A Little History About Your King and Queen For You Little Band of Haters

MALAYSIANS are not accustomed to seeing a Yang di-Pertuan Agong and a Raja Permaisuri Agong that they can relate to.

Remove the pomp and regalia, you see a CEO who holds work discussions at a mamak joint over teh tarik, and a mother who stops at stalls to buy kuih, just like ordinary parents would do on a daily basis.

To say that Malaysians have gone all gaga over this Royal couple is an understatement. The ability to interact, especially with the Queen, on social media is totally unprecedented.

In some ways, being able to tweet to your Queen like you would speak to your mother is good, but some tend to forget that there are lines drawn in such engagement. They mean well, but tend to forget mannerism.

Of course, the royal institution also has its band of haters – people who think that the royal institution does not have a place in modern democracy.

They call the royal families the untouchables, the unelected, the ones whom we pay for their lifestyle. All these remarks have been made thinking that the Malaysian democracy is a true democracy in every sense, where the Malay Rulers are nothing but overpaid rubber stamps.

They are anything but rubber stamps.

The Yang di-Pertuan Agong is the Supreme Head and executive authority of the Federation.

In other words, he is the fount of authority in Malaysia. As the Ruler of a State, he also represents the other eight Malay Rulers who have elected him to the office of the Yang di-Pertuan Agong.

Prior to 1 February 1948, save for the rulers of Terengganu and Johor which governed in council with the Sultan as head, the rulers were all absolute monarchs.

The British were here in agreement with the respective state Ruler to assist the latter in making the administration of their respective state more efficient.

The Rulers delegated their administrative authority, except in the affairs of the religion of Islam and Malay customs, to the British Residents who were in the Rulers’ payroll.

These residents were answerable not to the Queen of England, but to the sovereign ruler of whichever Malay state they were transferred to.

Come February 1 1948, these Malay states were all federated – with central control, but with some internal autonomy.

The Malay states still retained their sovereignty.

A popular belief is that we were colonised and were therefore not sovereign states, but the court case brought by one Jenny Mighell against the Sultan of Johor in 1894 brought forth an 1885 Treaty with the Crown of England and a letter each from the Colonial Office and Queen Victoria herself to confirm Johor’s status as a sovereign nation.

When the Sultan of Johor sent Dato’ Mohd Seth bin Mohd Said as his representative to the Merdeka discussions in London, the latter was given an instruction to disagree with Malaya being given independence.

Detractors of the royal institution regarded this as the Johor family wanting to remain as a colony of England instead of being independent as a single nation under the Federation of Malaya.

The truth is, Johor was independent at the time as other states were, had its own civil service, courts and postal service. Used to efficient governance headed by British advisers, the Sultan of Johor did not want a Malaya governed by Malayans who, in the view of the Sultan, do not possess any idea of how a nation should be governed.

The 1948 Federation of Malaya had a Federation of Malaya Legislative Council with the High Commissioner as its Chief of Executive; three ex-officio members namely the Chief Secretary, the Finance Secretary and the Attorney-General; 11 State and Settlement members consisting of the President of the Council of each of the Malay states and an elected member of the council from Melaka and Pulau Pinang; and 45 official (including the Chief Ministers) and unofficial members.

This council was made via the Federation of Malaya Agreement of 1948 by Sir Edward Gent on behalf of the Malay Rulers, and only for the Malay Rulers and their Successors.

This again, is proof that the Malay Rulers were sovereign and not subjects of any colonial power.

Fast forward to 1957, the final agreement was reached for the Malay Rulers to transfer the delegation of some of their executive powers from the British administrators to the representatives chosen by the people in the 1955 elections.

The Malay Rulers had preferred a hybrid government that would have consisted of elected representatives as well as representatives appointed by them made up of professionals who could help run the country in the case where elected representatives do not meet the expected mark.

In hindsight, that would have saved us all a lot of trouble now.

The office of a Yang di-Pertuan Agong, representing the other eight Malay Rulers, was created by the Federal Constitution.

In this constitution it also states that the Yang di-Pertuan Agong has the right to choose from the Lower House, an elected representative whom to the opinion of His Majesty, holds the confidence in the House, to become the Prime Minister.

This Prime Minister shall then advise His Majesty on whom to pick as members of His Majesty’s Cabinet.

Likewise, the Sultan or Raja of the respective states has the right to choose an elected representative from the Dewan whom to the opinion of His Majesty, holds the confidence of the Dewan, to become the Menteri Besar. This Menteri Besar shall then advise His Majesty on whom to pick as His Majesty’s Executive Councillors.

If the Yang di-Pertuan Agong, or the Sultan or Raja, feel that none hold the confidence of the House or Dewan, Their Majesties can not appoint anyone until a candidate that enjoys the confidence of the elected representatives is found; but this has to be done within 120 days after the dissolution of the Parliament and states assembly.

It is not for anyone to force Their Majesties to choose.

