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Al-Fatihah

Tuesday, May 6, 2008

Are We Over Sensitive?

A lot have been said and commented on Karpal Singh's (Karpal) statement that was published in the newspaper when Karpal was reported of saying that (and I quoted from The Star online): -

"Perak Sultan Azlan Shah has no jurisdiction over the transfer of Datuk Jamry Sury from the Perak Religious Department, Bukit Gelugor MP Karpal Singh said.
“The constitution of Perak clearly provides that the Rulers must act on executive advice.
“Sultan Azlan Shah did not have any say, as the Ruler of Perak, in the decision made by the state government and, by law, the palace cannot order the state government to reinstate Jamry,” Karpal Singh said, citing the case of the Federal Territory Education Director and Others vs Loot Ting Yee which was decided in the Federal Court in 1982."


Police report was lodged by UMNO leaders in Perak while some others chose to verbally criticised Karpal for his insensitive statement against the Palace in particular and against the Malay in general and even there are demands for Karpal to send his apology to the Sultan of Perak and for him to retract his statement. Karpal's statement, to certain extent was said to be undermining the Malay Sultanate.

In my opinion, Karpal was just making a statement based on a case that was decided by the then Federal Court in 1982. In that case of Pengarah Pelajaran, Wilayah Persekutuan & Ors -v- Loot Ting Yee [1981] 1 LNS 186, it was stated by the Federal Court among others that: -

As to the allegation that the transfer was not in the public interest it suffices us to say that as employment in the civil service is during pleasure of the Yang di-Pertuan Agong, as long as he is in the service, it is for the Government to decide whether his transfer is in the public interest or not, having regard to the fact that the Government has a larger public duty to perform. It is not for us to interfere with the discretion of the Government in this matter. To do so would only amount to an unjustifiable usurption of Government's discretion by us. There is absolutely no legal basis for us to interfere with the Government's discretion.

In the case of Loot Ting Yee quoted above, it was held that the Court has no jurisdiction to interfere with the government's decision to transfer a civil servant so long as the servant is employed under the pleasure of the Yang Di Pertuan Agong. It does not stated clearly on whether Yang Di Pertuan Agong or the Sultan has the jurisdiction over the matter i.e. to interfere with the government's decision to appoint or transfer any of the government's servants. As such, in my opinion, to that extent, the case of Loot Ting Yee can be distinguished from the current issue.

However, we also need to look at the Perak's Constitution on the power of the Sultan in this instance. At the moment, I have no access to the Perak's Constitution, so, I am not in a position to comment further on that. But assuming what was said by Karpal on Perak's Constituion is correct i.e. “The constitution of Perak clearly provides that the Rulers must act on executive advice" then I would say that the Sultan of Perak's decision must be in accordance with the advice of the Executive i.e. the Menteri Besar. In other words, it is mandatory for the Sultan to act based on such advice. It is exactly the same provision in our Federal Constitution whereby it is stated that the Yang Di Pertuan Agong must act based on the advice from the Prime Minister.

In the case of Merdeka University Berhad -v- Government of Malaysia [1981] CLJ 191 (Rep), Eusoffe Abdoolcadeer J (as he then was) had, among others stated as follows: -

"It would perhaps be appropriate to clarify two matters at this exordial stage. First, the Yang di-Pertuan Agong is a constitutional monarch and is required under Article 40(1) of the Federal Constitution in the exercise of his functions (except on certain matters that do not concern these proceedings) to act in accordance with collective or individual ministerial advice and not on his own initiative (emphasise is mine) (Balakrishnan v. Ketua Pengarah Perkhidmatan Awam Malaysia and Government of Malaysia [1981] 2 MLJ 259)"

If what Eusoffe Abdoolcadeer said is taken into consideration, then I think Karpal was right in his statement.

For better understanding of Article 40 (1) of Federal Constitution, I append below the provision of the Article: -

(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.

(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di- Pertuan Agong shall accept and act in accordance with such advice.

