A192 GLUP1123

CONSTITUTIONAL LAW II
GROUP C

TITLE:
THE 1993 CONSTITUTIONAL CRISIS

GROUP ASSIGNMENT C:
NO STUDENT MATRIX NUMBER
1 MUHAMMAD HAIKAL HAZWAN BIN MD 273007
YATIN
2 VAISHNEVI A/P SIVABALAN 272946
3 AMELIE GAN ZHI YING 272767
4 PUTERI NABILAH HUDA BINTI MD IZAN 273825
5 ZINIRAH BINTI MOHAMED NOOR 267918

LECTURER’S NAME: FARIZA BINTI ROMLI

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 Table of Contents

Introduction………………………………………………………………………………………..3
Events lead to the 1993 Constitutional Crisis……………………………………………..3
Background of the Crisis: the Gomez Incident……………………………………………4
The Remedy Proposed by the Government……………………………………………………….5
Proposed Amendments……………………………………………………………………5
Amendment of Article 181………………………………………………………..5
Introduction of Article 182 and 183……………………………………………….6
Motion in Parliament……………………………………………………………………...6
The Effects of Battle over Royal Immunities 1993……………………………………….7
Group’s Opinion…………………………………………………………………………………..8
Conclusion……………………………………………………………………………………….10
References………………………………………………………………………………………..11

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Introduction
The 1993 constitutional crisis erupting from the proposed Constitutional (Amendment)
Bill 1993 centered on a tussle between the nine hereditary Malay Rulers and the Government
over the latter's move to do away with their legal immunity. As in the 1983 crisis 1 the
Government claimed that it was a clash between the notion of unfettered sovereignty of the
traditional, non-elected Rulers and the notion of popular sovereignty. As being mentioned by
Sultan Azlan Shah, the 1993 Amendments that led to constitutional crisis was the most radical
piece of legislation that bring a big impact on the structures of the Federal Constitution. This
historical event also marks the decline of the royal influence.

Events led to the 1993 Constitutional Crisis

In 1987, a power struggle arose within UMNO, the leading party in the ruling coalition.
One of the factions was led by Tengku Razaleigh Hamzah, a senior member of one of the nine
royal houses. The protracted leadership contest eventually led to a court battle. The ensuing
result was a High Court decision declaring the party - which has been the backbone of the
Federal and most state Governments - illegal, creating in consequence difficulties for UMNO
politicians, especially those who were the leading figures in the Government. The crisis within
UMNO in turn provided the impetus for other developments, including the judiciary crisis in
19882.

Initially the tension between the Rulers and the Government was not fully apparent.
Although some members of the royal houses were involved in one way or the other with those
developments, their involvement did not cause the situation to dissolve into one of the Rulers
versus the Government. In fact, some royal houses appeared to have been helpful 3 to the
Government leaders in so far as their political difficulties were concerned.

However the whole scenario was suddenly transformed into one in which the Rulers were
besieged when the UMNO-led Barisan Nasional was defeated in the north eastern State of
Kelantan in the 1990 General Election. Apparently, apart from UMNO's vulnerability in that
1
https://www.mtholyoke.edu/~teh20y/classweb/worldpolitics/Constitutional.html
2
https://en.wikipedia.org/wiki/1988_Malaysian_constitutional_crisis
3
The Sultan of Johor for example, in a televised speech, publicly declared his support fot the UMNO Baru, formed by a faction
in the old, de-registered UMNO led by the Prime Minister

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Malay-dominated state, the defeat was also due to the split within the ranks of UMNO following
the 1987 contest. The electoral defeat in Kelantan led to unprecedented public attacks on the
Rulers' alleged abuse of their privileged position to further the royal families' interests in
business4. There were also allegations that the Rulers' interference in politics, particularly in
Kelantan, had influenced the outcome of the political process5.

The amount and intensity of the unhappiness on the part of the ruling party's ranks was
exemplified by suggestions that some of the Rulers' and the Yang di-Pertuan Agong's
discretionary powers, including that of appointing a new Government after an election, should be
removed, something which could not possibly be accomplished without restructuring the
political system itself.

