The prevalent predicament in Kelantan, just like the previous crises involving our monarchy, need to be seen in the light of the monarchy's constitutional position. Although the detailed provisions in Malaysia may differ from other surviving monarchies in the world - about 30 of them - the underpinning ideas are basically the same.
One of the reasons why the monarchy, an obvious anachronism, has been retained in a democracy is its value as part of the checks and balances mechanism. It has been said that today the main enemy of democracy is no longer feudalism or absolutism. Instead, and strangely enough, as one could see in Malaysia, it is the popularly-elected government of the day.
Hiding behind the notions of state prerogatives (often formally put in the name of the monarch) elected politicians manipulate the constitution and the law to protect their positions.
So together with the judiciary and public service (including the armed forces), also non-elected, the monarchy is expected to protect and assist the checks and balances mechanism to work. This is the perhaps the strongest reason why these undemocratic elements find their legitimacy to continue and to survive in a democracy.
They are also expected to ensure the existence of a limited government; something which is difficult to have if the government of the day is left alone to run the state.
Claim disputed
But for the monarchy, there are actually some other bases of its legitimacy to exist. These include religion, tradition and continuity. While the monarch himself or herself may not be religious enough, his or her link with the past invariably gives the monarchy some religious justifications.
Furthermore it is dangerous to give the politicians this role as they may use it to further their own party political interests. As for tradition and continuity, the monarch and the monarchy are in the position to symbolise those elements. Apparently, a nation needs an identity and this is often supplied by the monarchy.
As a matter of fact most of the monarchies form the origins of their nations and people and as such they are in a better position to symbolise that. Hence the reasons behind the constitutional provisions which express public authorities and powers.
However, whether all these ideals really work in practice is something else. But should the monarchy fail to perform, this (i.e. the practice) would undoubtedly cast some doubts over the validity of those bases of legitimacy. Obviously whether or not a certain constitutional arrangement works or is effective eventually boils down to the practice.
Early in the week, PAS secretary-general Nasharuddin Mohd Isa complained about what he saw as another attempt by Umno to use the Conference of Rulers to manipulate Islam. Nasharuddin criticised the move by the majlis fatwa (national council on religious ruling) to bring the use of Islam in organisations to the Conference's meeting.
We recall that after the 1999 general elections, prime minister Dr Mahathir Mohamad claimed that the Conference of Rulers expressed concern over the so-called the disunity among the Malays. This claim was however disputed by Nik Abdul Aziz Nik Mat, Kelantan Mentri Besar, who was also present at the meeting.
The rulers' position has been was further confounded by claims that while it is the rulers who have the powers as the heads of Islamic religion it is Umno leaders who control the mosques and other religious institutions.
Left in the lurch
Now while elsewhere, including at the federal level, it is the monarchs and the monarchy that show the inability (or reluctance?) to act, in Kelantan it is just the reverse: The ruler and the palace, together with the civil service, have been trespassing the constitutional boundaries, thereby creating difficulties for the elected government.
And this is the reason why PAS leaders, particularly from the youth wing, have been calling for the amendments to state constitution.
We first witnessed the encroachment as soon as the coalition which ruled the state fell apart following the return of former Semangat 46 members to the Umno fold (in the 1990 general elections Semangat 46 teamed up with PAS and defeated Umno in Kelantan).
In this instance, Nik Aziz was denied the right to appoint new members to the state cabinet to fill up the vacancies left by the sacked members from the former partners. As in other Westminster systems, the right to appoint members of the government is vested in the head of government: the head of state merely has the role to endorse it.
And this has been clearly stated in the state constitution. Then we saw Mentri Besar's right to address the assembly denied when the ruler delivered a speech said to be written by one of the palace officials. The right of Nik Aziz, as the Mentri Besar, to accompany the ruler to the Conference of Rulers meeting was also denied.
In all these instances, the state civil service threw their support behind the palace. Indeed, some PAS leaders claimed, the civil servants refused to follow the order made by the government. In one particular instance, even Nik Aziz was left in the lurch over the transfer order involving his own private secretary!
It is to be recalled that in 1996 a group of civil servants left the assembly en bloc , a clear act of contempt to the house on the part of the civil servants. That was in response to some criticisms made by the assembly representatives over the conduct of the state civil servants.
Massive backlogs
Confronted with these difficulties, PAS members seem to have embraced the amendments initiated by Mahathir's government in 1994 which has somehow raised the issue of illegality. However such an attitude is understandable given the fact that the palace and the civil servants (who hide behind the palace) have basically brought, some of PAS politicians claim, the state administration to a standstill.
In recent weeks, they claimed, the officials spend time to prepare for the ruler's birthday and neglect state administration. One state cabinet member claimed the attitude of the state civil servants have led to massive administrative backlogs, including the piling up of land application forms at the district offices.
Now, where are Mahathir and his party members in this conflict between the palace and civil servants versus the elected government in Kelantan? Despite his apparent phobia against the royalty (as exemplified in1983, 1990-92 and 1993) Mahathir does not seem to be sympathetic towards the Kelantan government.
On the other hand, Mahathir visited the Sultan of Kelantan in 1999 even though the former questioned the position of the sultan when the latter opposed Mahathir's move to amend the provisions on the immunity of the rulers in 1993.
Mahathir also visited the Sultan of Johor (the one who precipitated that amendment) and the latter recently visited Putrajaya. For the record, it was the Sultan of Johor who gave Mahathir the blessing when the premier struggled to form the new Umno when the party was declared illegal by the courts in 1987.
