When justice is not administered according to law

by N.H.Chan

The story unfolds with the application of three turncoat members of the Perak legislative assembly for a declaration that Speaker Sivakumar’s order, which was made in the legislative assembly, that their seats in the assembly have become vacant because they have resigned was illegal. Here is the report from the Sun newspaper, Thursday April 2 2009:

IPOH: The High Court yesterday dismissed the application by Perak State Assembly Speaker V Sivakumar to strike out an original summons brought by the three independent assemblymen, seeking a declaration that Sivakumar’s order to declare their assembly seats vacant was illegal.

Justice Datuk Balia Yusuf Wahi set April 8 to hear the suit by the assemblymen Mohd Osman Mohd Jailu (Changkat Jering), Jamaluddin Mohd Radzi (Behrang) and Hee Yit Foong (Jelapang) against the speaker.

He also dismissed an application by three former Pakatan Rakyat state executive Councillors . . . and three registered voters to intervene in the case, ruling that they are not interested parties as claimed.

Sivakumar had declared the three state seats vacant based on their pre-dated resignation letters as the three assemblymen were formerly from the ruling coalition. Their resignation from their parties caused the balance of power to shift to Barisan Nasional.

Sivakumar had informed the Election Commission (EC) to call for fresh elections for these three seats but the EC declined and said the seats were not vacant. The three assemblymen then referred their suit to the High Court here for a ruling that they had not vacated their seats as declared by Sivakumar.

I don’t have to tell you how to judge the judge. You must know by now how to do it if you have read my articles in the internet. You will know he is a bad judge if he behaves unfairly to one side as against the other. It is your perception as a member of the public that matters and not what the judge thinks of himself. A judge who does not appear to be fair is useless to the judicial process. As such he is a bad judge and is therefore unfit to sit on the bench. The other essential qualification of a judge is to administer justice according to law. That said, we can now judge this judge.

Article 72, Clause (1) ofthe Federal Constitution clearly states:

72. (1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

Yet Mr Justice Balia Yusuf Wahi, who knew that the Speaker’s order which was made in the legislative assembly was a proceeding in the Legislative Assembly, dismissed the Speaker’s application to strike out the summons of the three turncoat assemblymen who were asking the court to question the validity of what the Speaker had done in the assembly. As you know what the Speaker did in the assembly, rightly or wrongly, is not to be questioned in any court. Isn’t what the judge had done by dismissing the Speaker’s application to strike out the turncoats’ summons, not administering justice according to law? The judge had gone against the Constitution of Malaysia which is the supreme law of the land. What do you call a judge who has defied the law of the land? A renegade judge?

There is another thing. Why did the judge dismiss the application of the three voters from the Behrang, Changkat Jering and Jelapang constituencies, who claimed that their rights were affected because they had voted for the DAP and PKR? They were not allowed to intervene because they were not interested parties ruled the judge. Why are they not interested parties? The voters have voted for them as their representatives in the legislative assembly because they were DAP and PKR candidates. Now the turncoats have reneged on the arrangement on which they have stood for election on a DAP or PKR ticket. Such an arrangement has formed the basis of an underlying assumption on which they have conducted the dealings between them. Therfore,they would not be allowed to go back on that assumption when it would be unfair or unjust to allow them to do so. In other words, it would be unfair or unjust to allow them to say that they are no longer DAP or PKR members but are independent members of the assembly. The authority for what I have just said is so well known that I am surprised the judge had chosen to ignore it. The ease is Boustead Trading (1985) Sdn Bhd v. Arab- Malaysian Merchant Bank Bhd [1995] 3 M.L.J. 331, F.C., where Gopal Sri Ram JCA sitting in the Federal Court gave the judgment of the Court. He said, p. 344:

The time has come for this court to recognize that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless.

And at p. 345, he went on to say:

The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case ([1982] 1 Q.B. 84 at p. 122; [1981] 3 All E.R. 577 at p. 584; [1981] 3 W.L.R. 565 at p. 575) as follows:

“The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or of law - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.” (Emphasis added)

So the judge Balia Yusuf Wahi had wrongly ruled that the three voters were not interested parties. The voters’ interest in the matter is that they have a right to insist on the persons whom they have voted to be their elected DAP or PKR representatives not to change sides by switching to the other political coalition Barisan Nasional. “When the parties to a transaction proceed on the basis of an underlying assumption on which they have conducted the dealings between them neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands”

We know that the judge had adjourned the hearing of the suit by the turncoat assemblymen to April 8. But to our amazement we were told by the newspaper that the turncoats have also made two applications to the Federal Court on Friday, that was Friday April 3, for two declarations, viz:

Whether, on a true interpretation of article 36(5) of the Laws of Perak Darul Ridzuan (Perak Constitution) read together with section 12(3) ofthe Election Act 1958, the Election Commission is the rightful entity which establishes if there is a casual vacancy of the state legislative assembly seat. When a resignation of a member of the Perak state legislative assembly is disputed, is such resignation within the meaning as ascribed under article 35 of the Perak Constitution.

If they have applied to the Federal Court for a determination, then it is only proper to inform the High Court and the other side about it. So that what is pending in the High Court could be adjourned until the Federal Court has decided on the questions that have been referred to it.

Then on Friday, April 10, 2009 the New Straits Times carries this report:

PUTRAJAYA: The Federal Court has declared that three assemblymen who quit their parties are still members of the Perak state legislature.

This follows an unanimous ruling by a five-men bench yesterday which ruled that the Election Commission had the authority to declare a seat vacant.

“The Election Commission is the rightful entity to establish if there was a casual vacancy in the Perak state legislature,” said Federal Court judge Tan Sri Alauddlin Mohd Sheriff.

Sitting with him were Datuk Arifin Zakaria, Datuk Nik Hashim Nik Abdul Rahman, Datuk Seri S Augustine Paul and Datuk James Foong.

Last month, Parti Keadilan Rakyat’s Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Jailu (Changkat Jering), together with DAP’s Hee Ylt Foong (Jelapang), filed an urgent application for the Federal Court to decide their matter.

The three wanted a declaration whether it was the Election Commission or the Perak Speaker (V Sivakumar) had the final say in determining a vacancy.

In February, Sivakumar, using resignation letters signed by the three, had declared the seats vacant.

He informed the Election Commission, but the commission refused to hold by-elections on the ground that there was ambiguity over whether the assemblymen had resigned voluntarily.

Was the Federal Court right? Before you can judge the judges of the highest court in the country, it is necessary for me to apprise you of the law applicable which is found in the Constitution of Perak. Thus:

The heading of Article XXXI of the Perak constitution reads:

Disqualification for membership of Legislative Assembly

XXXI. (1) Subject to the provisions of this Article, a person is disqualified for being a member of the Legislative Assembly if -
(a) [he is of unsound mind]; (I have summarised the paragraph)
(b) he is an undischarged bankrupt;
(c) he holds office of profit;
(d) [he has failed to lodge any return of eleetion expenses within time] (I
have summarised the paragraph)
(e) [he has been convicted of an offence and sentenced to imprisonment of not less than one year or to a fine of not less than RM2,000] (I have summarised the paragraph)
(f) [disqualification involving election offences] (I have summarised the paragraph)
(g) [he has acquired the citizenship of another country] (I have summarised the paragraph) (2) [The disqualification ofa person under paragraphs (d) or (e) above may be removed by the Sultan or ceased at the end of five years] (This is a summary)
(3) . . .
(4) . . .
(5) A person who resigns his membership of the Legislative Assembly of this State or any other State shall, for a period of five years beginning with the date on which his resignation takes effect be disqualified from being a member of the Legislative Assembly of this State.

So that it is clear to all of us that Article XXXI, Clause (5) says that an assemblyman who resigns is disqualified from being a member of the Assembly for a period of five years from the date of his resignation.

And Article XXXIII, Clause (1) says:

XXXIII.(1) If any question arises whether a member of the Legislative Assembly has become disqualified for membership, the decision of the Assembly shall be taken and shall be final.

This means that whether a person is disqualified for membership of the Assembly is the decision of the Assembly. So that when a person has resigned he is disqualified from being a member of the assembly for five years from the date his resignation takes effect.

You may want to know how an assemblyman can resign. Article XXXV states:

XXXV. A member of the Legislative Assembly may resign his membership by writing under his hand addressed to the Speaker.

So that a member can resign simply by writing to the Speaker. But whether the letter itself amounts to a resignation, as a resignation would disqualify him for membership of the assembly, is for the Assembly to decide. Article XXXIII, clause (1) says that the decision of the Assembly shall be taken on the disqualification if any question arises on it, which in the present context is the effectiveness of the letter of resignation. And the decision of the Assembly is to be final.

The above is simple enough for all of us to understand. But then, all of us are wondering how on earth the Federal Court could have decided that “The Election Commission is the rightful entity to establish if there was a casual vacancy in the Perak state legislature”? Don’t you all feel superior to the judges of the Federal Court because you know the correct answer whilst the highest court gave a wrong decision. So you see, when you know how to judge the judges you would be able to separate the wheat from the chaff from among our judges. The chaff, you will discover, may not be up to your expectations.

