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What I think is important from the call is that all of us — from the highest to the lowest rung in society — should realise that all public powers and duties are subject to strict scrutiny, be it legal or otherwise. By Abdul Aziz Bari, The Malaysian Insider
The call made by Tunku Naqiyuddin, the Regent of Negri Sembilan, last week on the need to bring back immunity for the Malay Rulers raised some questions including what really took place in the lead-up to the amendment of the relevant provisions in 1993. The amendment was preceded by a unanimous motion by the Dewan Rakyat to uphold the rights of ordinary citizens in the wake of an alleged beating by the Sultan of Johor on a hockey coach some time towards the end of 1992. Ironically, it was the same Ruler who openly endorsed the formation of Umno Baru following the deregistration of the party in 1987 by the Kuala Lumpur High Court. It has to be said that concerns about the alleged abuse of the privilege — which simply states that the nine Rulers (not all members of royalty) are immune from court proceedings — was already being talked about even before that alleged beating took place. Towards the end of the 1980s, for example, our first premier Tunku Abdul Rahman raised the need to deal with the matter. Be that as it may, what Parliament did in 1993 was just to put some limits on the privilege accorded to the Rulers; that from then onwards the Rulers — including the Yang di-Pertuan Agong — may be subject to legal proceedings in a special court created to deal with the wrongs committed by them. These, however, were meant to deal with personal rather than official actions. Hence the recent judgment against the Ruler of Negri Sembilan following a transaction with a foreign company. But that was not the only occasion where a Ruler was sued in court after the 1993 constitutional amendment. Some time in 1996 the Sultan of Pahang was also sued by a Singaporean. Back to the call made by the Regent of Negri Sembilan. I do not think it is too difficult to make it happen. A few days ago, Datuk Seri Mohd Nazri Aziz was reported to have said that it has to come from the Conference of Rulers. In my mind, what needs to be done is for an application for a declaration to be brought to the Federal Court by someone who has got enough locus standi. Of course the King may ask the court — that essentially stands as our constitutional court — to make a ruling and the judges there would be duty bound to hand down a judgment in open court. Unlike the United States' Supreme Court, our Federal Court has a constitutional duty to clarify a matter requested by the State. It is interesting to note however that since independence such a request has only happened once; that was in 1968 in a conflict between the Federal Government represented by Prime Minister Tunku Abdul Rahman and Kelantan represented by Menteri Besar Datuk Mohd Asri Muda. Even when the Rulers and the government were locked in a battle in 1983 and 1993, none of the parties went to the judges for a ruling — an action that perhaps underlines their confidence and trust in the judges sitting on the bench. In a chapter for a book to commemorate the 50th anniversary of our independence last year, I wrote a long chapter on the route taken by the 1993 amendment, particularly the technical problems involved. There is no need to talk about it now for it is too technical and perhaps unnecessary at the moment. What I think is important from the call is that all of us — from the highest to the lowest rung in society — should realise that all public powers and duties are subject to strict scrutiny, be it legal or otherwise. Commentators were fond of saying that one of the successes of Tun Dr Mahathir Mohamad was his ability to clip the wings of the Rulers and the judiciary. But this, given what has emerged in the past few months, has turned out to be inaccurate. And the call made by the Regent of Negri Sembilan may yet become another case which would undo one of the legacies left behind by the longest-serving premier of the country. Coming from one of the royal houses which in those days was considered close to the former strongman, it has made the issue even more interesting to follow. Professor Dr Abdul Aziz Bari teaches law at IIUM Gombak
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