Tan Sri Arifin Zakaria, one of the
judges on the Perak menteri
besar caseREMEMBER these names: Tan Sri Alauddin Mohd Sheriff, Tan Sri Arifin Zakaria, Datuk Zulkefli Ahmad Makinuddin, Datuk Mohd Ghazali Mohd Yusoff and Datuk Abdull Hamid Embong.
They have fundamentally transformed the nature and prospects of the Malaysian state with their 9 Feb 2010 judgement on the Perak menteri besar case. Based on their judgement, Malaysia seems to be developing tendencies to become a coup-prone absolute monarchy.
Constitutional vs absolute monarchy
Until 9 Feb, Malaysia was clearly a constitutional monarchy.
Constitutionalism means not merely having a constitution, but having the government’s power limited by the constitution. This is why states like the Democratic People’s Republic of Korea (North Korea) are not considered constitutional democracies despite having a constitution and the word “democratic” in their name.
Similarly, a constitutional monarchy — a particular variant of constitutional democracy — is not merely a monarchy with a constitution. It is a monarchy where the monarch’s power is limited by the constitution such that he or she is a figurehead, and the real power is exercised by the elected government.
In contrast, any monarchy where the monarch enjoys substantial — not necessarily absolute — power to control the elected government is effectively an absolute monarchy. Absolute monarchies come in all forms and shapes, from Brunei, which is manifestly a family business, to Thailand, which is decorated with democratic institutions.
In a textbook example like the UK, the constitutional monarch is a figurehead and should just rubberstamp recommendations made by elected governments. He or she is to be advised by the elected government, not the other way around.
His or her discretionary powers concern mainly the formation and ending of governments as a result of elections, without interfering in the period between elections. In brief, that boils down to only two major decisions.
Firstly, whom to appoint as the prime/chief minister-designate? Secondly, whether to consent to requests for parliamentary/legislative dissolution by the present government.
The royal family: genetic lottery, not expertise?
By convention, the British monarch would minimise his or her discretion even on these matters. A request for dissolution, whether or not it is a result of the House’s loss of confidence in the premier, is usually granted.
A constitutional monarch would not mistake him or herself as a check-and-balance institution. In modern democracies, elected governments should be checked by either elected politicians (Parliament) or professionals who are selected on the grounds of expertise and integrity. These include judges, independent central bank governors and members of various regulatory commissions. The royalty in that sense is an institution formed based on genetic lottery rather than expertise.
England’s 19th century constitutional authority Walter Bagehot offered an interesting justification for a constitutional monarchy. A political system needs a “dignified” element (a non-partisan head of state) whose purpose is “to excite and preserve the reverence of the population”, and an “efficient” part (politicians) that “employ[s] that homage in the work of government”.
If you like, the political usefulness of a monarch lies exactly in his or her political “uselessness”. The constitutional monarch needs to be presentable, loveable and admirable, but need not be very intelligent. And Bagehot’s counterintuitive theory is why Queen Elizabeth II gets to keep her job without having to invoke the Sedition Act.
Democratic vs legalistic logic
In assessing the nature of Malaysia’s monarchy, the judges’ judgement must be judged from the logic of democracy, not legality alone. In other words, we become an absolute monarchy when the monarch can expressly go against popular will, even if his or her actions are technically constitutional. Some judges in Malaysia have made this clear.
In 1966, the Sarawak governor tried to dismiss Chief Minister Datuk Stephen Kalong Ningkan on the grounds that he had lost the legislature’s confidence, much like how Perak’s Datuk Seri Mohammad Nizar Jamaluddin was dismissed 43 years later. Borneo High Court Chief Judge Harley A-G reinstated Ningkan, ruling that a legally appointed minister can only be dismissed after a no-confidence vote.
In 1985, the Sabah governor was forced to swear in United Sabah National Organisation (Usno)’s Tun Mustapha Harun as a minority chief minister even though Parti Bersatu Sabah had won a slim legislative majority. Judge Datuk Tan Chiaw Thong then ruled that the governor had “exercised his power not for preserving democracy but for destroying it”. Hence, the swearing in was null and void.
Harley’s decision, upheld by Tan in 1985, was however not followed by judge Datuk Abdul Kadir Sulaiman in 1994. Abdul Kadir ruled that a no-confidence vote is not “the only evidence” of loss of confidence.