The word "shall" referred to in the Article means mandatory, which means it is mandatory for Yang Di Pertuan Agong to act in accordance of the advice of the Prime Minister, and to that extend, I believe Eusoffe Abdoolcadeer was right in saying that the Yang Di Pertuan Agong not to act on his own initiative.

However, the next issue to consider here is Islamic matters. As the issue at hand involves Islamic matters and the Sultan is the Head of Islam in the State, in his capacity as the Head of Islam, can the Sultan interfere with the government's decision?

Article 3 (5) of the Federal Constitution provides that: -

(5) Notwithstanding anything in this Constitution the Yang di-Pertuan Agong shall be the Head of the religion of Islam in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and for this purpose Parliament may by law make provisions for regulating Islamic religious affairs and for constituting a Council to advise the Yang di-Pertuan Agong in matters relating to the religion of Islam.

Article 32 (1) of the Federal Constitution provides as follows: -

(1) There shall be a Supreme Head of the Federation, to be called the Yang di-Pertuan Agong, who shall take precedence over all persons in the Federation and shall not be liable to any proceedings whatsoever in any court except in the Special Court established under Part XV.

Now, taking the position of the Yang Di Pertuan Agong as the Supreme Head of the Federation, he is, subject to the provision of Article 40 (1) of the Federal Constitution, must act in accordance with the advice from the Prime Minister. So, as the Head of the Religion of Islam as stipulated in Article 3 (5) as quoted above, I do not see any difference with that of his position as the Supreme Head of the Federation. Again, assuming that the Perak Constitution have the same effect with that of the Federal Constitution with regards to the Ruler's postion as the Head of Islam in the State, I believe that the Sultan of Perak, to that extent must act in accordance with the advice of the Menteri Besar.

While I may not be fair in making the assumption on Perak Constitution, I think I arrived at the right conclusion in making the comparison between the Federal Constitution and the Perak Constitution as even Najib and Nazri Aziz made reference to the Federal Constitution when commenting on this issue.

The next issue that I would like to discuss here is the sensitivity of the Malay leaders or the so called Malay leaders and to be exact UMNO leaders on the remarks passed by Karpal in this issue. My questions are: -

(1) Is there a need for them to be that sensitive?
(2) Is there a need for them to lodge police report over the matter?

I am totally against those who do not respect the Malay Sultanate, more so if they are rude towards the Sultans. However, when the UMNO leaders do not know how to respect the Sultans and even the Yang Di Pertuan Agong, what do they expect the non Malays to do? Is it fair for them to expect the non Malays to respect the Sultans when they don't? The answer is absolutely not.

Look at the events surrounding the appointment of the Terengganu Menteri Besar. When the palace i.e. the Sultan chose Ahmad Said instead of Idris Jusoh as the Menteri Besar, a group of UMNO Wakil Rakyat threatened Ahmad Said that his UMNO membership could be stripped for going against the wish of the UMNO President (in other words, for following the wish of the Sultan). Even Pak Lah as the Prime Minister to certain extent was reported to have refused to meet up with Ahmad Said before the matter was resolved. That had led to the banner being posted with the insulting words towards the Sultan. Didn't the UMNO leaders think that the whole episode were an insult towards the Sultan? What did they do when Pak Lah and the UMNO wakil rakyat rude to the Sultan? Was there any police report lodged by them (UMNO leaders) on the banner that insulted the Sultan? The answer is NO. It was obvious that it was an act of disrespect and rude towards the Sultan but the UMNO leaders chose to close both eyes for some political reasons. And it is for the political reasons too that they are now going after Karpal by criticising him and lodging police report against him. I am neither speaking on behalf of Karpal nor that I am his supporter, but to me, if the UMNO leaders do not know and choose not to respect the Sultans and fails to put them in a place where they (Sultans) are supposed to be, please do not expect others to respect the Sultans. Everybody led by example. It is like ketam mengajar anaknya berjalan.

If you do not respect your parent, do not expect others to respect your parent.

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