What really happened was that with their myopic reading of the Perak constitution they pick on Clause (5) of Article XXXVI and say that is the correct answer. This is what Article XXXVI, Clause (5) says - the article starts with the heading:

Summoning, prorogation and dissolution of Legislative Assembly
XXXVI. (5) A casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy.

A casual vacancy means an occasional vacancy which can be filled simply with a by-election. But the question whether the turncoat assemblyman have resigned or not will have to await the outcome of the decision of the Assembly which decision shall be final: see Article XXXIII, Clause (1). It is only upon receiving the decision of the Legislative Assembly will the Election Commission be able to establish that there is a vacancy. As it turns out the Federal Court have put the cart before the horse - in this case, just the cart without the horse - which is that the court has held that it is for the Commission to establish that there is a casual vacancy without waiting for the decision of the Assembly whether the three turncoat assemblymen have been disqualified for membership of the Assembly by resignation.

Altantuya murder: It's death for Azilah and Sirul

SHAH ALAM: Chief Inspector Azilah Hadri,32, and Corporal Sirul Azhar Umar, 36, were found guilty and sentenced to death for the murder of Mongolian national Altantuya Shaariibuu three years ago, wrapping up the country's longest trial ever.

Justice Datuk Mohd Zaki Md Yasin, said the prosecution had proven the case against them beyond reasonable doubt.

He said their defences were essentially ones of denial and of blaming each other and as such, were irreconcilable and unbelievable.

"Thus they have failed to raise any reasonable doubt in the prosecution's case which I find to be irresistibly conclusive on account of the physical and circumstantial evidence adduced before me.

"I therefore now sentence you, Azilah and Sirul Azhar, to death and both of you will henceforth be kept in lawful custody until you are brought to a lawful place where you will be hung by the neck until you are dead," he said.

The defense counsels said they would appeal.

Azilah, 33, is represented by two counsels, Datuk Hazman Ahmad and J. Kuldeep Kumar while Sirul Azhar, 37, is represented by Kamarul Hisham Kamaruddin, Hasnal Redzua Marican and Ahmad Zaidi Zainal.

In the high profile trial that hogged the local and international media, the duo were charged with murdering Altantuya, who was 28 then, between Lot 12843 and Lot 16735 Mukim Bukit Raja near here, between 10 pm, Oct 19 and 1 am, Oct 20, 2006.

Initially they were tried together with the executive director of Malaysian Strategic Research Centre (MSRC), Abdul Razak Abdullah Baginda, 48, who was charged with abetment in the murder of Altantuya.

However on Oct 31, 2008, the political analyst walked out a free man after the court found that the prosecution had failed to furnish proof on an important element on the abetment charge.

Abdul Razak since has left to United Kingdom and is said to be taking up a PhD at Oxford University.

While Azilah and Sirul Azhar -- who pleaded not guilty -- were hoping to be released, the prosecution went all out to prove they were the ones behind Altantuya's murder and the disposal of her remains using explosives.

The prosecution team consisting of Deputy Public Prosecutor Tun Abdul Majid Tun Hamzah, Noorin Badaruddin, Manoj Kurup and Hanim Rashid, stressed in their submissions that Azilah and Sirul Azhar were the people behind Altantuya's murder.

Based on the evidence gathered from prosecution witnesses, the explosive used to blow up Altantuya's body was probably placed in her mouth.

Manoj noted at the end of the prosecution's case that both accused had the motive to kill and it was a preplanned crime.

Manoj noted that several circumstantial pieces of evidence that the prosecution tried to prove were never denied, explained or answered by both defendants.

"Several of the strong evidence deduced from the testimonies when spun together will make two ropes that are strong enough to hang each one of them.

"The prosecution has proven beyond reasonable doubt on the actions of the duo calls for their conviction on the murder carried out with the common intention," he had said.

Azilah, who started his testimony on Jan 15, stated that he had no motive to kill or destroy the woman and instead he only met Altantuya to advise her politely not to harass Abdul Razak or create a ruckus outside the latter's home.

Azilah also told the court that he was ordered by a superior, DSP Musa Safri to help Abdul Razak and thus he would not have done something stupid like killing -- especially seeing he was a policeman.

While defending himself Sirul Azhar broke down a few times and claimed he had been made the sacrificial lamb in the murder.

The case has set many records including being the most number of days for hearing (159 days) and 84 witnesses at the prosecution stage and two at the defence stage, and it remained the high profile case for almost two years before Abdul Razak was released.

According to records, Azilah has been incarcerated at the Sungai Buloh Prison for 891 days while Sirul Azhar 895 days.

101 East - Fight the power

The Malaysian state of Sarawak plans to build 12 new hydro-electric dams along the state's waterways, saying the projects will create jobs, provide cheap renewable energy and meet the demands of future industrialisation.

The dams are supposed to push the total generating capacity in the state to 7,000MW by 2020, an increase of more than 600 per cent from the current capacity.

There are plans to expand the aluminium-smelting industry in the state which will need the planned output.

But critics question the sustainability of the project.

101 East - Fight the power - 19 Mar 09 - Part 1


101 East - Fight the power - 19 Mar 09 - Part 2

The Confession that Never Was

asia Sentinel

Written by Our Correspondent
Friday, 20 March 2009

A statement by the confessed murderer of Altantuya Shaariibuu raises more questions

On November 9, 2006, at Kuala Lumpur's Travers police station, Corporal Sirul Azhar Umar, then a 35-year-old member of the country's elite Special Action bodyguard unit under Deputy Prime Minister Najib Tun Razak, sat down and confessed to the murder of Altantuya Shaariibuu.

The dead woman, a Mongolian translator who had been executed nearly three weeks before in gruesome fashion with two bullets to the head, is at the center of what would be one of Malaysia's biggest political scandals ever, involving not only sex and murder but hundreds of millions of dollars in defense contracts.

But the case, which has been underway in a Shah Alam courtroom since June of 2007, is notable for what neither the prosecution, the defense or the judge appeared to want to be bought into open court.

On Feb. 3, a tearful Sirul asked the court not to sentence him to death for Altantuya's murder, saying he was like "a black sheep that has to be sacrificed" to protect unnamed people who have never been brought to court or faced questioning.

"I have no reason to cause hurt, what's more to take the life of the victim in such a cruel manner," Sirul said. "I appeal to the court, which has the powers to determine if I live or die, not to sentence me so as to fulfil others' plans for me."

Sirul and Azilah are now awaiting sentencing despite the fact that the trial was concluded in February.

Sirul's confession is an extraordinary and chilling document. In the session, tape-recorded and conducted in Bahasa Malaysia, or Malay language, Sirul was told he was not obliged to answer questions but that whether in answer to questions or not, his remarks would be recorded as a statement.

But although the volunary confession indicates that Sirul had been cautioned, it has been ruled inadmissible in the long-running trial of Sirul and his boss, Chief Inspector Azilah Hadri, and Abdul Razak Baginda, the admitted lover who jilted Altantuya after a torrid affair. Razak was later declared not guilty and freed without having to put on a defense. He has since left the country for England.

An extraordinary amount of evidence connects Najib, now preparing to become Malaysia's prime minister, to the case. SMS messages exist between Baginda and Najib reassuring him not to worry when he was first under suspicion, saying Najib would fix things. A private investigator hired by Razak Baginda to keep Altantuya away from him after she returned to Malaysia to confront him said in a statutory declaration that Baginda, a well-connected head of a political think tank, had told him Najib had introduced Altantuya to him. The private investigator was forced to recant his statement and hurriedly left the country.

Although Sirul's statement was ruled inadmissible, presumably that would not have prevented lawyers from repeating the questions in open court in an attempt to get him to answer them. Among other things, in the confession, Sirul says "Azilah talked about a reward of between RM50,000 and RM100,000 if the case was settled."

Since Baginda has been freed, it raises the question of who else was going to pay the two men to kill Altantuya. That question was never asked or answered in court.

In other court testimony, Sirul said Azilah had told him "there was work to be done and just asked me to follow him." Musa Safri, Najib Tun Razak's chief of staff, he testified, "had told him about a friend …who had women problems."

Neither Najib nor Musa has been questioned about who sent the two men first to the Hotel Malacca, where, according to the testimony, Azilah wanted Sirul to kill not only Altantuya but the two women who had accompanied her to Kuala Lumpur in an attempt to confront Baginda.

According to other reports, Altantuya had served as a translator in Paris for the Malaysian government's US$1 billion purchase of three French submarines which was routed through a firm owned by Baginda and which netted him a €114 million commission. Najib, one of Baginda's best friends, was defense secretary at the time and engineered the purchase.

In a letter found after Altantuya's death, she expressed regret for attempting to blackmail Razak. Baginda, in a statement to the police, said she was asking for US$500,000 from him, presumably for her role in the transaction.

