10 Feb 09
By Clive Kessler
The Nut Graph

“All great historical events happen twice — the first time as tragedy and the second, at times, as an unnecessary tragedy.”
(A witticism offered with apologies to both Hegel and Marx)

WHATEVER the impertinence, a comment by a not totally clueless outsider who holds Malaysia close in his attachments on the present constitutional crisis in Perak and its national political implications may prove useful and instructive.

Tough legal questions have been raised already with no simple answers. They are questions that serious Malaysian citizens are worried, and have the right to be concerned, about. I am too. Those questions need not be repeated here.

If I were the Sultan

Instead I shall compound my impertinence. Were I, however improbably, to have found myself in the position of the Sultan of Perak on 5 Feb 2009, I would have been strongly tempted — in good conscience and out of an impeccable sense of duty and for the best possible reasons — to have acted just as he did.

But I pray I would have resisted that temptation. I hope that, however tricky that different course might prove in the immediate and short term, I would have allowed the fate of a democratically elected government, under a system of constitutional monarchy, to be decided by the people in one of two ways.

Either on the floor of the people’s house by their own recently elected representatives, or else, if for some reason that was not feasible or acceptable, at an election that might explicitly test public opinion on the question. That way, the newly elected house, whether controlled by the Barisan Nasional or the Pakatan Rakyat, would authoritatively be that of the people’s, with whom modern democratic sovereignty originates.

Whether, as Ruler, I might have forced some resolution of the question on the floor of the house or acceded to the menteri besar’s request for a dissolution and new elections, the prospect in either case would have been one of an immediately heightened political temperature.

Either course would soon have seen mass public demonstrations of allegiance on both sides and, in their train, huge potential problems in maintaining civil peace and public order. That much is undeniable.

Any conscientious ruler or head of state would have to be deeply concerned at such a prospect.

As for the former option, I may be among the few surviving attentive witnesses to a similar episode long ago: the so-called “20 Aug 1968” peristiwa in Kelantan. Then, some half dozen or more PAS state assemblypersons were to have defected and sided with Umno at a sitting of the state assembly in the old Balai Besar in the palace precinct in Kota Baru. It did not happen.

The PAS government of Kelantan was not toppled. The frogs did not jump. They stayed under the sheltering tempurung of the party in whose name they had been elected.

But I still recall the very tense and at times frightening atmosphere as I travelled by motorcycle, through police and army roadblocks, the 25 miles from Bachok to Kota Baru and the roiling, ever-growing crowds that, along with me, were converging ominously there on that fateful morning.

These are not matters to be trifled with nor risks to be taken lightly — least of all by a constitutional head of state with a proper sense of public responsibility and duty. So avoiding that fearful possibility would have been a great temptation, and a not ignoble one. But it is a temptation that I hope I might have resisted. Why?

Learning from Australia

In Australia in 1975, the Governor-General Sir John Kerr chose to act similarly in a similar situation. He insisted on exercising his personal discretion that, as he understood the situation, his constitutional “reserve powers” entitled him to wield. He dismissed a government that arguably still had a majority within the people’s elected house of parliament.

The result was unfortunate, to say the least. It poisoned Australian politics, public culture, and (dare one say it?) the very soul of the nation for a generation. Its effects have not fully worn off away even now.

Malaysia could now be at risk of a similar outcome. I hope not but fear so.

For that reason, a test in the state assembly or snap polls would have been preferable whatever the costs and however messy the shorter-term practicalities of maintaining public order. As a matter of long-term public and national policy, that would have been better than a measure that substituted something else for the verdict of popular will.

In Australia it is now widely recognised that, if the government was not to have fallen on its own, it should not have been peremptorily dismissed. And if it was doomed to fall, as well it may have been, it should have been allowed to do so in the natural course of democratic events, through democratic processes. The impatience to force the issue may have saved a few days or weeks of delay but it plagued the nation with its consequences for thirty years until the matter began to be put decently to rest.

It was not a good deal. Not for anyone. Not for the ousted Prime Minister Gough Whitlam. Not for his successor Malcolm Fraser who never overcame the “legitimacy deficit” that his manner of coming to power caused him. Not for Kerr who went into exile and died amidst widespread ignominy and contempt. Not for Australia, which was made to live for a generation under the shadow of what was widely seen as a quasi- or pseudo-constitutionalist coup against constitutionalism. And not, therefore, for constitutional principle and process itself.

That is an outcome and fate that Malaysia, I hope, will avoid. The lesson is there already to be learnt from others. The same price need not be paid again.

Malaysia these days has other urgent needs and priorities. It does not need, now to be paid exorbitantly on its own account, this distraction or these afflictions. The lesson is available free, there to be taken “ready off-the-shelf”, from Canberra.

Former Lord President Tun Mohamed Suffian Hashim repeatedly insisted in his foundational written texts that in Malaysia, the constitution and nothing but the constitution is “the supreme law of the land”. Malaysia cannot afford to see constitutional principles imperilled, and constitutional processes jeopardised — not even out of an understandable impatience, or a conscientious determination, to see the urgent political and practical problems of the day speedily resolved.

Clive S Kessler is Emeritus Professor of Sociology and Anthropology at the School of Social Science and International Studies at the University