Yes, we are embroiled in a Constitutional Crisis

THE CORRIDORS OF POWER
Raja Petra Kamarudin

Seri Paduka Baginda Yang di-Pertuan Agong Tuanku Mizan ibni Al-Marhum Sultan Mahmud Al Muktafi Billah Shah has already been unofficially informed that Malaysia Today is garnering online signatures to support a ten-point Peoples’ Petition (Petisyen Rakyat) appealing for Tuanku to intervene and rectify the very troubling and extremely alarming state of affairs in this country. And Tuanku has also been told that thus far we have obtained about 10,000 signatures, to which Tuanku sighed and retorted that this is going to be another responsibility he has to take care of.

We are due to officially submit the petition to Tuanku a week or so before Hari Raya. Nevertheless, since Istana Negara comes under the Prime Minister’s Department, the powers-that-be can of course deny us access to The Agong. That, in fact, happened back in November 1999.

Soon after Parliament was dissolved in November 1999, I tried to meet The Agong, who at that time was the Sultan of Selangor. The purpose of my request to meet The Agong was to hand him a letter expressing our anxiety at what could possibly happen in the event Barisan Nasional lost its two-thirds majority in the 29 November 1999 general election -- or worse, if Barisan Nasional garnered less that 50% of the seats in Parliament. This anxiety was certainly not misplaced as had been proven in the Sabah episode when two Chief Ministers were sworn in and finally, through the intervention of Kuala Lumpur, Pairin Kitingan was declared the legitimate Chief Minister and PBS ended up forming the State Government. History has shown this can and has happened and therefore history could be repeated on the morning of 30 November 1999 if we did not take precautions.

What we were concerned about (and don’t ask me who the “we” are) is that in the event Barisan Nasional, say, won 49% of the Parliamentary seats and the four opposition parties (PAS, DAP, PKN and PRM) won 51% of the seats, a Barisan Nasional Prime Minister could still be sworn in to form the government. This is because Barisan Nasional, though a coalition of 14 political parties, is a legally registered coalition; whereas PAS, DAP, PKN and PRM were a ‘loose’ coalition that was not legally registered. Therefore, say, PAS won 20% of the seats, DAP 15%, PKN another 15%, and PRM 1%, Barisan Nasional, at 49%, would still be considered the largest minority and therefore its 49% would beat PAS’ 20%, DAP’s 15%, PKN’s 15% and PRM’s 1%.

In short, Barisan Nasional would be regarded as one party winning 49% of the seats and not 14 parties winning 49% while the four opposition parties would be considered as four parties winning lesser seats than Barisan Nasional and not one party winning 51%. So, Barisan Nasional’s collective 49% would beat the four opposition parties if their seats are looked at individually instead of collectively. The letter we wanted to hand to The Agong was signed by the four opposition leaders -- Fadzil Noor, Lim Kit Siang, Dr Wan Azizah Wan Ismail, and Dr Syed Husin Ali -- agreeing to combine all the seats the four opposition parties were to win so that they could be treated as a block just like the Barisan Nasional seats. On Thursday night, I sent the letters to the four opposition leaders who were campaigning all over the country with instructions to the couriers that the letters must be returned by dawn. We sent two cars to each leader in case one car broke down or got involved in an accident -- or in case they get ambushed along the way. We also did not reveal which car was carrying the letter in case....well, you know in case what.The next morning I got the four letters back and around noon that Friday I rode to the Istana Negara on my Yamaha Virago but was not allowed into the palace. I explained that I am The Agong’s nephew and wanted to see Tuanku about a family matter. The palace official told me that they are under strict instructions from the Prime Minister’s Department that no one gets to meet The Agong until after the general election, not even family members. I phoned two of The Agong’s sons, my cousins, and tried, through them, to get to meet Tuanku. They told me that even they, Tuanku’s own sons, can’t get access to The Agong. I had no choice but to hand the letter to the palace official with instructions that the letter be personally handed to The Agong. I then went for my Friday prayers.

I went back to the office at 2.30pm and, lo and behold, there was a letter waiting for me in the fax machine, the fastest response ever from the government and which should have made the Book of Records. It was a letter from the Prime Minister’s Department turning down my request to meet The Agong with instructions to try again after the general election. Realising that Barisan Nasional was thinking exactly what we were thinking and that they had pre-empted our every move, we took steps to hire a helicopter and placed it on standby. In the event the four opposition parties do win 51% or more of the Parliamentary seats, the helicopter would take to the air and pick up the four opposition leaders and drop them onto the lawn of the Istana Negara so that they can get sworn in to form the new government; beating Barian Nasional to it like what Haris Salleh did to Pairin in Sabah.