Sirul and Azilah went to the Malaya Hotel but decided not to kill the three women "because of the presence of CCTV (closed circuit television cameras)."

Ultimately, according to the confession, the two went to Razak Baginda's house where "there was a Chinese woman (Altantuya) who was causing a commotion."

The two, with the help of a Malay woman, presumably Lance Corporal Rohaniza Roslan, Azila's former girlfriend, bundled Altantuya into a red Proton Wira and drove her to where Sirul's jeep awaited. Rohaniza later claimed she had been coerced to change her testimony. The prosecution attempted to impeach her as a witness.

"Along the journey, Azilah asked me to find a place to ‘shoot to kill the Chinese woman." Eventually after she was driven to Sirul's house to pick up the military explosives that would be wrapped around her body after she was dead, she was then driven to the Punchak Alam forest reserve near the suburban city of Shah Alam.

"I saw Azilah outside the jeep carrying a bag containing an M5 weapon and silencer from the jeep that was located at the foot rest of the passenger seat and gave it to me ordering me to ‘shoot to kill' the Chinese woman who was inside the jeep."

They took her jewelry and other articles, Sirul said, and "I saw that she was in a state of fear and she pleaded not to kill her and said she was expecting." Nonetheless, Azilah wrestled her to the ground, apparently knocking her unconscious, and "I opened fire towards the left side of the woman's head. After the Chinese woman was shot, Azilah removed all her clothes and I took a black garbage bag and Azilah put all the Chinese woman's clothes into the bag."

Azilah, he said, "noticed movements in the Chinese woman's arm and ordered me to fire another shot but the gun did not fire. I then emptied the weapon and loaded the gun again and fired another shot at the same area which was the left side of the woman's head. I then took a black plastic garbage bag and with Azilah's help put the bag over the Chinese woman's head to prevent blood from spilling."

With Sirul holding her arms and Azilah holding her legs, they carried Altantuya into the woods. "Azilah then carried the bag containing the explosives and handed it to me. I took the explosives and attached them to the victim's head while Azilah attached the explosives on the victim's legs up to the abdomen." After attaching a wire to the explosives, they blew her up.

After returning to the Bukit Aman police station, "I had a bath and changed clothes and put the clothes that I wore during the incident together with the victim's clothes into a plastic bag. After that, I entered the jeep and drove the jeep to a rubbish container in the Bukit Aman area near a construction site. I threw some of the victim's belongings and the wire that was used to detonate the explosives together with the empty bag that contained the explosives into the container.'

Then he went home and went to sleep.

Najib ‘did not shine’ — Dr M

Tun Dr Mahathir Mohamad at a function he officiated three days ago in Kuala Lumpur for MUBARAK (Ex-parliamentarian council), an organisation which he serves as patron. - Bernama

KUALA LUMPUR, March 17 — Malaysia’s incoming prime minister Datuk Seri Najib Abdul Razak needs to take swift action to reverse declining support for the government that has ruled for 51 years, influential ex-prime minister Tun Mahathir Mohamad told Reuters.

Mahathir was prime minister of this Southeast Asian country for 22 years until 2003, and his attacks on his successor Datuk Seri Abdullah Ahmad Badawi helped catalyse opposition to Abdullah in the main ruling party which led to him quitting office early.

Najib will take power at the end of March and will have to deal with the worst economic downturn since the Asian financial crisis of 1998 as well as rebuilding a party tainted with corruption and still bruised by last year’s big election losses.

“A lot of people are uncertain. Having watched Najib’s performance as deputy (prime minister), he did not shine,” Mahathir said a week before the United Malays National Organisation (Umno), the main party in the ruling coalition, holds internal polls.

“Najib can do well, but we will have to see, because when I asked Abdullah to appoint him as deputy I had a lot of hope for him, but he did not perform the way I expected,” Mahathir said today.

Najib is standing unopposed to be Umno president, a post that traditionally carries with it the premiership, but there are tough battles for the deputy presidency and other top posts.

Mahathir did praise Najib’s action as finance minister in putting together a 60 billion ringgit package of spending to try to offset the looming recession, contrasting it with Abdullah’s performance as the previous finance minister.

However, Najib does arrive with the kind of baggage that no other Malaysian leader had on entering office.

He has been linked on the internet blogs to a brutal murder of a Mongolian model, Altantuya Shariibuu. Although he has firmly denied involvement and there is no evidence to tie him to the death, he was challenged again in parliament last week over the issue by an opposition lawmaker.

His popularity rating stands at just 41 per cent, according to a recent poll by independent pollster the Merdeka Centre, and that is less than the 46 per cent enjoyed by Abdullah.

“Legally he has cleared his name (over Altantuya). But whether people will perceive that he has cleared his name or not is something he cannot decide,” Mahathir said.

One of the ways that Najib can fight back against negative perceptions is to stamp out corruption in Umno and the 13-party National Front coalition, Mahathir said.

“Today the problem with Umno is that people see it as a corrupt party and it has no credibility and they really look down on Umno as being irrelevant.”

If Umno fails to tackle corruption, Mahathir warned that it would lose power to the opposition and its leader Datuk Seri Anwar Ibrahim.

Anwar was Mahathir’s chosen successor until he was sacked as deputy prime minister and convicted on what he says were trumped up sodomy and corruption charges at the end of the 1990s.

Anwar faces new sodomy charges in court that could see him jailed for 20 years, ending his political career.

“He (Anwar) is not to be trusted. He will do anything to become prime minister,” Mahathir said.

“During the time when he was my deputy, he was involved in cronyism. He supported a lot of his own people, they became very rich, because he gave contracts to them,” the former prime minister said. — Reuters

All guilty in Umno, only some get caught - The Malaysian Insider

MARCH 18 - When Datuk Norza Zakaria was introduced to Perak Umno delegates as part of the beauty pageant of election candidates yesterday, rapturous applause broke out in the hall.

The response from the floor was telling: it was an indication of how different the Umno value system and world view is from the rest of the country. It was also a rebuff of the party leadership’s vow to clean up Umno.

Norza, the Federal Territory Umno Youth chief, grabbed the headlines last week when he became the highest ranking party official to be charged with money politics by the Malaysian Anti-Corruption Commission.

It was the culmination of several weeks of his name being soiled in public with accusations of paying between RM300 and RM500 to Umno delegates to secure one of the 25 places on the all powerful supreme council.

But in Ipoh yesterday, the taint was not a handicap, in fact it was a badge of honour. In the company of politicians more prominent and well-known than him, he was a giant.

Several party officials told The Malaysian Insider that the reaction to Norza was not surprising, they view him as a victim of selective prosecution, the same they view Datuk Ali Rustam as a victim of backroom deals to clear the path for Tan Sri Muhyiddin Yassin to become deputy president.

Also, Umno delegates understand the hypocrisy at play. They know that they have demanded cash, holidays, tyres, hotel rooms and other goodies from politicians contesting the party elections since divisional elections in November last year.

And they know that nearly every candidate has obliged, even those who have made sanctimonious speeches condemning graft in the party. For example, an Umno minister playing catch up has given delegates RM1, 000 “petrol money’’ while agents and supporters of a tight-fisted mentri besar has offered delegates RM50.

Other candidates have offered between RM200 and RM500, government contracts, free stay in five star hotels during the party’s assembly.

In short, there have been willing givers and takers in this party. This has been the case for more than 15 years.

When news broke midway during the session in Ipoh yesterday that Ali had been barred by the Umno disciplinary board from contesting the deputy president’s position, there was palpable anger in the hall and a huge dose of cynicism.

Many party officials embraced him, slammed the disciplinary board and offered words of consolation to him.

The reasons: because one of the most popular politicians had been deprived an opportunity to win the second most coveted prize in the party.

Because the party officials in Ipoh knew that Ali and his agents were not the only ones spreading the wealth in the run-up to the polls.

Because if Ali and Norza are guilty of money politics; then they too are culpable, guilty of abatement.

Because through the Umno prism, this campaign against money politics is much ado about nothing. - The Malaysian Insider

The Malaysian Social Contract

by Tun Dr Mahathir Mohamad

1. Before there was Malaya and Malaysia the peninsular was known as Tanah Melayu, or Malay Land.

2. Saying this alone would result in accusations of being racist.

3. But I need to go back in history if I am going to be able to explain about Malaysia's social contract.

4. Through treaties signed by the Rulers of the Malay States of the Peninsular the British acquired the right to rule the Malay States. These treaties obviously recognised and legitimised the States as Malay States. No one disputed this. Even the aborigines accepted this as shown by their submission to the rule of the Malay Sultans.

5. Initially the peoples living in the States were divided into indigenous Malays and aborigines who were subjects of the Malay rulers and foreign guests who were not subjects of the rulers. There were no citizenship or documents about citizenship status as in most countries.