Background to the Crisis: the Gomez Incident

A number of hockey teams from Johor State unexpectedly started to withdraw from
numerous tournaments held by or affiliated with the Malaysian Hockey Federation shortly after
Tunku Majid’s suspension due to his offence. Mr Douglas Gomez, English College's college
hockey coach, wanted to speak out about the "forced" pullout from a prestigious national
competition by the hockey players at his institution. Mr Gomez has asked for the withdrawal of
all office-bearers of the Johor Hockey Association and has bravely said:

“I do not mind taking this stand even if it means putting my neck on the line. I know I
will be victimised for my outburst but I am prepared to accept any consequences and will
go all the way”

The incident which ultimately triggered the flurry of events culminating in the
constitutional amendment which sought to remove the Rulers' immunity, was the alleged assault
on a hockey coach by the Sultan of Johor on 30 November 1992. Although rumors and
allegations of some of the Rulers' misconduct had been around for quite some time, it was the
first time that wide coverage on such misconduct was ever given by the national press. Prior to
this incident, the media, most of which were either influenced or owned by the ruling coalition,
except in the aftermath of the 1990 General Election, used to adopt a deferential attitude. The
incident was soon followed by the tabling of a motion of censure by the Government in
4
M. Vatikiots. “Sitting Target”, For Eastern Economic Review, 28 November 1991, 13 and [1993] 33 Asian Survey 186-7
5
M. Vatikiots. “Centre of Attention”, For Eastern Economic Review, 23 April 1992.20.

4
Parliament on 10 December 1992, one which received unanimous support from all parties in the
Government as well as those on the opposition bench. The Government also made it clear that it
would proceed with a constitutional amendment seeking to extinguish the legal immunity
enjoyed by the Rulers since independence in 1957.

The Remedy Proposed by the Government

Proposed Amendments

Within weeks of Douglas Gomez’s case, amendments of the constitution were being drafted
concerning the Royal immunity. The Prime Minister, Tun Dr Mahathir called for a special
session parliament to discuss regarding the amending of the constitution and after some
disagreements and discussion between the royal and the government the final draft on the
proposed amendments on the constitution was agreed upon by the conference of rulers and
parliament on January 6, 1993, the final draft on proposed constitutional amendments were
accepted by both the government and Conference of Rulers

The aim of the bill was to remove the royal immunity from the Malay rulers. By removing
the royal immunity of the royal this puts them also under the constitution unlike before. This will
be further explained in regards of the amendments done by the government and Conference of
Rulers to avoid the abuse of privilege by the royal

The Amendment of Article 181

(a) Article 181(2) was amended to state that :

‘No proceeding whatsoever shall be brought in any court against the Ruler of a State in respect
only of anything done or omitted to be done by him in the exercise or purported exercise of his
function under any written law 6

(b) A third clause was introduced to Article 181 of the Federal Constitution. Article 181(3)
states that :

any law which provides for immunity of the Ruler of a State in his personal capacity from any
proceedings whatsoever in any court or attaches sanctity to his residence as void 7

6
M. R. Gillen, The Malay Rulers' Loss of Immunity (1994), s.n, University of Victoria BC Canada.
7
H.p. Lee. (1995) Constitutional Conflicts in Contemporary Malaysia. Kuala Lumpur. Oxford University Press

5
The Introduction of Article 182 and 183

Article 182 stated that there shall be a court which shall be known as the special court and
shall consist of consist of the Lord President of the Supreme Court, who would act as chair of the
court, the Chief Justices of the High Courts, and two other persons, chosen by the Conference of
Rulers, who are or were judges of the Supreme Court or High Courts.8

Thus, any proceedings by or against the Malay Rulers in his personal capacity will be
brought in Special Court. Only the special court has the power to give jurisdiction regarding
crime committed by The Royal. The proceedings in special court will come to a conclusion or
decision based on the opinion of majority members and the decision made the Special Court is
finale, the case cannot be challenged in any other courts.9

The case of Faridah Begum v Sultan Haji Ahmad Shah 10was the first case heard and brought
against the Malay Ruler. This case is between the plaintiff who was a Singaporean
businesswoman and the defendant Sultan Haji Ahmad who was the Sultan of Pahang. In this case
the plaintiff alleged that the Sultan conducted libel against her and she sued for damages. This
case received the consent and approval from the Attorney General in permitting the Special
Court to hear it. However, the alleged libel was never discussed as the special court with the
ruling of 4-1 decided that non- Malaysian could not bring about a suit against the Malaysian
Malay Rulers.Apart from that, Article 183 reads that no action can be instituted against the King
or the Ruler of a state without the consent of attorney general. 11

Motion in Parliament

A Bill to amend the Constitution was figured out in the Parliament and was passed by both
Houses by 20 January 1993. The Act fell well short of the intention to abolish the empire nut,
which marked a significant violation of the rights of the Rulers.

