Issue 59 Vol III, March 15, 2008

L A W  &  J U S T I C E

Malaysia: more to it than meets the eye
Joginder Singh Toor

Kuala Lumpur: Malaysia is a country distinct not only for its scenic beauty and economic growth but also for its constitutional uniqueness. It is the residence of 27 million people and was destination of 20 million visitors last year.

Malaysia constitutionally is neither a monarchy nor a republic. It is both but with a distinction. It is headed by a king popularly known as Sultan, constitutionally described as “YANG DI PERTUAN AGONG”. Not the king for life time but chosen by the sultans of states of the federation for a period of 5 years. By an arrangement the Sultan of each state by rotation is elected as a Federal King. So it is not a Monarchy in the real sense not a Republic because it is headed by a Sultan elected by the Sultans of the States not by the people by direct or indirect vote.

It is not an Islamic State but its official religion is Islam. The Sultan is the religious head in a sense, the constitution provides “every State having a ruler (the State Sultan a hereditary office) as the head of the Religion of Islam authorizes the Yang di Pertuan Agong (the Federal Sultan) to represent him”. The election of the King is by the heads of religion ruling each State to represent them in the Federal structure.

Singapore and Malaya got independence on August 31, 1957. Y.T.M.Tunku Abdul Rahman the first Prime Minister and President of the then leading political party UMNO, made the announcement at MALLACCA, instead of at Kuala Lumpur, under a previously arrived at agreement between all the political parties, because Mallacca, like Punjab and Haryana in India, has been battle field for all the invaders on Malaya, since 1403 A.D, with the arrival of Parmeswara -an exiled Hindu Prince from Sumatra. He assumed the title of Raja Iskander and became the first ruler of the new kingdom, followed by a Portuguese ALBUQUERQE who conquered Mallaca and colonized it for 130 years. The Dutch came in 1641 followed by the British. For some time Japanese remained in occupation from 1942 to 1945.  Singhapur separated in 1963 and a new Malaysia came into being with 13 States, and a federal King.

Any law passed after ‘Merdeka’ (independence) which is inconsistent with the Constitution of Malaysia is void. The Constitution grants ‘fundamental rights’ as liberties enumerated in articles 5 to 10. It is open for the State to take away liberties and “the validity of any law cannot be questioned on the ground that it imposes restrictions on the rights mentioned in Art.9 (2) but does not relate to the matters mentioned therein or it imposes such restrictions as are mentioned in Art. 10(2)…”

The proceedings for declaration of a law to be invalid cannot be initiated except with the prior permission of the ‘Lord President of the Supreme Court’ (the Chief Justice).

The provisions of the Constitution do not prohibit or invalidate any provisions regulating personal law, any provisions or practice restricting office or employment connected with the affairs of any religion or any institution managed by a group professing any religion.

The Supreme head the AGONG (the Sultan) takes precedence over all persons in the federation. His vice ‘RAJA PERMAISURI AGONG’ takes precedence next to him. They are however constitutional heads. Executive functions are discharged by the executive answerable to the Parliament elected by the people.

The Internal Security Act and the laws governing the Press give unlimited powers to the executive to deprive people of their liberties, to detain them under the signatures of the Minister for Internal Security, firstly for a period of 2 years and then after a review, a longer period may be for life. 5 Indians associated with HINDRAF (Hindu Rights Action Force) are presently in jail for having raised the voice against discrimination. The most draconian law, as it is, cannot be challenged in court as the Constitution allows deprivation of civil liberties for internal security reasons, which are usually subjective, motivated and arbitrary.

The States control over the press is, very formidable. The state not only controls some major news-papers but issues instructions to the press to publish or not to publish certain news which the press can ignore only at the altar of confiscation of its license. Printing Presses and Publications Act concentrates all power over the media in the hands of one man, currently the Internal Security Minister. There had been numerous complaints against alleged violations against the media and very often harsh actions have followed.

In view of all this the peoples force is paramount. In recent elections, the ruling B.N. party with UMNO as major constituent, having ruled the country for un-interrupted 50 years, with 92 percent majority in the last parliament has been trounced to a simple majority. Lawyer M. Manoharan detained under Internal Security Act has won the election from inside the jail. 5 out of 13 States have been won by the opposition.  The Prime Minister Abdullah Ahmad Badawi is in a tight corner. The laws relating to internal security, the control on press and Affirmative Action plan giving Malay people preference in business and industry so that they come up over others; having bagged major jobs has re-bounced on the government.

Economically Malaysia claims freedom from the World Bank and the IMF. Its twin tower 88 storey, the then world’s highest building symbolizes country’s economic growth, still stands witness to it. The roads no way lesser than North American standards and quality, their maintenance, their surroundings and attractive spots are invitation to a large number of tourists ever experienced by any other country.

The country has identified its bio product, futuristic in its global placing. Eighty percent of land capable of bio production having been already covered by Palm plantation has placed Malaysia as largest exporter of palm oil and revenue earning country on the world map.

Its public sector the system appears working. The growth is apparent. Malaysia having got independence 10 years later than India is 40 years ahead in many respects. A small country has achieved its due place. The poverty is claimed to have gone down 0.7 percent. India needs studying it from various positive angles. It is a country worth seeing and studying.

[Joginder Singh Toor, Advocate E-mail jogindersingh_toor@yahoo.com 91-172-2607530]

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