6. The foreign guests prospered in the British ruled Malay States and in the British colonies of Penang, Malacca and Singapore. The Malay subjects of the Rulers and the Rulers themselves did not feel threatened by the numbers of these non-Malays and the disparities between the general wealth and progress of the foreign guests and the subjects of the Rulers. They did not think that the foreigners who had settled in the country would ever demand citizenship rights.

7. When Japan conquered the Malay States and the colonies of the Straits Settlements, the Chinese felt insecure as the Japanese were their historical enemies.

8. Many Chinese formed and joined guerilla forces and disappeared into the jungle. When Japan surrendered the Chinese guerillas came out and seized many police stations in the interior and declared that they were the rulers of the country. They seized many people, Chinese and Malays and executed a number of them.

9. Malay villagers retaliated by killing the Chinese in the rural areas. Tension rose and a Sino-Malay war was only averted because of the arrival of British forces. But the ill feeling and animosity between the two races remained high.

10. It was in this tensed situation that the British proposed the Malayan Union which would give the "guests" the right of citizenship as indistinguishable from that of the Malays.

11. The Malays rejected the Malayan Union and its citizenship proposal. They forced the British to return to the status quo ante in a new Federation of Malaya.

12. Only Chinese who were British subjects in the colonies of the Straits Settlements were eligible to become citizens in this new Federation. Naturally the Malay citizens far outnumbered the Chinese Malayan citizens.

13. Chinese leaders appealed to the British, who then persuaded the UMNO President, Dato Onn Jaafar to propose to open UMNO to all races. This proposal was rejected by the other UMNO leaders and Dato Onn had to resign.

14. The British kept up the pressure for the Malays to be more liberal with citizenship for non-Malays.

15. Tunku Abdul Rahman, the President of UMNO decided on a coalition with MCA (Malaysian Chinese Association) and the MIC (Malaysian Indian Congress). In the 1955 elections to the Federal Legislative Assembly, since there were very few constituencies with Chinese or Indian majorities, the MCA and MIC partners had to put up candidates in Malay majority constituencies after UMNO undertook not to contest in these constituencies but to support MCA Chinese and MIC Indian candidates instead.

16. Such was the support of the Malays for the MCA and MIC alliance candidates that they won even against Malay candidates from PAS. The MCA and MIC candidates all won. Only UMNO lost one constituency against PAS.

17. The Tunku as Chief Minister of a self-governing Federation of Malaya then decided to go for independence. The British continued to inisist on citizenship rights for the Chinese and Indians as a condition for giving independence.

18. To overcome British resistance to independence and to gain the support of the Chinese and Indians, the Tunku decided to give one million citizenship to the two communities based purely on residence. One notable new citizen was (Tun) Leong Yew Koh, a former general in the Chinese National Army who was later appointed Governor of Malacca.

19. It was at this stage that the leaders of the three communal parties who had formed the Government of self-governing British Federation of Malaya, discussed and reached agreement on the relationship between the three communities in an independent Federation of Malaya.

20. It was to be a quid pro quo arrangement. In exchange for the one million citizenships the non-Malays must recognise the special position of the Malays as the indigenous people. Certain laws such as the pre-eminence of Islam as the state religion, the preservation of Malay reserve land, the position of the Malay Rulers and Malay customs and the distribution of Government jobs were included in the understanding.

21. On the question of national language it was agreed that Malay would be the national language. English should be the second language. The Chinese and Indians could continue to use their own languages but not in official communication.

22. Chinese and Tamil primary schools can use their languages as teaching media. They can also be used in secondary schools but these have to be private schools.

23. For their part the Chinese and Indian leaders representing their parties and communities demanded that their citizenship should be a right which could not be annulled, that they should retain their language, religion and culture, that as citizens they should have political rights as accorded to all citizens.

24. Much of these agreements and understandings are reflected in the Federal Constitution of Independent Malaya. For everything that is accorded the Malays, there is always a provision for non-Malays. Few ever mention this fact. The only thing that attracts everyone's attention and made a subject of dispute is what is accorded the Malays and other indigenous people.

25. Thus although Malay is to be the National Language, Chinese and Tamil can be used freely and in the Chinese and Tamil schools. In no other country has there been a similar provision. Even the most liberal countries do not have this constitutional guarantee.

26. The national language is to be learnt by everyone so that Malayan citizens can communicate with each other everywhere.

27. It was understood also that the Chinese language referred in the understanding were the Chinese dialects spoken in Malaysia, not the national language of China. Similarly for Malayan Indians the language was Tamil, not Hindi or Urdu or whatever became the national language of India. However, the Chinese educationists later insisted that the Chinese language must be the national language of China i.e. Mandarin.

28. The official religion is Islam but other religions may be practised by their adherents without any restriction. As the official religion, Islam would receive Government support. Nothing was said about support for the other religions. The non-Malays did not press this point and the Federal Constitution does not mention Government support for the other religions. Nevertheless such support have been given.

29. A quota was fixed for the Malayan Civil Service wherein the Malays would get four posts for every one given to Chinese or Indians. However it was recognised that the professional post would be open to all races as it was never thought possible there would be enough Malays to take up these posts.

30. The result was that in the early years of independence there were more non-Malays in Division 1 than Malays.

31. The Agong or the Rulers of the States should determine quotas of scholarships and licences for Malays. But no one should be deprived of whatever permits or licences in order to give to Bumiputras.

32. The position of the Malay Rulers was entrenched and could not be challenged. There would be a Paramount Ruler chosen from among the nine Rulers who would serve for five years.

33. The rulers were to be constitutional rulers. Executive power was to be exercised by elected Menteris Besar, Ketua Menteri (Chief Minister) and Prime Minister, assisted by members of councils and cabinets. The British practice was to be the model.

34. The most important understanding was the adoption of Parliamentary Democracy with a Constitutional Monarch, again after the United Kingdom model. It should be remembered that the British imposed an authoritarian colonial Government on the Malay State, the power resting with the Colonial Office in London.

35. Before these the Malay States were feudal with the Malay Rulers enjoying near absolute power. Only the elites played a role in State politics. The Malay subjects had no political rights at all. Certainly the guests had no say in politics. Even the Chinese and Indian British citizens had no say though they may be appointed as Municipal or Legislative Councillors.

36. The decision to adopt a democratic system of Government was a radical step in the governance of the Federation of Malaya and of the Malay States. This was agreed to by the leaders of the three major communities as represented by their political parties i.e. UMNO, MCA and MIC. There can be no doubt that these parties represented the vast majority of the three communities in Malaya. The Communists and the other leftists did not signify their agreement to the understanding.

37. The Reid Commission was briefed on all these agreements and understanding so that they will be reflected in the Constitution to be drawn up. All the three parties approved this Constitution after several amendments were made. In effect the Constitution became a contract binding on all the three communities in the Federation of Malaya upon attaining independence in 1957.

38. When Sabah and Sarawak joined the Peninsular States to form Malaysia the social contract was extended to the two Borneo States. The natives of Sabah and Sarawak were given the same status as the Malays. At this time the word Bumiputra was introduced to distinguish the indigenous Malays and Sabah, Sarawak natives from those descendants of foreign immigrants. Because Malay was widely used in the Borneo States there was no difficulty in the acceptance of Malay as the national language. The fact that the natives of the two states are not all Muslims necessitated no change in the Constitution once the word Bumiputra was accepted. But the official definition of a Malay remained.

39. The embodiment of the social contract is therefore the Constitution of first, the Federation of Malaya and then Malaysia.

40. To say it does not exist is to deny the contents of the Constitution which was based upon the acceptance by the leaders of the three communities of the original social contract.

41. All subsequent actions by the Government were the results of this social contract. The fact that the initiators of this social contract and their successors were endorsed by the people in every election reflects the undertaking of the people to honour this social contract.

42. Saying that the social contract does not exist is like saying that Malaysia exists in a vacuum, without a Constitution and laws based on this Constitution.

43. Implementing the social contract requires understanding of its spirit as much as the letter. The social contract is aimed at creating a multi-racial nation that is stable and harmonious. Any factor which would cause instability and result in confrontation between the races must be regarded as incompatible with the spirit of the social contract.

44. For 50 years no one seriously questioned the social contract. Even today the majority of Chinese and Indians and the indigenous Malays and natives of Sabah and Sarawak accept the social contract. But because Dato Seri Abdullah Ahmad Badawi basically lost the 2008 election and now heads a weak Government the extremists and erstwhile detractors have questioned the social contract. The Bar Council has now become a political party believing that its expertise in law will exempt it from being questioned as to its credentials and its political objectives.

45. Abdullah's UMNO is incapable of countering any attack on the social contract. If anything untoward happens Abdullah and UMNO must bear responsibility. (12 July 2008)

Tun Dr Mahathir Mohamad was the Fourth Prime Minister of Malaysia.

