by
Professor Mark R. Gillen
Faculty of Law University of Victoria Victoria, British Columbia, Canada
(Occasional Paper #6 1994 )
THE MALAY RULERS' LOSS OF IMMUNITY
TABLE OF CONTENTS
I. Introduction
II. Historical Background on the Malay Rulers
A. The Malay Rulers Prior to the British Intervention
1. Origins and Structure of the M alay SultanatesB. The British Intervention
2. The Rulers and the Islamic Influence
C. The Malayan Union StruggleD. The Rulers Under the 1957 ConstitutionE. The 13 May 1969 Riots
F. The 1983 Constitutional Crisis
III. Constitutional Amendments And The Events Leading Up to the Amendments
A. The Gomez Incident
B. Response to the Gomez Incident
C. The Proposed Amendments
D. UMNO's Justification for the Amendments and Opposition to the Amendments
E. The Rulers' Compromise
IV. Cultural Change and the Struggle for Power
A. The Struggle for Power
B. Cultural Change and Why the Government Acted When it Did
V. Conclusion
C. The Malayan Union Struggle
After the Japanese occupation during the second world war the British sought to restore political control of the Malay states. A Malayan Union was proposed which the Malay Rulers agreed to, although apparently under duress. Under the proposed Malayan Union scheme the states would be brought together and ruled by a Governor assisted by an Executive and Legislative Council with the British Crown as the unifying figurehead of authority.
Former State Councils with independent powers were to be replaced by State Councils with delegated powers with respect to issues of purely local concern. The Rulers would preside over Malay Advisory Councils and would have jurisdiction with respect to the Islamic religion in their states.
However, their legislative powers with respect to Islamic matters were subject to an overriding approval of the Governor. They would assist the Governor with respect to religion and with respect to such other matters as the Governor chose to seek their advice on.
Besides further reducing the significance of the traditional Malay Rulers, the scheme also provided for liberal citizenship provisions that would have allowed for a substantial increase in the non-Malay population thereby reducing the political influence of the Malays. Consequently, the proposed Malayan Union was very unpopular with the Malays and the United Malays National Organization ("UMNO") was formed to oppose the Malayan Union scheme.
UMNO claimed to be the protectors of the Malay Rulers and the struggle for the Malay Rulers came to represent the struggle for the Malays against British and non-Malay interests.
A compromise was reached with the creation of the Federation of Malaya which set up a Federal system in which the Rulers were given a more significant role. In the States Rulers presided over Executive Councils and could choose not to follow the advice of the Executive Council as long as they gave their reasons in writing.
A Conference of Rulers was created which was entitled to see draft bills of the Legislative Council and its assent to bills was required before they became law. The Conference of Rulers was also entitled to be consulted on matters of policy.
The response of the Malays to the Malayan Union proposal suggested the beginnings of a change in the relationship between the Malays and the Malay Rulers. The Rulers had lost some prestige by initially agreeing to the Malayan Union proposals.
However, although UMNO became the substantive protectors of the Malays, the Malay Rulers became symbols of the Malay struggle and Malay identity.
D. The Rulers Under the 1957 Constitution
The 1957 Constitution creating the Federation of Malaysia brought about a compromise between the Malays, non-Malays and the Malay Rulers.
The Malays feared domination by the non-Malays who controlled the economy. The non-Malays feared political domination by the Malays and the risk of not being citizens in the country they had made their home. The Malay Rulers feared that they would lose their position if the people had control of the country.
In the Constitution's political compromise the Rulers were made Heads of State and Head of the religion of Islam in their own states.
A Conference of Rulers, originally created by the 1948 Federation agreement, was provided for in the 1957 Constitution. The Constitution also created the position of Yang di-Pertuan Agong (or King).
The King is chosen by the Conference of Rulers from among the Malay Rulers according to a rotational scheme and serves in office for a period of five years.56 The King was given the power of assent to legislation.
However, instead of being required to give his assent to legislation, assent to legislation was left to his discretion. A similar discretion to assent to state legislation was given to the Rulers of the Malay states.
The King was also given the power to act in his discretion to appoint the Prime Minister (providing the person appointed, in his judgment, is likely to command the support of a majority of the House), to withhold consent to a request for the dissolution of Parliament, and to requisition a meeting of the Conference of Rulers concerned with the privileges, position, honours and dignities of the Rulers.
The Rulers of the States were given similar discretionary powers having discretion to appoint the Menteri Besar (Chief Minister) of the State, and to withhold consent to a request to dissolve the State Legislative Assembly.
The State Constitutions also provide that the Rulers function as Heads of the Islamic religion in their respective states, and have discretion in the appointment of a consort, a Regent, the appointment of persons to Malay customary ranks, titles, honours and dignities, and in the regulation of royal courts and palaces.
In other matters where powers are granted to the King he must act on the advice of cabinet or of a minister of cabinet with the general authority of the cabinet.
For instance, the King appoints the cabinet on the advice of the Prime Minister,and appoints the Lord President of the Supreme Court, the Chief Justices of the High Courts and other judges of the Supreme and High Courts on the advice of the Prime Minister. Similarly, the Rulers of the states, subject to powers such as those mentioned above, must act on the advice of the Executive Council (state cabinet) or a member thereof.
The Constitution continued the existing position of the Rulers by providing that the "sovereignty, prerogatives, powers and jurisdiction of the Rulers ... as hitherto had and enjoyed shall remain unaffected."
The Constitution also provided for an immunity of the Rulers from proceedings in court. Article 32 provided that the King "shall not be liable to any proceedings whatsoever in any court" and Article 181(2) provided that "[n]o proceedings whatsoever shall be brought in any court against the Ruler of a State in his personal capacity."
The Constitution provided that changes in the Constitution with respect to the privileges or position of the Rulers would require the consent of the Conference of Rulers. In particular, article 38(4) provided (and continues to provide) that,
Curiously, a more specific provision with respect to the consent of the Conference of Rulers makes no reference to the immunity provided by articles 32 and 181(2).No law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed without the consent of the Conference of Rulers.
It provides that,
This was said to give a measure of protection to the Malays in that changes to matters of considerable importance to them, such as citizenship, language, and quotas for Malays would be subject to the consent of the Malay Rulers whom they could expect would defend their interests.A law making an amendment to Clause (4) of Article 10, any law passed thereunder, the provisions of Part III, Article 38, 63(4), 70, 71(1), 72(4), 152, or 153 or to this Clause shall not be passed without the consent of the Conference of Rulers.
The Rulers were also given powers to grant pardons in respect of offences committed within their state.
With the creation of the Federal Territories of Kuala Lumpur and Labuan, the King was given similar powers with respect to those territories. The Ruler is required to exercise his power of pardon on the advice of a Pardons Board which is to consist of the Attorney General, the Chief Minister of the State and up to three other members appointed by the Ruler.The Pardons Board meets in the presence of the Ruler and is required to consider any written opinion of the Attorney General.
Although the Constitution has been amended several times since 1957, there have been relatively few amendments which have affected the powers or position of the Rulers.
However, two significant changes prior to the 1993 amendments were the changes in response to the May 13, 1969 riots and the changes that brought about the "Constitutional crisis of 1983".
Continue in Part 3
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