Unwise for politicians to encroach Rulers’ domains
Abdul Aziz Bari

1:13pm, Wed: The Umno-PAS meeting required by Umno has recently raised several issues of constitutional importance. Prime Minister Mahathir Mohamad, who looks desperate to have it held, said that it could be on anything, anywhere. It is interesting not just because it is not the usual Mahathir way of doing things, but more importantly its constitutional significance.

In a rather unusual way, Mahathir called a press conference at his office in Putrajaya on Feb 8 where he claimed that the reason why Umno was desperate to meet up with PAS, its arch rival, was simply because there was a dire need to protect some of the Malay and Islamic elements in the Constitution.

It is to be noted that even though he was the one who mooted the idea initially, the meeting should be confined to Malay unity only. Then he seems to be hopping from one reason to another, the last one being the need to defend those Malay and Islamic elements in the Constitution.

At one point he even raised the possibility of PAS being admitted to the coalition again. When the question of oil royalty to Terengganu and the Harakah permit were first raised, the premier’s response was that the questions were beyond Umno’s control.

This is indeed a nonsensical, given that it is Umno that is leading the government of the day. If his words are true then we have a weak government that may be toppled by a vote of no confidence in parliament.

Final say

By now we all should be grown up to the fact that most of the laws, especially sensitive ones such as the Internal Security Act 1960 and Printing Presses Act 1984 and even the Police Act 1967, are all in need of the government’s blessings before they can be implemented. While the laws vest the power in the non-elected public servants, the policies are supplied by the government. This is the factor that gives the law its direction.

Back to the latest reasons offered by Mahathir. His claims that Malay rights are being questioned by certain parties were immediately met with a challenge from the Barisan Alternatif, the alternative front which comprises the opposition parties of PAS, Keadilan, DAP and PRM.

Its representative, Syed Husin Ali, dared the premier to identify the groups and specify what they have done to undermine those elements. He also raised the point why the government failed to protect the provisions; something that in itself underlines the weaknesses of the government.

Mahathir claimed that Umno is still “very strong” despite being seen as desperate to meet PAS. In any case, all of the matters are within the jurisdiction of the Conference of Rulers. Is Mahathir trying to tell us that virtually, it is the politicians who have the final say?

When he led his government in his crusade against the rulers in 1993, the idea that was floated around was that the Malays should look after themselves. The Malays, Umno leaders claimed, should go beyond the position and role of the rulers.

One may argue that Mahathir in his 20-year premiership has done little to strengthen the elements which he now claims are in danger of being abolished.

It is not known who advised Mahathir on those elements. Whatever it is, those four elements have been considered as the ‘traditional elements’, to use the term initially used by Mohamed Salleh Abas, the former judiciary chief who was dismissed from office in 1988, in the aftermath of an executive-judiciary stand off. The former Lord President is now a member of the Terengganu state cabinet.

Check and balance

Now let us examine the four elements one by one. As far as the rulers in particular and the monarchy in general are concerned, Mahathir has been responsible for weakening and even humiliating the institution (in 1993 he technically committed sedition when he made the speech about the rulers in the Dewan Rakyat).

This was said by his former deputy Anwar Ibrahim who was himself one of his strong supporters in Mahathir’s crusade against the rulers. Despite Mahathir’s claims to strengthen the monarchy institution, what he did was basically to strip off the powers of the Yang di Pertuan Agong and the rulers - accorded by the Constitution to equip the rulers to allow them to become an agent of check and balance.

This is what we can find in the Constitution although one could argue that some of these changes have the potential of being illegal for failing to meet some of the procedural requirements. His present deputy Abdullah Ahmad Badawi as well as the present de facto law minister Rais Yatim perhaps know much more as they were also opposing Mahathir during the constitutional crisis with the rulers.

When it comes to language, Mahathir, unlike Anwar, is not known as someone who is passionate about the language. The way his administration dealt with the bahasa baku issue (after Anwar was sacked from the government) is one good example.

His recent complaints about the standard of English language, despite being legitimate, is another example that underline Mahathir’s understanding and ideas about the national language. His administration was also seen as unsympathetic towards the language when the law on private higher education was passed in 1997.

Whatever it is, it is safe to say that today, all Malaysians, have accepted the position of the language and no one questions it.

A gimmick

With regard to the position of the Malay privileges, he once considered the position of Malay reserve land as something that is comparable to that of the Native Americans in the United States.

While the two may not be entirely different - as they fall under what is universally known as affirmative actions - the remarks were made quite in a pejorative manner and it was made in response to the reluctance of the Malays in Kampung Baru to agree with terms offered to them by some developers who wanted to develop the area.

A lot has been said about Suqiu’s demands but they are actually short of asking for the abolition of the constitutional provision protecting the Malay special rights.

When it comes to the defence of Islam, Mahathir has less or even nothing to claim. His policy of Islamisation is widely seen as unclear and a pure gimmick. This was later confirmed by his strong opposition to hudud laws proposed by the PAS-controlled Kelantan.

He even went against the actions taken by some of the departments who were merely enforcing the regulations passed by his own Barisan Nasional-controlled state assemblies. The arrest of Muslim girls taking part in a beauty pageant in Selangor in 1997 is the case in point. This incident eventually led to the termination of the service of the state jurisconsult, Mufti Ishak Baharom.

Rulers’ matters

But what is particularly important from the constitutional and legal point of view is that all those matters have been reserved for the rulers; they are not matters for the politicians. It is not healthy for us to allow these matters, which are basically important to all Malays irrespective of their political affiliation, to be handled by the politicians.

One must not forget that these matters have been put beyond the scope of freedom of speech. In other words they are not subject to ordinary political process. Most importantly there is no need to demonise certain sections of Malaysians just to make oneself relevant in national politics.

Dr ABDUL AZIZ BARI is an associate professor of law at the International Islamic University Malaysia, specialising in public law, particularly constitutional law and comparative constitutional law.