1993

by YM Tengku Razaleigh Hamzah
Tengku Razaleigh’s official weblog

This is not the first constitutional crisis in which the rights of the Rulers has been touched upon. Today’s crisis in Perak is about the legitimacy of the process by which a new state government has been formed in Perak. It’s not about the status of the Rulers. In comparison, the constitutional crisis of 1993 arose from an ugly confrontation between Umno and the Rulers over a question that had direct and profound implications on their sovereignty and that of the Yang Dipertuan Agong. For good reason, the Head of State in most countries may not be prosecuted in an ordinary court of law. In 1993, the government campaigned to remove this immunity through amendments to the Constitution.

I opposed these amendments.

In the event, Rulers and Parliament were railroaded by the government of the day and the amendments passed. These are the very same amendments which today make it legal for a Ruler to be prosecuted. Mr Karpal Singh, though I disagree with him, was acting well within rights that an Umno-led government enacted in 1993 when he earlier proposed to sue DYMM the Sultan of Perak.

Let’s reflect on this irony. Does Umno serve the Rulers more genuinely by upholding and protecting the Constitution which guarantees their status, or by histrionic displays tuned for the coming Umno elections?

This bears upon the question of the kind of leaders, and the kind of party, we want. Do we want to be led by those who can understand and address the foundational issues facing our society today, and shall we have leaders capable of forging “mutual consent by debate and discussion, inquiries and elections” or shall we again be landed with those whose main talent is to strike poses that people outside a small, insecure circle in Umno, and particularly Malaysia’s internet generation, find ridiculous?

Was greater harm done to the sovereignty of the Rulers in 1993 through Parliament or a week ago on the streets of Perak?

And is today’s Umno, with its inconsistent adherence to the rule of law, its inconstant respect for the key institutions of our country, a credible or effective defender of the Rulers and of the laws upholding this institution?

Or do we actually harm what we claim to protect?

Below is a video recording in two parts of the speech I made in Parliament in 1993 opposing the amendments to the Constitution.

I stand by my argument.

Tengku Razaleigh Hamzah - Krisis Perlembagaan 1993 - 1

Tengku Razaleigh Hamzah - Krisis Perlembagaan 1993 - 2

Criticizing Malaysia's Royals

asia Sentinel
Written by Our Correspondent
Monday, 16 February 2009

The government can criticize the country's sultans. The opposition can't

In a speech before Malaysia's Dewan Rakyat, or parliament, on February 14, 1993, then-Prime Minister asked that the body strip the country's sultans of their immunity to the law. In the speech, he accused them, among other things, of giving away parts of the country to the British, oppressing the people, breaking civil and criminal laws, misusing the money and property of the government and pressuring government officials. The measure, which included a rule to allow commoners to criticize the Sultans, even the Yang di-Pertuan Agong, or king without fear of the Sedition Act other than questioning the legitimacy of the monarchy itself, was passed overwhelmingly by the parliament, apparently without outcry over Dr Mahathir's rather tough treatment of the country's nine monarchs.

Asia Sentinel brings this up in light of the growing controversy in Malaysia over opposition protests against the Sultan of Perak's decision to oust the Pakatan Rakyat chief minister of his state and sanction the appointment of a member of the United Malays National Organisation as the new chief minister despite the fact that a 28-28 tie remained, and that the Pakatan Rakyat had asked for a snap election to determine which coalition should rule the state.

When Karpal Singh, national chairman of the Democratic Action Party, offered to sue Sultan Raja Azlan Shah in the courts to get his decision reversed, scores of UMNO members filed complaints and led rallies against Karpal Singh for insulting the sultan. Members of the press, including Jed Yoong of the Asia Sentinel, have also been cited.

It would appear from Dr Mahathir's 1993 speech that it is perfectly legal to sue members of the royalty. It would also appear that UMNO members, particularly prime ministers, can make allegations against the country's royalty that opposition leaders and members of the press can't. We invite readers to decide for themselves. We reprint Dr Mahathir's historic 1993 speech below in its entirety.

Mr. Speaker Sir,

I request to propose that is a Bill named “An Act to amend the Constitution” to be read for the second time. Speaker Sir, allow me to introduce and comment on the Act that I mentioned above

2. When the country demanded independence, the country's leaders, who received a huge victory and united support in the 1955 General Election, decided that our country would be administered via Parliamentary Democracy and Constitutional Monarchy.

3. This system was chosen because when the Malay states were administered via the feudal system with power vested in the hands of the Rajas, the Malay states were weak and its administration was in chaos. The states could not establish peace and enforce laws. As a negative result, the states were forced to put themselves under the influence of foreign powers like China, Siam and the West. Finally, all the Malay states were conquered by the British and ruled as a British colony via agreements between the Rajas that administered with the British Government.

4. After the Second World War, the Malay Rajas hoped that when the British administered again, their positions as Rajas, under the advice of the British officials, would be reinstated. The Malay states would be ruled by the British although not like Singapore, Penang and Malacca, where the British had full power.

5. For the majority of the Malay people in the Peninsular states, they were ready to accept a rule in which the Malayness of the Malay states was recognized by the British, although the administration was almost completely controlled by the British. Yet, there were opinions among some Malays that the Malay states should be completely freed from British colonial rule.

6. Malays only realized that they might be marginalized and be made beggars in their own states when the Malay Rajas bowed to MacMichael's threats and signed a new agreement with the British to return the Malay states directly to the British to be ruled as British colonies like Singapore, Penang and Malacca.

7. Because the Rajas so easily handed over Singapore, Penang and Pangkor to the colonialists and then the Malay states, the People (“rakyat”) could no longer accept a system that only gives power to the Rajas and the People are not given any role in the country's politics. Also, after World War 2, absolute monarchies decayed throughout the world. Everywhere, absolute monarchies were abolished. Where it was maintained, the powers of the Rajas were limited by the Constitution, or the country's basic law. Hence, when the Federated Malay States demanded for independence, the leaders of the People studied administrative systems while taking into account of the history of the Malay States and other administrative systems.

Mr. Speaker Sir,

8. The old administrative system in the Malay states was a feudal system in which the Rajas had absolute power without a written Constitution. This feudal system was determined by customs that were often manipulated by the people in power. If the people in power breached the customs, it was difficult for palace officials and the People to criticize and make charges. But when the situation became too bad, it was likely that customs were put aside and revolt occurred. But this method brought definite negative consequences without guaranteeing that the revolt would improve the situation.

9. Therefore, the opinion that Rajas should be placed under a Constitution that determined the status and role of the Rajas was born. With this method, the Rajas could no longer act as they liked. The powers of the Rajas would be determined by the Constitution, that is the country's basic law. Yet, there were Rajas who were willing to hand over their own states to foreign powers while ignoring the Constitution.

10. Yet when the Constitutional Monarchy was drafted for the Federation of Malaya, which at that time was moving towards independence, those drafters of the constitution still believed that the Rajas would abide by not only by what was written but also what was written between the lines, that is the spirit of the Constitution.

11. During the British colonial period, because they could appoint or remove Rajas, therefore Rajas accept the advice of the colonial rulers. This matter is included in the agreement between the British and the Malay Rajas in which the advice of the 'British Resident' or 'British Adviser' must be sought and abide by the Rajas save those that relate to Islam and Malay customs. For the British, that the advice must be abided by the Rajas is not strange because in the Government system in Britain, their 'King' or 'Queen' must accept the Government's advice. If not, the King will be removed from the throne. Hence, when King Edward VIII married a divorcee, he had to abdicate the throne on the Government's advice, although there was no specific allocation for this action. What was enforced was not the law but the country's political interests, and the British Kings abide by the country's politics. That's the reason that even before that, the British Parliament decided that Queen Elizabeth pays income tax. She herself just decided to pay income tax. The British Constitution, although not written, is abided from the perspective of spirit and custom.

12. Because the Malay Rajas in colonial times followed the advice, therefore it was believed that the problem of Rajas breaking the law would not happen.

13. The drafters and founders of the administration of the independent Federation of Malaya also believed that the provision that the Rajas that could not be charged in court is only a sign of the majesty of the King and not as a right to commit crimes. Certainly, the drafters of the Constitution and the founders of our country's independence did not mean this provision gave the Rajas the right to be above civil and criminal laws. Constitutional Monarchy has never given privilege to the Rajas to commit crimes. But if the Rajas break the law while carrying out official duties, the Rajas are free from charges. This is because the Government is responsible and the party that should be charged.

14. In the effort to oppose the Malayan Union and return the Malay states and Straits states to the 'status quo ante', that was the situation before World War II, the People played an important role although there is no legal provision. It was clear at that that time to the people that the Rajas without the People's support are easily controlled by the colonialists and other parties. Hence, the People had to be given rights in the country's politics and administration. The role of the People must be determined by the law.

15. Looking at this reality and once again taking the example of Britain, the independent Federation of Malaya chose the Parliamentary Democracy system. The People will elect their representatives to the Dewan Rakyat (People's House or Parliament) and the Dewan Undangan Negeri (State Legislative Assemblies) who will be the main law and policy makers. This allowed the People to play their roles in an orderly and organized manner.