Having said that, there was no business whatsoever for Umno members to hold a demonstration in front of the Terengganu palace, for Pakatan supporters to roll on the roads leading to the Perak palace, or for the Prime Minister to say that the Sultan of Johor has no say in choosing a Menteri Besar.

The Prime Minister is the CEO of the country, answering to the Yang di-Pertuan Agong who is the Executive Chairman.

And what do the Malay Rulers receive for them to agree to being in this Federation and to allow the people to choose amongst them representatives who will be administering the Malay Rulers’ government?  The emoluments stated in the Istana Negara (Royal Allowances) Act, 1982 and the various states’ enactment for royal provisions.

The constitution of the Malay states was made by the Malay Rulers and with the State Legislative Council. The Federal Constitution was made by the Federal Legislative Council. The Federal Constitution made the Yang di-Pertuan Agong, the Prime Minister, the Cabinet, the Acts, us Malaysians.

Take the Federal Constitution away and dissolve Malaysia, you will not have a Yang di-Pertuan Agong, no Prime Minister, nothing. However, the Malay states will still exist with the Sultans as the supreme executive authority of those states.

And they are above the respective states constitution because they made the state constitution.

That is why they are the unelected, the untouchables as some say.

And no, you do not feed them. 

You are merely paying them in exchange for your right to vote in the people in your judgment would be the better ones to administer the government by the people, for Their Majesties.

(This article was first published by The Mole)

ICC: A Strategic Withdrawal by the Government?

The International Criminal Court (photo courtesy of Shutterstock)

We have ratified, but have we withdrawn?

AS we all know, Prime Minister Tun Dr Mahathir Mohamad had announced on April 5, 2019 Malaysia’s intention to withdraw from ratifying the Rome Statute of the International Criminal Court.

However, just a week ago Foreign Minister Saifuddin Abdullah said that it is only a dead end for ICERD, but not for the Rome Statute (Jalan mati buat ICERD tapi bukan Statut Rome, kata Saifuddin – Free Malaysia Today, 23 April 2019).

Parliamentary Opposition Leader Ismail Sabri Yaakob hit out at the Foreign Minister the very next day. In a blog post, Ismail asked if the Foreign Minister still wants the Rome Statute ratified and what is the Pakatan Harapan government’s agenda? (Menteri Luar Masih Mahukan Statut Rom Diratifikasikan. Apa Agenda PH? – dsismailsabri.com, 24 April 2019).

What I find most interesting among all the points that were brought up by the Opposition Leader are the date when the statute comes into force for Malaysia, and the period of withdrawal from ratification.

Paragraph 1 of Article 126 of the Rome Statute states that the Statute shall come into force on the first day of the month after the 60th day following the ratification. For Malaysia, that date falls on June 1, 2019.

Paragraph 1 of Article 127 states that a State Party may, by written notification, withdraw from the Statute. The withdrawal shall take effect ONE YEAR after the date of receipt of the notification.

What the above means is that come June 1, 2019, Malaysia becomes a State Party. Any withdrawal following that date will only take effect ONE YEAR AFTER the receipt of the written notification. Until the withdrawal comes into effect, Malaysia is obliged to honour the Rome Statute.

Enter Article 7 Paragraph 1

At a glance, the ICC does not cause a nation’s sovereignty to diminish. Unlike the International Human Rights Law, the International Criminal Law does not directly impact national constitutional arrangements.

However, according to an expert in International Criminal Law, Rupert Elderkin, when International Criminal Law comes into play, it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power (Elderkin, R. (2015). The impact of international criminal law and the ICC on national constitutional arrangements. Global Constitutionalism, 4(2), pp. 227-253).

The Attorney-General can argue that the Yang DiPertuan Agong will not be affected if Malaysia decides to declare war against another nation. Maybe not so. That is the least of my worries. It is Article 7 (Crimes Against Humanity) that I am more concerned about.

This Article deals with any act when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack that includes persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender, or crimes of apartheid.

Persecution means the intentional and severe deprivation of fundamental rights contrary to international law, while the crime of apartheid is explained as an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups.

I can name several Articles in the Federal Constitution, and the numerous policies aimed at protecting the special rights of the Malays and Bumiputera, as well as the special position of Islam, that are already against Article 7 of the Rome Statute.

The Malay Rulers act as a shield in their respective states for protecting the religion of Islam. If a Sultan refuses to appoint a state assemblyman whom he thinks has the majority support of the Dewan, as the Menteri Besar, on grounds that the latter is not a Muslim, then the Sultan is already acting in direct contravention of Article 7.

In the case of HRH The Sultan of Selangor and the issue of the use of “Allah” in Bibles five years ago, although the State’s religious affairs department acted in accordance with a state enactment that was made under the state’s constitution, that, too, would have contravened Article 7 of the Rome Statute.

It is immaterial whether or not the State’s constitution or enactments contravene the Federal Constitution. It can only be so when a Constitutional Court deems it to be.

