Those who are still wondering why BERSIH has chosen to present its memorandum on electoral reforms to HRH Agong should read this article.
20 years of shellshock
THE CORRIDORS OF POWER
Raja Petra Kamarudin
I have one, just ONE proposal for the Honourable Minister of Education. If you do this I might, I said MIGHT, overlook your crime of sabre-rattling, or rather keris-kissing. (But I honestly don’t think the Chinese will forgive you though — but that is another subject for another time). And this proposal is that the Ministry of Education should make it compulsory for all students to memorise the entire Federal Constitution of Malaysia. And the Federal Constitution should be a compulsory examination subject, which means if you fail the Constitution test then you fail the whole exam.
I am appalled that even lawyers who have gone to court to argue cases that involve the interpretation of the Federal Constitution do not appear to know the Constitution. I have had to bring to their attention certain clauses or articles in the Constitution and help interpret it for them. Hey, I am no lawyer and I don’t even pretend to be one — although I trust myself more than lawyers when I ‘argue’ my case during the many police interrogations under Section 112 that I have been subjected to.
As a slight digression, editors of the mainstream newspapers (meaning ruling party-owned of course) should also be made to sit through a crash-course and examination on the Constitution. Although Article 32 (2) says that the Consort of the Yang di-Pertuan Agong is called the Raja Permaisuri Agong and Her Majesty shall take precedence next after the Yang di-Pertuan Agong over all other persons in the Federation, the newspapers still insist on calling the wife of the Prime Minister the ‘First Lady’.
Hey, read my lips, the Raja Permaisuri Agong is the ‘First Lady’. That is what the Federal Constitution of Malaysia says and can we please follow the Malaysian Constitution and not the United States Constitution. We are not yet the 52nd State of the United States, although if we allow Abdullah Ahmad Badawi to continue as Prime Minister that may happen soon enough (that is if we do not become Wilayah Singapura first).
It should be made mandatory for ALL Malaysians to read, memorise and understand the Federal Constitution of Malaysia. Just by reading the comments in Malaysia Today’s blogs offer enough evidence to prove that Malaysians in general are ignorant about the Constitution. They make many stupid comments that reveal this ignorance. Take the recent so-called ‘official statement’ by the so-called ‘official spokesman’ of the Istana Negara as one example. “Why does the Agong not sack him?”, “Why does the Agong not make an official announcement rebutting his statement?”, “Why did the Agong not personally accept the Memorandum from the rakyat on 10 November 2007”, and so on, are just some examples of the ignorance of Malaysians on what is proper protocol and how the Agong is supposed to conduct himself according to the Constitution.
Malaysians are also ignorant about how Malaysia’s Westminster system of Parliament is supposed to function. Malaysia is supposed to have four branches of government. We have the Executive, the Judiciary, the Legislature, and the Monarchy, and each is supposed to work independently of each other and in a way parallel to one another.
The Legislature makes the laws, the Judiciary interprets the laws, the Executive implements the laws, and the Monarchy is the protector and trustee of the Federal Constitution of Malaysia and ensures that the laws passed do not violate the Constitution. The Judiciary, although its role is to just follow whatever laws are passed by Parliament, can also play a role in looking at the spirit of the law rather than just the letter of the law. It can also make rulings contrary to the letter of the law in the event that the spirit of the law should override the letter of the law.
Let us look at one example, the Internal Security Act (ISA). The ISA, which was tabled in Parliament by Tun Razak in 1960, was passed into law specifically to combat Communist Terrorism. Since the Communist Insurgency has officially ended with the signing of the Peace Treaty between the Communist Party of Malaya (CPM) and the Malaysian government in Hattyai, Thailand, the ISA, for all intents and purposes, has outlived its usefulness.
Now, some judges have actually ruled that detaining non-Communist Terrorists (CTs) under the ISA goes against the spirit of the law and they have not only ruled that the detention is illegal but in their judgement have suggested that the ISA be reviewed or repealed. These judges have made their ruling not based on the letter of the law but the spirit of the law. These judges have invariably been sidelined and placed in cold storage whereas by now some of them should actually be the Chief Justice if based on their experience and seniority.