16. Once again following the system in Britain, the laws can only be valid after they are signed by the Rajas. In Britain, this is not a problem because it is not possible that the King will reject the advice of the Cabinet. But in Malaysia, the word 'advice', that the drafters of the constitution believed would have the same meaning like in Britain and during the colonial period, is not clearly interpreted. Therefore, the Rajas can reject the Government's advice.

17. If the Government admits to be made up of representatives chosen by the People to determine the People's power, but the advice of the Government may not be accepted, this meant that the Parliamentary Democracy does not exist and the People are not in power. In some matters, not only the agreement of the Yang di-Pertuan Agong is required, but also the Council of Rajas.

18. Although the representatives were free to speak in the Dewan Rakyat and Dewan Undangan Negeri about any topic, but they could not touch on the Rajas because any criticism of the Rajas could be interpreted as sedition and they could be charged under the Sedition Act. This provision was a result of an amendment made in 1971. Before this, criticism of the Rajas could be made in the house. In Britain and other countries, the Parliament was free to criticize the Rajas. It is clear that that criticizing the Rajas does not destroy the Rajas' majesty.

19. While this prohibition on criticism is said to protect the Rajas' majesty, but when the Rajas are not criticized, they will not be aware of the wrongs that they have committed. Hence, maybe more wrongs will be committed and these wrongs may become more serious. This not only contaminates the Rajas' majesty but can also cause the People to hate the Rajas. It is not true to say the prohibition on criticizing the Rajas will protect the Rajas' majesty. Actually, the majesty of the Rajas will be contaminated because of this prohibition.

20. With the possibility that the Rajas reject advice while being free from criticism and any fair action, hence, the Rajas are actually not Constitutional Monarchs anymore but have become absolute Monarchs. Once again Parliamentary Democracy no longer exists because no action can be taken towards the Rajas that do not receive the advice of the People's Government and commit wrongs.

21. In 1983, action was taken to amend the Constitution so that at the very least the power of the Agong to reject Bills written by Parliament was abolished. This effort was successful but not fully. What was approved in the end was the power of the Agong to reject Parliament Bills was reduced a little by having a new provision such that he can refer back to Parliament if he is unwilling to sign the Bill that has been approved by Parliament. If Parliament approves it again, whether with or without amendments, the Bill will be valid law in 30 days (Article 66(4) Constitution) although unsigned by the Agong.

22. But approvals this way are limited to matters that do not touch on the rights and privileges of the Rajas. To amend the Constitutional provisions that touch on the Rajas, the Council of Rajas must give their agreement.

23. At the state level, no amendments was made to state Constitutions. Hence, there are no laws that could be approved without being signed by the Rajas. This means the powers of the Rajas in the state is beyond the powers of the Dewans Undangan Negeri that represent the People.

24. These provisions do not become problems if there are no opposing opinions between the Rajas and the Dewans Undangan, or there is no wrongdoing by the Rajas, or there is no Malay custom that does not like to jeopardize the relationships with the Rajas. Unfortunately, because the Chief Ministers and Prime Minister are Malays that are unwilling to be on bad terms with the Rajas, when the Rajas do something that is not supposed to be done, no effective criticism is made. Even if there is, the unwillingness of the Rajas to care about the criticisms of these official advisers does not bring about any action towards the Rajas.

25. Hence, in the history of independent Malaysia, the actions of the Rajas and parties who hide behind the Rajas that exceed the rights and privileges of the Rajas become more serious over time. The possibility is that it will become more serious in the future. If there are no amendments to the law, like those suggested here, without doubt worse matters will happen that will cause the Raja Institution to be hated by the people. It is not impossible that if one day in the future, demands are made to completely abolish the Raja System although there are provisions in the Constitution.

26. Hence this amendment that is suggested aims to avoid or prevent the escalation of hatred towards the Rajas that could bring about demands to abolish the Raja System. This amendment is to save the Rajas themselves and the Constitutional Monarchy system. To strengthen the Constitutional provisions to maintain the Raja System, provisions are made such that any suggestion to abolish the Raja System will be interpreted as sedition and falls under Sedition Laws.

27. This amendment does not touch on the privileges given to the Rajas. Rajas will continue to be of Raja status, and facilities provided to the Rajas and the Royal Families according to the Constitution will be continued.

28. To guarantee that Constitutional Monarchy is really effective, three amendments need to be made to the Federal Constitution. First, the Constitutional provision related with the immunity of the Rajas from any legal action as in Clause (1) Article 32 where after the word “court” is added the words “but only those related with whatever that is done or left to be done by him in the carrying out or that which resembles the carrying out of his functions under any written law”. This means no court action can be taken towards the Rajas who are carrying out their official duties.

29. Sovereign Immunity is a feudal concept – a concept in which allegedly 'The King can do no wrong'. According Dr. Hogg in his book 'Liability of the Crown', this concept is based on the excuse that a King cannot be charged in his own court. This excuse has long been questioned and rejected by European law experts like Adams who feel that there is no doubt that feudal lords are under their own courts – 'No doubt at all of the subjection of feudal lords to their own courts'.

30. Under the Government of India Act 1935, the Governor General or Governor is only immune when carrying out official duties.

31. In the United States, President Nixon's demand such that he is exempted from a legal provision is rejected by the Supreme Court.

32. In England, the Queen cannot be arrested and the arrest of anyone cannot be made on palace grounds. Even charges towards the Queen cannot be made in court.

33. But in a paper that discussed the Constitutional Law of India, under the Crown Proceedings Act for England the original provision has been amended such that 'Civil proceedings by and against the Crown' can be made. Hence, the difference of 'proceedings' towards the 'Crown' is equivalent to the People.

34. In the same paper it was mentioned that it has become a 'fundamental general rule' that 'His Majesty cannot sanction any act forbidden by the law'. When he cannot sanction, he also cannot do something wrong. Hence, 'His Majesty is under and not above the laws (and) he is bound by them equally with his subjects'.

35. Provisions in the Constitutions of Spain, Belgium, Norway, Denmark, Sweden and Luxemborg all give immunity to the King only when carrying official duties as King. Any wrongs in carrying out official duties fall upon the Government or Ministers.

36. There are no special provisions in any Constitution in European countries that give immunity to the King when carrying out unofficial activities. Yet, the Kings in the respective countries are still recognized and sovereign. They continue to be sovereign and did not lose their sovereignty. The opinion that Kings are only sovereign if the Kings can commit crimes as they like is not supported by the practices of other countries in this era. Even in the older eras, the King is often punished when he commits any wrongdoing, like in the case of Charles I in England and Louis XVI in France.

37. Only in the Constitution of Malaysia is a specific provision under Article 181(2) that 'no proceedings whatsoever shall be brought in any court against the Rules of a State in his personal capacity'.

38. Almarhum Tunku Abdul Rahman Putra al-Haj, this country's first Prime Minister, had written that immunity is not 'satisfactory' because 'Rajas can kill anyone without any action taken against him'. The result of provision 181(2) is very wide. Because the Constitutions of the Federation and States are also law, Article 181(2) actually allows Rajas to breach the Constitution. Because of that, when Rajas conduct business, although prohibited by the Constitution, nothing can be done by the Government. The Agong cannot be charged in any court. But the Council of Rajas can sack him from his position. On the contrary as a Raja, Article 181(2) will protect him.

39. If Malaysia intends to become a country that practices Parliamentary Democracy and Constitutional Monarchy, the immunity that is given to the Rajas must be abolished. Because the Constitution in countries that practice the Constitutional Monarchy System doesn't give immunity to their Kings, the abolishment of the immunity of the Malay Rajas cannot jeopardize their sovereignty. In the modern era, only because the King can't commit crimes as they like, the King's status will not be jeopardized, especially in a country that practices Parliamentary Democracy and Constitutional Monarchy.

40. To guarantee the effectiveness of the abolishment of immunity, two more provisions in the Constitution needs to be amended. The first is related to the provision in Article 63(2) that protects a person from taking part in a debate in Parliament or Parliamentary Committee from being questioned in court, which has been amended by Article 63(4) if it touches the provision of the Sedition Act. This provision is made in 1971. This means criticism towards the King can be made before 1971 without jeopardizing the Raja's sovereignty. Hence, it allows again the People's Representatives to criticize the Rajas who were wrong without denying the original rights and privileges of the Rajas. The amendment of Article 63 after Clause (4) reads:- “(5) Notwithstanding Clause (4) no one can be charged with any proceedings in any court related with anything that is said by him about the Agong or a Raja while taking part in whatever proceedings in any of the Parliamentary Committee or any of its task force except if it organizes the abolishment of the Constitutional position of the Agong as the Head of the Government of the Federation or the status of the Constitutional Monarch of a state, according to whichever applies”. Article 72 of the Federal Constitution is amended by inserting after Clause (4) the following Clause:- “(5) Notwithstanding Clause (4) no one can be charged with any proceedings in any court related to anything that has been said by him about the Rajas in any state while taking part in any proceedings in the Dewan Undangan in any state or in any committee unless if he organizes the abolishment of the status of the Raja as the Constitutional Monarch of the state”.