Can the Agong and Malay Rulers be prosecuted?

But will the Yang DiPertuan Agong and the Malay Rulers still be protected from prosecution by the ICC? Or, can they be prosecuted by the ICC?

The Malay Rulers know of the policies and Articles that give Islam its status as the religion of the Federation; that give special status to the Malays and Bumiputeras over others; that makes Malay the national language – all of which come under their protection.

One can argue that since the Malay Rulers are constitutional in form, they cannot be held responsible, as argued by the Attorney-General saying that the Agong cannot declare war and is therefore not accountable. However, the Eighth Schedule of the Federal Constitution clearly states their executive powers.

Although the Latin phrase actus reus non facit reum nisi mens sit rea is the common law test for criminal liability meaning the act is not culpable unless the mind is guilty, it also means that a crime can be committed not only through one’s intention, but also through the knowledge that one’s action or inaction would contribute the same.

In Prosecutor vs Tihomir Blaškić (ICC Appeals Chamber, 29 July 2004), the ICC Appeals Chamber held that “the person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.”

In other words, there is no legal requirement of an ideology, plan or policy to articulate the mens rea applicable to crimes against humanity. In this context, the Malay Rulers can be found culpable to promoting and enforcing policies and plans that oppress targeted race or religion, while holding the supremacy of one race or religion.

In the words of Catherine Gegout, and Associate Professor in International Relations, Faculty of Social Sciences at the University of Nottingham,

“The ICC can prosecute any individual anywhere in the world, but for suspected criminals who are citizens of a state which has not ratified the ICC Statute, a United Nations Security Council (UNSC) resolution is necessary.” (Gegout, C. (2013). The International Criminal Court: limits, potential and conditions for the promotion of justice and peace. Third World Quarterly, Volume 34, 2013, Issue 5, pp. 800-818).

How effective can ICC prosecute will depend on how cooperative a State Party is. If the government, as the executive branch of a State Party, decides to cooperate with the ICC and have a Malay Ruler tried by the ICC, then It could.

So, what is the government’s intention?

If there is something that may affect the status of Islam as the religion of the Federation, the special privileges of the Malays and Bumiputera, the National Language, and the status and functions of the Malay Rulers, it is imperative that the government bring it to the Malay Rulers to be deliberated.

By going quietly and ratifying the Rome Statute without first bringing the matter to the attention of the Malay Rulers is an act that contravenes the Federal Constitution. The Malay Rulers have every right to be consulted, to warn and to encourage. The cabinet members all took an oath to serve in His Majesty’s government, a Malaysian government; not a political party’s government.

So, what was the intention of ratifying the Statute? To take Myanmar to the ICC? China for the mistreatment of the Uighurs

Most importantly – June 1, 2019 is getting nearer each day. Why has the government not sent the formal letter to the Secretary-General of the UN to notify of Malaysia’s intention to withdraw from ratifying the Statute? How difficult can drafting a letter be? Does it need more than 25 days to draft one?

Or is the announcement by the Prime Minister 26 days ago a form of strategic withdrawal that will only see a letter sent days, weeks, months or years after June 1, 2019 that will see Malaysia bounded for another year after?

(This article first appeared on The Mole)

We Are Not Absolute Monarchy, But Neither Are We A Dictatorship

The Prime Minister has defended his view that the palace has no role in the appointment of the menteri besar, in remarks which are likely to increase tension between him and the Johor royal family.

“When we formed the Federation of Malaya, we introduced the constitution, where we stated that Malaya will follow the constitutional monarchy system.

“The ruler has no absolute power. If it still says so in the Johor constitution, then it is void. (We Are Not Absolute Monarchy, Neither Is Johor says Dr M – Free Malaysia Today, 10 April 2019).

Perhaps Mahathir is already incoherent. Article 71 of the Federal Constitution guarantees the Constitution of the States.

If there is any conflict between the state’s constitution with that of the Federal Constitution, then the matter has to be decided by a Constitutional Court.

Example: Selangor’s Shariah Offences Enactment gives power to the state religious affairs authority to confiscate Bibles printed in the Malay language or using one of the 25 prohibited terms such as Allah. This is in conflict with with Article 11 of the Federal Constitution, but is applicable in Selangor until such time a Constitutional Court declares it null and void.

While Malaysia is a Constitutional Monarchy, Article 181(1) of the Federal Constitution states:

Subject to the provisions of this Constitution,” the “sovereignty, prerogatives, powers and jurisdiction of the Rulers…as hitherto had and enjoyed shall remain unaffected.”

The same was noted by Mark R Gillen of the Faculty of Law, University of Victoria (Gillen 1994:7). In the words of the late Sultan of Perak, Sultan Azlan Shah, former Lord President, it is:

…a mistake to think that the role of a King, like that of a President, is confined to what is laid down by the Constitution, His role far exceeds those constitutional provisions” (Azlan Shah 1986:89)

In other words, the Rulers may be Constitutional Monarchs, but they are not limited to what have been spelt out in the Federal Constitution.

