SEPTEMBER 17 — The events unfolding in Negeri Sembilan should concern every Malaysian who believes in constitutional government, the rule of law and the preservation of our institutions.
I say this not from the standpoint of personalities, political parties or competing factions. Nor do I wish to prejudge matters that may ultimately require judicial determination. My concern is more fundamental.
What happens when political action, customary authority and constitutional power collide? Where are the boundaries of authority? And, most importantly, when there is disagreement about those boundaries, who determines what the Constitution permits?
These questions go far beyond Negeri Sembilan.
At the heart of the present controversy is a purported proclamation concerning the position of Tuanku Muhriz Tuanku Munawir as Yang di-Pertuan Besar of Negeri Sembilan. Menteri Besar Datuk Ismail Lasim has publicly stated that he signed an instrument against his will and under duress. He lodged a police report and the state government’s stated position is that the document did not comply with the processes and procedures required by Article 10 of the Laws of the Constitution of Negeri Sembilan 1959.
These matters are now the subject of investigation and dispute and should therefore be treated with appropriate legal caution.
The Dewan Keadilan dan Undang, following a special sitting on September 13, has taken the position that the attempt to remove Tuanku Muhriz contravened both adat and the State Constitution.
Among other things, it maintains that the investigation contemplated by Article 10(1) had not been undertaken and that Tuanku Muhriz remains the lawful Yang di-Pertuan Besar. Those assertions, too, form part of the developing constitutional dispute.
The controversy should therefore not be reduced to the question of who supports whom.
The fundamental question is one of constitutional authority.
Power must have a constitutional source
The starting point of any constitutional analysis must be simple: who has the power to do what has purportedly been done?
In a constitutional system, possession of office does not confer unlimited authority. Every constitutional institution derives its authority from law, convention, adat where constitutionally recognised, or the Constitution itself.
A Menteri Besar has powers and responsibilities. The Undang have their constitutionally recognised functions. The Yang di-Pertuan Besar occupies a distinctive constitutional position. The Dewan Keadilan dan Undang similarly possesses functions within the unique constitutional structure of Negeri Sembilan.
But none exists in a constitutional vacuum.
The present Menteri Besar himself has now articulated an important principle: a proclamation does not by itself create constitutional authority. His position is that his involvement in a process mentioned in Article 10 cannot be interpreted as giving the Menteri Besar unilateral authority to determine whether the Yang di-Pertuan Besar remains in office.
That proposition deserves attention quite apart from the personalities involved.
A document cannot manufacture a constitutional power that does not otherwise exist.
Nor can constitutional requirements be treated as mere technicalities to be satisfied after a political objective has already been determined.
Procedure is part of constitutional legitimacy.
Where the Constitution prescribes conditions before a power can be exercised, compliance with those conditions is not optional. If investigation, consultation, proclamation, quorum or some other constitutional prerequisite is required, the relevant question is whether that requirement has actually been fulfilled.
That is why the present controversy must ultimately be examined against the actual words, structure and purpose of the Negeri Sembilan Constitution — not against political preference.
Negeri Sembilan is constitutionally distinctive
There is another reason for caution.
Negeri Sembilan cannot simply be treated as though its constitutional structure were identical to that of every other Malaysian state.
Its institutions developed through a distinctive relationship between monarchy, the Undang, the luak and Adat Perpatih. Those historical institutions have subsequently acquired constitutional expression.
The Constitution must therefore be understood together with that constitutional history.
But recognition of adat does not mean that constitutionalism disappears.
On the contrary, where customary institutions have been incorporated into a written constitutional framework, it becomes particularly important to distinguish between customary legitimacy and constitutional authority.
Both deserve respect.
Neither should casually be invoked to extinguish the other.
This is why disputes involving the Yang di-Pertuan Besar and the Undang require extraordinary care. They concern institutions far older than contemporary party politics. They should not become instruments of temporary political advantage.
The National Archives records the Laws of the Constitution of Negeri Sembilan as a constitutional instrument dating from 1959. The question today is how the powers contained within that constitutional settlement are lawfully exercised.
Legality is not the only question
There is also a moral dimension.
Constitutional government cannot survive through legal provisions alone.
It requires what might be described as constitutional morality: restraint in the exercise of power; fidelity to institutions; respect for lawful processes; good faith; and an acceptance that possessing influence is not the same as possessing constitutional authority.
