially more than that.That is how his role was at the time envisaged and intended, formally worded and created.
“New royalist theory”
The “new royalism” seeks, improperly and — dare one say it? — implausibly, to expand that very limited notion yet crucial role of the Agong as the saving arbiter or guarantor of last resort at the last minute. It seeks to enlarge unduly, even extravagantly, what is his proper use of his royal discretion in certain limited, defined and circumscribed ways.
The position of the Agong was designed and created not to be a constant player and incessant, perennial activist in the routine unfolding of national political life. Nor to be a routine part of the state’s mundane, everyday administration and administrative bodies. He was to come in, when needed on occasion, as an ultimate guarantor of fundamentals and as an intermittently or rarely necessary deadlock-breaker.
His role was to be not quite, but almost, that of a deus ex machina. He was to serve as an external intervener and problem–solver from “on high”. He was to be a culturally authoritative, historically grounded, and also divinely empowered or connected sultan ex machina.
The “new royalists” seek to enlarge that constitutional role, to expand the proper scope of royal action, of legitimate royal political autonomy and initiative, into a role of constant and continuing involvement in current, or “ongoing”, political matters.
Not just “in the last instance”, when a ruler may enter a deadlocked situation still cloaked in some plausible garb of uninvolved impartiality — and hence with considerable moral authority and formal “clout” — and so seek constructively to help resolve the impasse; but “all along the way” leading up to, and well before, the final moment when “last resort” action or intervention by a hitherto uninvolved party may be appropriate and needed (and, because of his distance and detachment up to that point, also effective).
Accompanying the growing power and the readiness, even eagerness, to exercise it, there has been a second part to the story of post-Merdeka royal activism and expansionism.
Alongside the affirmation of growing royal prerogative in action, by deed, there has been an accompanying “expansionist” notion and articulated ideology of royal political autonomy and activism, of a continuing, intimately involved leadership.
The development of this view, or ideology, has been the task and work of the “new royalist” theorists. That is their view.But theirs is not what the Merdeka process and agreements were about.Theirs is a form of constitutional revisionism, a “royalist expansionist” revisionism. That is what the “new royalism” is about, and what it is doing, what it is seeking to achieve and entrench.
To say so is not just an arbitrary, idiosyncratic personal view. It is a view that can be anchored and grounded in the solid, serious, best legal and constitutional analysis.
New power, and the old
To make things clear, one may put the matter in this way. Of the four options or possibilities noted above, where does one place post-Merdeka Malaya and Malaysia”? Where does it properly belong? Only one option really makes sense, really accords with the historical facts and constitutional understandings of the nation’s 1957 Merdeka foundations.
That is the fourth box. That is what was decided, and solemnly resolved, and that was the Constitution that was promulgated and the nation that was created. That is what was going on at the time. That is what all the principal actors in the creation of the nation were then doing, and understood themselves to be doing.
The nature of the exercise in which they were involved was clear to all who were part of it. It was to establish independent Malaya as a modern democratic nation-state in the form of a constitutional monarchy, in the strictly understood sense of the term.
What, then, is the standing of the last-minute Wasiat Raja-Raja Melayu, what can now be said of it? In short, with it the old rulers may have entered a demurral, registered a caveat —— but only a unilateral one. But their Wasiat could not create, and so did not constitute, a set of conditions, or terms of recognition, that might be binding upon others and therefore constitutionally definitive.
It was a comment upon the proposed Merdeka Constitution, a response to its emergence.As such, it could in no way modify the Constitution or alter its meaning and import. It could not by its mere issuing reshape the negotiated terms of political agreement upon which the Constitution had been designed to rest.
So it is no part of the Constitution, nor is it an essential and authoritative basis for its interpretation. There is no jurisprudential requirement that the Constitution be “read against” the rulers’ Wasiat or in the light of its wording and claims.But the “new royalists” in effect — though they are not clear or explicit or “up-front” about the matter — opt for box 3.
By choosing to promote a “box 3 view” of Malaysia’s constitutional foundations, not a “box 4 view”, they are in effect arguing not for a “constitutional monarchy” but for something else: for a radically revisionist view of Malaysia as a “constitutionally limited monarchy”. That is their view, the “new royalist” view — and perhaps the view, too, of the Malay rulers themselves (of whom, for whom and about whom, I cannot, and therefore dare not presume, to speak), or of the decisive majority among them.
But even to say that that view is, and has been, their preferred position, originally a “rear-guard” position, since 1957 does not in itself make it the correct view overall, the authoritative and definitive and obligatory view. That is not the view that a clear historical account and properly-informed jurisprudential analysis of the matter, of the origins and once generally understood meaning of the nation’s constitution and of Malaysian constitutionalism, would recommend to us.
It may well be the preferred view, and, one may suggest, the retrospectively “confected” view, of the “new royalist” theorists.But is it really the view upon which the nation — that Malaya and Malaysia as a modern nation — in a world of modern nation-states was formed and therefore continues to stand?
As I have argued elsewhere, one may read the rulers’ Wasiat literally, in isolation. This view would imply that Merdeka could not have been achieved without the issuing of the Wasiat signifying the rulers’ consent. On this view, national sovereign independence exists only by virtue of royal grace, favour and beneficence.
