Professor Mark R. Gillen
Faculty of Law University of Victoria Victoria, British Columbia, Canada
(Occasional Paper #6 1994 )
THE MALAY RULERS' LOSS OF IMMUNITY
From its inception in 1957 the Constitution of Malaysia has provided an immunity to the Malay Rulers (or Sultans) against civil actions or criminal prosecutions. Early in 1993 the Constitution of Malaysia was amended to remove this immunity. Although the federal Constitution of Malaysia and the constitutions of the states of Malaysia leave the Rulers as mere constitutional monarchs they have wielded considerable influence due, in part, to the traditional reverence of the Malay people for their Rulers. The ability of the Government to bring about these constitutional amendments is noteworthy in light of the traditional reverence Malay people have for the Malay Rulers. The apparent public support for the changes suggests a shift in traditional Malay cultural values that appears to have irrevocably reduced the significance of the Malay Rulers in Malay society and in the politics of Malaysia.
This paper traces the events leading to the constitutional amendments of 1993 in the context of the significance of the Malay Rulers in Malaysian politics and Malay culture.
The paper begins, in Part II, by providing a brief historical background to the Malay Rulers and their importance in Malay culture and tradition. It also outlines the position of the Malay Rulers under the constitution as it stood prior to the recent amendments.
Part III describes the events leading up to the recent amendments and the nature of the amendments that were finally made.
Part IV discusses how the amendments signal a change in the attitude of Malays to the Malay Rulers which allowed the government to act when it did and which has substantially reduced the significance of the Malay Rulers.
II. Historical Background of the Malay Rulers
A. The Malay Rulers Prior to the British Intervention
1. Origins and Structure of the M alay Sultanates
The history of the Malay Rulers can be traced back prior to the Melaka Sultanate during the 15th century. However, most of what is known of the history of the Malay Rulers comes from the Malay Annals, stories of the Malay Rulers and accounts of travelers to the region. These deal primarily with the period beginning from the time of the powerful Malacca Sultanate which was established in the 13th century and became a center for trade attracting Arab, Indian and Chinese traders and later attracting the interests of the Portuguese, Dutch and British colonial powers.
a. Hierarchical Structure
There were many differences in the structures of the Malay Sultanates that developed on the Malay peninsula. However, the Malacca Sultanate is said to have come the closest to covering the whole peninsula and subsequent Malay Sultanates probably tended to look to Malacca as a source of tradition and authority thereby giving a basic political structure notwithstanding local variations.
These Sultanates generally involved hierarchical organizational structures in which the Sultan ruled through a series of chiefs and sub-chiefs. The Malay Rulers were not all-powerful. Enforcement was no doubt impeded by the difficulties of travel in the harsh terrain. There was generally also a lack of cultural homogeneity in the subjects of the state. Power was thus decentralized among district chiefs who were often in conflict with one another and with the Ruler.
This decentralization of power was mitigated in part by "the hard facts of trade, national defence and the need for law and order over a wider area than a district". It was also mitigated by the indoctrination of a Ruler's chiefs and subjects with a strong sense of unquestioning loyalty to the Ruler.
The concept of unquestioning loyalty to the Rulers was noted in the Undang-undang
Melaka, which set out the qualities expected of Malay subjects as follows:
The qualities required of a ruler's subjects are three in number. Firstly, (he is to be) honourable in all his behaviour; secondly, (he) abides by the commands of the ruler; whether he (the ruler) is tyrannical or not, he (the subject) shall follow his commands; thirdly, he desires mercy from his Lord.
Malays refer to this as daulat which calls for great respect for and loyalty to the Malay Rulers.
It has been said that:
Linked to the concept of daulat was the notion that the Malay Rulers possessed certain mystical powers that would lead to misfortune to those who were disrespectful of or disloyal to a Malay Ruler.... daulat, as a concept of general Malay tradition comprised several related ideas. Daulat was the supreme expression of the quality of the "majesty", and its possession of a ruler constituted divine sanction of his reign. It was a stable, impersonal quality, beyond the influence of its holder's character or abilities. It could act arbitrarily and offensively to protect the ruler, his command and his dignity, and enabled him to accomplish acts of great magic. In short, daulat was a foundation of the ideology of legitimation.
An English visitor witnessing a ceremony for the installation of ministers in the early 1820s recorded the event as follows:
Malay annals also contain accounts of the unquestioning loyalty of the Malay subjects to their Rulers. The extent of the loyalty to the Rulers is demonstrated in a passage in the Hikayat Raja-Raja Pasai referring to the time when the Sultan Mahmud of Melaka ordered his wealthy Bendahara put to death.The Raja having requested my presence at the ceremony of administering the oath of allegiance to some ministers and officers, I accordingly attended at the hall. A large concourse of people were assembled. The chiefs and their attendants were seated on carpets and mats on the floor. In front of the sopha on which the Raja sat, were arranged the following articles, a low stool on which lay the Koran, and a large jar of consecrated water, on top of which was a model of a crown. The Raja advancing dipped the regalia, consisting of armour, in the water, and placed them against a pillow.