There will always be opportunities for political actors to exploit ambiguity.
The true test of constitutional government comes when an actor chooses not to do something merely because it appears politically possible, but asks instead whether it is constitutionally proper.
That distinction is crucial.
An action may appear politically expedient. It may even command substantial support. But neither expediency nor numbers can substitute for constitutional authority where the Constitution has allocated a particular power to a particular institution and prescribed the manner in which that power is to be exercised.
The rule of law becomes meaningful precisely when it restrains those who possess power.
Institutions must not be politicised
We should therefore resist turning the Negeri Sembilan controversy into another episode of partisan confrontation.
The monarchy should not become an instrument of party politics.
Adat should not become an instrument of party politics.
Equally, elected political institutions should not be deprived of their legitimate constitutional functions through the invocation of tradition.
Each institution must remain within its lawful sphere.
Malaysia’s constitutional system depends upon a delicate equilibrium between institutions. That equilibrium survives not because disputes never occur, but because when they do occur, there are constitutional mechanisms for resolving them.
The answer to constitutional disagreement cannot be the creation of a fait accompli.
Nor should the answer be determined by who commands the greater political influence.
It must be determined by law.
Let the Constitution decide
There is therefore wisdom in the proposition that, where a genuine legal dispute exists, the courts may ultimately have to determine the constitutional questions.
This should not be regarded as an attack upon adat or the monarchy.
Judicial determination of a constitutional dispute is itself part of constitutional government.
The courts are not being asked to decide which personality they prefer. Their task, where properly seized of a matter within their jurisdiction, is to determine what the law means and whether the exercise of public or constitutional authority conforms to it.
That distinction is fundamental.
The developing proceedings before the Seremban High Court make restraint even more necessary. On September 17, it was reported that lawyers acting for the Dewan Keadilan dan Undang had written to the Menteri Besar and other state officials making serious allegations concerning recent events. Those remain allegations within an active dispute and should not be treated as judicial findings.
The court of public opinion should not replace the court of law.
A larger Malaysian question
What troubles me most is therefore not merely the immediate controversy.
It is the precedent that may be created.
Malaysia is a federation of constitutional monarchies. Our constitutional arrangements differ among the states, but they share an essential principle: public and constitutional power is not unlimited power.
If constitutional processes can be bypassed whenever they become inconvenient, we weaken the very institutions we claim to defend.
If political necessity is allowed to determine constitutional meaning, constitutional government gradually becomes government according to expediency.
And once that principle is accepted for a cause we favour today, we will have difficulty objecting when somebody invokes the same principle tomorrow for a cause we oppose.
That is why constitutional boundaries matter.
They protect institutions.
They protect governments.
They protect rulers.
And ultimately they protect citizens from arbitrary power.
The Constitution must prevail
Negeri Sembilan therefore presents Malaysia with something larger than a dispute between personalities or competing claims to authority.
It presents us with a test of constitutionalism.
The question is not who is politically stronger, who speaks more loudly or who can establish a fait accompli.
The proper questions are: Who possesses the constitutional authority? From where is that authority derived? What conditions govern its exercise? Were those conditions satisfied? And who has lawful authority to resolve the dispute?
These questions should be answered calmly, transparently and according to law.
Adat must be respected.
The institution of the Yang di-Pertuan Besar must be respected.
The constitutional position of the Undang must be respected.
The Menteri Besar and elected government must be permitted to discharge their lawful constitutional responsibilities.
And the judiciary must be allowed to perform its constitutional function where questions properly requiring judicial determination arise.
Respect for one institution does not require the destruction or humiliation of another.
Constitutional government requires precisely the opposite: that each institution recognises the legitimate boundaries of the others.
Ultimately, this should not be about who wins.
It should be about whether the constitutional order survives with its integrity intact.
For once constitutional boundaries are crossed in the name of convenience, those boundaries become easier to cross again.
Malaysia has spent generations building institutions intended to ensure that authority is exercised according to law rather than according to the wishes of individuals.
We should not surrender that principle when it becomes difficult.
Power must have a lawful source. Power must be exercised through lawful procedures. And where power is disputed, the dispute must be resolved according to law.
That is the essence of constitutional government.
And in Negeri Sembilan, as everywhere else in Malaysia, the Constitution must prevail.
*Tan Sri Syed Hamid Albar is a former minister of law and former minister of foreign affairs.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