(source: Sultan Azlan Shah image from sultan.perak.gov.my)
Abdul Kadir’s judgement was problematic because it took away the power to fire the head of government from the legislature and in all likelihood placed it with the state’s figurehead. It was arguably academic because the ousted Sabah Chief Minister Datuk Pairin Kitingan had conceded defeat after the governor rejected his request for fresh elections.
On 6 Feb 2009, the Perak Sultan however sacked a menteri besar who did not concede a loss of confidence. And then on 9 Feb 2010, the Federal Court’s decision made it clear that the monarch could bypass the legislature to sack the state’s chief executive. And that, for all intents and purposes, is what has sown the seeds of an absolute monarchy in Malaysia.
A tendency towards absolute monarchy increases the likelihood that the monarch can at any time go against the will of elected representatives.
Hence theoretically, if the Yang Di-Pertuan Agong believes that Datuk Seri Najib Razak has lost Parliament’s confidence, even without a no-confidence vote, Najib can be sacked. The Agong is then free to appoint Opposition Leader Datuk Seri Anwar Ibrahim or even Tengku Razaleigh Hamzah as the new prime minister.
(source: Tuanku Mizan Zainal Abidin image from parlimen.gov.my)
Now, in this hypothetical situation, would Umno take this royal discretion lying down and not hold protests greater than those the Pakatan Rakyat held after the Perak takeover?
More realistically and dangerously, the Federal Court’s decision sends an important political message: the electorate are not the final judge of government. The palace is. This is likely to encourage some quarters to think the King should also exercise his discretion freely in appointing the prime minister.
When the Barisan Nasional (BN) took over Perak, Umno had no qualms evoking Malay nationalism. Imagine this scenario then: what if the BN were to lose federal government, say by winning only 100 out of 222 seats, but it won 65 out of 114 Malay Malaysian-majority seats in the peninsula. Would Umno be likely to replicate Usno’s 1985/86 tactics in Sabah — which included violence — minus a few technical differences?
And then what would the palace decide? And would the electorate allow the elected government’s victory to be stolen? Where would the judiciary, the civil service, the police and ultimately the military stand? Would Malaysia not become another Thailand or Iran?
Can we do anything to prevent coups? Perhaps, by voting solely along party lines come the next election, and forgetting about the quality of individual candidates. We just need to make sure it’s a landslide either way.
Wong Chin Huat is a political scientist by training and a journalism lecturer. He suspects that someday Umno supporters and royalists may remember the 9 Feb 2010 judgement with bitterness.
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Shawn Tan says
I am not a lawyer but I would think that this goes beyond just our PM and includes all other positions appointed by the Ruler, such as the Chief Judges. I wonder if the judges actually thought about that when they made their decision.
What? I got stuck at “Until 9 Feb, Malaysia was clearly a constitutional monarchy”. No, it clearly was not. The Federal Judges are right. We were ignorant of Perak’s laws.
The reason Perak was such an upsetting episode is because we were all living in cuckoo land. Those of us who still believe that Malaysia is a constitutional democracy are still there. What the Federal Court case has done is to demonstrate […] that the laws of Malaysia are an inadequate guarantor of democracy. We live in an oligarchy with ceremonial elections. The best way forward is to accept that fact. Not only will our pain be reduced when events like Perak happen, but modifying the law that fails to defend democracy should be seen as an urgent priority.
Given the natural condition of Malaysian politics, Najib would have been a fool not to have done what the Perak State Constitution permits. Moaning about what the Federal Court judges have done is to political activism what torn knee ligaments are to a gait. I speak English like a native, and it appears to me that the relevant parts of the Perak State Constitution make BN’s treacherous gambit lawful.
Can you write an article about what needs to be done to the Perak constitution to prevent a repeat of Perak ’09? Could the Federal Court judges could have decided in favour of democracy? That would have been against the Perak constitution. What would have happened if they had tried?
In some ways “deemed to have vacated” is a favourable outcome for Nizar. A less generous interpretation of the state constitution would have left Nizar in breach of it for failing to tender his resignation and possibly liable for any costs arising from his refusal – wouldn’t it? I still respect and admire Nizar’s stand in Perak, but I no longer believe he was acting lawfully. I hope the law will be different one day.
Hang Jebat says
Spot on. You hit the nail on its head. Someday Umno might regret the day it used political expediency in the palace-aided coup in Perak. The original intent of Malaysian constitutional monarchy has been subverted beyond recognition and our courts have reverted back to disrepute. It may come back to haunt Umno one day.