Now, back to who has the right to appoint the Menteri Besar of Johor since the Constitution of Johor is not void? Please refer to the photo below which is a screenshot of the Constitution of Johor regarding the appointment of the Menteri Besar:

You can fool the uneducated voters, but you can’t fool the likes of me.

The Price for Citizenship

The spat between the TMJ and Mahathir has not seen its end (photo courtesy of abuleman.org)

I do not think that we have seen the end of the volleys fired at each other between the Tunku Mahkota of Johor (TMJ) and the Government. Although I disagree with the TMJ whenever he writes about anti-federalism, I agree with his stand to protect the Federal Constitution. He may not have the protection from the law as he is not the Head of State, but his courage and determination to go at loggerheads with the Government on this matter deserves support.

According to Barisan Nasional Member of Parliament Annuar Musa, the recent Rulers Council meeting saw the Attorney-General Tommy Thomas and Foreign Minister Saifuddin Abdullah summoned by His Majesties to explain on the clandestine ratification of the Rome Statute.

His Majesties also summoned Emeritus Professor Shad Saleem Faruqi, a Professor of Law in the University of Law, who is a proponent of the Rome Statute. Also summoned were four academicians opposed to the statute: Law and Constitution lecturers Professor Datuk Dr Rahmat Mohamad, Associate Professor Dr Shamrahayu Ab Aziz, Dr Fareed Mohd Hassan and Hisham Hanapi.

Only after listening to all above did the Rulers Council leave it to the Yang DiPertuan Agong, who represents the Rulers Council, to take the matter with the Prime Minister. The Rulers Council could have there and then issued a statement to show their displeasure at the manner their Government had acted in matters that could have an impact on the rights and position of Islam as the religion of the Federation, the Malay Rulers, the privileges of the the Malays and Bumiputeras, and the National Language.

This is not the first time that Saifuddin has gotten himself in hot soup. When he was a Minister in Najib Razak’s administration, he came up with a National Unity Bill when that was not the term given to him as Chairman of the National Unity Consultative Council. As a result, Najib Razak and the Attorney-General then were summoned to the same meeting four years ago and received a telling or two.

Mahathir was very obviously furious as seen in the video of a press conference made after announcing Malaysia’s pulling out of the Rome Statute, and unnecessarily alarmed the people with words like coup-d’etat to justify the Government’s about turn.

What he, and his supporters seem to have forgotten is that he is the Prime Minister of His Majesty’s government. It was the agreement signed between their Majesties with the ruling coalition in 1957 to transfer the administrative powers vested in the British advisors by their Majesties from the former, to the government that was elected by the people.

This was true then, true when the British were still here, and still true now that although the Rulers had divested much of their independence, they remain sovereign; and independence is not equal to sovereignty.

As a principle of international law, sovereignty denotes, in its purest form, the concept of a ‘supreme authority’ be it an individual or a collective unit and implied power to exercise independence both internationally and domestically.

And Professor Datuk Dr Ramlah Adam rightfully pointed out that the powers of the Malay royalty are now included in the Federal Constitution. They (the Rulers Council) should have been consulted first, as accorded by the Constitution, before the government took unilateral decisions to introduce and ratify ICERD and the Rome Statute.

Other than having the rights to be consulted, to encourage and to warn in daily administrative matters, the Malay Rulers also have the duty to protect the sanctity of Islam as the religion of the Federation and the states they reign over, the special privileges of the Malays and Bumiputeras, the special position of the Malay language as the National language.

These are the rights enshrined in the Federal Constitution, and any attempt to introduce anything that has any effect on the above, will need the agreement of the Rulers Council. Any deviation from that is against the Federal Constitution and the spirit in which it was made and agreed to by our forefathers with all the parties involved.

And I saw an online comment by a non-Malay netizen asking what have the Malay Rulers done that have benefitted the people? After the post-World War 2 racial clashes that saw the birth of the First Emergency, the British based on a priori saw the need to resettle the Chinese in camps while between 20,000 and 50,000 be sent back to China.

The plan moved at a snail’s pace due to the objections by many, and with the total withdrawal of the Kuomintang to Formosa, the repatriation of the Chinese came to a halt in September 1949 when the Communist Party of China closed off all ports and beaches. Only 6,000 Chinese from Malaya were sent back (Anthony Short, 1975 pp 178-201). The rest were settled in new villages to curb them from supplying the Communist Party of Malaya with food and other essentials.

Most of them had never had any form of allegiance to Malaya, its Rulers and government. Therefore, in granting citizenship to them they were required to give allegiance to the Rulers and the Federation.

That is the price you have to pay to become the citizens of this nation.