What does this tell us? First, judges who rule with their conscience and according to the proper interpretation of the law and in compliance with the Federal Constitution are punished — so not many judges dare become too ‘independent’. Secondly, the Judiciary is no longer an independent branch of the government but is just another arm of the ruling elite. Therefore, the Judiciary, which is supposed to be one of the four branches of government, is rendered impotent. The Executive is ultimately that in charge and the Judiciary merely does its bidding.
The same goes for the Legislature. Members of Parliament are not allowed to represent the voters who put them in office. Whenever any ruling party Member of Parliament votes with his or her conscience and appears to side with the opposition, disciplinary action is taken against them. Remember the Deputy Minister Datuk S. Sothinathan case? And what about the most controversial Islamic Family Law episode last year where Nazri Aziz reminded ruling party Members of Parliament and government-appointed Senators that it is their obligation to vote the way the ruling party wants them to vote?
The Malay term for Members of Parliament and State Assemblymen is Wakil Rakyat (Peoples’ Representative). In reality they are Wakil Parti, not Wakil Rakyat, while some, such as Members of the Cabinet, in particular the Prime Minister and Deputy Prime Minister, are Wakil Pos because they won the elections due to postal votes.
It is evident that the Judiciary and Legislature are no longer valid branches of government. The Executive Branch decides what they do. In that sense, the Executive, Legislature and Judiciary have been merged into one. So that leaves us only the Monarchy. If the Monarchy too comes under the Executive, then Malaysia will be reduced to only one branch of government.
And that is why it is important for Malaysians to understand the role of the Monarchy. While the Judiciary and Legislature have lost their independence, the Monarchy still has certain powers as stipulated under the Federal Constitution. For example, the common belief is that the Chairman or President of the political party that wins the most number of seats in Parliament automatically gets to become Prime Minister. That is not true. The Agong decides who gets to become Prime Minister.
The second common belief is that the Agong can only act on the advice of the Prime Minister. That is also not true. And it is also not true that once the Prime Minister goes before the Agong to request that Parliament be dissolved to make way for fresh general elections, then the Agong has to agree. The Agong can refuse to dissolve Parliament if he has reason for doing so, like for example if His Majesty feels that the election is fraudulent. And the Agong can even decree that a Royal Commission of Inquiry be set up (that is why it is called ROYAL Commission) to audit the entire electoral system and recommend reforms.
Yes, Malaysia no longer has four branches of government. Yes, the Legislature and Judiciary have been reduced to rubber stamps. But the Monarchy is no rubber stamp although it appears like it is also a rubber stamp.
Understandably, the Monarchy appears to be a rubber stamp because of the Constitutional Crisis 20 years ago where the Rulers were told in no uncertain terms that Malaysians in general want the Monarchy abolished and for Malaysia to be turned into a Republic. Only Umno is defending the Monarchy, Umno told the Rulers. Without Umno, the Monarchy will be history like in India and Indonesia. Therefore, if the Monarchy goes against Umno, then the Rulers will all be removed and the Prime Minister would become the President of the Republic of Malaysia.
This shocked the Rulers. And although 20 years has since passed, the Rulers are still in shellshock. And that is why we see much reluctance on the part of the Rulers to ‘interfere’ in the running of this country, as what Umno constantly says in the attempt to silence the Rulers.
But there is no such thing as interfering. The Rulers are not interfering. Malaysians are not asking the Rulers to interfere. The Monarchy is one of the four legitimate and independent branches of government. The other two branches, the Judiciary and the Legislature, are eunuchs. These two have been rendered impotent. We therefore have only one branch remaining, the Monarchy, which can play the role of checks and balances to the Executive.
We are not asking the Monarchy to do more than what the Federal Constitution allows. We are only asking the Monarchy to do what the Federal Constitution empowers it to do. We are asking the Monarchy to do what they are legally bound to do.
I was told the Monarchy costs this nation RM40 million or so a year. Well, if that is true, I have no problems with that. RM40 million in not much if the Monarchy performs the job it is paid to do. We also have 1,000 or so Wakil Rakyat (Members of Parliament, Senators and State Assemblymen) who cost the nation more than RM40 million a year. And we are not even including the ‘under-the-table’ payments which are costing the nation billions of Ringgit. So RM40 million is affordable if the Monarchy does its job. If reforms are introduced, which will in turn reduce or eliminate abuse of power and corruption, just one government contract properly implemented alone can save RM40 million — which can more than pay for this cost to maintain the Monarchy. Therefore, the Monarchy can pay help for itself just by reforming the manner the nation’s money is spent.
