Bersih Judicial Contestation to check on Malaysia’s Electoral Integrity


April 23, 2018

Bersih Judicial Contestation to check on Malaysia’s Electoral Integrity

Image result for Bersih Judicial Contestation to check on Malaysia's Electoral Integrity

 

Bersih’s legal strategy to check on electoral integrity has exposed and revealed much about the redelineation process, testing the relationships between Malaysia’s political institutions, The courtroom battleground remains crucial in shaping the final election outcome and its legality.

Malaysians are gearing up for heated polls in the 14th General Election (GE14). Prime Minister Najib Tun Razak and his party the United Malays National Organization (UMNO), in office since 1957, aim to perpetuate their tenure. Many do not fully realise, however, that for the past three years there have been intense battles in the courtrooms, which continue to cast an unconstitutional shadow over the election. Minimally, the legal challenges have raised serious questions about the fairness of the electoral process and the nature of political power in Malaysia.

When Malaysia’s electoral reform process began in 2007, the focus was to head to the streets to draw attention to the country’s uneven electoral playing field. Bersih (the Coalition for Clean Elections) moved from an opposition vehicle to a broad civil society movement. From 2011 the movement was led by lawyer Ambiga Sreenevasan, whose leadership brought out thousands of Malaysians to rallies and culminated in a People’s Tribunal in 2013 outlining serious irregularities in that year’s election, GE13. That year the chairmanship of Bersih was taken over by Maria Chin Abdullah, a social activist, who ironically spearheaded fierce legal challenges over the electoral process until her resignation last month to stand as a candidate.

A broad range of stakeholders, including pro bono lawyers, opposition parties, state governments and, importantly, ordinary voters, have instituted an unprecedented number of legal challenges over electoral reform in Malaysian courts. While the legal cases were not able to halt the delineation process, they have provided obstacles to the Electoral Commission (EC) and exposed breaches in standards of electoral integrity, as detailed below. Given the complexities of the change in strategy from the streets to the courtroom and the fact that most of the cases have received limited media attention, this article focuses on how legal contestation is an integral part of GE14.

The table below summarises the legal cases over the past three years. Broadly the cases have involved three issues: 1, the content; and 2, the process of the delineation exercise; and 3, even more fundamentally, the power of different political institutions to make decisions on elections.

News reports to date has focused primarily on the content of the ‘front door’ delineation, based on the report submitted to parliament in March 2018. Concerns have rightly swirled around malapportionment (inequality in representation), gerrymandering (unfair drawing of boundaries) and the integrity of the electoral roll. One case, Kuala Kuba Bharu Voters vs. EC, has also touched on the ‘backdoor’ delineation, the non-transparent movement of voters between constituencies. Not only have these cases served to further mobilise the public over these concerns, with detailed documented studies by Bersih to show the unfairness of the delineation process, the discussion has also been put on the public record.

The detailing of the manipulation of the electoral system to advantage the incumbent has provoked an unprecedented number of objections by the public to the delineation (as detailed in the EC’s own report). Furthermore, the High Court decision in December 2017, Selangor Government vs. EC, has acknowledged that malapportionment and gerrymandering have taken place. This may seem like the obvious, but it serves to put on legal public record structural imbalances in the electoral system and is an acknowledgment within the system of the unfairness in the delineation.

Table: Legal Cases Involving Electoral Reform

Case State Status Issues
Sarawak State Assemblyman See Chee How vs EC, Filed in 2015 Sarawak High court allowed case to move forward declared the delineation notice void in May 2015Overturned by Court of Appeal (COA) in August 2015 and Federal Court (FC) in October 2015 Process of delineation: Inadequate information in notice, insufficient notice (did not publish in appropriate newspaper)
Selangor State Government vs EC, Filed in 2016 Selangor Main Dismissal High Court Dec 2017Legal process involved stays that impacted overall timing of delineation exercise and raised potential of Selangor being excluded from process

COA dismissals ended March 2018

Process of delineation: Insufficient information for voters in public display

Content of delineation: Malapportionment gerrymandering, missing addresses in electoral roll.

Institutional Power: Power of the courts to review recommendations by the Election Commission which did not comply with provisions under the Federal Constitution.

EC vs Selangor State Government. (Stay of Enquiry Process) Filed in 2017. Selangor EC’s application allowed December 2017. Institutional Power: Power of the Courts to stay the Election Commission from holding local enquiries pending a court proceeding. Asked to set aside stay granted by the HC after main dismissal of the main case in December 2017.Process of delineation: Conduct of local enquiries.
Selangor Govt vs. EC (Filing of EC Report to PM). Filed in 2018. Selangor Selangor Government’s application dismissed in March 2018. Institutional Power: Power of the Courts to stay the Election Commission from submitting a final report to the PM pending court proceedings. Selangor government called to injunct the EC from submitting its final report to the EC pending Selangor appeal at the COA.
Selangor Government vs. EC (Stay of Local Enquiry Process requested Shah Alam High Court) Filed in 2018. Selangor Selangor Government’s application dismissed in March 2018. Institutional Power: Power of the Courts to stay the Election Commission’s local enquiry processProcess of delineation: Conduct of enquiry regarding insufficient notice period and denial of legal representation at the local enquiries
Segambut voters KL vs EC,
Filed in 2016
KL EC subsequently held local enquiry before case heard. Case was then withdrawn in January 2017 Process of delineation: Challenged the EC refusal to hold enquiry for 100 voters in constituency
Setiawangsa KL Voters vs EC, Filed in 2016 KL EC subsequently held local enquiry before case heard. Case was then withdrawn in Dec 2016 Process of delineation: Challenged the EC refusal to hold enquiry for 100 voters in constituency
Kuala Kubu Bharu Votes vs EC, Filed in 2016 Selangor Voters lost at HC, won at COA & the matter is now pending at the FC (note these cases merely revolved around whether leave for judicial review should have been granted i.e. whether the voters were out of time in filing the application – hence the issues of content and process of delineation have not been ventilated or determined) Content of delineation: Challenged the movement of voters before the delineation exercise began.Process of delineation: Involves question about the ‘backdoor’ delineation procedures.
Selangor State (Exclusion) vs EC, Filed in 2017 Selangor KL High Court allowed injunction against the submission of final redelineation report without Selangor.COA reversed the decision on 30 October 2017. Process of delineation: Exclusion of Selangor from the second public display
Penang MP Zharil Khir Johari vs EC, Filed in 2017 Penang Case dismissed in March 2017 Process of delineation: Challenged the fact no delineation held in Bukit Bendera constituency
Melaka Voters vs EC, Filed in 2017 Melaka High Court Granted Leave and Stay in May 2017.Court of Appeal Dismissed Case in July 2017 impacted other cases.

Federal Court refused leave for appeal in February 2018

Process of delineation: Exclusion of Selangor from second round delineation in late 2017.Content of delineation: malapportionment gerrymandering, missing addresses in electoral roll.
Kelantan Deputy MB vs EC,
Filed in 2017
Kelantan Case withdrawn in July 2017 after Melaka case lost at Court of Appeal Process of delineation: Exclusion of Selangor from second notice exercise.
Bandar Tun Razak KL vs EC,
Filed in 2017
KL EC subsequently held local enquiry before case heard. Case was then withdrawn in July 2017 Process of delineation: Challenged the EC refusal to hold enquiry for 100 voters in constituency
Perak Voters vs EC,
Filed in 2017
Perak Case withdrawn in July 2017 after Melaka case lost at Court of Appeal Content of delineation: malapportionment, gerrymandering, missing addresses in electoral roll, alleged inappropriate use of electoral roll.Process of delineation: Exclusion of Selangor from second notice exercise.
Johor Voters vs EC,
Filed in 2017
Johor Leave was granted by High Court, but application for a stay of proceedings denied. 

The EC appealed on granting leave to COA.

On the day of the hearing (October 2017), counsels informed COA that plaintiffs are withdrew judicial review, but the panel directed appeal to proceed thus allowing the EC’s appeal for no leave to be granted.

Content of malapportionment: gerrymandering, missing addresses in electoral roll. alleged inappropriate use of electoral roll.Process of delineation: Exclusion of Selangor from second notice exercise.
Penang State Government vs EC, Filed in 2017 Penang Pending.Main dismissal was in January 2018.

Further appeal to Federal Court filed in March 2018. Case has yet to heard.

