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 Struggle
D. The Rulers Under the 1957 Constitution
E. The 13 May 1969 RiotsF. 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
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E. The 13 May 1969 Riots
In the general elections of May 10th, 1969 the ruling coalition, dominated by UMNO, the main Malay political party, suffered a dramatic loss of support while non-Malay opposition parties enjoyed gains. The ruling coalition maintained a majority but did not retain the their coveted two-thirds majority which allowed them to amend the Constitution.
This concerned Malays who, despite hopes and promises, had not seen their social and economic situation improve substantially from the time of independence.
On May 11th and 12th the non-Malay opposition parties held victory parades in Kuala Lumpur in which they were said to have uttered expressions and carried on in ways that provoked Malays.
A large gathering of Malays on May 13 erupted into violence apparently upon receiving reports that a group of Malays had been attacked by non-Malays. The resulting mayhem left many dead and injured.
On May 17, 1969, a national emergency was declared. Parliament was suspended and the country was put under the control of a National Operations Council.
Parliament was not reinstated until March 1971.
In the hopes of averting further violence, measures were taken to improve the condition of the Malays. The Constitution was amended to provide for additional quotas for the Malays with respect to education.
The New Economic Policy was adopted which sought to increase Malay involvement in the economy. The questioning of this policy was prohibited by amendments to the Constitution and consequential amendments to the Sedition Act which deemed such questioning to be seditious.
The questioning of the privileges, position, powers or prerogatives of the Malay Rulers, who were a symbol of Malay unity and the Malay struggle against non-Malays, was also prohibited by amendments to the Constitution and the Sedition Act.
Amendments to the Constitution with respect to these provisions were also made subject the consent of the Conference of Rulers.
F. The 1983 Constitutional Crisis
In 1983 the government proposed amendments to the Constitution which for the first time brought the Rulers openly into conflict with the government and with UMNO, the party which had claimed to be the protectors of the Rulers since the time of the Malayan Union struggle.
The proposed amendments altered the provisions with respect to the King's assent to bills deeming the King to have assented to any bill which the King had not given his assent to within fifteen days.
A similar amendment would have been required in each of the state constitutions. The proposed amendments would also have provided for a change in the power to declare an emergency. The emergency powers give broad powers, upon the declaration of an emergency, to promulgate ordinances having the force of law at any time Parliament is not sitting.
Prior to the proposed amendment it was the King, upon satisfaction that a grave emergency existed, who had the power to declare an emergency. The King was to act on the advice of cabinet. The proposed amendment would have given the Prime Minister the power to instruct the King to declare an emergency.
The amendments were apparently considered necessary because of an upcoming election for King in which the two potential candidates for the Kingship, following the order set out in the Third Schedule to the Federal Constitution, were Rulers who had caused problems for their respective state governments.
It had been reported that one of the candidates for the Kingship had suggested that on becoming King he would exercise the power to declare an emergency and then seek to exercise governmental powers himself.
Further, each of these Rulers had taken exception to the Chief Ministers of their states and had taken steps that ultimately led to the resignation of the Chief Ministers. Of particular concern was the forced resignation of a Chief Minister after two years of refusals by the Ruler to give assent to state legislation.
The proposed amendments were sought to avoid any similar problems which either of the two candidates for the Kingship might cause for the federal government upon becoming King.
The King, at the behest of the Conference of Rulers, refused to give his assent to the amendment bill.
This was followed by political rallies by the Prime Minister and a media blitz which portrayed UMNO as the protector of the Rulers against radicals seeking the abolition of the monarchy and which exposed the allegedly extravagant lifestyles of the Rulers of the states of Perak and Johor.
Eventually a solution acceptable to both the government and the Rulers was found.
The final amended version of the Constitution provided that the King, within 30 days of the passing of a bill by both houses, would either give his assent to the bill or, if it was not a money bill, return the bill to Parliament with a statement of reasons for his objection to the bill.
If, on the return of a bill, the bill was again passed by both Houses it would again be presented to the King for his assent and the King would have 30 more days to assent to the bill after which time the bill would become law "in like manner as if [the King] had assented to it".
The requirement for similar provisions to be adopted in state constitutions was dropped in return for an oral assurance that assent to bills passed by state legislatures would not be unreasonably delayed by the state Rulers.
The amendments with respect to emergency powers were withdrawn.
The compromise also included oral assurances that the Rulers of the states would not unreasonably withhold assent to state legislation and that the proclamation of an emergency would not be exercised unilaterally by the King.
The ability of the government to mount sufficient public support for a change to the assent provisions that would more clearly limit the powers of the King and, at least through an oral assurance, the powers of the Rulers, indicated a change in Malay society with respect to the importance of the Rulers.
It suggested a decreasing importance of the Rulers as a symbol of, and in the protection of, Malay political supremacy.106 Nonetheless, there appeared to be sufficient public support for the Rulers to allow them to prevent a more substantial incursion into their powers.
(Continue PART 4)
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