The new ministers and other officers then approached and had the oath tendered to them. This oath consists [of] two parts and is very short. The first part is the promise of fidelity, the second imprecates every calamity to afflict the juror and his family to remote generations should he betray the trust and confidence reposed in him ...
The Bendahara is said to have prevented his followers from defending him by saying: "It is the custom of the Malays never to derhaka (to commit treason)."
c. No Division of Powers
Although a Malay Ruler's power may have been decentralized through a system of chiefs and sub-chiefs, the Ruler, armed with the loyalty and respect of his subjects, maintained law and order, declared war, administered justice and decided on the life and death of his subjects. There was no notion of a system of checks and balances between executive, legislative and judicial power. Indeed, it has been said that,
There is no distinction between executive and legislative acts such as we know under the English constitutional law.In a Malay State the Ruler is an absolute monarch; he is the sole fount of honour, the sole source of justice and the sole repository of the executive and legislative power.
d. Fear Culture
The scope of a Malay Ruler's authority coupled with notions of respect, loyalty, and perhaps mystical powers, are the source of what is often referred to by Malays as their "fear culture".
This "fear culture" manifests itself in a sense that authority is something that should be both respected and avoided. According to one commentator, the Malay ideal of authority calls for sternness, dignity, and paternalistic concern; but it is also understood that those in authority can easily become angered and do irrational things. Hence it is imperative not to provoke authority but to stay out of its way as much as possible.
A Malay Ruler was traditionally the pinnacle of a hierarchy and was the sole source of judicial, executive and legislative power. His power was maintained and enhanced through the development of an unquestioning loyalty that has imbued Malay people with a strong sense of reverence for and fear of the Rulers.
2. The Rulers and the Islamic Influence
As well as being the Head of State, the Rulers were also the Head of the Religion. Islam had been introduced on the peninsula probably as early as the 7th century A.D. and was further promulgated during the 15th century under the reign of Parameswara who adopted Islam.23 Islam did not introduce the monarchy but merely tolerated it. In Islam a Monarch, or Sultan:
Under Islam the Sultan "in addition to being a sovereign prince in the secular sense also came to maintain a close association with and responsibility for the Shariah."is regarded as a successor to the prophet and must be learned in the teachings of the religion. Elected by consensus, he has the final say in matters of State as well as religion, and determines the law where it is not clear, in consultation with other scholars. He also leads the prayers.
However, in practice the role of the Sultans as heads of religion became nominal with their religious functions being taken over by their officers.
Islamic principles became a source of legitimation for the Malay Rulers and the Ruler played an active role in the spreading of Islam throughout the Kingdom. However, under Islamic principles a Ruler is not all-powerful but is responsible to Allah and cannot expect the loyalty of his subjects if they are required to breach Islamic moral values in carrying out the Ruler's command.
Under Shariah law the Sultan was a servant of the law, was subject to the law and was not entitled to any special exemption from the provisions of the Shariah law.
B. The British Intervention
The Portuguese took Malacca in 1511 and brought an end to the Malacca Sultanate in Malacca. The Dutch later wrested Malacca from the Portuguese in 1641. For the most part the Portuguese and the Dutch confined their efforts to maintaining control of the area of Malacca itself and did not extend their influence inland on the peninsula.
The British obtained control over Penang in 1786 and Singapore was founded by Stanford Raffles in 1819. The British also formally obtained control over Malacca from the Dutch under the Anglo-Dutch Treaty of 1824.
The British initially confined their interest to the straits settlements of Penang, Malacca and Singapore. Unrest in the peninsular Malay states and fear of intrusion by other colonial powers that threatened British interests and trade in the region led to British involvement in the affairs of the peninsular states.
Under the treaty of Pankor in 1874 the Sultan of Perak was obliged to accept a British resident in return for settling disturbances and supporting the Sultan against the claims of other chiefs for the throne. The British resident would advise the Sultan on all but religious matters and matters pertaining to Malay culture.
Similar British residency arrangements were set up in other states. In 1894 the creation of the Federated Malay States brought the states of Negeri Sembilan, Selangor, Pahang and Perak together under a common overriding administration.
Under the British residency system the British residents took on a role much greater than that of mere "advisors". Although the Rulers remained pre-eminent, the residents often, using the nominal powers of the Rulers, set up their own systems of government such that, as the Resident General of the Federated Malay States, Sir W.H. Treacher, put it,
The Rulers' powers in all but religious and cultural matters were thus considerably curtailed.The position has in fact been reversed; instead of the Sultan carrying on the Government with the advice of the Resident ... the Resident carries on the administration with the reference when he considers it necessary for the advice of the Sultan.
Continue in Part 2
- Part 2: The Malay Rulers' Loss of Immunity - Historical Background (Contd)
- Part 3: The Malay Rulers' Loss of Immunity - Historical Background (Contd)
- Part 4: The Malay Rulers' Loss of Immunity - The Gomez Incident
- Part 5: The Malay Rulers' Loss of Immunity - UMNO Makes the Move Against the Malay Rulers