Thursday, 27 May 2010

Part 6 (Final): The Malay Rulers' Loss of Immunity - The Struggle for Power Between UMNO and the Malay Rulers



Professor Mark R. Gillen
Faculty of Law University of Victoria Victoria, British Columbia, Canada

(Occasional Paper #6 1994 )

Related Article: Dr. Mahathir's Speech ( 13 February 1993) as PM in Parliament to Amend the Constitution to Strip the Malay Rulers' Immunity


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 Sultanates
2. The Rulers and the Islamic Influence
B. The British Intervention
C. The Malayan Union Struggle
D. The Rulers Under the 1957 Constitution
E. 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


IV. Cultural Change and the Struggle for Power
A. The Struggle for Power

The government argued that the amendments to the Constitution in response to the Gomez incident, by removing the immunity of the Rulers, were a step towards increased democracy in Malaysia.

Viewed in their broader context the amendments were part of an inevitable struggle for power between the executive branch of government and the Rulers.

The removal of the Rulers' immunity does not, on the face of it, directly increase executive powers. However, the focus, in the midst of the amendment debate, on the alleged orders given by Rulers to government officials, pressure put on government officials to obtain government contracts and timber concessions, alleged extravagant expenses, and alleged interference in government affairs suggests there was more to the whole affair than just the removal of the Rulers' immunity.

In part the allegations were made to put pressure on the Rulers to consent to the removal of their immunity. However, the exposure of these alleged extravagances put the Government in a position to crack down on the influence of the Rulers. The removal of the Rulers' immunity, and the apparent public support, may put the Government in a better position to leave the Rulers to pay for unbudgeted expenditures presented to state and federal governments after they have been incurred.

The Rulers can now be sued for those expenses. Many of the alleged actions of the Rulers through which they exerted influence may now be the subject of legal proceedings before the Special Court.

The form which the removal of immunity ultimately took also appears to give the executive additional leverage over the Rulers. Three of the five judges of the Special Court are the Lord President and the Chief Justices of the High Courts who are appointed at the behest of the Prime Minister.

The proceedings, civil or criminal, can only be undertaken with the consent of the Attorney General, and, in the context of criminal proceedings, expose a Ruler to the potential loss of his position as Ruler.

This seems to give the government a significant tool for bringing an unwieldy Ruler into line.

Indeed, as Raja Aziz Addruse, a lawyer and editor of the Journal of the Malaysian Bar (and member of a royal family), has said,
the amendments will arm the Executive with the power to subjugate the Rulers through threats of prosecution for any offences, however minor. The Rulers will beat the mercy of the Executive. ... The power to prosecute is a powerful weapon which,in the hands of the ruthless, can be abused to great advantage - not by prosecuting the alleged offender but by withholding prosecution in return for his cooperation.

B. Cultural Change and Why the Government Acted When it Did

Although the Gomez incident was the catalyst for the amendments, concerns about the influence and excesses of the Rulers had been raised in the past.

At the UMNO generally assembly in November of 1990 a resolution was passed that sought to clarify the role of royalty in politics in light of alleged involvement of some of the Rulers in the October 1990 general election.

In 1992 UMNO had drafted a set of guidelines for the Rulers to address some of the concerns. The Prime Minister also commented in his speech to Parliament on the introduction of the amendments that concerns about problems with the Rulers had been noted for quite some time.

Thus the Gomez incident was the merely the opportunity the Government needed to muster political support to deal with the influence of the Rulers that had vexed the Government for some time.

The Government might have responded earlier to the increasing expense and influence of the Rulers and their interference in government. However, in the time between 1983-84 constitutional crisis and the 1993 constitutional amendments, the Mahathir government faced a serious leadership challenge in 1987 and a general election in 1990.

The Mahathir government may have also felt the need for support from the Malay Rulers, particularly in the 1990 general election when they faced the challenge of Semengat '46 which claimed to be the champion of Malay causes and the true protector of Malay institutions such as the monarchy.

Challenging the Rulers at that time would have risked the loss of Malay support crucial to any political coalition hoping to form the government.

By 1993 the position of the Mahathir government was more secure. The government coalition's dominant Malay political party was showing signs of increasing concern over the problems encountered with respect to the Rulers. They appear to have also felt the time was right for a challenge to the Rulers in light of even greater changes in the attitudes of Malays towards the Rulers than had been the case at the time of the 1983 constitutional crisis.

In the 1983 constitutional crisis the government had to accept substantially reduced constraints on the Rulers compared to those it had originally sought. Nonetheless, the government's success in amending the constitution to constrain the powers of the Rulers in 1983, modest though it may have been, had indicated that attitudes of some Malays towards the Rulers were changing.

The New Economic Policy (NEP) introduced in the early 1970s facilitated an increase in the number of highly educated Malays. Malays educated either overseas or in Malaysian Universities were exposed to Islamic principles or concepts of democracy neither of which squared with the notion of an un-elected Ruler with broad powers.

In the ten years that passed after the 1983 constitutional crisis the number of highly educated Malays increased. Thus the change in the cultural attitudes of the Malays towards the Rulers apparent in the 1983 constitutional crisis had, if anything, become more pronounced.

The NEP had also encouraged the development of a Malay entrepreneurial class. This new class of successful Malay business persons may have felt less need for the privileges accorded Malays through the quota system and citizenship provisions the protection of which was vested in the Rulers by the Constitution.

Their interests were also affected by the business interests of the Rulers and the influence of the Rulers in obtaining government contracts, licences and timber concessions. The Malay entrepreneurial class, as well as the non-Malay entrepreneurs, may have felt their business potential was constrained by the competitive advantage Rulers and their royal families could obtain through their influence.

Many Malays may have also come to the view that the real source of protection for their special rights and privileges, to the extent they still hold these dear, is not so much through the Rulers as it is through the leverage they hold in the political process.

These changes in the cultural attitudes of Malays permitted a more substantial challenge to the position of the Rulers than had been possible in the past.

UMNO and the governing coalition appear to have sensed that the support of the Malay Rulers was no longer necessary to secure the support of the Malay population. For the Rulers the consequence of this change in the attitude of Malays is that the importance of the Malay Rulers for the Malay people and in Malaysian politics appears to have been substantially, and probably irrevocably, reduced.

V. Conclusion

The removal of the Rulers' immunity was a significant constitutional development in Malaysia. The move of the executive to rein in the influence and alleged excesses of the Rulers was brought about with apparent public support that is perhaps somewhat surprising given the historical reverence to the Malay Rulers and their importance as a symbol of Malay unity.

The Government demonstrated a willingness to crack down on influence and extravagance, a step they would have been unwilling to take if it meant the loss of the precious support of the Malays.

Their ability to take the steps they did suggests a continuing change in the cultural attitude of the Malays to the Malay Rulers. The reduced degree of unquestioning reverence for the Malay Rulers and their symbolic significance appears to be more substantial than it was in 1983 given the relatively limited success of the Government in 1983 compared to 1993.

The Malay Rulers had been exerting considerable influence in Malay society and politics in spite of the constitutional limits on their powers.

However, the events of 1993 appear to have irrevocably reduced the significance of the Malay Rulers in Malay society and in the politics of Malaysia.

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