Yet where its words correspond with those of the Constitution these matters were already decided, and where they may not do so the constitutional wording is authoritative. However, more than that, more than merely the words on a page, is involved here. The royal Wasiat cannot be read simply in its own terms, literally and out of context.
It came at the very end of, even after, a long process. Initially the rulers had been wary of Merdeka. They feared for their standing as heads of the Islamic religion that underpinned their position in their separate states. Very late in the process, they accepted assurances that their accustomed positions would not be diminished by the creation of an independent national federation with Islam as its official religion.
When finally satisfied that Merdeka would not encroach upon their prerogatives in their own domains as state heads of Islam, they agreed to the constitutional proposals that emerged from the Reid Commission and the ensuing negotiations upon its recommendations.
The British government was delighted (published documents note) that, late in the day, the old Malay rulers had “changed their tune” on these matters, ensuring a smooth process of political evolution.
The British government had made it clear to the Malay rulers (so the official records show) that power was shifting from them. Britain was now dealing with the popularly supported leaders of a new and prospectively modern nation. The rulers were given to understand that they had a clear choice: to go along with the creation of a new political order or to be sidelined.
The issuing of their Wasiat, once they had agreed to terms on the virtual eve of independence, was the proud action of dignified, tradition-conscious men in the face of the inevitable, of dramatic and far-reaching changes. Britain had no objection, nor any interest in preventing its declaration. Nor, from Britain’s standpoint, did it have any constitutional status. That view of theirs is one that holds, and one may suggest still holds, more widely.
Defending “constitutional monarchy”?
At the bottom of the disagreement is this simple question: “box 3” or “box 4”?In other words, is Malaysia a “constitutionally limited monarchy”, as the “new royalists” really suggest and seek to maintain, or a “constitutional monarchy”, as many others hold and have long believed?
One may simply note here that it is not only the impartial expert scholarly commentators who uniformly refer to Malaysia as a “constitutional monarchy” (and not as a “constitutionally limited monarchy”).Others do too, some quite surprisingly and even oddly.
This is an anomaly in the position of the “new royalists” themselves. It is a serious problem for them to address Like the impartial commentators, the royal apologists also refer constantly and exclusively to Malaysia as a “constitutional monarchy”.That is what they always claim to be upholding and defending.
The fact that they do so leads directly to the conclusion that they still pay tribute to this idea of “constitutional monarchy”, to its definitive “canonical” status, even as they seek to promote a different position.They pay tribute to it, that is, in the same way that hypocrisy is said to be the tribute that vice pays to virtue.
What I mean here by that is this. The fact that the royal apologists also use that same well-understood term “constitutional monarchy” (and one can be sure that the members of the Reid Commission and those who followed them and upon their lead were not in the least confused about the term’s meaning!) is itself recognition of the fact, and prima facie evidence of the “new royalist” theorists’ knowledge, that what they are and have been attempting to do is more than a little odd.
It suggests a recognition of the fact that they are trying to “smuggle in” and promote something else, namely the idea of a “constitutionally limited monarchy” (which is what they are in substance arguing for) under the guise and protection and cover of the familiar and widely-accepted term “constitutional monarchy”.
That is what they claim to be upholding and “protecting” — even as they argue for something else, for a different position and understanding of Malaysia’s constitutional situation and identity.
But note well: the fact that they proceed in that way, that they still prefer to use the term “constitutional monarchy”, seems to indicate that they know what they are up to. It indicates, even betrays, the nature of their intentions. It shows that the direction and true purpose of their endeavours must be well-understood — at least by some of them in that camp!
Their insistent preferential use of the term “constitutional monarchy” seems a tacit admission of a measure of unease, even shame, on their part about what they are in fact arguing and doing.
But let us be clear.Promoting constitutionally limited monarchy under the name of “constitutional monarchy” — to seek to smuggle the former into play and then to substitute it for the latter, and then purloin its “legitimacy” and authoritative standing — is just an up-market jurisprudential version of the old commercial “bait and switch” stratagem of unethical traders and retailers of dubious probity.
It is a form of trickery — and some of them in that camp, it would seem, the smarter among them, seem to understand and, by their confusing recourse to this otherwise unproblematic term, indirectly acknowledge that fact.
A final remark
The argument that I make in this commentary, the view that I put, I offer not with a partisan intent or for any polemical purpose.I say and mean what I say impartially, dispassionately and analytically — with the practised detachment of a scholar, not as a passionate actor in these dramatic developments.
I say what I have to say in a simple, straightforward attempt to clarify what in fact, at the formative moment in modern Malaya and Malaysia’s history, was decided, what in fact was done, and what in fact then happened. I say what I say respectfully: with full respect to Malaysia, to its culture and traditions and history as they are generally understood by many expert scholars, and to all of its citizens — and with respect for the truth of its origins as a modern nation within the world community of nations.
My purpose in offering this commentary has been not to question or criticise, still less to impugn, but simply to analyse the modern institution of Malay monarchy: to help enhance serious understanding of its origins, formal basis and constitutional character.