But, again, Barsian Nasional pre-empted this. The Agong was not in the Istana Negara but was safely hidden in Langkawi where we could not get to him. Invariably, The Agong was well-guarded and not even his own sons could get to him. Anyway, that is all academic now. Barisan Nasional managed to win two-thirds of the seats though it won only 54% of the votes. So it did not matter any longer whether we could reach The Agong or not.

Expect, therefore, that we may again get blocked and may not be able to personally meet The Agong to hand Tuanku our Peoples’ Petition. At best they might just allow us to meet a palace official like what happened to PAS yesterday when all they managed to meet was the Penyimpan Mohor Besar Raja-Raja Melayu, Tan Sri Engku Ibrahim Engku Ngah. Nevertheless, this is good enough as this would still be regarded as official and would be as good as personally handing the petition to The Agong. And that is why Malaysia Today chose to conduct an online petition. Other than making this easier for all to sign, an online petition would be public knowledge and even if they block us from personally handing the petition to The Agong, they will not be able to block knowledge of the petition. This means The Agong will know about it even if the hardcopy version does not reach him.

Yes, November 1999 taught us a thing or two and it is not that easy to do us in a second time.

Now, some have asked me: what can The Agong do? Sure, The Agong receives our petition. But what can The Agong do about it when the Rulers have no power? Undeniably, those who ask this question have not read the Federal Constitution of Malaysia or do not even realise that we have one. Even those who are aware of the Constitution point out that Article 43 of the Constitution forbids The Agong from interfering in the running of the government. The Agong, they argue, can only act on the advice of the Prime Minister. Actually, that is not quite true.

Article 43 (1) says: The Yang di-Pertuan Agong shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his functions.

Note that it says the Cabinet is ‘to advise him in the exercise of his functions’. It says ‘advise’ and this is the one word that has been wrongly interpreted as The Agong receives instructions from the Cabinet. If they had meant for The Agong to receive instructions from the Cabinet then Article 43 (1) would have used the word ‘instruct’ and not ‘advise’.

Now, look at Article 43 (1) (a) that says: 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.

Note that Article 43 (1) (a) says that The Agong shall appoint as Perdana Menteri ‘a member of the House of Representative’. It does not say that the Perdana Menteri must be the President of Umno or the Chairman of Barisan Nasional. The only criterion for the appointment of the Perdana Menteri is: ‘who in his judgment is likely to command the confidence of the majority of the members of that House’.

Note that part again: ‘who in his judgment is likely to command the confidence of the majority of the members of that House’. What happens if The Agong, in his judgement, feels that the Perdana Menteri is UNLIKELY to command the confidence of the majority of the members of that House? In other words, what happens if 111 Members of Parliament pass a vote of no confidence in Parliament? Would The Agong then not, in his judgment, form an opinion that the Prime Minister no longer commands the confidence of the majority of the members of that House?

Okay, you may argue that this is in theory only and in practice could never happen. We can never see the day when 111 Members of Parliament will stand up in Parliament and pass a vote of no confidence against the Prime Minister, you might say. Never mind! Even if you think that in practice this will never happen, what is important is that in theory it is possible and it will be perfectly legal to do so, and The Agong, according to the Constitution, can intervene and remove the Prime Minister. And it is not treasonous to talk about it or actually do it because the Constitution provides for it.

What is even more interesting is Article 43 (4) of the Federal Constitution that says as follows: If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.

Yes, once 111 Members of Parliament pass a vote of no confidence on the Prime Minister, he (plus the entire Cabinet) has to resign, unless the Prime Minister asks The Agong to dissolve Parliament -- which means we shall then have fresh elections (and later I will show you that The Agong can refuse to dissolve Parliament even if the Prime Minister asks him to).

This continues in Article 43 (5) which says: Subject to Clause (4), Ministers other than the Prime Minister shall hold office during the pleasure of the Yang di-Pertuan Agong, unless the appointment of any Minister shall have been revoked by the Yang di-Pertuan Agong on the advice of the Prime Minister but any Minister may resign his office.

In short, while the Prime Minister must resign, if it pleases The Agong, the Cabinet Ministers can stay in office.

Now, let us look at a hypothetical situation. Say 111 Members of Parliament secretly meet The Agong or send him a petition saying that they have lost confidence in the Prime Minister, although no official vote of no confidence has been tabled in Parliament, this can also be regarded as the majority of the Members of the House having lost their confidence in the Prime Minister and The Agong can act on that.

Okay, now let us look at Article 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.

And Article 32 (2) says: 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.