Process of delineation: Challenging the decision of the EC to propose no redelineation changes at all in their proposal.
MPs Kulasegaran & Thomas Su vs EC, Filed in 2017 Perak Dismissed in High Court in February 2018Eventual appeal at Federal Court was heard together with Melaka’s case. Also dismissed Content of delineation: malapportionment, gerrymanderingProcess of delineation: Right to information/reply from the EC
(48) Segamat voters vs. EC,
Filed in 2017
Johor Dismissed by COA overturning High Court in February 2018 Content of delineation: Composition of electoral roll, inclusion of an army camp members (949) for a camp not yet builtPower of Institutions: Power of judicial review.
Parti Cinta Malaysia Wilfred Bumburing and four others vs. EC,
Filed in April 2018
Sabah Pending Process of delineation: Challenged the failure to follow-through on the increase of seats in Sabah, passed in the state assembly in August 2016, but excluded from March 2018 vote in national parliament. Calls for stay in election until this resolved.Institutional Power: Power of state versus federal government
Charles Santiago vs Speaker of Dewan Rakyat and EC, Filed March 2018 PendingInjunction withdrawn in April 2018 because report was pushed through parliament.

Full case is still pending hearing.

Power of institutions: Seeking injunction of the tabling delineation report in parliament on grounds that other cases still in court. Calls for no interference/contempt of courts. Aimed to prevent delineation from moving forward.
Maria Chin and 106 others vs EC, Prime Minister and Speaker of the Dewan Rakyat. Filed March 2018 PendingDecision expected April 11th Process of delineation: 250 objections filed in Selangor, only 50 plus called to the enquiry. Constituencies that had no changes in second round of exercise, objections rejected. 107 of objections submissions were not called for local enquiry. Process of local enquiry challenged. Subsequent final report reverted to original changes potentially adding merit to the objections dismissed.
Petaling Jaya City Council (MBPJ) vs EC, Prime Minister and Speaker of the Dewan Rakyat. Filed March 2018 Pending. Process of delineation: MBPJ has filed on similar grounds as above, no local enquiry on objections filed in Petaling Jaya.

 

The most apparent effects of the court cases involve the second realm, the impact on the delineation process. The legal cases have forced stays on the part of the EC, with the most impactful being the Selangor State Government vs EC case. The stay was removed in December 2017, but it forced the hands of the EC for over a year, as they opted to move ahead in the national second display exercise (a constitutional 30 days requirement to make the changes public and open to objection) without the state of Selangor, following a procedure that did not conform to the past or inclusiveness of the country as a whole. The failure to properly follow through in the delineation process regarding the increase number of seats in Sabah – passed at the state level in 2016 but not forwarded to parliament this year – is another example of inconsistencies in the delineation process and is now being challenged.

Legal contestation also forced the hand of the EC to carry out local enquiries, as occurred, for example, in Segambut and Setiawangsa. The challenges aimed to make the EC more accountable in its engagement with voters and sharing of information. In the latter, there was little success in outcome, but the court proceedings in the Selangor government case revealed that the EC allegedly destroyed previous electoral rolls, raising questions about its professionalism. In fact, the EC did not come off well in many of the arguments it presented, as it appeared to be what its critics charge it with, lacking independence and on a political mission for the dominant party UMNO. An example of this is the response to the Segamat postal voters, where there is no physical building but 929 army camp voters listed. Postal votes have traditionally been used to buttress support for the government. The EC repeatedly failed to present explanations when queried on why it opted to significantly expand malapportionment, broaden the use of gerrymandering and dismissed concerns about the electoral roll, opting for a strategy of denial and dismissal. In the final submission, the EC reverted back to the original proposals that were challenged both in the courtroom and by citizen objections, after it had initially proposed counter proposals to appease some concerns about the perceived unfairness in the second display exercise. The EC’s behavior suggests ‘bad faith’ as well as contempt for calls for greater fairness in the electoral process. The legal cases helped expose how the EC responded to the public.

The thorniest issue involves what the cases raised about the relative power of different institutions. Here there are multiple important dimensions. The first involves the relationship between the EC and the executive, other branches of government, parliament and the judiciary. The court proceedings often showcased a non-independent EC. Repeatedly, the EC – a constitutionally-mandated body – came off as ‘the government’ rather than as a professional autonomous (or even semi-autonomous) body, the international standard for electoral integrity. With the EC reporting directly to the prime minister, the court cases documented the EC’s political colors.

Given the political nature of these cases, the relationship between the judiciary and the executive was also center stage. Recent cases in the courts – particularly Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat in May 2017 and Indira Gandhi a/p Mutho v Pengarah Jabatan Islam Perak & Ors in January 2018 – have brought to the fore the power of the courts to review legislation and the executive, the idea of judicial review. Many of the cases called openly for the courts to review the content of the delineation exercise in a meaningful manner. While the High Court in the Selangor State Government vs. EC case did acknowledge serious problems in 2016, it was bound by a decision at the Court of Appeal (COA) in the Melaka and MP Kula Segeran cases that prevented addressing the substance as the delineation was still not then passed by parliament. Throughout, the court decisions relied heavily on technicalities to dismiss meaningful engagement with the content of cases, holding that the EC’s recommendations were not “decisions” capable of being reviewed and labeling the cases as “nonjusticiable”.

Some critics have labeled Malaysia’s judiciary as “pliant” and not independent, and this lack of meaningful engagement with the content of the delineation could reinforce this perception. Yet collectively the EC cases show a more varied picture. There were tensions between judicial reticence and more asserted measures to protect the Constitution and fairness in the rule of law. Many of the decisions went against the government, accompanied by stays which pressured the EC to act. In one violation of court protocol (also involving the Selangor Government case), a representative of the Attorney General’s office stood up to challenge the judge after he had decided on an interim stay which favored the plantiff. This prompted the judge to reiterate his earlier decision in strong terms.

The relationship between the executive and judiciary was not always smooth in these legal battles. It is only at the upper courts – the Court of Appeal and Federal Court – where there was a 100% decision rate in favour of the government. There were also areas where decisions not to recuse judges who sat on earlier decisions with similar parties– in the hearing of the 2018 Selangor government case involving the filing of the report to parliament – and in the rushed timing of the decisions in the past six months where questions are being asked about the political position of the Najib government needs to win new legitimacy at GE14 if it’s to juggle Malay, Islamic, and royal claims, amid a restive East Malaysia.

A full assessment of the courts’ capacity and willingness to use their powers of judicial review cannot yet be made, however, because there are at least five election cases still pending. Further cases on the delineation process and content will likely be filed, given the fact that the technicality that the delineation was not legal has been removed with parliament’s passage of the exercise. The courts will face a difficult decision on whether to exercise their judicial review and decide on constitutionality of the delineation, and ultimately the constitutional validity of the elections themselves. The electoral legal challenges have pushed the courts toward a legal reckoning. In Malaysia’s history, no election has been called with so many legal cases on the elections itself outstanding.

 

Finally, the legal cases have also opened up unintended areas of contestation. Consider the recently filed Sabah case, which tests the power of the state assembly to decide on its numerical composition. It taps into the power of respective state and federal governments vis-à-vis each other, which is already a highly contentious issue in Sabah and one of the key themes in the coming state election campaign. As is often the case, contention leads to unexpected outcomes.

Many said Bersih’s legal strategy was doomed from the onset, that the courts could provide no meaningful check on electoral integrity. These assessments are not correct, as judicial contestation did indeed significantly shape the process of the delineation, expose and reveal more about the content of the delineation and test relationships between Malaysia’s political institutions. The importance of the courtroom battleground remains crucial in shaping the final election outcome and its legality.

 

Malaysia: Royalty has right to Freedom of Speech


April 11, 2018

Malaysia: Royalty has right to Freedom of Speech

By Karamjit Gill@www.freemalaysiatoday.com

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HRH Crown Prince of Johor has character, integrity and moral courage to speak his mind. He is not a politician but he is a citizen of Malaysia with the right to freedom of speech.–Din Merican

The Crown Prince of Johor has voiced his concern regarding Dr Mahathir Mohamad’s vision of becoming the Prime Minister again. Unfortunately, the keyboard warriors supporting the opposition did not shy away from criticising his thoughts. Numerous opinions are popping up, with the message that the Royalty should stay away from politics.

In 2015, when Prime Minister Najib Razak did not attend the Nothing to Hide forum, the same Crown Prince voiced his dissatisfaction. That time, he was hailed as a super hero because his opinion did not favour Najib. It was perfectly fine then that the Royalty got involved in politics.

The Crown Prince was also hero-worshiped when he was involved in a spat with Nazri Aziz. In fact, pleas were made to the Royalty by opposition supporters to get involved in politics to remove Najib. However, when his views differ from those of the opposition cheerleaders, their voice changes as well.