The ten Monarchs have taken an oath of office. They have sworn in the name of God that they will do the job they have been entrusted to do. Their duty is therefore to God and not to Umno. Sure, Umno has threatened to abolish the Monarchy. Umno has told the Rulers that only Umno wants to maintain the Monarchy while the rest of non-Umno Malaysians want the Monarchy abolished and for Malaysia to be turned into a Republic. Hey, this can’t be done. The Federal Constitution of Malaysia does not allow it to be done. And even talking about abolishing the Monarchy is a crime under Malaysia’s Sedition Act. You can get sent to jail for just saying it. And if you try it then you can get charged for treason against the King and be sentenced to death by hanging if found guilty. Remember what happened to the Al Maunah chaps?
The Gelombang Kuning march on 10 November 2007 was actually more than just about electoral reforms. It was also to send a message to the Agong that the people are behind His Majesty. Malaysians do not want Malaysia to be turned into a Republic. This will only mean that the four branches of government will be reduced to three. As it is now, the three have already been reduced to one. The Executive decides what the Judiciary and Legislature do. Why would we want to abolish the Monarchy and give absolute power (kuasa mutlak) to the Executive?
The people ‘spoke’ on 10 November 2007. And the message was that the people want the Agong to perform the role His Majesty is being paid to perform; nothing more, nothing less. The Monarchy has to prove to the people that it is that fourth branch of government. It has to prove to the people that it is still relevant and required. Sure, Umno will throw threats that the people want the Monarchy abolished. It did so 20 years ago and the Monarchy is still in shellshock. But that was 20 years ago. That was when the people thought the government was functioning. But the government is now no longer functioning. The four branches of government no longer exist. Today, Malaysia has been reduced to just two branches, the Executive and the Monarchy.
We do not want the Monarchy to become the Executive. We want to maintain the four branches of government. We just want the Monarchy to restore the four branches of government the way it was intended to be. That will be the role of the Monarchy. The Monarchy is not being asked to run this country. The Monarchy is being asked to restore what is already a failed system.
And we will gladly carry the Monarchy even if it costs RM50 million a year. RM50 million is extremely cheap compared to the billions we are losing because of the failed system. Sure, auditors cost money, as any company director will tell you. But ‘auditors’ are a necessary cost to safeguard this nation’s wealth.
And that is the role of the Monarchy, the fourth branch of this nation’s government.
THE FEDERAL CONSTITUTION OF MALAYSIA
Article number: 4
(1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
PART IV – THE FEDERATION
Chapter 1 – The Supreme Head
Article number: 32
(1) There shall be a Supreme Head of the Federation, to be called the Yang di-Pertuan Agong, who shall take precedence over all persons in the Federation and shall not be liable to any proceedings whatsoever in any court.
(2) The Consort of the Yang di-Pertuan Agong (to be called the Raja Permaisuri Agong) shall take precedence next after the Yang di-Pertuan Agong over all other persons in the Federation.
Article number: 40
(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution…..
(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say :-
(a) the appointment of a Prime Minister;
(b) the withholding of consent to a request for the dissolution of Parliament;
Article number: 43
(2) (a) the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representative who in his judgment is likely to command the confidence of the majority of the members of that House…..
PART XI – SPECIAL POWERS AGAINST SUBVERSION, ORGANISED VIOLENCE, AND ACTS AND CRIMES PREJUDICIAL TO THE PUBLIC AND EMERGENCY POWERS
Article number: 150
(2) (A) The power conferred on the Yang di-Pertuan Agong by this Article shall include the power to issue different Proclamations on different grounds or in different circumstances, whether or not there is a Proclamation or Proclamations already issued by the Yang di-Pertuan Agong under Clause (1) and such Proclamation or Proclamations are in operation.
(8) Notwithstanding anything in this Constitution :-
(a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground; and
(b) no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground……