Reigniting issue of royal immunities


  • Reflecting On The Law
  • Thursday, 30 Jul 2020

LAST month, the outgoing president of the Dewan Negara, Tan Sri S.A. Vigneswaran, called upon the government to reinstate royal powers and immunities diminished by the Constitution (Amendment) Act 1993 (Act A848). He believed that the 1993 amendment was enacted contrary to mandatory constitutional requirements.

His observation draws our attention to the procedures for bringing changes to our basic law.

Amendment procedures: Under Articles 2(b), 159(3), 159(4), 159(5) and 161E, five special procedures for amending the Constitution are prescribed which apply separately depending on which provision is sought to be reconstituted. Only the procedure relevant to the privileges, position, honours or dignities of the Rulers will be discussed in this note.

This procedure is encapsulated

in Article 159(5) and reinforced by Article 38(4) and the Fifth Schedule. It provides that no law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed except by a two-thirds majority of the total membership in each House of Parliament plus the consent of five out of nine royal members of the Conference of Rulers (Conference).

Royal powers: Till 1993, the

sovereignty, prerogatives, powers, jurisdiction and immunity of the Yang di-Pertuan Agong, State Rulers and the Ruling Chiefs were guaranteed by Articles 32(1), 71(1), 181(1) and 181(2).

Amendment Bill (January 1993): Due to many incidents of abuse of immunity, the government proposed to the Conference on Jan 17,1993, to make the Yang di-Pertuan Agong and the Sultans liable to criminal and civil proceedings in the ordinary courts. Not surprisingly, the proposal was rejected by the Conference.

Parliament, nevertheless, went ahead between Jan 19 and 20 to pass a Constitution (Amendment) Bill to abolish the immunities. The Yang di-Pertuan Agong, in deference to the Conference, refused his assent to the Bill.Compromise Bill (March 1993): The next two months saw a test of wills between the royals on one side and the forces of change on the other. Ultimately, a delicate compromise was worked out between the government and the Conference.

The King employed the procedure of (the then) Article 66 to return the January Bill to Parliament with his objections. On March 8, a new Constitution (Amendment) Act was tabled in Parliament and passed the next day. It offered Their Majesties four significant concessions.

First, no civil or criminal action can be commenced against Their Majesties except with the consent of the Attorney General (Article 183).

Second, a Special Court will be created to try all cases by or against the Yang di-Pertuan Agong and the Rulers: Articles 181(2) and 182.

Third, the Conference will have the right to nominate two out of the five judges on the Special Court: Article 182(1).

Fourth, if convicted of a crime, the Yang di-Pertuan Agong, Rulers and their consorts may be pardoned by the Conference: Article 42 (12)(b).Other provisions of the Bill clarified the position of a Ruler who is under prosecution or has been convicted.

The re-enacted Amendment Bill was returned to the Yang di-Pertuan Agong and assented to by him on March 22,1993. The Constitution was purportedly amended.

However, 27 years down the road, controversy still lingers about some aspects of Act A848 (1993).

Procedure: The procedure for the enactment of the March 1993 Amendment Bill raises some constitutional eyebrows. The most prominent doubt is that the enacted Bill may be in violation of Article 159(5), which mandates that “a law making an amendment to” 11 topics listed in Article 159(5) “shall not be passed without the consent of the Conference of Rulers”.

Consent of the Conference to the March draft of Act A848 was indeed obtained, but there is no information in the public realm on whether the finally enacted Bill was ever submitted to the Conference. The way the notification in the Government Gazette is drafted also offers no clue as to the Conference’s consent.

This raises the interesting issue of whether the consent of the Conference must be obtained to the draft Bill before it is introduced in the House or to the final, enacted Bill. It is humbly submitted that consent, to be meaningful, must be to the final form and not to a draft.

This is similar to the position of the Yang di-Pertuan Agong. The King’s consent is obtained after the Bill has gone through parliamentary proceedings and not in advance of the Bill’s passage in Parliament.

Also, if the consent of the Conference is prior to the parliamentary process, that is disrespectful to Parliament. Our highest law-making authority is rendered a rubber stamp.

The courts may one day have to rule on this enthralling issue.Rulers’ Seal: It is noteworthy that under the Fifth Schedule, Paragraph 8, any consent of the Conference of Rulers shall be signified under the Rulers’ Seal. Whether the Seal was affixed to Act A848 is not known.

Use of Article 66: The wisdom of the Yang di-Pertuan Agong and Parliament to rely on the procedure of Article 66 (as it stood in 1993) is open to question. His Majesty returned the January 1993 Bill with his objections to the Dewan Rakyat, which passed the Bill a second time.

Article 66 (“Exercise of legislative power”) deals with ordinary law-

making procedure. It has no relevance to constitutional amendments which are covered by Articles 2(b), 159 and 161E.

King’s assent not enough: If issues under Articles 38(4) and 159(5) are involved, the assent of the King is not enough. The Conference of Rulers must be given the right to examine the enacted Bill and, if necessary, to veto it.

Ordinary Act: If Act A848 was passed under Article 66, then it is an ordinary Act of Parliament and not a constitutional amendment.

An ordinary law cannot conflict with a provision of the supreme Constitution.In fact, Act A848 violates many constitutional provisions, among them Article 181 (as it stood prior to Act A848), which gave to the Yang di-Pertuan Agong and the Rulers absolute immunity in their personal capacities.

Also, Article 71(1), which guarantees the right of a Ruler to succeed and hold all the constitutional rights in accordance with his State Constitution, was violated.

Basic structure: The recent decision of the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat declared that the basic structure of the Constitution cannot be tampered with.

It can be argued that the sovereignty and immunity of the Malay Rulers is part of the basic structure of the Constitution and is not amendable.Only time will tell if the above issues will ever be litigated.

Perhaps a middle path is for the government, through the Yang di-Pertuan Agong, to invoke the special “advisory jurisdiction of Federal Court” under Article 130 to refer the question of the legality of the 1993 amendment to our apex court.

Its learned pronouncement will illuminate this unlit path.Emeritus Prof Shad Faruqi is holder of the Tun Hussein Onn Chair at ISIS Malaysia and was recently reappointed to the Tunku Abdul Rahman Chair at UM. The views expressed here are the writer’s own.

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