Image result for Mahathir Mohamad and Crown Prince of Johor

We saw the same thing when Mahathir uttered a disparaging word, “Keling” about the Indians. Perkasa’s Zulkifli Nordin was ridiculed prior to the last general election when he used the same word, and Najib was collaterally called a racist. However, suddenly the same word has become common and acceptable just because it comes from the opposition.

DAP’s P Ramasamy repeats himself endlessly, chiding MIC for the lack of opportunity for Indians. He puts the blame on MIC because of deeds by Samy Vellu. Although Samy has long retired from the political arena, he is still being used as an excuse for voters to abandon MIC.

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Young Indians deserve our attention, encouragement and support. There should be a “Marshall” Plan for their economic and social advancement. They have the  right to be educated and empowered –Din Merican

On the other hand, Ramasamy is campaigning for the man who destroyed Malaysia, especially the Indian community, to come back as Prime Minister. If MIC is to be abandoned because of their long-gone ex-leader, then Pakatan Harapan (PH) should be exiled with Mahathir at the helm.

Nurul Izzah Anwar’s response on tax exemption for rent collectors is perplexing. She says this would lead to a rush to purchase homes for rental, which would lead to an escalation in house prices. First of all, purchasing property is not like buying clothes at a sale where it could lead to a rush that affects pricing. Secondly, if the tax exemption is something that would increase the purchase of properties, wouldn’t that be a good thing?

On one hand, the opposition says the government is doing nothing to ensure that people have a roof over their heads. But when the government does something, they say people will rush to purchase homes, etc.

Mahathir has admitted on numerous occasions that he was unaware of many of the wrongdoings during his tenure as Prime Minister. Today, he says the government has no money and questions the mechanism by which the government will fund initiatives in its manifesto.

Mahathir has been out of Putrajaya for some time. How does he know what is happening in the government? Isn’t it ironic that when he was in office with access to all information, he did not know anything, but when he is out with no access, he knows everything?

The double standards overflowing from the opposition are astounding. Fortunately, the majority of voters are not cyber warriors. They have an intellectual cortex that can comprehend the true colours of PH. This will definitely be reflected on polling day.

Karamjit Gill is an FMT reader.

 

Malaysia: The Constitution is Supreme not Speaker Parliament Pandikar Amin !


January 13, 2018

The Constitution is Supreme not Speaker Parliament Pandikar Amin !

by Din Merican in Phnom Penh, Cambodia

Image result for Speaker Pandikar Amin Mulia

Speaker of Dewan Rakyat or  a Buffoon?

On Thursday  January 11, 2018, I noted that the media in Malaysia reported about an interesting incident in Court where a former Member of Parliament — the son of the late Deputy Prime Minister, Tun Dr.  Ismail Abdul Rahman— filed a suit against the Speaker and Secretary of the Dewan Rakyat for wrongfully tabling a Bill by PAS Chief Hadi Awang (“Hadi’s Motion”) seeking to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 (“RUU355”).

It was reported that Tawfik Tun Dr Ismail (pic below) had challenged in court that Speaker Tan Sri Pandikar Amin Mulia committed contempt against the Sultans by playing politics in Parliament when he allowed the tabling of Hadi’s Motion and RUU355. This was unconstitutional as the Conference of Rulers, as the Heads of Islam, had not been consulted with earlier in breach of Art. 38(2) and Art 38(4) of the Federal Constitution.Tawfik also contended that the RUU355 itself is in violation of Article 8 of the Federal Constitution and would create inequality in the law amongst Malaysians especially Muslims for purported Syariah criminal offences.

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Tawfik  Tun Dr. Ismail

Hadi’s Motion had caused a great deal of unrest and showed it was nothing more than a political game. Sometime in March 2017, Deputy Prime Minister Dr. Zahid Hamidi announced that UMNO had a pact with PAS and the RUU355 will be tabled by him as a Government’s Bill. Subsequently, Prime Minister Najib Razak said that BN component parties were against it and that it will not be a Government’s Bill. Zahid lost face and got played out by Najib. Serves him right for trying to play politics with religion!

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Butch Minister Azalina Othman Said (2018)

I recalled there was widespread discontent and anger on April 6, 2017 when Speaker Pandikar played a trick on the opposition. After tabling Hadi’s Motion, the butch Minister Azalina Othman proposed that the House sitting be adjourned. Pandikar then quickly ended the session and ran out to the calls of “Takut” and “Ayam”. That was how RUU 355 came to be tabled as first reading in Parliament without any debate – by trickery.

Such is the quality of this cowardly Speaker who goes by the name of Pandikar but who behaved like a pondan. When asked to explain his unusual conduct, Pandikar tried to show he is smart when he answered -“If you have power, you are powerful. If you don’t use that power, you are a bloody fool!”

Again in court, Pandikar did not dare fight Tawfik. Instead he asked the A-G Chambers to strike out Tawfik’s suit. Pandikar claimed that as Speaker he has absolute power and is not subject to the courts by claiming Parliamentary supremacy.

Not to be fooled by Pandikar’s cowardly ways, my friend Lawyer Rosli Dahlan, who represented Tawfik, pointed out that Pandikar was misleading the court by relying extensively on English cases on parliamentary supremacy and privilege. He showed that the doctrine of Parliamentary supremacy does not apply in Malaysia as it does in the UK. In Malaysia, even the Speaker is subject to the Constitution and the Court is the bulwark to ensure that the Speaker does not abuse his powers.

The most interesting part about Tawfik’s case is that all previous lawsuits were to strike down bad laws by Parliament. This is the first time that the Speaker is being sued for abusing parliamentary privileges and claiming he is above the constitution and the Court. I hope Judge Dato Wira Kamaludin Said will deliver the correct decision in law and put this Speaker Pandikar in his proper place.

 

The RUU355 case filed by Tawfik and argued by Lawyer Rosli reveals the abuse of parliament by the politicians to pass bad laws for political mileage without concern for the Rakyat especially Muslims. It also shows treason by the Speaker by his disloyalty and disregard to the Conference of Rulers by flexing his muscle that he is more powerful than the Malay Rulers, when he arrogantly  announced :

“If you have power, you are powerful. If you don’t use that power, you are a bloody fool.”

Lawyer Rosli Dahlan

I have just managed to obtain a copy of Rosli’s written rebuttal to the A-G Chambers’ argument which shows that the Speaker of Parliament is also subject to the Court’s jurisdiction. I would be pleased to share it with you who are legal eager beavers if required.

From the grapevine, I heard that Rosli had the assistance of Emeritus Professor  Dato Dr Shad Faruqi, the eminent constitutional expert of Malaysia. I whatsapp Rosli to ask if it was true that the most eminent academia in Malaysia is supporting him. As usual, Rosli is tight-lipped about the cases he handles. However, his cryptic answer was very revealing. He said – “Isn’t it good for the country if they are behind me as they see this as ultimate Patriotism in fighting for the Rulers , the Constitution and the Rule of Law.”

I hope Rosli and Judge Kamaludin will show to Speaker Pandikar who is the ultimate bloody fool!

Also read:

The plaintiff’s written rebuttal

 

Constitutional Democracy and Royalty


December 11, 2017

Constitutional Democracy and Royalty: The Dignified and the Efficient

by Nathaniel Tan

http://www.malaysiakini.com

COMMENT | On Friday, we discussed the appropriateness of celebrities commenting on politics and current affairs.

Today, as Season 2 of “The Crown” is upon us, perhaps we can discuss constitutional monarchy and some of the challenges it faces today.

“The Crown” may be particularly relevant as, after all, many constitutional monarchies in the Commonwealth are largely modelled on the British one.

 

Related imageHer Majesty Queen Elizabeth reigns and Prime Minister Theresa May governs. This system works as long as each institution performs its duties correctly, and respects their boundaries diligently.

I probably know Peter Morgan’s Queen Elizabeth more than I do the real one, and I have never had the slightest bit of interest in the British monarchy prior to this little TV series.

A persistent theme in Morgan’s large body of work on the monarchy is the place of the institution in ever-evolving modern society, and the challenges monarchs face in maintaining the dignity and purpose of the monarchy.

Checks and balances

Constitutional monarchy evolved over time from absolute monarchy, a time where the monarch’s word was law. Eventually, forces for democracy in some countries moved societies away from such absolute rule, but chose to maintain royal institutions, having them co-exist with democratic practices.