41. The interpretation of the sedition towards the King in the Constitution is so wide until no criticism is can be made in Parliament by members of the Dewan Rakyat or Dewan Undangan. Hence, the media also has no opportunity to report. Criticism can only be made by the Rajas' advisors behind closed doors. If this criticism is ineffective, there is nothing that can be done.

42. Actually all three former Prime Ministers, as advisors to the Rajas, have already criticized the Rajas many times while they were in service. I know criticisms have been made because this matter has been repeatedly reported in Cabinet meetings and also the UMNO Supreme Council.

43. Allahyarham Tun Hussein Onn, as Prime Minister, had in his written speech in a Raja Council Meeting, only attended by His Highnesses or their representatives, harshly criticized the doings of the Rajas that should not be done.

44. But all these criticisms are not effective. The matters touched upon continued to be done, even intensified. What was never done during the British era and in the early years of independent Malaysia are now done obviously and widespread.

45. Although almost all Prime Ministers and Chief Ministers report to the UMNO Supreme Council, there are problems that they face but the public are not told. Hence, the public do not know the problems faced by the Government. Most of them continue to believe that the system of Constitutional Monarchy is operating smoothly with the Rajas honoring all the provisions in the Constitution. Only a small portion of the People know and they are not comfortable with the Rajas' doings. But they can't express their views and feelings because there is a Sedition Act.

46. The Sedition Act and the relevant provisions for sedition towards the Rajas in Article 63(4) of the Constitution prohibits the People from getting information and voicing their opinions. They can only talk among themselves. Political leaders, including Government leaders, definitely hears and realizes that the views and anger of a number of People that knows about the Rajas' doings. Such is their anger till there are, mostly among the young generation, that consider the Raja System to be behind times.

47. But because of the Sedition Act and prohibitions on criticizing the Rajas, Rajas do not listen and do not believe their advisors when such information is conveyed about the People's anxiety. The Rajas and the Royal Families seems to opine that all of these are inventions of the advisors to the Rajas to scare them or snatch the Rajas' rights.

48. In this situation, the Rajas not only continue their habits that the People dislike and are uneasy with but also matters that are hated by the People. If this trend is not stopped, the feelings of the People towards the Raja will boil over and become so bad that at a point of time in the future, the People may no longer be able to control their feelings. Letters to newspapers that expressed such feelings have existed for a long time.

48. With your permission Speaker Sir, I wish to read an excerpt of an article sent to The Straits Times in 1946 by a prominent Malay leader, when the British suggested the formation of the Malayan Union. This leader went on to hold a high position in Government. This article was not published in the Straits Time but was passed to me recently by the writer.

50. This writer says, with your permission, 'All intelligent Malay leaders ought now seriously to give most profound and careful thought to the question whether the time has not ar- rived when the Malay Royalty (I mean the Sultan and Raja) should gracefully withdraw themselves altogether'.

51. If opinions were already like this in 1946, is it not possible that it will arise again in 1993 if the Rajas are not stopped from doing things that are undesirable?

52. The protection and privilege given to the Rajas aim to put the Rajas in a high and majestic place. The protection and privilege is not to allow the Rajas to do whatever they like including committing crime. Rajas who are aware and understand the true meaning of these provisions will always take care to prevent contaminating itself in acts or behaviours that are not good and disliked by society. Rajas who are aware will know acts that ignore the feelings and opinions of society will cause the People to finally remove the Rajas, and even abolish the Raja System. This is what happened in countries that are now republics.

53. In Malaysia, the protection given is very thick. Sovereign Immunity from laws and prohibitions from criticism, although only by members of the Dewans Undangan that has been entrusted to administer the country, separates the Rajas from the real world. In this situation, the acts and behavior of the Rajas will become worse in the long run. This is happening in Malaysia.

54. Hence, it is important Members of the Dewan are given back the right to criticize the Rajas in their debates. Without this right, the Members of the Dewan will fail to practice the Parliamentary Democracy system and will fail to prove that the People are the ones in power in this system. Without this right, the ones in power are the Rajas and not the People.

55. With the existence of a prohibition on criticizing the Rajas, Members of the House actually cannot protect the Raja Institution and Raja System. Hance, the freedom of Members of the House to speak in the House should not be blocked by the Sedition Act like provided for under Article 63(4) and 72(4). With the addition of Article 63(5) and 72(5), the Members of the House not only can protect the Raja's position but also the Constitutional Monarchy that is clearly protected by the Constitution, because it is mentioned in Article 63(5) and 72(5) that the exception from the Sedition Act does not include organizing the 'abolishment of the Constitutional status of the Agong as the Head of the Federation or the status of a Raja in a state'.

Mr. Speaker Sir,

56. The second matter that can void the abolishment of the Rajas' immunity is when doing something that breaks the law in a non-official matter is the Rajas' right to pardon as provided for in Article 42. With this provision, a Raja can pardon himself if he is convicted by a court after immunity from legal action is withdrawn. This means the withdrawal of immunity is meaningless and ineffective.

57. Hence, the Government proposes that Article 38 and 42 of the Federal Constitution be amended as in Clause (2) Article 28 and Clause (12) Article 42. Clause (2) Article 38 of the Federal Constitution is amended – (a) by substituting the comma at the end of the paragraph (c) with a semicolon; and (b) by inserting after paragraph (c), the following paragraph: “(d) giving pardon, reprieve and respite, or to remit, suspend and reduce sentences, under Clause (12) Article 42,”. Article 42 of the Federal Constitution is amended by inserting, after Clause (11), the following Clauses: “(12) Notwithstanding the contents of this Constitution, if the powers mentioned in this Article – (a) have to be carried out by the Yang di-Pertuan of a State and are required to be carried out on himself or his wife, his sons or daughters, these powers have to be carried out by the Chief Minister of the State that will act on the advice of the Board of Pardons formed for the state under this Article and needs to be chaired by; (b) are required to be carried out on the Agong, a Raja of a State, or his Consort, according to whichever is applicable, these powers needs to be carried out by the Council of Rajas and the following provisions are required to be used: (i) when attending any proceeding under this Clause, the Agong cannot be accompanied by the Prime Minister and other Rajas cannot be accompanied by their Chief Ministers; (ii) before making any decision about any matter under this Clause, the Council of Rajas must consider whatever written opinion that may be given by the Attorney-General about this matter. (c) are required to be carried out by the Agong or the Raja of the related State with his sons or daughters, according whichever is applicable, the powers have to be carried out by a Raja of a State named by the Council of Rajas and that Raja has to act according to the advice of the relevant Board of Pardons formed under this Article. (13) For the meaning of paragraph (b) and (c) Clause (12), the Agong or respective State Raja, according to whichever is applicable, and the State Yang di-Pertuas cannot be made members of the Council of Rajas”.

58. With this amendment, the Raja cannot hear the plea and pardon himself. If the Raja or his Consort who pleas for pardon, the Council of Rajas will hear and decide on the respective case.

59. The Raja also cannot listen to the plea of and pardon his offspring. The Council of Rajas will appoint another Raja to hear and decide on the pardon pleas of a Raja's offspring.

60. With the abolishment of the immunity of the Rajas from legal action, except when carrying out official duties, it is believed that a Raja will not commit acts that can be charged in courts. With this, the Raja will be honored by the People.

61. The abolishment of the ban applied on Members of Parliament and the Dewans Undangan Negeri by the Sedition Act will prevent the Rajas from committing any act that may attract the criticism of the respective members of the house.

62. The abolishment of the powers to pardon himself will make legal action more effective.

63. The real reason for these amendments is not because the Government or the People want to drag the Rajas to court as they like. The reason is so that the Rajas will constraint themselves from committing acts that can negatively cause legal action. Hence, the Rajas will be respected more.

64. Harus diingat bahawa penghormatan rakyat terhadap Raja tidak boleh ditentukan oleh undang-undang. Dengan izin, `Respect must be earned`. Mengadakan undang-undang yang menakutkan rakyat tidak akan membawa `respect`. Dengan kesedaran Raja boleh dihadapkan ke mahkamah, Raja tentu akan mengelak daripada melakukan perbuatan yang akan menyebabkan rakyat tidak menghormati Raja. Dengan itu, Institusi Beraja akan lebih dihormati dan lebih berkekalan.

64. It should be reminded that the respect of the People towards the Raja cannot be determined by laws. With your permission, 'Respect must be earned'. Having laws that scare the People will not bring 'respect'. With the realization that the Rajas can be brought to court, Rajas will certainly avoid committing acts that will cause the people not to respect the Rajas. Hence, the Raja Institution will be better respected and better preserved.

65. To strengthen the efforts to preserve the Rajas and Raja System, any suggestion or exertion to abolish the Raja System is interpreted as sedition and will be charged under the Sedition Act.

Mr. Speaker Sir,

66. I feel very sad that today I am forced to present to the august House a Bill to amend the Constitution that has in some way contaminated the good name of the Rajas and the Raja Institution. With a heavy heart I presented and explained the suggested amendments.