The same goes to all the Members of Parliament and members of the government cabinet: you have all taken an oath of allegiance to the Yang DiPertuan Agong, who represents the other eight Malay Rulers. State executive councillors and elected representatives have also taken the oath of allegiance to their respective Ruler. You are all administering the governments of the Federation and its states on behalf of the Malay Rulers, therefore it is totally unbecoming for you to act as though they are equals.

As in the words of Tengku Amer Nasser Ibrahim, the adopted son of the 16th Yang DiPertuan Agong, posted to his Instagram story:

“Tadbir” must be accompanied by “Adab”, only then will the outcome be just.

So, stop toying around with the Malay Rulers, the sanctity of Islam, the privileges of the Malays and Bumiputeras, and the special position of the Malay language as the National language.

We, the rakyat, are watching.

The Malaysian Concord (Part 4) – The Position and Function of the Malay Rulers

This article follows a previous one on the Malay and Bumiputera special rights.

A couple of days ago it was made known to the public that the street names in a certain suburb of Shah Alam were changed to Chinese characters, in contravention of Sections 2 and 9 of the National Language Act, 1963/67.

Yesterday, HRH The Sultan of Selangor decreed that the street names be taken down and replaced by ones in the Malay language, which is the National Language.

I mentioned in a previous post that a national language is a tool to unite the peoples of Malaysia. 

It was the intention of our forefathers in the quest for independence to have ONE language to unite all, and that is the Malay language with a Romanised written form, so that the non-Malays could learn the Malay language rapidly (Tunku Abdul Rahman, The Road to Independence, 1984: pp.112-114).

I gather that those were the reasons His Royal Highness issued the decree mentioned above – in line with one of the functions of the Malay Rulers: to care for the people’s welfare.  Therefore, if there is any issue that may cause tension, the Malay Rulers will step in to remind the people to respect each other and to respect the laws.

What I find disgusting in this episode is that the local government, or local council, allowed for the street name change to happen, forgetting that every instrument of the government is acting on His Majesty’s Service.

Not too long ago, all government envelopes had URUSAN SERI PADUKA BAGINDA stamped at the top; that was until someone who was not fond of the Rulers changed that to URUSAN KERAJAAN.

 

Essentially, all government branches, including the Federal cabinet as well as the state executive councillors, are acting on behalf of the Yang DiPertuan Agong and Sultan (in the case of states).  

They are not independent of the Rulers – which is why they are sworn in before the Agong or the Sultan.

The Malay Rulers have divested much of their independence now as they did before during the period of British administration.

However, both they and their state remain sovereign. Independence is not equal to sovereignty.

The British were here through the various treaties signed with the respective Malay Rulers.  Save for the Japanese occupation, Malayan Union period, Pulau Pinang, Melaka and for a while, Pangkor, the Dindings and Larut, Peninsular Malaysia was never under British colonial rule.

There were three test cases to determine the sovereignty of the Rulers and the state they ruled:

 

  1. The infamous Mighell v The Sultan of Johore (1894) where it was ruled that, although the Sultan by treaty had bound himself not to exercise some rights of a sovereign ruler, this did not deprive him of his character as an independent sovereign;
  2. In Duff Development Company Limited v The Government of Kelantan (1924), the House of Lords similarly upheld the sovereignty of Kelantan and its Ruler was not intended to be qualified by the terms of the treaty.
  3. In Pahang Consolidated Company Limited v State of Pahang (1933), the Privy Council summarised the constitutional position in Pahang as follows: subject to the limitations which the Sultan had from time to time imposed upon himself, he remained ‘an absolute ruler in whom resides all legislative and executive power.’ (See, 1894; Q.B 1924; A.C and M.L.J).

The British were in the Malay states to assist the Malay Rulers in the administration and management of their respective states, and were under the Rulers’ payroll.  

The only matters that they could not touch were the states’ Islamic affairs and Malay customs.

Sir Frederick Lugard wrote of the British Residents:

“From the first to last the theoretical independence of the states was the governing factor in the system evolved in Malaya. The so-called ‘Resident’ was in fact a Regent, practically uncontrolled by the Governor or Whitehall, governing his ‘independent’ state by direct, personal rule, with or without the co-operation of the native ruler.” (Sir F.D Lugard, The Dual Mandate in British Tropical Africa, London, 1926: pp.130-1, vid. pp.8-10).

One such Resident was of course James Wheeler Woodford Birch who, in the words of Sir Richard Olaf Winstedt, “dashed into Perak’s Augean Stables like an angry Victorian schoolmaster, confident that it could all be cleaned up with a little firmness and decision.” (Winstedt, History of Perak, JMBRAS, xii, 1).

Birch’s monumental tactlessness, especially over the regulation of taxes, drove all the Sultan’s Chiefs into frantic opposition which resulted in his assassination in 1875.