It is often a subtle balancing act to be sure, but in theory, the crown and the government – the dignified and the efficient, as it were – are institutions that are meant to balance and strengthen one another.

This system works as long as each institution performs its duties correctly, and respects their boundaries diligently.

The rights of the monarch

The most definitive of said boundaries is that the monarchy must always be above politics. It is the duty of politicians and governments to politick and govern, and it is the duty of the monarch to never interfere with either.

The concept of the dignified and the efficient mentioned above was first written about by British journalist and businessman, Walter Bagehot in 1867 in his enduringly influential treatise on the English Constitution.

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Bagehot also wrote at length about the rights of the monarch, with regards to governance – namely the right to be consulted, to encourage, and to warn.  The manner in which Bagehot writes of these rights seems to suggest that said rights are to be executed in a private manner, between monarch and prime minister, and perhaps with the cabinet.

Influencing politics

I could be wrong, but I imagine both Bagehot and current effective and popular constitutional monarchs would be horrified at the idea of a sitting monarch making comments in the press that could be seen to be politically influential.

While the definition of what is or isn’t politically influential will surely be debated by some, I think we can perhaps examine a few cases in which a comment may be one or the other.

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For instance, if a queen was to make a public comment in the media about a politician’s character (especially an active one that is currently attached to an active party, and/or one who may be seeking public office), whether positive or negative, such a comment may be construed as being politically influential.

In “The Crown”, Queen Elizabeth has a conversation with her grandmother, Queen Mary, about the duty of the monarch to remain neutral. In this conversation, Queen Mary warns that even a smile or a frown in a particular situation can be construed as undue favour. If this is so, what more a direct comment on a politician’s character?

Being above politics

I’m not one to idealise our former colonial masters, or somehow compare one monarchy to another. Perhaps all we can say for now is that the most effective and popular constitutional monarchies existing today are the ones where monarchs have gone to extraordinary lengths to stay above politics.

The phrase ‘above politics’ purposely advocates the notion that there should be some institutions of government that are ‘higher’ than the worldly taint of shifting political winds and endless jostling for electoral favours.

Challenging though it can be on a personal level for monarchs, history suggests that this approach is the one that ultimately best serves both the monarchy and the nation as a whole.

Malaysia’s Najib Razak fans the flames of Religious Intolerance


October 20, 2017

Malaysia’s Najib Razak fans the flames of Religious Intolerance

by Mariam Mokhtar.

http://www.sentinel.com

Image result for Chicken Najib Razak

Chicken Najib Razak fans the flames of religious intolerance

Malaysia has been thrown into a royal shambles by a growing rivalry between the country’s nine religiously moderate sultans and its conservative mullahs, considered by many to be “nouveaux royals” vying for the attention of ethnic Malay Muslims.

Political and social observers believe that if the controversy is left unchecked, it could undermine the position of the corruption-scarred Prime Minister, Najib Abdul Razak.

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Johor people are proud of Major General Sir Sultan Ibrahim Ibni Sultan Abu Bakar, who ruled Johor for 64 years from 1895 to 1959 and his successors. Born on September 17th 1873, he ascended the throne on June 4th 1895 following the death of his father Sultan Abu Bakar. He was proclaimed on September 7th 1895 and was crowned on November 2nd of the same year. He celebrated his diamond jubilee of his accession on his 82nd birthday, a world record at that time. Sultan Sir Ibrahim also declined to become the first Yang Di-Pertuan Agong of Malaysia in 1957 and so did the subsequent Sultan of Johor, Sultan Sir Ismail.Johor Mesti Sentiasa Jadi Johor

Image result for Tough Sultan of Johor

HRH Sultan Ibrahim Ismail Ibni Baginda Al Mutawakkil Alallah Sultan Iskandar Al-Haj, born on 22 November 1958 during the reign of his great grandfather Sultan Ibrahim, is widely admired and respected by all Malaysians

On October. 10, the Royals, who serve as the hereditary titular heads of nine of Malaysia’s 13 states and who even today have a deep reserve of loyalty from feudal rural Malays, called for unity and religious harmony after what they described as “excessive actions” in the name of Islam, a rare intervention into the public arena.

“It is feared that the excessive actions of certain individuals of late can undermine the harmonious relations among the people of various races and religions,” said the statement, signed by the Keeper of the Rulers’ Seal, Syed Danial Syed Ahmad, according to a report in the state-run news agency Bernama.  “The Rulers feel that the issue of harmony has deep implications if any action is associated with and undertaken in the name of Islam.”

Najib is normally swift to act against members of the Malaysian public who condemn the royal households, the Islamic institutions, or his administration. But last week, after the Malay rulers issued the royal rebuke, Najib was silent.

Leaders of the United Malays National Organization (UMNO), the country’s biggest ethic political party, understand the potency of conservative Islam to manipulate ethnic Malays, who make up about 60 percent of the population. The other 40 percent are comprised of Chinese, Hindus, East Malaysian ethnic Bumiputeras, and others.

The nine royal households, who by tradition and the Constitution are the guardians of Islam in their respective states, are believed to oppose the implementation of hudud, or harsh Islamic law, and a bill before the parliament to enlarge the power of the Syariah Courts. They are also said to be alarmed about recent events like the banning of certain books and the arrest and deportation of authors and speakers including the Turkish academic, Mustafa Akyol.

Image result for mustafa akyol

 

A series of religious-related incidents has pitted the mullahs and the government against the royal households. Last month, the Kuala Lumpur City Council cancelled the annual Oktoberfest event, a Germany-inspired celebration of the passing of the seasons and of beer-drinking, and told the organizers that the event was a sensitive issue. They did not say who considered it sensitive or how it would affect Muslim sensitivities.

Days later, a launderette in Johor issued a statement saying that its services were only for Muslim patrons. The owner deemed that items belonging to non-Muslims would “contaminate” items of clothing worn by Muslims and invalidate their prayer.

The public were outraged by this act and HRH Sultan of Johor Ibrahim Sultan Iskandar waded in, warning the owner that the business would face closure by him if it did not stop operating as if it was in the Taliban portion of Afghanistan. After the dressing-down, the launderette owner apologized for his action and offered his services to people of different faiths.

The Royals have thrown the ball into Najib’s court, but he has refused to play. His relationship with the Sultans is increasingly tenuous, but his reticence to make a stand is regarded as weakening his own position.

The nature of the Sultans’ intervention is regarded as an indication that the royals are fed up and irritated as in fact are many of the country’s urban Malays by the erosion of community integration, as are many professionals among the Malay population, who say they are at the end of their tether with Najib and fundamentalist Islam. At a recent wedding, some even said they wouldn’t mind if a Chinese were to become prime minister, an astonishing heresy in the country. Many said they are openly encouraging their children to migrate. Nonetheless, the opposition as a political force remains splintered and a long shot against Najib and UMNO in an expected general election which must be called before the middle of 2018.

“The royals, too, feel their position is threatened. They may be Malay and act as the guardians of Islam, but many, when away from prying eyes, lead a very western lifestyle,” a political analyst told Asia Sentinel. “Some royals spend an appreciable amount of time in the west and enjoy a lifestyle that many of their Malay subjects can only envy. With rising Islamic conservatism, the ordinary Malays cannot emulate this western lifestyle in Malaysia.”

The Royals are compelled to speak out before extremism takes root and undermines their royal status, another social critic said. “In Islam everyone is considered equal, and only in Saudi Arabia are kings above the law. The Malaysian royals are taking the initiative and acting before their own existence is questioned by the extremists.”

As an example, he said, in April 2016, the Sultan of Terengganu, Sultan Mizan Zainal Abidin stripped the state’s chief minister Ahmad Razif of all state-awarded titles because Razif had presented a controversial Indian zealot, Zakir Naik, with three islands.

Najib is not known for issuing retractions, denials or affirmations, as he has normally depended on a coterie of loyal supporters, most of whom belong to his inner circle, to lash out on his behalf.

However, the Royal dressing down has thrown Putrajaya, the seat of government, into disarray and political observers wonder if Najib will order an immediate shakeup of the Department for the Development of Islam in Malaysia, known by its Malay-language initials JAKIM.

Image result for harussani zakaria

It takes a Siti Kassim to put Perak’s Chief Mullah Harussani Zakaria in his proper place

Several other religious experts including two influential muftis, Asri Zainul Abidin of Perlis and Zulkifli Mohamad Al-Bakri of the Federal Territory also admonished the launderette owner in Muar and another “Muslim-only” launderette operating in Perlis.

