Supporters during PKR’s annual congress, 29 Nov 2008
KUALA LUMPUR, 12 Dec 2008: Parti Keadilan Rakyat (PKR) is defending the Malay rulers’ rights as part of efforts to balance the power currently concentrated in the executive, its vice-president R Sivarasa said.
He said two areas in the Federal Constitution ought to be reformed to reflect a “true” constitutional monarchy. These involve the 1993 amendment that took away immunity from criminal and civil prosecution for the nine sultans, and another amendment the same year that removed the Yang Di-Pertuan Agong’s check-and-balance role on bills passed by Parliament.
This explains why PKR president Datin Seri Dr Wan Azizah Wan Ismail called for royal immunity to be returned to the rulers in her speech at the party’s annual congress on 29 Nov. Lest this statement be misunderstood, Sivarasa said it must be explained in the context of the principles of a constitutional monarchy.
It does not mean absolute or total immunity from prosecution, he noted, but that any case to be brought against the king must first involve his removal as the head of state so that he is not tried in his capacity as the Agong.
Speaking to The Nut Graph, Sivarasa denied that PKR was trying to please the monarchy whom Pakatan Rakyat wanted to turn to in its unfulfilled 16 Sept bid to take over the federal government.
TNG: PKR president Datin Seri Dr Wan Azizah Wan Ismail said in her speech at the party congress on 29 Nov that PKR was ready to “return the immunity of the rulers based on a constitutional monarchy”. Exactly what does that mean?
Sivarasa: We are talking about our overall proposals on reform and one of it is about restoring the spirit of a true constitutional monarchy in our Federal Constitution. Our constitution now is incorrect on the principles of being a constitutional monarchy because our monarch (i.e. the Agong) has no immunity from civil and criminal prosecution. Every head of state in other constitutional monarchies, even in republics, has immunity. If we are to be a true constitutional monarchy, then the constitution should reflect that.
Do you mean giving immunity from prosecution? Is it not regressive as a democracy to want to give immunity to royalty?
According to the principle of immunity for a head of state, he or she has to be removed from his [or her] official position before he [or she] can be prosecuted or sued. It is a fundamental principle in any modern state that the head of state has immunity by virtue of [his or] her position — it has nothing to do with undermining democracy. Hence, some countries have impeachment procedures.
In Malaysia, the Conference of Rulers is the right entity to remove the Agong, and then the Conference of Rulers should let the Special Court decide whether or not to initiate prosecution. It is not undemocratic because there are procedures. But the Agong must be removed as the head of state first, and only by the Conference of Rulers. Removal can be at the request of the executive if a criminal or civil case is to be brought against the Agong but it is for the Conference of Rulers to decide.
What’s wrong with the current procedure?
Currently, after the 1993 amendment, the Agong can be tried in the special court at the mere say-so of the attorney-general (AG). This is no immunity. What we mean by restoring immunity is that, the special court can continue to exist but the AG should not be the one to decide whether to institute action against the king.
Whether there is a case against the king, that decision should be made by the Special Court. Decisions to initiate prosecution as well should be left to the Special Court. At the moment, the AG by himself [or herself] (as a member of the executive) can bring a charge against the king. The Conference of Rulers would have no role in first removing him as the head of state.
Effectively this means that we are only a constitutional monarchy in name and the reality is that all power is vested in the executive especially the prime minister as he [or she] would be directing the executive. Our proposal is intended to restore a true constitutional monarchy and return dignity to the Malay rulers.
At the press conference after Wan Azizah’s speech, PKR vice-president Dr Syed Husin Ali explained that PKR would not touch on restoring immunity from prosecution. Why are you now saying differently?
Syed Husin was talking about not restoring immunity for the other rulers. It’s not for the royalty as a whole, but for the king. The rulers of the nine states are immune in the sense that they cannot be removed from their official capacities, there is no procedure to remove them. But the constitution allows for the removal of the Agong by the Conference of Rulers.
PKR suddenly appears to be championing the monarchy, and at a time when certain rulers have shown leadership by responding to the people’s feelings on racial polemics and controversial fatwas. Also, in the run-up to 16 Sept and the anticipated government takeover by Pakatan Rakyat, the Agong was brought into the picture as recourse if the present government did not agree to hand over power. It didn’t happen, and the perception is that PKR is now trying to get on the good side of the monarchy.
As far as we’re concerned, we just want to put certain things in the Federal Constitution back in their proper place to preserve the fundamentals of a parliamentary democracy in a constitutional monarchy system. We’re not about to make concessions to the monarchy which we cannot justify on these principles. Unless we go beyond the principles outlined, we cannot be accused of trying to get on the good side of the monarchy.
What about wanting to restore power to the Agong to veto bills from Parliament?
Prior to the constitutional amendments, the king had a check-and-balance role with the ability to send bills back to Parliament if he disagreed. Currently power is completely in the hands of the executive. We want to restore this balance.
But a constitutional law expert has said that the Agong never had veto power in the first place.
We’re talking about going back to the pre-1993 constitutional amendment, when the Agong could reject and send legislation back to Parliament once. After that, once Parliament represents the bill, either amended or in its original form, the bill becomes law even if he doesn’t give his royal assent. So the principle of parliamentary sovereignty is maintained.
Now however, the constitution states that he must assent in 30 days or it becomes law even without his assent. Before 1993, he had the ability to send laws back. We want that right for him to be returned. It doesn’t give the king any extra power, but it is a way of allowing him to signal to the public his concerns with the proposed law, and that has value. It gives due respect to the role of the institution of the monarchy.
But the timing and the perception that PKR is trying to curry favour with the monarchy — there are so many other issues that need reform, why this? And what about criticism by the MCA that this is a political ploy?
The MCA is entitled to its views. This is not the only reform we are pushing for and it is not out of the blue. It is one part of overall reform to balance the executive, the monarchy and the judiciary. We’re currently vesting all power in the hands of the executive and that is not good for the country.
All other areas of reform have to work in tandem to function as checks and balances on executive power, including the monarch. We’re now pretending to be a constitutional monarchy, but we’re not really one. In the original constitution, the monarchy had a balancing role, but no more.
See also: PKR’s questionable fix