In short, The Agong is the Supreme Head of Malaysia while his consort is The First Lady who ‘takes precedence next after the Yang di-Pertuan Agong over all other persons in the Federation’. Maybe the New Straits Times can stop calling Jeanne Danker The First Lady as this goes against our Constitution.

The Agong’s supreme power is further clarified in Article 39 which says: The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable, subject to the provisions of any federal law and of the Second Schedule, by him or by the Cabinet or any Minister authorised by the Cabinet, but Parliament may by law confer executive function on other persons.

The icing on the cake is of course Article 40a.

40a. (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; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.

40a. 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;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting and in any other case mentioned in this Constitution.

40a. (3) Federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions other than:

(a) functions exercisable in his discretion;
(b) functions with respect to the exercise of which provision is made in any other Article.

Now, while 40a (1) says “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”, it also says “except as otherwise provided by this Constitution”. So this means The Agong can act WITHOUT the advice of the Prime Minister wherever the Constitution allows him to do so.

Article 40a (2) in fact allows The Agong to “act in his discretion in the appointment of a Prime Minister”. This therefore makes it perfectly legal for The Agong to use his discretion in appointing the Prime Minister of Malaysia. Discretion here would mean that The Agong can do what he feels is right and if he feels that Tengku Razaleigh Hamzah should be the Prime Minister then Tengku Razaleigh it is. And Article 40a (3) says that “Federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions other than functions exercisable in his discretion”. This means two things:

1. Any person or body of persons other than the Cabinet CAN advice The Agong; which means these other people can override the Prime Minister.
2. But these same people who can override the Prime Minister cannot override The Agong in cases where The Agong is allowed to exercise his own discretion.

And finally Article 41: The Yang di-Pertuan Agong shall be the Supreme Commander of the armed forces of the Federation. So, in short, while Article 31 makes The Agong the Supreme Head of the Federation, Article 41 makes him the Supreme Commander of the armed forces. If that is not power then I don’t know what is -- unless you don’t know what the word ‘Supreme’ means.

Now, recently, the government openly declared that Malaysia is not on the verge of another Constitutional Crisis, 20 years after the first two. Actually this is not true. Malaysia is not on the verge but is already embroiled in a Constitution Crisis. But those who walk in the corridors of power are trying to hide this fact from us. Allow me to reveal a message I received from one of my Deep Throats in the corridors of power. The following is self-explanatory and demonstrates what I am trying to say:Two names, Nik Hashim and Hashim Yusof, were given by the CJ, both whom are ‘kaki bodek’, as possible candidates to replace him. Both these candidates were rejected by the Rulers. After their elimination, as a consolation, they were promoted to the Appeals Court.

Since the Rulers had rejected Nik Hashim and Hashim Yusof, the next in line would be Justice Dato Abdul Hamid Mohamed and Justice Dato Alauddin Mohd. Sherif. But the CJ does not favour these two because they are independent-minded, apolitical and well-known for their integrity. The CJ bypassed these two on the pretext that both are close to retirement in a year or two. On the Rulers’ insistence, the PM and the CJ had no choice but to accept Justice Hamid as President of the Court of Appeal and Justice Alauddin as the Chief Justice of Malaya. Both of them were appointed by the Agong on 5 September 2007.

On the same day of the above two appointments, a senior lawyer from the private sector, Tan Sri Zaki Tun Azmi, 62 years old, became the first person to be directly-appointed to the Federal Court. He is UMNO’s Legal Adviser and a member of its Disciplinary Committee plus is Fairuz’s ‘kaki’ from the Kedah days.

His leaving a lucrative private sector practice where he was making millions a month in legal fees -- repeat, millions a month -- raises questions in the minds of the members of the bench, the chattering class, and some important MPs on both sides of the political aisle. The speculation is that he could probably succeed Fairuz as CJ.

It is an open secret that the Prime Minister wanted a two year extension to Fairuz’s contract. But this was rejected by the Agong and his brother Rulers. As a temporary arrangement, the PM asked the Agong to appoint Fairuz on a three-month contract. The Agong is still holding back his agreement on this matter.

This whole affair, yet again, shows the PM’s duplicity. Here is a God-given chance to do something about our Judiciary, which has been systematically destroyed over the last 25 years. Instead of doing something about it, which is what the people want, the PM is still trying to keep the rot afloat by working with Fairuz.

It is a shame that today our Rulers have to step in to defend the Constitution and rebuild our much-battered institutions. It is also a sad reflection of our UMNO-led governance. You have to expose this and do not worry about the authenticity of the information as my information is from impeccable sources. You will be doing Malaysians a great public service by exposing this latest Constitutional Crisis.