The Royals are compelled to speak out before extremism takes root and undermines their royal status, another social critic said. “In Islam everyone is considered equal, and only in Saudi Arabia are kings above the law. The Malaysian royals are taking the initiative and acting before their own existence is questioned by the extremists.”

As an example, he said, in April 2016, the Sultan of Terengganu, Sultan Mizan Zainal Abidin stripped the state’s chief minister Ahmad Razif of all state-awarded titles because Razif had presented a controversial Indian zealot, Zakir Naik, with three islands.

Najib is not known for issuing retractions, denials or affirmations, as he has normally depended on a coterie of loyal supporters, most of whom belong to his inner circle, to lash out on his behalf.

However, the royal dressing down has thrown Putrajaya, the seat of government, into disarray and political observers wonder if Najib will order an immediate shakeup of the Department for the Development of Islam in Malaysia, known by its Malay-language initials JAKIM.

Several other religious experts including two influential muftis, Asri Zainul Abidin of Perlis and Zulkifli Mohamad Al-Bakri of the Federal Territory also admonished the launderette owner in Muar and another “Muslim-only” launderette operating in Perlis.

In an unprecedented move, however, an Islamic preacher, Zamihan Mat Zain, fired back at the Johore Sultan and the Perlis and FT muftis for their stance, claiming that Muslims were only trying to lead good lives.

In a YouTube video, Zamihan termed Malaysia an “Islamic state” and said that being clean was Islamic. He was shocked, he said, that the small issue of the Muslim-only laundrette had been blown out of proportion, and become a worldwide sensation.

At a graduation ceremony at the Tun Hussein Onn University, the Johor Sultan called Zamihan “an empty tin with no brains,” adding that he was “very arrogant,” “haughty” and someone who believed he was the only one who had the right to scorn people of other races.

The Sultan of Johor’s criticism was swiftly followed by a similarly worded statement from the Perlis Crown Prince, Tuanku Syed Faizuddin Putra Jamalullail. The other Sultans delivered the October 10 Royal rebuke, saying Malaysians should focus on tolerance, moderation, and inclusivity for life in a diverse, multicultural Malaysia.

The statement, signed by the keeper of the ruler’s seal, Syed Danial Syed Ahmad, said, “The rulers are of the opinion that the damaging implications of such actions are more severe, when they are erroneously associated with, or committed in the name of Islam.”

In a further development, the royal rebuke has finally forced Jamil Khir Baharom, the Minister in the Prime Minister’s Department (PMD), who also heads JAKIM, into the open. JAKIM is under the control of the Prime Minister’s department, with an annual budget of RM1 billion (US$236.7 million). Calls for the accounts to be audited and made transparent have been ignored.

Jamil was silent when the issue of safety, teaching quality and the mushrooming of illegal tahfiz, or religious schools cropped up, but Zamihan, who took potshots at the Sultan, has forced Jamil to seek an audience with the Johor Sultan, who in turn ordered the state religious authority, JAIJ, to sever ties with JAKIM.

Zamihan initially denied he was attached to JAKIM, but it was revealed that he is an “Islamic affairs officer” who has been seconded to the Home Ministry’s publications and Koranic text control division. His videos and talks are often inflammatory. It is also alleged that preachers are paid about RM20,000 per month.

Anyone who thinks that this battle royal is just another religious incident that will soon blow over is wrong. Najib knows that clipping the religious preachers’ wings would seriously erode his powerbase, but he is caught in a dilemma of his own making. Rural, feudal Malays are making it crucial that Najib’s political future be determined by his ability to conciliate the royal households and the demands of the power-hungry, conservative Islamic clerics whom he has fostered. Najib has unleashed a hydra which he may be unable to control.

Mariam Mokhtar is a liberal political commentator in Malaysia

 

Malaysia through its Constitution


August 8, 2017

Malaysia through its Constitution

Much can be told about a country’s character through its laws. Correspondingly, the transformation of a country’s legal regime over time can be said to be a reflection of the socio-political evolution of its society.

Take the Constitution of the United States of America. To date, there have been 27 amendments since its promulgation in 1789. The first ten amendments are collectively known as the Bill of Rights, and spells out the aspirations and desires of a fledgling nation in the form of a solemn promise of fundamental rights in relation to religion, speech, press, assembly, the right to bear arms and protections in the criminal justice system.

 

Tunku Abdul Rahman hailed the “Merdeka” cries during the country’s Independence Proclamation Ceremony on August 31, 1957.

 

Following the end of the Civil War in 1865, amendments were made to abolish slavery and further define the rights of its citizens. As the Twentieth century got underway, the Constitution was further amended to reflect the changing times – voting rights for women, tax concerns and that peculiar period in modern American history known as Prohibition.

In 1963 the assassination of President John F. Kennedy paved the way for the 25th amendment, which establishes clear procedures for filling the post in the case of an abrupt vacancy. In 1971, following nationwide student activism in protest of the Vietnam War, the Constitution was amended for the 26th time to lower the voting age from 21 to 18.

The Malaysian Story

In similar vein, the evolution of the Federal Constitution of Malaysia since Merdeka in 1957 also provides a picture of how our nation has progressed – or regressed, depending on perspective – throughout the 60 years of its existence.

Unlike the US, the Malaysian Parliament is not shy when it comes to tinkering with the supreme law of the land. To date, there have been 57 constitutional amendment acts, which correspond to an average of almost one a year. However, it would be disingenuous to compare the two charters like for like, as the US Constitution, which comprises only seven articles, is meant to provide a “frame of government”1 that sets out the broad scope and functions of the main branches of the Federal Government, viz. the Legislative (Congress), the Judiciary and the Executive (the office of the president).

On the other hand, the Malaysian document is 12 times longer comprising 15 parts, 230 articles and 13 schedules – all of which detail very specific provisions on numerous issues including revenue from toddy shops to capitation grants from the Federal government to the states. For practical purposes, many of these provisions naturally require updating every once in a while.

That said, a number of scholars have noted that the actual number of amendments that have been made to the Federal Constitution is closer to 700, if each individual change is counted.2 Be that as it may, it is the substance more than the quantity of the amendments that really matters, and on this score constitutional expert Shad Saleem Faruqi has opined that fundamental alterations to critical areas have resulted in the dilution of the spirit of the original Merdeka Constitution.3 In addition, legal scholar HP Lee even describes the changes as amounting to “a truncation of safeguards which had been considered by the Reid Commission as vital for the growth of a viable democratic nation”.4

Malayan delegates met with British officials in London in 1956 to discuss their country’s future relationship with Britain.1960: Ending the Emergency without Losing Emergency Powers

 

The first major amendment to the Constitution took place in 1960, three years after Merdeka. In tabling the Constitution (Amendment) Bill 1960, the government moved to amend 33 articles and insert two new ones, besides amending the second schedule. While it is not unusual for a fledgling country to amend its constitution after a few years of finding its feet, some of the changes that were undertaken had serious and far-reaching consequences.

It is perhaps important to first understand the context of the times. Malaya, as the country was called then, had gained independence in 1957 in the midst of a communist insurgency that began in 1948. By 1960, the war had begun to wind down as the communist objective of seeking independence by force from the British had, by virtue of Merdeka, been rendered moot.

However, instead of capitalising on the end of the war to usher in a new era of peace and greater freedom, it was a case of the government wanting to end the Emergency without losing emergency powers. This can be clearly seen from amendments made to Part XI of the Constitution, encompassing Articles 149 to 151, which deals with legislation against subversion and action prejudicial to public order.

Article 149 provides for the creation of Acts of Parliament that would, in the face of subversive threats to the Federation,5 cause the suspension of fundamental liberties enshrined in Articles 5, 9, 10 and 13 with regards to freedom of speech, association, movement and property, and freedom from unlawful detention. This is of course an understandable provision given the tumultuous security situation of the time. However, the same article also provided a sunset clause that stipulated that all such legislation would cease to have effect after one year. In other words, laws allowing preventive detention were meant to be temporary features.

Men of the Malay Police Field Force wade through a river during a jungle patrol in the Temenggor area of northern Malaya.

 

Unfortunately, this critical safeguard was repealed in the amendment, thus paving the way for the creation of the notorious Internal Security Act 1960, which remained in force until its repeal 52 years later, only to be succeeded by similarly powerful incarnations such as the Security Offences (Special Measures) Act 2012 and the Prevention of Terrorism Act 2015.

