One cannot be faulted for thinking that those who claim the right to lead us understand that the system of constitutional democracy put in place by the Federal and State Constitutions circumscribes the authority and power of the Yang diPertuan Agong and their majesties the Malay Rulers.
They surely appreciate that this is particulars so in matters of governance where even if a royal discretion or prerogative is involved, such as is invoked where a Mentri Besar is appointed, such discretion is guided by constitutional prerequisites and that the process of checks and balances must necessarily inform the exercise of such discretion.
An aspect of this process is the taking of legal challenge against the Ruler concerned. The constitutional crisis’ in East Malaysia in 1966 and 1994 saw challenges against the Governors of Sarawak and Sabah respectively, for instance. The constitutional framework makes no distinction between a Sultan or Raja and a Governor where the exercise of such discretions is concerned. Both categories of personages are understood in law to be exercising constitutionally delineated discretion. Such exercises of power are open to being scrutinized by the courts of this country.
It is for that reason that it is said that the doctrine of separation of powers, so crucial to efficacious functioning of democracy, safeguards citizens from autocratic action on the part of any organ of this country. This is the bedrock that gives foundation to the sacred principle that no person is above the law.
I believe that this notion of guided discretion prompted the Prime Minister to say last March that the appointment of Datuk Ahmad Said as Menteri Besar by the Regent of Trengganu was unconstitutional. It is also a belief that the Regent had overstepped the constitutional limits of His Highness’ discretion that prompted UMNO assemblymen as well as UMNO agencies to protest the appointment and to stand by their preferred candidate, Datuk Seri Idris Jusoh. A similar situation in Perlis led to a well-publicized crisis within UMNO at around the same time.
In these incidents, and others like them, political parties and individuals had for their own reasons voiced their disagreement with the decision of a Ruler in the belief that the Ruler erred in going beyond what was legally permissible. There was no legal prohibition to them doing so, a state of affairs that remains unchanged. Such action cannot be criminalized for being seditious as the voicing of opinions aimed at showing that a Ruler had been mistaken is allowed. All leaders are capable of making mistakes and being able say that they have done so is a necessary part of democratic forms of government.
To say that such action amounts to treason is wholly incredible. Treason requires an intention to wage war, to cause bodily harm or death or to cause the deposing of a Ruler. Saying that the Ruler is wrong may be impolite or offensive but it can by no stretch of the imagination amount to treason, nor has it ever been suggested to amount to such.
Until now it would seem.
Mr Karpal Singh and his Pakatan Rakyat associates are in the line of fire and ironically, UMNO and its agencies have put them there. The charge: that they have committed treason and sedition in having publicly taken the position that the Sultan of Perak erred in having decided to allow the Barisan Nasional to form a government in Perak.
How what it is Mr Karpal and associates have said and done amounts to treason or sedition eludes understanding, just as how it differs in principle from what was done in Trengganu or Perlis last March. In as much some may have disagreed with those who protested the decisions of the Rulers in those States, they were entitled not only to their views but also to express those views. Their right to do so is a cornerstone of a system founded on the Rule of Law, one that Tun Mahathir relied on to strip away royal immunity when he was Prime Minister.
It is possible to infer from the manifest lack of basis for the fiery denunciations that behind them lurk questionable political objectives. The imminent UMNO assembly is more probably than not a factor that has shaped the way in which the recent “win” in Perak has been approached since.
The posturing and rhetoric is further so threatening in nature that it is not unreasonable to infer that a campaign of intimidation is underway. Its objective is self-evidently the communicating of a message to those inclined to challenge the legal validity of the appointment of the new Mentri Besar: that they do so at their own peril. Such conduct could fairly be characterized as being intended to subvert the due process of law. If so, this is a punishable contempt of court.
More worryingly, such conduct incites. Too often, political leaders get so lost in their politics to the extent that they fail to see that their rallying cries potentially have a less desirable kind of influence. In all societies there skulk individuals who take it upon themselves to force through a conclusion that they believe their community requires in supreme acts of deliverance. All they need is to receive the right message. Our leaders warn us about playing with fire yet they forget sometimes that it is they who ignite sentiments with potentially devastating consequences.
The situation in Perak has caused anger and pain. It may be that the only way in which the chapter can be closed is through a decision of the courts. For many, the decision itself may be less important than the process. An airing of grievances, such as a court hearing will allow for, is more often than not essential to the achieving of reconciliation. Resolution of this nature can only be in the interests of the state and its government, whoever forms it.