Other than the occasional odd behaviour by some Residents, the Malay Rulers and their state remained sovereign and ‘independent’.  In an answer to Colonel Josiah Wedgwood (Labour – Newcastle-under-Lyme) about the control over the states of Malaya, Sir Phillip Cunliffe-Lister (Conservative – Hendon), Secretary of State for the Colonies replied:

“There is no question at all of altering in any degree, even by a comma, the Treaties which bind us, and which are charters of the agreements with the Rulers both of the Federated and the Unfederated Malay States.” (British Parliament Hansard, Commons Sitting, Class II, HC Deb 14 July 1933 vol 280 cc 1429).

With the Independence of Malaya, all the administrative powers handed down by the Malay Rulers to the Federal and State Councils was passed to the government that was chosen by the people of Malaya in the 1955 elections.  

The Federal cabinet administer the government of the Yang DiPertuan Agong, who was elected by the Malay Rulers to represent Their Highnesses at Federal level, while the Menteri Besar and state executive councillors administer the state for the Sultans.

The Malay Rulers, as owners of this land, continue to enjoy their position with their income regulated by the respective laws, and receive advice from the Menteris Besar (or in the case of the Yang DiPertuan Agong, the Prime Minister). 

This is evident in Article 181(1) of the Federal Constitution which states:

“Subject to the provisions of this Constitution,” the “sovereignty, prerogatives, powers and jurisdiction of the Rulers…as hitherto had and enjoyed shall remain unaffected.”

The same was noted by Mark R Gillen of the Faculty of Law, University of Victoria (Gillen 1994:7). 

In the words of the late Sultan of Perak, Sultan Azlan Shah, former Lord President, it is:

“a mistake to think that the role of a King, like that of a President, is confined to what is laid down by the Constitution, His role far exceeds those constitutional provisions” (Azlan Shah 1986:89).

In 1867, Bagehot asserted in “The English Constitution” that the Constitution needed two parts: the dignified – to excite and preserve the reverence of the population’ and the other, the efficient – to ‘employ that homage in the work of government’. 

The monarch was the prime example of dignity in this sense and the Prime Minister (Menteri Besar) and his cabinet (executive councillors) of efficiency.  

Therefore, the monarch, while lacking executive power, had an important constitutional role.

HRH The Sultan of Selangor was correct in the exercise of his function when reminding the people to not touch on the matters that have been agreed upon and are already enshrined in the Constitution – the sanctity of Islam, the National Language, the Malay and Bumiputera special rights, and the position and function of the Malay Rulers.  

Such action, had the Sultan not interjected, would be naïve and dangerous to the fabric of the society.

In the words of Sultan Nazrin Muizuddin Shah of Perak in July 2011:

“Rulers must use wisdom to calm situations, but they do not have a ‘magic lamp’ to keep unity, especially when the situation has become chaotic. “

(This article was first published on The Mole)

The Malaysian Concord (Part 3) – The Malay and Bumiputera Special Rights

Recent protest against ICERD – Bernama

One of the functions and roles of the Malay Rulers is to safeguard the interests of the Malay and Bumiputera communities enshrined in the Federal Constitution.  That is what HRH The Sultan of Selangor did when he voiced out against ICERD and liberalism.

In the previous posts (The Malaysian Concord (Part 1) – The Sanctity of Islam and The Malaysian Concord (Part 2) – The National Language) I have shown you why Islam was made the religion of the Federation, and why the Malay language was made into the National Language.  I also explained why the Reid Commission was just a commission and not a party to the discussions and negotiations to the independence of Malaya and whatever put forth by the commission were recommendations for the Constitution, not the hard-and-fast rule.

The Malay precedence had always been the mantle of the British Residents.  Frank Athelstane Swettenham, the first Resident-General of the Federated Malay States, saw himself as the patron to an heir (the Malays) who was in danger of losing his inheritance to the immigrant Chinese and Tamils.  He wrote:

“The position he occupies in the body politic is that of the heir to the inheritance. The land is Malaya and he is the Malay. Let the infidel Chinese and evil-smelling Hindu from southern India toil, but of their work let some profit come to him.” (Sir Frank Swettenham, The Real Malay (London, 1899): pp. 37-40)

The economic situation of the Malays, pushed to the hinterland by the immigrants, became dire that they had to take loans from the chettiars putting their land as collateral.  When even the interest could not be serviced, these lands were taken into possession by the moneylenders.

The Federated Malay States government intervened and introduced a series of legislations to curb the Chettiars’ operations, one of which was the Malay Reservations Enactment, 1913, which objective was “to provide means for preventing the passing of Malay landholdings into the possession of foreigners”(Frederick Belfield, Legal Adviser, FMS, Report for the Secretary of State on the FMS Enactment 15 of 1913).

In 1910, E.W Birch, the 8thResident of Perak, noted the need for such Enactment:

“It will mean that we shall free our peasantry from the clutches of those people who now remit to India the large sums of which they now bleed the people.”(Hastings Rhodes, Objects and Reasons, Malay Reservations Enactment of 1913, quoting a Minute by E.W Birch dated 7 September 1910; in Selangor Secretariat, File 3013/1912, Conf. File 10/1912).