Meanwhile, Article 150, which governs the declaration of states of emergency, used to contain in its original version a clause that would necessitate, in the event of an emergency proclamation, its tabling in both Houses of Parliament at the soonest convenience. Once convened, Parliament must approve the resolution for the emergency, failing which it would automatically expire after two months from its date of issue. In the case that Parliament is not sitting at the time, then the Yang Di- Pertuan Agong6 could issue emergency ordinances that would expire 15 days after the reconvening of Parliament.

However, the provisions were amended to remove the need for parliamentary approval. Instead, any emergency proclamation or ordinance would now continue to be in force until such time that Parliament annuls it. The corollary had been reversed – where parliamentary approval was previously required to maintain a state of emergency, it was now only required to end one. These amendments were to set the scene for many long-term emergencies and ultimately the suspension of Parliament in 1969.

While most of the other constitutional amendments made in 1960 were mainly administrative in nature, there were still a few more that carried questionable overtones. Take, for example, the amendments to Articles 122, 125 and 138, which resulted in the repeal of the Judicial and Legal Service Commission ( JLSC), hitherto responsible for making all recommendations with regards to judicial appointments.

Following that, the power to initiate disciplinary proceedings against judges was transferred from the defunct JLSC to the Agong on the advice of the prime minister, thus severely curtailing the independence of the judiciary. Repercussions from this move did not become apparent until 28 years later (1988) when the provisions facilitated the sacking of the Lord President (now known as Chief Justice)Tun Salleh Abbas and two other judges of the Supreme Court, precipitating a judicial crisis from which the nation has never fully recovered.7

In addition to the Judiciary, an amendment to Article 145 also had the effect of changing the position of the attorney-general from a tenured one, much like a Supreme Court judge, to one that is held at the pleasure of the Agong. The intentions here were probably less sinister as it made the position a political appointment, which meant that the attorney-general could be a member of the government and therefore directly answerable to Parliament, as was the case from the 1960s to the early 1980s when the post was typically filled by members of parliament. However, it also meant that they could be unceremoniously sacked at any time, as Tan Sri Abdul Gani Patail was to discover in 2016 after running afoul of the Prime Minister Najib Razak.

1962: Consolidation of Power

The second major amendment to the Constitution took place just two years after the first. In 1962 a bill was moved to amend 29 articles, adding three more articles while repealing three others. Changes were also made to a number of schedules, including the introduction of the 13th schedule, which governs electoral rules.

By and large, the 1962 amendments saw the tightening up of laws and other minor administrative matters involving executive authority, legislative powers and financial matters including the assignment of revenue from minerals to states. Nonetheless, major changes were also made, particularly to Parts III and VIII concerning rules of citizenship and the electoral system respectively, both tied to the long-term survivability of the ruling Alliance government.

Citizenship had been one of the most contentious political issues leading to independence, and continued to dominate public discourse in the years following. The Reid Commission, drafters of the Constitution, had liberalised citizenship requirements so that many ethnically non-Malay residents could become citizens and, accordingly, gain electoral franchise.

The consequences of the more liberal citizenship policy would not be seen until 1959 when the first General Election of independent Malaya was held. The Alliance government saw its control over 99% of seats in the Federal Legislative Council reduced to only 71% in the newly constituted Parliament of Malaya. Besides losing control over Kelantan and Terengganu, two states in the Malay heartland, much of the Alliance’s losses were also due to low levels of support from the newly qualified non-Malay voters in urban areas.

Thus, faced with diminished influence, the Alliance moved to appease Malay voters through a massive rural development programme while they sought to contain the non-Malays by two means: firstly, citizenship was made more difficult to acquire, easier to lose and greater discretionary power in citizenship matters was placed in the hands of the executive.8 Secondly – and more effectively – fundamental changes were made to the electoral system in order to mitigate the potential threat of non-Malay electoral strength.9

However, tinkering with election rules was not an easy task, thanks to the Reid Commission’s foresight in embedding provisions to ensure that the Election Commission (EC) was not only independent but also accorded total authority over the delineation of constituencies without the need for parliamentary oversight. This meant that political parties, even if they were in power at federal or state level, would have little influence over the review and delimitation of constituencies.

In 1960 an electoral re-delimitation exercise was conducted by the EC in strict conformity with the letter of the Constitution. As constituencies became more fairly apportioned and voter disparity was reduced to a maximum deviation of 15% of the average constituency size within a state, it became apparent that urban non-Malay voters would gain an increased share of electoral influence at the expense of the Alliance’s traditional rural Malay vote base, which would lose its rural weightage advantage.

Alarmed by the outcome of the redelimitation exercise, the Alliance government passed a raft of changes to the Constitution in 1962 that effectively annulled the revised constituencies, added new rules for constituency delineation, increased the 15% deviation limit to 33%, and even more significantly, stripped the EC of its independence and role as final arbiter of constituency changes. As a result, the EC is now mandated only to conduct re-delimitation reviews before presenting its recommendations to the prime minister, who in turn will then table them “with or without modifications” to Parliament for approval by simple majority.

In the grand scheme of things, the constitutional amendments made in 1962, particularly with regards to election rules that provided Parliament with even greater control over the creation and boundaries of constituencies, can be seen to have been the greatest contributor to the longevity of the ruling regime’s hold on power, unbroken to this day.

1963-1969: A Nation in Transition

Just a year after the 1962 amendments, the Constitution underwent another major overhaul. The Malaysia Act 1963 was introduced to accommodate structural changes to the country with the addition of Sabah, Sarawak and Singapore into the expanded and renamed Federation of Malaysia.

KL in the 1960s.

 

As can be expected, minor changes had to be made to more than a hundred articles in order to include the new states. For the most part, the amendments were procedural in nature with a few exceptions such as the reinstatement of a watered-down version of the JLSC.10 In 1964 and 1965 the Constitution was amended twice for minor administrative matters involving the legislative, executive and judiciary, as well as further tidying up of laws following the expansion of the Federation.

Unfortunately, the new union was not to last. In protest of what Indonesian president Sukarno labelled the “neo-imperialist” creation of Malaysia,11 Indonesia declared a “confrontation” against the Federation, proceeding to wage violent conflict for the next three years.12 Besides military skirmishes in Borneo, a spate of bombings were also carried out in Singapore, the most famous of which was the bombing of Macdonald House on March 10, 1965, which killed three people and injured 33 others.

Adding to the pressure were racial tensions stirred up by various parties including Indonesian saboteurs, nationalist Malays as well as pro-communist leftist elements. During Singapore’s two-year period in Malaysia, numerous racial riots occurred, including the notorious July 21, 1964 riot that broke out during a procession to celebrate the Prophet Muhammad’s birthday, resulting in the deaths of 22 people. Further smaller scale riots took place later in the year, contributing to an immensely tense environment. These events had also taken place against the backdrop of a racially charged 1964 General Election, which served to strain the relationship between the Alliance and the People’s Action Party, which ruled Singapore.

With disagreements coming to a head over social, political and even economic and financial issues, the relationship became untenable. On August 9, 1965, Malaysian Prime Minister Tunku Abdul Rahman; Putra moved to enact the Constitution and Malaysia (Singapore Amendment) Act 1965 in order to legally separate Singapore from the Federation. With the removal of Singapore, the Constitution had to be amended again. This was conducted in 1966, affecting 45 articles and four schedules.

1966 saw further constitutional issues as it was Sarawak’s turn to face a crisis. In June 1966, following dissatisfaction over a native land reform law advocated by Sarawak Chief Minister Stephen Kalong Ningkan, 21 out of 42 members of the state legislature petitioned the Governor of Sarawak to remove Ningkan. With the backing of the Prime Minister, the Governor demanded Ningkan’s resignation, but the latter refused as he insisted that due process had not been followed as there had not been a motion of no confidence in the legislature.

Ningkan was sacked anyway, leading him to file a suit at the High Court, which ruled in September that the governor did not have the power to dismiss a Chief Minister. Ningkan was then reinstated but before he could dissolve the legislature to seek a fresh mandate, the Federal government moved the Emergency (Federal Constitution and Constitution of Sarawak) Bill 1966 in order to declare a state of emergency in Sarawak, thus suspending elections in the state. Further to that, the state constitution of Sarawak was also amended by Parliament to authorise the Governor to convene the state legislature without going through the Chief Minister, leading to Ningkan’s ultimate dismissal.

The high-handed removal of the Sarawak Chief Minister in 1966 marked the first time that a power grab was facilitated by the Federal Government, though it would not be the last. In 1977 a coup by members of the Pan-Malaysian Islamic Party (PAS) against the Kelantan Chief Minister was foiled when an emergency was declared by the federal government, thus keeping the incumbent chief minister in place until elections were held the following year. In the event, Barisan Nasional (the renamed Alliance coalition) managed to gain power for the first time in the state.