Though the Barisan Nasional may have won the day in securing the right to govern, it must ask at what cost to itself and, more importantly, to the rakyat. In this case, the winner does not take all.
They surely appreciate that this is particulars so in matters of governance where even if a royal discretion or prerogative is involved, such as is invoked where a Mentri Besar is appointed, such discretion is guided by constitutional prerequisites and that the process of checks and balances must necessarily inform the exercise of such discretion.
An aspect of this process is the taking of legal challenge against the Ruler concerned. The constitutional crisis’ in East Malaysia in 1966 and 1994 saw challenges against the Governors of Sarawak and Sabah respectively, for instance. The constitutional framework makes no distinction between a Sultan or Raja and a Governor where the exercise of such discretions is concerned. Both categories of personages are understood in law to be exercising constitutionally delineated discretion. Such exercises of power are open to being scrutinized by the courts of this country.
It is for that reason that it is said that the doctrine of separation of powers, so crucial to efficacious functioning of democracy, safeguards citizens from autocratic action on the part of any organ of this country. This is the bedrock that gives foundation to the sacred principle that no person is above the law.
I believe that this notion of guided discretion prompted the Prime Minister to say last March that the appointment of Datuk Ahmad Said as Menteri Besar by the Regent of Trengganu was unconstitutional. It is also a belief that the Regent had overstepped the constitutional limits of His Highness’ discretion that prompted UMNO assemblymen as well as UMNO agencies to protest the appointment and to stand by their preferred candidate, Datuk Seri Idris Jusoh. A similar situation in Perlis led to a well-publicized crisis within UMNO at around the same time.
In these incidents, and others like them, political parties and individuals had for their own reasons voiced their disagreement with the decision of a Ruler in the belief that the Ruler erred in going beyond what was legally permissible. There was no legal prohibition to them doing so, a state of affairs that remains unchanged. Such action cannot be criminalized for being seditious as the voicing of opinions aimed at showing that a Ruler had been mistaken is allowed. All leaders are capable of making mistakes and being able say that they have done so is a necessary part of democratic forms of government.
To say that such action amounts to treason is wholly incredible. Treason requires an intention to wage war, to cause bodily harm or death or to cause the deposing of a Ruler. Saying that the Ruler is wrong may be impolite or offensive but it can by no stretch of the imagination amount to treason, nor has it ever been suggested to amount to such.
Until now it would seem.
Mr Karpal Singh and his Pakatan Rakyat associates are in the line of fire and ironically, UMNO and its agencies have put them there. The charge: that they have committed treason and sedition in having publicly taken the position that the Sultan of Perak erred in having decided to allow the Barisan Nasional to form a government in Perak.
How what it is Mr Karpal and associates have said and done amounts to treason or sedition eludes understanding, just as how it differs in principle from what was done in Trengganu or Perlis last March. In as much some may have disagreed with those who protested the decisions of the Rulers in those States, they were entitled not only to their views but also to express those views. Their right to do so is a cornerstone of a system founded on the Rule of Law, one that Tun Mahathir relied on to strip away royal immunity when he was Prime Minister.
It is possible to infer from the manifest lack of basis for the fiery denunciations that behind them lurk questionable political objectives. The imminent UMNO assembly is more probably than not a factor that has shaped the way in which the recent “win” in Perak has been approached since.
The posturing and rhetoric is further so threatening in nature that it is not unreasonable to infer that a campaign of intimidation is underway. Its objective is self-evidently the communicating of a message to those inclined to challenge the legal validity of the appointment of the new Mentri Besar: that they do so at their own peril. Such conduct could fairly be characterized as being intended to subvert the due process of law. If so, this is a punishable contempt of court.
More worryingly, such conduct incites. Too often, political leaders get so lost in their politics to the extent that they fail to see that their rallying cries potentially have a less desirable kind of influence. In all societies there skulk individuals who take it upon themselves to force through a conclusion that they believe their community requires in supreme acts of deliverance. All they need is to receive the right message. Our leaders warn us about playing with fire yet they forget sometimes that it is they who ignite sentiments with potentially devastating consequences.
The situation in Perak has caused anger and pain. It may be that the only way in which the chapter can be closed is through a decision of the courts. For many, the decision itself may be less important than the process. An airing of grievances, such as a court hearing will allow for, is more often than not essential to the achieving of reconciliation. Resolution of this nature can only be in the interests of the state and its government, whoever forms it.
Though the Barisan Nasional may have won the day in securing the right to govern, it must ask at what cost to itself and, more importantly, to the rakyat. In this case, the winner does not take all.
(Malay Mail; 10th February 2009)
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