Two constitutional changes were introduced in 1909, the establishment of a Federal Council, and the enactment to change the title Resident-Generalin the FMS to that of Chief Secretary.

The Governor responsible for these introductions, Sir John Anderson, said that the intention of these changes, in his words, was for“the full safeguarding of Malay interests.” (Proceedings of the Federal Council, FMS, 11 December 1909).

Sir Laurence Guillemard, High Commissioner for the Federated Malay States wrote:

“The moral is clear that real danger lies ahead if the Malays do not get their share of the benefit of the development of their own country.”(C.O 273, Vol 539, Laurence Guillemard to Secretary of State, 3 May 1927).

To put things in perspective, not only were the Malays left out economically, they were also already minorities in the Federated Malay States.  According to the census of 1931, the population of the FMS comprised of a Chinese majority (41.5 percent), followed by Malays (34.7 percent), Indians (22.2 percent) while various other ethnic groups made up the remaining 1.6 percent (Loh Fook Seng, Malay Precendence and the Federal Formula in the Federated Malay States, 1909 to 1939, JMBRAS, Vol 45, 1972: p.48).

When the discussions for the independence of Malaya took place, the MCA which represented the interests of the Chinese community in Malaya, agreed for the continuation of Malay special privileges that was already being enjoyed by the Malays under the Federation of Malaya Agreement of 1948 (Straits Times, 28 August 1956).

Even on the issue of making Mandarin a national language at par with Bahasa Melayu, the MCA Central Committee which debated the Alliance memorandum to the Reid Commission put the issue to a vote: 15 votes were against the recommendation that Mandarin be recognised as an official language, 14 voted for, 31 abstained (Straits Times, 28 August 1956).

Reid Commission was required by its terms of reference to “safeguard the special position of the Malays and the legitimate interests of the other communities” (CO 889/6, C.C. 2000/15, Summary record of Commission’s meeting, 27 August 1956).

The Constitutional Bill was then debated in the England’s House of Commons.  Three amendments to the Bill was sought.  The third proposed amendment pushed by Conservative MP Joan Vickers (Devonport) noted that the 15-year limit for Malay special rights recommended in the Reid Report was omitted from the Bill.

However, the majority felt that any eleventh-hour amendment could upset the political compromises embodied in the Constitution (Commons Debates, 19 July 1957, pp. 1590-1591).  The Secretary of State concluded that any accepting of proposed amendments would result in the reopening of all issues on which agreement had already been reached (Ibid., pp. 1592-1594).  Therefore, all the proposed amendments were rejected and the Federal Constitution of Malaya, as part of the Malayan Independence Bill, was adopted unchanged.

These special rights were then extended to the Bumiputeras of Sabah and Sarawak through Paragraph 62 of the Malaysia Agreement, 9 July 1963, pages 43 and 44. But this did not come easy.  Many non-Bumiputera groups were opposed to the idea of according the natives of Sarawak with special rights.

A group from the Sarawak United People’s Party led by Ong Kee Hui had a contempt for the backwardness of the natives and had regarded their leaders as men of no consequences.  This prompted the SUPP’s leader in Sibu Jonathan Bangau, an Iban, to resign.

The Ibans, however, told the Cobbold Commission that they were all for Malaysia and some even emphasised on the need for a speedy arrival of better education and development for the Iban community.  In North Borneo, the only negative views were given by the British officials and expatriates as well as the rich (non-Bumiputera) local businessmen.

Both Donald Stephens (Chairman of the Committee of the North Borneo Alliance) and Stephen Kalong Ningkan (Secretary-General of the Sarawak Alliance) both accepted the Inter-Governmental Committee report.  Sarawak Council Negri voted unanimously to adopt the report on 8 March 1963, while the North Borneo Legislative Council unanimously adopted the report on 13 March 1963.

The special rights of the Malays and the Bumiputeras are there to protect their interests so that they do not get swallowed whole in their own land.  The Fijians learnt this the hard way when the Indo-Fijian (Indian descent) minority which numbered less than 40 percent of the population, dominated everything from government to economy, leaving the ethnic Fijians on the sideline.

If the rights of the Malays and the Bumiputeras that was agreed upon by our forefathers are now being questioned, should they now not ask for a better position for themselves? Perhaps a 70-percent equity and quota in everything from now on, or something even better?

(This article was first published on The Mole)

The Malaysian Concord (Part 1) – The Sanctity of Islam

Islam is the religion of the Federation of Malaysia as enshrined in its Constitution after being agreed upon by all those party to her establishment (Photo credit: Azirull Amin Aripin/Getty Images)

HRH Sultan Sharafuddin Idris Shah is known to be a private person and rarely voices out.  The only times that he would voice out is when matters pertaining to the Constitution is touched upon, and yesterday was one of those times.