More recently in 2009, the Perak Chief Minister from PAS, leading the Pakatan Rakyat (PR) coalition government, was removed by the Sultan of the state following defections of PR assemblymen who declared support for BN. Following an audience between the Prime Minister and the Sultan, the latter refused the Chief Minister’s request for dissolution of the state legislature, and instead appointed a new Chief Minister from BN. Although a successful challenge was made at the High Court, the verdict was later overturned by the Court of Appeal and Federal Court, which held that  the takeover was legal.

1969-1973: Aftermath of a Tragedy

Topping off what is probably the most eventful decade in Malaysian history is the infamous May 13, 1969 racial riots. Tensions had mounted in the years leading up to the 1969 general election, resulting in outbreaks of sectarian violence. In November 1967 a hartal organised by Maoist sympathisers in Penang turned bloody, although it was contained from spreading beyond the state. In June 1968 protests against death sentences meted out to 11 Chinese members of the Malayan Communist Party took a racial slant until their sentences were commuted.

Eventually, the official General Election campaign period, from nomination day on April 5 to polling day on May 10, saw sentiments coming to a boil as racial and religious politics were played up to the hilt. A fortnight before polling day, a Malay political worker was killed in Penang. But while this incident managed to be quelled, another incident in Selangor occurred 10 days later, in which a young Chinese man was shot, reportedly in self-defence, by Police officers.

Sensing political opportunity, leaders of the Labour Party, which had by then fallen under the control of far-left elements and had also boycotted the general election, somehow ended up hijacking the organisation of the funeral procession. Held just a day before polling, the procession turned out to be one of the largest ever seen in KL, and was by most accounts less a funeral than a mass political demonstration complete with banners carrying revolutionary Maoist slogans and the depiction of the deceased as a political martyr.

A day later, Malaysia went to the polls. By May 11, it became obvious that the Alliance would retain power with a drastically reduced majority. Not only did the coalition fail to attain 50% of the popular vote share, they also lost their two-thirds majority in Parliament for the first time. On top of that, they also lost their majorities in the Penang, Kelantan, Perak and Selangor state assemblies, the latter two ending up in a hung situation with no party having an absolute majority.

The bombing of Macdonald House on March 10, 1965. Pic.1

 

Elated by the unprecedented results, opposition parties in the capital celebrated their success by holding large processions. Naturally, sentiments were highly racialised and provocative. In response, the Malay daily Utusan Melayu’s editorial suggested that Malay political power was under threat, prompting members of UMNO Youth13 to respond by organising a victory parade in the capital.

What followed on May 13 will forever be etched in history as Malaysia’s day of disgrace, described by Tunku as a “social and political eruption of the first magnitude”,14 a dark moment when Malaysia was betrayed by Malaysians. Blood flowed through the streets of KL as hundreds were killed in sectarian rioting.

A state of emergency was soon declared and on May 16, Parliament was suspended – a sequence of events that would not have been possible were it not for the constitutional amendments of 1960. In the absence of parliamentary rule, a National Operations Council (NOC) was established to play the role of a caretaker government under the directorship of Deputy Prime Minister Abdul Razak Hussein. State and district operations councils were formed to govern the country at the different levels.

The level of premeditation and actual motivations behind the decisions and events precipitating the riots will forever be the subject of conspiracy theories. But what cannot be denied is the fact that the May 13 incident marked the end of the first epoch of Malaysian history, and the beginning of a new era under Razak, who ruled as head of the NOC and eventually as prime minister upon the retirement of Tunku on September 22, 1970.

The bombing of Macdonald House on March 10, 1965. Pic 2

 

From the ashes of the bloody riots, a new social compact was forged in the form of the New Economic Policy (NEP)15 which laid the ground for an assertion of Malay nationalism in various sectors including education and the economy through social re-engineering and affirmative action programmes. The national political landscape was also transformed with the creation of the BN grand coalition in 1973, which absorbed opposition parties including PAS, Parti Gerakan Rakyat Malaysia (Gerakan) and the People’s Progressive Party (PPP) in West Malaysia. This had the effect of restoring the two-thirds majority in Parliament and consolidating control over every state government in the country.

Armed with total control, Razak moved to enshrine the new social compromises through the controversial Constitution (Amendment) Act 1971. Dubbed the “sensitive matters amendment”,16 seven articles were changed including those governing freedom of speech, assembly and association, parliamentary privileges, the national language, and the expansion of the scope of Article 153 that deals with the protection of the “special position” of the Malays.

As a result of the amendments, fundamental liberties were proscribed so that “sensitive matters” – defined to include issues such as citizenship, language, the special position of the Malays and the natives of Borneo, and the rulers’ sovereignty – could not be discussed openly, even in Parliament. The Sedition Act, previously inapplicable within the confines of the august House and state legislatures, now applies throughout.

These amendments were further augmented by other proscriptive legislation, such as the University and University College Act 1971, which forbade university students from participating in political activities, and the Official Secrets Act 1972, which cast a wide net for deeming what is confidential and hence unlawful to disseminate.

Further to that, Article 159 was altered so that the consent of the Conference of Rulers’, previously required only for amendments to provisions affecting the special position of the Malays and the Rulers themselves, was now also required for those affecting the national language, parliamentary privilege and certain fundamental liberties. Meanwhile, Article 153 was modified to allow the creation of quotas for Malays and natives in institutions of higher education, in addition to existing quotas for public service, education and commercial permits and licenses.

In 1973 another major constitutional amendment bill was moved that carried major electoral impact. Constitutional limits to rural weightage, which had been loosened in 1962 when the maximum deviation was increased from 15% to 33%, were abolished altogether. In the absence of the safeguards that were put in place by the Reid Commission, seats could now be created that are up to four or five times the size of other seats within the same state, as is the case today.17

In addition, the power of the EC to apportion constituencies was abrogated and instead specified in the constitution, hence amendable only by a two-thirds majority vote in Parliament. With deviation limits removed, the government of the day had practically awarded themselves carte blanche powers to delineate and apportion constituencies in any manner that was convenient to them.

Finally, the amendments also saw the carving out of KL as a federal territory, thereby removing it from the state of Selangor. As the majority Chinese population of KL was seen to have played a key part in the defeat of the Alliance in Selangor in 1969, excising the city also meant ridding the state of most of its opposition-leaning voters.18 Not only did it secure Selangor for BN, it also essentially robbed the voters of KL of their right to representation at the local level, as the federal territory has no elected legislature.

1973-1994: The Mahathir Era

Between 1973 and 1985, the Constitution was amended 11 more times, including numerous modifications to the capitation grants to the states, the creation of the federal territory of Labuan, further tightening up of election laws which gave the government even more discretionary powers, and the introduction of the ringgit as the national currency.

Of particular note were amendments made in 1983 and 1984 with regards to the legislative role of the rulers. In 1981 Mahathir Mohamad took over the job that he would go on to hold for the next 22 years. Never shy to challenge the orthodoxy, having been responsible for an infamous open letter to then-Prime Minister Tunku Abdul Rahman Putra in 1969 that blamed the latter for the May 13 riots, Mahathir began the first of numerous confrontations with the Malay Royalty in 1983.

Prior to this, the Rulers enjoyed legal immunity, a provision that had been abused on more than one occasion.19 By the early 1980s, the behaviour of the rulers was increasingly questioned in public discourse, particularly with regards to their perceived extravagance, financial misdeeds, wastage of public funds, involvement in business and active interference in political matters.20 Naturally disinclined towards feudalism and fueled by the prospect of an incoming activist Agong, Mahathir decided to pre-empt the situation by introducing the Constitution (Amendment) Bill 1983.21

Among the 43 articles amended were provisions that essentially made royal assent to a bill passed by Parliament a rubber-stamp procedure that could not be denied by the Agong. This applied to state laws as well. In addition, Mahathir also proposed to transfer the power to declare a state of emergency from the Agong to the hands of the prime minister. Although the amendments were passed by both Houses of Parliament, an impasse occurred when the sitting Agong, having consulted his fellow rulers, objected to the Bill.

A stand-off ensued as Mahathir went all guns blazing, rallying his party machinery in demonstrations up and down the country while the press played along to his tune, explaining the necessity for the amendments. Not to be outdone, the rulers also held counter-rallies with the support of veteran UMNO leaders.