I dont think this can lead to an absolute monarchy since the Sultan took action based on the principle ‘the majority rules’. If the Sultan choose a clear-minority, then only we can say the road to absolute monarchy is paved.
If and only if the premier doesn’t have the majority…not that [he was] blindly sacked. C’mon, you guys should know better.
If we don’t like how Malaysia is being treated, we migrate elsewhere. We don’t complain to get cheap publicity like this […].
The writer is totally misguided to the point, I dare say, of fabricating lies and being deceitful.
Why? A number of reasons.
One, our constitution only provides certain discretionary powers to the rulers which also include the powers exercised under the impugned Art 16(6) in the Zambry’s case. (In fact if I can recollect correctly there are not more than five instances.) The rest of the Sultan’s powers including to assent any law is not under our rulers’ discretion. In such instances the Sultan must abide by the government’s wishes. Thus, no constitutional lawyer and expert worth any pinch of salt would even argue that our sultanic system is an absolute monarchy. To argue otherwise shows ignorance of our law and if, knowingly argued, is deceitful.
Two, the basis in Perak case is very peculiar. In Nizar’s case, Nizar clearly lost his majority. This is undeniable public knowledge. Anyone arguing otherwise is conceited and not truthful. The sultan and the public have cognisance of this fact.
Three, contrary to popular belief, the Sultan of Perak did not fire Nizar. Under the impugned Art 16(6), once you lose the majority the MB “SHALL” resign. If he doesn’t resign, the word “shall” under the law will deem that he has resigned. Any other interpretation would allow the MB to have a secure tenure notwithstanding he has lost his majority. This type of interpretation is preposterous and ludicruous. Sultan took pains stressing to Nizar that by virtue of 16(6) he is deemed to have resigned. To argue that the Sultan fired Nizar is blatantly untruthful.
Four, the issue at hand has always been who is to decide the loss of majority. What the writer fails to highlight is that under our law as well as the commonwealth cases determined by the august privy council, there is a line of cases which has decided that the loss of confidence can be decided other than by the house of representatives. The writer fails to mention these cases in his argument.
Five: in our case, Nizar clearly lost the majority. In any other liberal democracies the leader would have resigned. There are many instances to cite for this from Italy, to the UK to even Israel. Once you lose the majority you must honourably resign, which Nizar did not. Article 16(6) of the Perak constitution embodied this democratic principle and makes it a legal obligation.
Six: like it or not, it’s always the majority who must be respected. In Perak at the relevant point of time, BN had the majority. The Sultan had no choice by law or the usual constitutional convention but to appoint those who had the majority. To do otherwise would abdicate his responsibility as a ruler and as demanded under the state constitution; setting a dangerous precedent and being totally undemocratic. Sultan Azlan Shah took painstaking efforts to interview all the reps and determine their allegiance. He was right and most wise.
Seven: a point which the writer fails to note is that Nizar argued that Azlan was wrong because he had not followed Ningkan’s case. (Ningkan says that it is only the house of representatives who may decide a loss of confidence.) But if you analyse all the facts of the case, at such time, Nizar never wanted to let the full house decide on this matter. Instead he schemed events so that not all lawfully elected members could decide. It’s not only undemocratic but wholly hypocritical. If he wants Sultan to apply Ningkan he should also apply Ningkan. Nizar did not come with clean hands.
Based on the above, to say that the Zambry federal court decision alters our constitutional structure is totally misguided and even conceited. The case does not change in any way our constitutional monarchy structure. The Sultan’s powers and discretions still remain the same. They must be guided by the party who has the majority. This principle is key and has not been changed by the federal court’s decision. Any argument to say that we have an absolute monarchy is a blatant disregard of the truth and law and is highly deceitful.
Nice hypothesis but highly unlikely the assumptions will ever occur.
Wong, your article failed to mention that under the Perak Constitution, the Sultan is only able to require the resignation of the MB only when the MB asks for the dissolution of the state assembly, and that the Sultan declined to dissolve the assembly.
The meaning of constitutional monarchy literally means a monarch whose powers is limited by the constitution. In Perak’s case, the constitution expressly states that HRH has absolute discretion to dissolve the state assembly in the event the MB makes a request to dissolve the state assembly under Article 16 of Perak State Constitution.
Why is HRH Sultan of Perak an absolute monarchy just because HRH exercised his only power of discretion that is EXPRESSLY provided by the Perak’s Constitution?