67. That the Government made the decision to amend the Constitution is not without reason. Actually, as I have said, the Government has refrained from making these amendments since the start when we achieved independence. But this approach does not alleviate the situation. On the contrary, the situation became worse.

68. In the end, an incident in which a Raja assaulted a citizen and before this another incident in which the son of a Raja assaulted a citizen. The Government cannot look lightly at such events without jeorpardizing the Government's credibility as responsible leaders.

69. The Government is forced to make a firm stand to protect the People from being oppressed by the Rajas. Certainly, this stand was not made because of these two incidents only. Before this there were many incidents where the Rajas oppressed the People, Rajas broke civil and criminal laws, Rajas misused the money and property of the Government and country, Raja pressuring and oppressing officials.

70. The incident in Johor is only, with your permission, 'the straw that broke the camel's back'. The People's reaction towards these incidents clearly shows that the People no longer accept and 'tolerate' these kind of acts.

Mr. Speaker Sir,

71. There are people that ostensibly wish to give powers to and defend the Rajas when the Raja commit crimes. They try twist the People's thoughts by accusing the Government is trying to abolish the Raja System.

72. I wish to assert that the Barisan Nasional government does not at all suggest to abolish the Raja System. This is clear from the suggested amendments. Any suggestion to abolish the Raja System will be interpreted as sedition and the Government will take action under the Sedition Act upon anyone who suggest or act to abolish the Raja System.

Mr. Speaker Sir,

73. The government is aware that the People, specifically the Malays accept and support the Malay Raja Institution. The accusations that the Government is trying to abolish the Raja System is merely because of political interests. The Government represents the majority of the Malays and other races will abide by the wishes of the People and will not do something that is unpopular.

74. Because it is clear that the majority of the people of all races still wants the Raja System, specifically the Constitutional Monarchy System, the Government will guarantee that this system is protected by the Constitution.

Mr. Speaker Sir,

75. There are parties that opine that the Malay Rajas are needed to protect the Malays. The MacMichael Agreement and the Malayan Union incidents clearly prove that those who are willing and able to protect the Malays are the Malays themselves. If not because they rose up and opposed the Malayan Union, today, the Malays would have been beggars in their own country.

76. The attempts by some parties to scare the Malays towards the amendment are caused by those who wish to use racial sentiments for the interests of their own parties. Their history does not assure us that they are sincere. They are the ones who try to weaken the Malays by breaking up UMNO and working with certain parties that are viewed with suspicion by the Malays.

77. Can merely barring the Rajas from committing crimes cause the Rajas to lose their sovereignty and no longer be Rajas? The opinion that the Rajas can only be Rajas if they are given rights and given privileges to commit crime contravenes the concept of Rajas as the source of law. In the old era in the West, Kings possessed the right to commit crime. For instance, according to the concept, with your permission, 'Droit du seigneur' (right of the Lord) or the Right of the Lord, the King has the right to spend a night with all newlyweds.

78. But in the West, all these rights have been abolished. That is why Western countries that preserve the Monarchy System does not have specific immunity for the Rajas. Even if there is a mention that the King cannot be brought court, it is only a formality. King, Government and the People know if the King commits a crime, he will be brought to court, and he will be removed from his throne. Hence, the Kings in the Western countries will not intentionally commit crime.

79. Although it is clear that the Kings in the West are not immune from legal and non-legal action, the Kings are still Kings. They are respected and admired.

Mr. Speaker Sir,

80. In the British era, the Malay Rajas were not only immune but were also under the orders of the British officials. They can be appointed and removed from the throne. One of MacMichael's threats so that the Rajas would sign the Malayan Union Agreement is they will be removed from the throne if they do not sign the Agreement.

81. In this situation, the Rajas will continue to be Rajas. The People are not demanding the Rajas be dislodged or the Raja System to be abolished although the Rajas handed over the Malay states to the colonialists. Happily I am reminded that at that time the Rajas in Indonesia, India and Pakistan have been rejected by the People who demanded for independence. On the contrary, Malaysians, mainly the Malays and UMNO, have fought to save the Rajas and Raja System.

82. The opposition of the Malays against the Malayan Union is clear because the fortunes of the Malays are in the hands of the Malays. The safety of Malays is not jeopardized with the Malay Rajas who do not have the right to commit crime. There are parties that say the abolishment of the Raja's right to commit crime, the Malays are no longer Malays and that will be the end of the special position of the Malays. This is not true. This is slander. Those who guarantee that the Malays will continue to be Malays and Malay rights are protected are the Malays themselves. They, through their representatives and the Government that they choose, create and implement various activities to protect and fight for the honour of the Malays.

Mr. Speaker Sir,

83. A Raja asked why the Constitutional amendments are related to Islam when the Government does not agree with the implementation of Sharia and Hudud law. According to him, he is ready to accept Islamic law without immunity but is unwilling to accept the country's laws which are not Islamic law.

84. With or without his blessing, the position of the Malay Rajas since Merdeka has been determined by the law, that is the Constitution. These laws also give certain special privileges to the Rajas. Among these privileges is immunity from legal action. If the Rajas were willing to accept the immunity under laws which are not Islamic laws, why is the abolishment of immunity in the same laws are not accepted by the Rajas?

85. In Islam there are two principals that are strongly held by the law. The first is there is no difference among Muslims in enforcement of Islamic laws. Raja and People are the same. The immunity for Rajas contravenes this principle. Rejecting the abolishment of the immunity so that the difference between Raja and People is preserved in the laws does not reflect a strong adherence to Islamic principles.

86. Receiving immunity from laws said to be not Islamic law, but rejecting the abolishment of this immunity in the same laws clash with the allegation that only Islamic law is acceptable.

87. Islam gives much leeway. Islam takes into account all factors and circumstances faced by its believers. Such that even in carrying out religious duties, environment, an individual's health and the current circumstances are considered. Therefore, praying can be made without certain movements, without facing the kiblat, before, after or together, in a congregation or alone. Palestinians, who were driven out by the Zionist Rule, could pray without taking off their shoes. In other religious duties, there is also leeway. Such is with the enforcement of hudud law. The state of the environment and society must be considered. That is the reason why not many countries in which the majority of the residents are Muslims do not establish hudud law. Those who do, also do not fully implement them.

88. The Government does not reject hudud law. The implementation must take into account the situation of the country in which Muslims only make up 56 percent and they are still weak in many fields. The administration who rejects the leeway given by Islam actually does not follow Islamic teaching. Islam does not order Muslims or a Muslim Government to blindly implement Islamic law until one is destroyed. That is why the Prophet asks his followers to go to Habsyah to save himself. That is why the Prophet migrated to Medina to save Islam and the Islamic struggle.

89. If the conditions allow, we will implement hudud law. But while waiting for hudud law to be implemented, we do something against Islamic teaching. Actually, crimes are prohibited by the country's laws and also Islamic laws. Does the said Raja want the freedom to commit crime only because we have not implemented hudud laws that prohibit the same crime?

90. The second principle is there is no immunity in Islam. All laws are the same for all believers. A Raja that wants to be immune from the law certainly opposes this Islamic principle.

Mr. Speaker Sir,

91. Finally, I wish to touch on the problems related to advising the Rajas. Like I have mentioned, Rajas must accept the Government's advice. In other countries where the Monarchy System still exists although without specific provision that the Kings must act according to the Government's advice, the Kings never act contrary to the Government's advice. Hence, the relationship between the King and Government who represents the People remains good. More than that, in these countries, these Kings are respected and revered by society.

92. Unfortunately, in Malaysia, although there are provisions that the Rajas should act according to the Government's advice, the Rajas hold on to the interpretation of 'advice' as widely accepted – that is advice can be accepted or rejected. This interpretation is wrong. In this area, there are also some matters that the Rajas consider no advice is required to be given. Hence, many things are done in opposition of the Government that represents the People.

93. The problem faced today is caused by the opinion that Rajas could overstep the People's Government. This deceitful act occurs because advice is ignored. An impasse on this amendment is also caused by the unwillingness of the Rajas to accept advice.

94. If this continues, the Parliamentary Democracy Government can no longer fully and truly exist. This is the reason the Government is bringing these amendments to the House. If this process is challenged, the decision can be brought to court. As a Government that holds firm to, with your permission 'rule of law', we will abide by the decision of the courts. At the same time, this matter should not be seen from the legal angle only. It also has to be seen from a political angle.

95. When the Rajas handed the Malay states to the British, the People took the political action to get back the Malay states and preserved the Raja Institution. Although, from a legal point of view, the People do no have the right to as all agreements are made between the British and the Rajas only, the British honored the People's political action.

96. I hope the Malay Rajas also take the lesson from our country's history, specifically the history of the Malayan Union and accept the political will of the country. Although the signs show that the Malay Rajas accept this amendment, I hope after the amendment is approved by the Dewan Rakyat and Dewan Negara, the Malay Rajas will accept and approve these laws. ---Asia Sentinel