Finally, a compromise was achieved. The right to declare emergencies remained with the Agong and the rulers retained their right to withhold assent to state laws. For federal laws passed by Parliament, the Agong could now reject a bill by sending it back to the legislature. If the said bill was passed again, then it would automatically become law after 30 days, with or without royal assent. The only exception to this was in the case of money bills, which could not be rejected in the first instance.22

Mahathir Mohamad.

 

The next major constitutional amendment would occur in 1988 amid portentous circumstances. A year earlier, Mahathir barely survived a leadership challenge from within his party, the result of which left Umno divided down the line. The losing faction undertook legal proceedings and in February 1988, the courts ruled Umno to be an unlawful society due to irregularities with some of its branches. In the wake of the deregistration of UMNO and other court decisions that the government found unfavourable, Mahathir moved to curtail the judiciary.

Article 121 was a specific target of the constitutional amendments of 1988. Previously ascribing plenary authority over the judicial power of the Federation to the courts, the article was amended to bind the courts to “such jurisdiction and powers as might be conferred by or under federal law”,23 thus subordinating the judiciary to the legislative. Other amendments included the removal of the general power of the High Court to conduct judicial reviews,the empowerment of the attorney-general to determine the courts for cases to be heard, and, significantly, the insertion of Article 121(1A), which not only drew a line of separation between the civil and syariah courts, also elevated the status of the syariah courts to be on par with the civil courts, thus creating a parallel legal system that has seen many complications arise, especially in cross-jurisdictional cases involving Muslims and non-Muslims.

In response to the government’s hastily introduced changes, the Lord President of the Supreme Court, Salleh Abas convened a meeting of judges which unanimously approved a letter to be sent to the Agong to convey their disappointment at the actions of the prime minister to undermine the judiciary.

However, thanks to amendments made in 1960, Mahathir was able to initiate disciplinary proceedings against the Lord President, resulting in his eventual removal along with two other Supreme Court judges. This dark episode remains a blight in the history of the Malaysian Judiciary, and it was not until 2008 that the government made reparations to the sacked judges. In 2017 the Federal Court (previously Supreme Court) ruled that the 1988 amendments that subordinated the judiciary to Parliament were unconstitutional, although it fell short of striking down the Act in question.24

Mahathir’s second bout with Royalty took place in 1993. Despite the previous standoff, a number of rulers continued to behave with impunity, regularly interfering in state politics, flouting tax laws and even indulging in criminal activity. Following a motion of censure by Parliament against the Sultan of Johor who had physically abused a hockey coach, the Constitution was amended to strip the Rulers of their immunity from prosecution, although they would be subjected to a special court of their peers rather than the normal civil courts.

Malaysia Day celebrations.

 

In 1994 Mahathir made further amendments to the Constitution to tie up loose ends, including abolishing the power of the Agong to delay a bill by returning it to Parliament. This time, the same provision was extended for state legislatures as well, hence all but eliminating the role of the Malay royalty as a checks and balances mechanism.

At the same time, the downgrading of the Judiciary was completed through symbolic changes such as the renaming of the Lord President as Chief Justice and the Supreme Court as the Federal Court, as well as the introduction of a code of ethics for judges.

The Constitution would be amended 16 more times, with the last being in 2009. Most of the changes during this period were minor and administrative in nature, with the exception of the creation of a third federal territory in 2001, viz. the new federal administrative capital of Putrajaya.

Whither Do We Go?

Unlike the US, whose 27 constitutional amendments, from the Bill of Rights to the abolition of slavery to universal adult suffrage, paint a narrative of a nation’s journey towards building a more inclusive, progressive and emancipated society, the story of the Federal Constitution of Malaysia reveals a nation that is heading the other way – towards more exclusivism, regression and repression.

Critical amendments made over 60 years have altered the fundamental nature and spirit of the original Reid Constitution of 1957 by concentrating power in the hands of the executive, dismantling various constitutional safeguards with regards to fundamental liberties and the use of emergency powers, overhauling the electoral system in order to ensure the longevity of the incumbent government, and suppressing rival centres of power, including institutions such as the Malay royalty and the judiciary.

As a result, the Constitution today no longer embodies the spirit and intentions of the founders of the country. This is perhaps an appropriate reflection of the Malaysian polity today. Although the same party that ruled at independence continues to rule, there are few who would agree that the current leadership even remotely adheres to the same ideals and principles as its pioneers.

Ultimately, fixing Malaysia requires fixing its laws. If our country is to find its place in the sun as an inclusive and progressive nation of the twenty-first century, then the political will to rewrite our laws to make for a more inclusive, open and fair society has to be found.

1 In its draft form, the US Constitution was given the working title, ‘A frame of Government’.

2 Cindy Tham, “Major Changes to the Constitution,” The Malaysian Bar, 17 July 2007, http://www.malaysianbar.org.my/echoes_of_the_past/major_changes_to_the_constitution.html.

3 The Sun Daily,“The All-Powerful Executive,” The Sun Daily, 1 October 2005, http://www.thesundaily.my/node/176393.

4 Cindy Tham, ibid.

5 These ‘threats’ were originally confined to conditions of organised violence, but were in the same amendment expanded to include attempts to incite communal hostility and acts ‘prejudicial to the security of the Federation’.

6 The Yang di-Pertuan Agong, usually shortened to Agong, is the paramount ruler and head of state of Malaysia. The position is elected by rotation from among nine hereditary Malay rulers every five years.

7 The Malay Mail Online, “Ex-Judge: Judiciary Never Fully Recovered from 1988 Crisis,” The Malay Mail Online, 20 September 2015, http://www.themalaymailonline.com/malaysia/article/ex-judge-judiciarynever- fully-recovered-from-1988-crisis.

8 LA Sheridan and Harry E Groves quoted in Lim Hong Hai, “Electoral Politics in Malaysia: ‘Managing’ Elections in a Plural Society” in Aurel Croissant (ed.), Electoral Politics in Southeast & East Asia (Singapore: Friedrich-Ebert-Stiftung, 2002), p. 108.

9 Lim Hong Hai, ibid., p. 107.

10 In 1963, the Judicial and Legal Service Commission (JLSC) was reinstated albeit in a watered down form. No longer chaired by the Lord President, the reincarnated JLSC’s remit also does not extend beyond the subordinate courts.

11 Marshall Clark and Juliet Pietsch, Indonesia- Malaysia Relations: Cultural Heritage, Politics and Labour Migration, (Abingdon: Routledge, 2014),p. 25.

12 The confrontation with Indonesia also provided the pretext for the Alliance federal government to suspend local government elections in 1965. The third vote has since been abolished.

13 Umno Youth is the youth wing of the United Malays National Organisation (Umno), the leading component party of the Barisan Nasional and the Alliance before it.

14 Tunku Abdul Rahman Putra, May 13: Before and After (Kuala Lumpur: Utusan Melayu Press), p. 7.

15 Formulated by the NOC, the NEP was conceived to achieve the two-pronged objectives of eradicating poverty as well as reducing and subsequently eliminating the identification of race by economic function and geographical location.

16 The Sun Daily, ibid.

17 See, for example, Wong Chin Huat, Yeong Pey Jung, Nidhal Mujahid and Ooi Kok Hin, “The Effects of the 2016 Delimitation Exercise on the State of Penang”, 13 October 2016, http:// penanginstitute.org/v3/files/malapportionment/ Penang-Report_20161013_Final.pdf, Susan Loone, “Penang study shows ‘hard evidence’ on EC’s malapportionment of seats,” Malaysiakini, 18 January 2017, http://www. malaysiakini.com/news/369671 and Free Malaysia Today, “Pua Claims EC Conducting Single-Biggest Gerrymandering Exercise,” Free Malaysia Today, 15 September 2016, http://www.freemalaysiatoday.com/category/ nation/2016/09/15/pua-claims-ec-conductingsingle- biggest-gerrymandering-exercise/.

18 Lim Hong Hai, ibid., pp. 111–112.

19 Barry Wain, Malaysian Maverick: Mahathir Mohamad in Turbulent Times (London: Palgrave Macmillan, 2012), p. 175.

20 Barry Wain, ibid., pp. 179–180.

21 Barry Wain, ibid., pp. 181.

22 Barry Wain, ibid., pp. 185.

23 See Article 121 of the Federal Constitution of Malaysia.

24 Free Malaysia Today, “MP: Parliament Must Now Restore Judicial Power to the Judiciary,” Free Malaysia Today, 4 May 2017, http:// http://www.freemalaysiatoday.com/category/ nation/2017/05/04/mp-parliament-must-nowrestore- judicial-power-to-the-judiciary/.

Zairil Khir Johari is MP for Bukit Bendera, Penang.