He said that the act of a certain group questioning the sanctity of Islam, the special rights of the Bumiputeras, the national language, and the function and position of the Malay Rulers enshrined in the Federal Constitution need to be immediately addressed and curbed.

I have come across such people, and unfortunately, many are young Malays.  They do not seem to understand that the social contract made between the various races of Malaya prior to 31stAugust, 1957 and Malaysia prior to 9thJuly 1963 are now part of the Federal Constitution.

Nor do they know the parties who signed both agreements for the independence of Malaya, and the formation of Malaysia, and understand why those agreements were made.  I put a partial blame on the education system where we were taught that we were all colonised by Britain when that is not true, except during the Malayan Union period.

Although Islam had been preached in the Malay Archipelago, Indo-China and China as early as the seventh century, it is largely held that Islam arrived in the Malay peninsula in the 12thcentury.  Syariah laws such as the Batu Bersurat of Terengganu, Hukum Kanun Melaka, Undang-Undang 99 Perak became the laws of the land.

In 1908, Richard James Wilkinson, a British colonial administrator who, with the backing of Sultan Idris I, was responsible for the establishment of the Malay College in Kuala Kangsar, and who was also a scholar of Malay and history, wrote on the status of Islamic law in the Malay states:

There can no doubt that Moslem law would have ended up becoming the law of Malaya had not British law stepped in to check it.” (William R. Roff, Patterns of Islamization in Malaysia, 1890s-1990s: Exemplars, Institutions and Vectors, Journal of Islamic Studies Vol. 9, Is. 2 (1998), 210-228, at 211).

This was reinforced by two British judges in the landmark case of Ramah binti Ta’at v Laton binti Malim Sutan 6 FMSLR (1927).

It is due to these facts that the sanctity of Islam was retained in the Federation of Malaya Agreement of 1948, and was introduced into the Federation of Malaya Constitution of 1957.

The English law was only introduced to Pulau Pinang as it was the original British colony.  It was on 25thMarch, 1807 that a Charter of Justice was granted by the Crown establishing a Court of Judicature in Pulau Pinang, with jurisdiction and powers of the Superior Courts in England. This was then introduced to Melaka and Singapore when they became part of the Straits Settlements under British rule.

Only with the arrival of the British residents in the Malay states in the last quarter of the 19thcentury was the English law introduced there in the form of Orders, Regulations and Ordnances, save for the laws and regulations affecting the Malay customs and the administration of Islam.  These laws provided for the administration of justice, the law of contract, sale of goods, bills of exchange, company law, criminal law and procedure, the law of evidence, land law, labour law, and the regulation of many matters of public interest.

The Civil Law Enactment, 1937 (No.3 of 1937, FMS) introduced the whole body of the common law of England and of equity of minor modifications.  It provided always that the common law and rules of equity are “subject to such qualifications as local circumstances render necessary”.  Local laws and custom were made applicable.

Islam was made the religion of the Federation of Malaya.  Although Lord Reid felt it was unnecessary to have such a provision as the Sultans would be the Head of Islam in their states, it was added to the draft of the Federal Constitution at the suggestion of Justice Hakim Halim bin Abdul Hamid of Pakistan, who was a member of the Reid Commission, because he said the suggestion by the Alliance party that represented the people of Malaya to have that proviso added was inoccuous.

Sir Donald Charles MacGillivray personally felt that such a provision would be advantageous because the Yang DiPertuan Agong could at the same time become the head of the faith in the Settlements of Penang and Malacca (CO 1030/524 (10), MacGillivray to Secretary of State, 25 February 1957; See also CO 1030/524 (18), MacGillivray to Secretary of State, 21 March 1957).

This accord was reached between those who were party to the discussion – the Malay Rulers, the British who administered the Rulers’ sovereign states on their behalf, and the multiracial government chosen by the people in 1955 to represent them.

There is even a separation of jurisdiction when it comes to the position of Islam in the Federal Constitution.

The Syariah Law comes under the purview of the respective Rulers, and the Attorney-General of Malaysia, under Article 145(3) does not have the jurisdiction over proceedings before a Syariah court, a native court of a court-martial.

This separation of jurisdiction is also present as provided by Article 121(1A) where both the High Court of Malaya and High Court of Sabah and Sarawak do not have any jurisdiction over Syariah matters.  Therefore, any claim that the Syariah law infringes on the rights of the non-Muslims is fallacious.

The Malaysia Solidarity Consultative Committee chaired by North Borneo’s (later Sabah) Donald Stephens (later Tun Fuad Stephens) stated in its memorandum dated 3rdSeptember 1962 that the acceptance of Islam as the religion of the to-be-formed Federation of Malaysia would not endanger religious freedom within Malaysia nor will it make the country less secular (Malaysia Solidarity Consultative Committee Memorandum on Malaysia, 3 Sep 1962, p.p 120).

And that is how Islam became the religion of Malaysia.

(This article was first published by The Mole)