Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

The Dangerous Constitution

Written by johnleemk on 2:20:59 pm Jul 29, 2007.
Categories: ,

I am under no illusions about the inadequacy of the original Merdeka Constitution, to say nothing of the horrid mess our present amended Constitution is. But the dangerous Constitution I speak of is not a real legislative entity.

What I speak of is a ludicrous interpretation being propounded that, if true, makes me really really fear for the immediate future of this country. I am not one to lightly state this — I am irritated by those who proclaim their fear for the country after every little government mess — but when those in power cannot even properly understand the supreme law of the country, we are in serious trouble.

Of course, if the misunderstood portion was, say, Article 153 (which protects the rights of all Malaysians, but also accords the Bumiputra an undefined "special position"), we wouldn't be in too big a fix. After all, those in power have always blatantly misportrayed it as enthroning Malay supremacy.

What concerns me is that the same people who have been misreading and misinterpreting this part of the Constitution are now spreading their wings and taking a completely out of whack view for something that seriously matters in the short run.

(It goes without saying that everything related to the Constitution is important in the long term, especially those related to racial issues, but these problems won't destroy us over the next year or so.)

Raja Petra Kamarudin, who previously propagated a very illogical interpretation of the constitutional amendment process for the entrenched parts of the Constitution, is now claiming he has set things up for a sort of coup.

Raja Petra has propagated an interpretation of Article 150 of the Constitution which suggests that the Yang di-Pertuan Agong has the power to depose the Prime Minister by declaring a state of emergency. What basis there is for this implication, I know not; Raja Petra has asserted that the Agong has the right to unilaterally proclaim a state of emergency, and thus usurp the Prime Minister's powers.

He claims that this is what happened before in 1969, when the Agong declared a state of emergency in the aftermath of the May 13 riots. (A state of emergency which, incidentally, has never been lifted.) But it seems he is jumping to conclusions, since although the Tunku ceded significant power to the National Operations Council in the wake of the riots, he only left the post of Prime Minister a year or two afterwards, and the Agong was always acting on the advice of the Cabinet.

I find Raja Petra's claim that the Agong can unilaterally proclaim a state of emergency, let alone use this as a basis to sideline the Prime Minister, to be without basis. Indeed, I am very surprised that he would make this claim, since simply reading the whole Constitution or referring to any basic analyses of the Constitution would have told him how wrong he is.

Raja Petra says:

Now, Article 150 is very clear in that the Agong can interpret the situation as he sees it and take action that he thinks is befitting the situation. Basically, it is his opinion and only his opinion that rules and he can act based on his opinion.
This is not a new interpretation; it has been put forth before and completely rejected by virtually all constititutional scholars. The reason? Article 40a of the Constitution, which makes it crystal clear that the Agong is bound to act on the advice of the Prime Minister and the Cabinet:
(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.
Of course, there are exceptions to this. The Agong does have discretion to act in certain areas, again, under Article 40a:
(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say —

(a) the appointment of a Prime Minister;

(b) the withholding of consent to a request for the dissolution of Parliament;

(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting and in any other case mentioned in this Constitution.
What the Agong cannot do is unilaterally declare a state of emergency, and use this to topple the Prime Minister. The Prime Minister can only be toppled by a vote of no-confidence in Parliament.

Of course, if Raja Petra alone subscribes to this loony interpretation of the Constitution, I wouldn't be too concerned (although since his website does have a readership dwarfing those of many newspapers, I would still be concerned about misinformation spreading). The problem is, Raja Petra claims that his interpretation is being taken seriously by those in the establishment, including the Prime Minister himself.

Of course, Raja Petra is known to exaggerate. But the veracity of his claims (and they are wide-ranging) has never been challenged in the courts — the police reports filed against him are, of course, completely without merit (in that they take him to task for comments published on his website, rather than for anything he personally wrote). Many of his claims have been proven true.

Thus, it is likely that there are people in the government, probably at high levels, who take this loony interpretation seriously. And that's very worrying. If the rulers take this seriously, a constitutional crisis may yet be precipitated; if government officials take this seriously, they are liable to act contrary to the basis of our Constitution, which prescribes a constitutional monarchy, where the monarch acts outside the political sphere. They will be inclined to please the rulers, rather than the people.

Just as worrying if it is true that this interpretation is being taken seriously is the fact that our government does not even know what the Constitution says. If they cannot read such a simple text properly, what hope have we for them doing anything properly?

I don't have to hope that Raja Petra is wrong — I know he is. What I'm more afraid of is the government and the rulers joining him in his mistake and reading the Constitution dangerously, because the consequences of this error are not something I would like to find out.

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