Did Tun Mahathir really have to say sorry?
Mohd Hazmi Mohd Rusli
September 13, 2016 12:35 MYT
September 13, 2016 12:35 MYT
Tun Mahathir: I would like to apologise for the amendment to the constitution which made the approval and signature of the Yang di-Pertuan Agong no longer necessary for the legalising of an act of Parliament.
In a recent blog post, former Malaysian Prime Minister, Tun Dr. Mahahtir said he was sorry for constitutional amendments passed under his administration.
Is an apology really warranted?
When Indonesia gained independence in 1945, the powers of the local sultans and kings were not preserved.
The Sultan of Siak Sri Indrapura, Sultan of Demak, Sultan of Pontianak and other local rulers across the huge archipelago lost their positions and supremacy, with the exception of the Sultan of Yogyakarta, who still holds power as the governor of Yogyakarta.
Malaysia followed a different path and retained the position of the sultans that still hold power till today.
Unlike Indonesia that became a republic, Malaysia prospered as a constitutional monarchy, of which the supreme ruler of the land – Yang DiPertuan Agong (YDPA) – is chosen in rotation amongst the nine sultans of the Malay states.
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History
Malaysia was shaped from a number of Malay states.
The politics of Peninsula Malaysia were influenced by the nine Malay states whilst Sabah and Sarawak were largely dominated by the Sultanate of Brunei and that of Sulu prior to European colonisation.
The British took advantage over the loyalty of the Malays to the sultans through the introduction of indirect rule - the British Resident System.
They ruled Malaya by proxy and gradually dominated the Peninsula in the eighteenth and the nineteenth centuries.
Subsequent to Japanese occupation, the Malay rulers were at that time, without much hesitation, consented to the establishment of the Malayan Union – a regime which was seen as a threat to the survival of the Malays in their own home country.
The quest for Merdeka and the establishment of democracy was largely the effort of the rakyat under the leadership of the first Prime Minister of this country, Tunku Abdul Rahman Putra Al-Haj.
Constitutional Amendments
Despite the fact that the sultans of the past were responsible in facilitating colonial rule, the sultanate institutions in Malaysia are at present protected and held in high regard, preserved by the Federal Constitution.
However, Tun Dr. Mahathir Mohamad, Malaysia’s fourth Prime Minister had, initiated controversial constitutional amendments after he took power in 1981.
During his tenure, Dr. Mahathir amended Article 66(5) of the Federal Constitution which made it no longer necessary to obtain the consent of YDPA for the legalising of the Act of Parliament.
The royal assent is now seen as a mere formality.
This has restricted the powers of the YDPA and this practice has remained till today.
The controversial National Security Council Act 2016 came into force on 1 August 2016.
This Act is intended to strengthen the ability of the government to address increasing threats of violent and extremism.
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The Bill has been criticised by a number of human rights groups and other organisations inside and outside Malaysia as it resembles the former infamous Internal Security Act.
The Powers of the YDPA
Before colonial rule, the powers of the Malay Kings or Sultans were absolute.
The Sultan of Malacca, for example, was above the law and his commands must be executed.
The powers of the Malay sultans diminished gradually through foreign intervention.
The authority of the Malay sultans were restricted to only being custodian of Islam and caretaker of the customs of the Malays during the British colonial rule.
This trend was not discontinued during the Japanese occupation and more or less is adopted in modern Malaysia through the practice of constitutional monarchy.
Under the Federal Constitution, the powers of the YDPA are divided into two categories:
(a) the powers that he exercises on the advice of the Prime Minister, a Minister, the cabinet or some other officers or institutions;
(b) the powers that he exercises at his discretion.
As far as the second category is concerned, the powers of the YDPA consist mainly of appointing the Prime Minister, withholding consent to dissolve the Parliament and calling meetings with the Conference of Rulers.
Checks and Balance
Following the coming into force of the National Security Council Act 2016, Tun Dr. Mahathir Mohamad apologised for limiting the powers of the YDPA in the process of passing new laws in the Parliament.
To some, the apology is seen as a sincere apology for disrupting the procedural checks and balances of our democracy.
To others, it reads more like a political apology, in protest of the National Security Council Act 2016.
As a constitutional monarchy, Malaysia exercises democracy and the members of the Dewan Rakyat are elected via a general election.
It is generally understood that any laws passed by the Dewan Rakyat represents the will of the people.
Therefore, is it really necessary for the YDPA to grant royal assent to any bills in order to ensure that there is a proper check and balance in Malaysia’s legislative system?
The check and balance mechanism is already embedded in the presence of the opposition bloc in the Dewan Rakyat, not via the royal assent of the YDPA.
Conclusion
The apology made by Tun Dr. Mahathir is welcomed.
However, it is an unnecessary apology as his effort in amending the constitution was in line with the practice of democracy.
Tun Mahathir on his meeting with Datuk Seri Anwar Ibrahim
In the same breath, the National Security Council Act 2016 was enacted by representatives elected via general election.
These members of the Dewan Rakyat represent the will of the people as they are not hereditary rulers.
Any attempts to disrupt the legislative processes may be seen as an impeachment of democracy.
Malaysia is a democratic country and should project itself as one.
Mohd Hazmi Mohd Rusli (Ph. D) is a senior lecturer at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia and a research associate at the Asia-Africa Legal Consultative Organization (AALCO), New Delhi, India.
The views expressed above are strictly those of the author and do not necessarily reflect those of Astro AWANI.