If you fail to understand the legal judgement or are unable to do so, it helps if you get your lawyer friends to read it out to you and explain it. Otherwise, it just reflects your lack of depth in the subject.
Ibnu Suffian says
Here Ibnu Suffian can only repeat and amplify his comment on Ding Jo-Ann’s ‘Big Picture’ analysis of “Perak: Losing Confidence”.
Again, the issue is posed: Is Malaysia still a constitutional monarchy; or, behind the facade of such a constitutional fiction, is its political order one whose real, basic logic is now “selective democracy at royal pleasure and continuing personal discretion”.
As my earlier comment put the matter, a royal prerogative to override parliament and to short-circuit processes or obviate actions that ought to occur and be decided “on the floor of the House”, or else (as was sought in this instance by the then incumbent menteri besar) by direct electoral referral to the voters as a whole–whom those elected to the legislature are explicitly chosen to represent–amounts to “selective democracy at royal pleasure and continuing personal discretion”.
I am not sure that this is what those who framed and solemnly promulgated the national constitution in 1957 had, even remotely, in mind.
“Not sure”. Let me now be less polite, more direct. I am sure it was not!
Jamie Khoo says
@Migrate: Your comments (on this and every other topic) gives me a migraine.
That was exactly what a minister suggested in the Parliament “kalau tak suka, balik tanah Cina”. Years later, they are scrambling to stop the brain drain and telling us “it is WRONG to move out of Malaysia”.
You see, there are people out there working to make Malaysia a better place. Those are people like Chin Huat and all the ‘complainers’ you speak of.
We complain because it is a demonstration of our freedom to do so. With an avenue to voice out, without a doubt Malaysia still has hope. Through seizing this opportunity to ‘complain’, we have demonstrated that very fact.
Putting our names on the line to get ‘cheap publicity’ is a very altruistic and noble act…. whereas merely ‘migrating’ is a cowardly and selfish act.
Lastly, I don’t think there can be anything else more pathetic than you complaining about Chin Huat’s “complaints”.
Mae and Yat,
How do we know if a CM or premier has lost the majority’s confidence? By a formal vote at the legislature? Not allowed in Perak. By an election? Not allowed in Perak. By the bigger protest? Not in Perak.
Why not? Why scared of a democratic process?
Then the monarch can only know it by a coup – violent or non-violent. It IS a coup by any other name.
Once the chips of absolute monarchy are in place, the rest of the destruction is human nature. It’s not hypothesis or just “assumptions.”
Haven’t we learned from medieval England, France, Rome, China, Iran, Russia, North Korea (an effective monarchy), Thailand, and Nepal?
Didn’t we learn that when monarchy is effectively absolute, everyone tempts the monarchy, every interest group attempts to corrupt the princelings, every princeling fight to be the heir, every monarch decides based on spoils — rather than liberty, the sanctity of life and the property of the people?
Anyone confident of having the ruler’s ear can then stage a bloody or bloodless coup, as long as they can claim “popular” support. They don’t worry about election (or they would have gone for election and democracy).
The people? They get used to emotional outbursts (“peasant’s revolt”), rather than rational and educated debates, because elections don’t matter, only the loudest popularity, coups, superstitions, and power grabs matter.
Look at modern Thailand, which now runs an increasing risk of a civil war, despite a best-intending and highly respectable monarch.
What more can we say when myopic judges are placed at the throne not based solely on merit. They just dance to the tune of Umno and it’s really tragic that this has to come to pass. If you really look at the downward slide in the judiciary, you can only point to one man; the very same man who has the audacity to regret that the final solution to the Jews wasn’t realised.
Merah Silu says
Well, this article indicates that it is still not happy that its favoured DAP-led government was only in power for a very short period of time. It uses many labels as a smokescreen to undermine anything about Malay [Malaysians], including the institution of raja-raja and Umno. Not only did the author undermine the Sultan’s legal authority to appoint the new MB several months ago, he still ‘criticises’ the institution even after the court decided that the Sultan was right.
Based on many comments in TNG as well as in @migrate, I understand that a lot of people are not happy and prefer to migrate to other countries. Please do so as there will be no such thing as a brain drain. There are still a lot of able people who can manage this country so that people can live in peace and harmony. To me and as a Malay [Malaysian], this is the only country that I have and is best expressed by the Malay proverb – “Hujan emas di negeri orang, hujan batu di negeri sendiri,” kita tetap memilih negeri ini. Well I understand that the descendents of the economic-seeking-immigrants are not subscribing to this proverb.