In Kelantan, PAS members claimed that some Umno members were involved in making the palace-government stand-off worse. Strangely enough now, some of Umno's members even argued that the proposed amendment to limit the sultan's powers was unconstitutional! Back in 1990, they even attempted to install a new ruler in Kelantan.
Highly questionable
Even though PAS has strong moral grounds to amend the constitution, the way ahead for them is not without problems. It appears that they are relying on the amendment initiated by Umno in Parliament in 1994. That amendment sought to limit the powers of the Yang di-Pertuan Agong, the rulers (of the nine Malay states) and the Yang diPertua Negeris of (Malacca, Penang, Sabah and Sarawak).
The position now reads that these heads of state must act on advice even when they are required to act 'after considering advice'. The 1994 amendment, however, did not do away with the discretionary powers that go along with the right to consider advice from the government. The amendment also made it incumbent upon the heads of states to give their assent to bills which would become laws with or without their assent.
From the legal point of view there are some problems with the 1994 amendment. It would be recalled that it was made without the consent of the Conference of Rulers. The then deputy prime minister Anwar Ibrahim, who tabled the amendment, claimed that the rulers' consent was not necessary.
However, this is highly questionable as the amendment took away some powers and positions given to the rulers. Not only that, the 1994 amendment unilaterally altered the agreement between the government and the rulers in 1984 which solved the 1983 constitutional crisis. The 1994 amendment was basically rushed through the houses to do away with the 1983 undertaking behind the rulers.
It is interesting to note that later Anwar himself, after being sacked from Umno and government, realised that these amendments were aimed at installing Mahathir and his close associates as the virtual rulers of the country!
Back to the Kelantan problem, PAS leaders claimed that before this, they could not go along with the federal amendments as they had to be mindful of Tengku Razaleigh Hamzah's feelings (the former Semangat 46 leader who is also a member of the Kelantan royal family).
But now as they ruled the state alone (and with more than two-thirds majority) and that they have been prevented from running the state, they feel the time has come to amend the state constitution. They also claimed that the amendment would have a psychological effect on the palace and government servants.
As for the Umno leaders and federal government (who seem to be busy with other problems and intra-party scramble for power) they seem to be in a fix. Although some of their leaders have expressed views against the proposed amendment in Kelantan they know that it is very much similar to what they did in 1983, 1993 and 1994.
Not only that, after they were wiped out from Kelantan in 1990 Umno leaders in fact attacked the Kelantan palace, something that ended up in the 1992 Declaration of Constitutional Principles. Perhaps they also realised that if they proceed with their opposition, they would destroy their own fort: What Kelantan seeks to do is to just incorporate the 1994 amendment.
This is possible as the Federal Constitution contains a schedule which groups provisions, including the one amended in 1994, to be inserted in the state constitutions. In other words Kelantan may just proceed with the move to insert the 1994 amendment and leave the question of legality to the courts, should the palace and its sympathisers seek courts' ruling on it.
Sheer madness
The entire problem seems to have its roots in unprincipled politics. Umno leaders, particularly Mahathir, hop from one reason to another just to keep themselves in power. But PAS leaders should learn from this if they are really serious about offering themselves as an alternative to Umno.
The problem with Umno is that the party does not seem to care about constitutional ideals and institutions. While we have to accept the fact some of the rulers were not up to the mark we need to understand that it is Umno, who control the federal government and most state governments, which have made the matter worse.
In late February, minister in the Prime Minister's Department Dr Rais Yatim claimed that civil servants could not be neutral, but should be loyal to the sitting government. This is undoubtedly wrong given the role of the civil service in a parliamentary democracy.
As for the rulers, they do not really need formal powers in order for them to function. Examples from Spain and Thailand have often been cited to support this. Even when certain acts could be argued on certain constitutional or statutory provisions, these would become sheer madness the moment these acts can no longer be defended by constitutional ideals.
The ruler's role in respect to the civil servants is to make the service apolitical and neutral, not to use them to further his own interests. There is a line between activism to protect democracy and sheer madness which is essentially the pushing of the monarchy's own self-destruct button!
Acts of sabotage
As for the civil servants, of course it is true that their loyalty and allegiance should go to the ruler, not to the government of the day. But again, this is to be understood in the light of the ruler as the embodiment of the state, not to the ruler in person let alone to use it to flout the principle of neutrality of service.
It is not difficult to understand why PAS leaders claim that the state civil service has been committing acts of sabotage towards the government. Admittedly it is difficult to draw the line between neutrality and following the orders of the government of the day. But perhaps one could rely on the established ethos of service.
On top of that there is the law to guide them. But certainly the government of the day has a role to play here. In Kelantan, the state government must ensure that they themselves stay within the line. As elsewhere, popular mandate is subject to the notion of limited government.
For one thing, the government is only in power for a limited period of time. If PAS fails to observe this, they may regret later (when they are voted out of office) that they have given too much power to the sitting government.
Of no less importance is that the party must be clear on why amendments are to be made. PAS must avoid the syndrome of legislating as a mere reaction to the situation. Although they are not to be blamed for the present predicament in the state, the party must show some understanding of the principles rather than amending for a short-term solution which may lead to another problem in the future.
Dr ABDUL AZIZ BARI is an associate professor of law at the International Islamic University Malaysia, specialising in public law particularly constitutional law and comparative constitutional law. He has published Cabinet Principles in Malaysia - The Law and Practice . His PhD thesis, The Development and Role of Constitutional Monarchy , submitted to the University of Birmingham in England in 1996, will be published soon.