(i) The bill removed the immunity of Yang di-Pertuan Agong and the other Rulers from
suit when acting in a personal capacity and granted jurisdiction in such cases
(criminal and civil) to a special court consisting of the President of the Supreme

8
H.p. Lee.(1995) Constitutional Conflicts in Contemporary Malaysia. Kuala Lumpur. Oxford University Press
9
Bidin, A. (1993) The historical and traditional features of the Malaysian constitution. UKM Journal, Jebat 21. 3-20
10
(1996) 1 MLJ 617
11
Bidin, A. (1993) The historical and traditional features of the Malaysian constitution. UKM Journal, Jebat 21. 3-20

6
 Court, the two Chief Justices of the High Courts and two other Judges or former
Judges of the Supreme Court or of the High Court.
(ii) In cases concerning the Yang di-Pertuan Agong, the King or his Consort, the Bill
granted the Conference of Rulers, instead of the Pardons Board, the power to grant
pardon, based on the written advice of the Attorney General, and in cases involving
the son or daughter of the Monarch, the power to grant pardon to another King
appointed by the Conference of Rulers, based on the advice of the Pardons Board.
(iii) It confers a parliamentary immunity in view to everything that has been said in trials
in Parliament or in State legislative bodies involving a King, even in favour of the
dissolution of the constitutional rights of the Dictator (so long as those who have
made comments against the government have been subject to criminal action under
the Sedition Act, except if the comments have been made on the floor).

The Effect of the Battle over Royal Immunities 1993

Before proposed amendment were made, Article 181(2) of the Federal Constitution stated
that the no proceedings in any courts regarding the Royals criminal or civil assaults will be
brought. This means that the Malay rulers have power to do certainly anything contravening the
constitution without being inquired or questioned for their behaviour or assault as they are above
the law. Thus, if a royal kills a citizen without any valid reason for example, the royal will not be
punished nor will he be inquired by any authorities.

This principle is used in the case of Mighell v Sultan Johor12 where Mighell brought the case
to the court of appeal in regards of breach of contract by the sultan of Johor who used the name
of Albert Baker and promised to marry Mighell back in England. However, the court held that
the sultan is not liable under the court’s jurisdiction and dismissed the case. Thus,to put it in
short, Article 181(2) puts the royal which is the Yang di-Pertuan Agong and the kings of
respective states in Malaysia in a position where they are free to commit a crime as they are not
subject to court’s jurisdiction.

Besides that, Duff Development Co. Ltd v Kerajaan Negeri Kelantan & Anor 13case applied
the same principle as the case stated above (Mighell v Sultan of Johor). This case is about the
12
[1894] 1 q.b.

13
[1924] AC 797, [1924] All ER 1

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Kelantan government granting the permission on mining rights in that state for the appealant.
Dispute arose because of the arbiter who made an award in favour of the company and directed
the government to pay arbitration cost. Then, the government applied for Chancery Division but
it got refused. The company then seek for the Kings Bench Division Order to enforce the award,
unfortunately for the company the application was set aside. The company then appealed to
Court of Appeal but the appeal got dismissed as the court has no jurisdiction power on the Malay
Rulers and in this case the Kelantan King.14

The abuse of royal privilege which can be clearly seen in these cases especially in the case
of Douglas Gomez back in July 1993 where the assault done by the Johor Sultan, Sultan
Mahmood Iskandar against a school hockey coach. The hockey coach was severely beaten up in
the castle by the Sultan and his people as the Sultan was personally dissatisfied with Douglas
move to ask for the resignation of the key barriers of the Johor hockey association. The move of
the Sultan to hurt the coach as per his will led to the Malaysian government to discuss and amend
the bill to remove the Malay Rulers personal immunity.

Group’s Opinion

Undeniably, the 1993 Constitutional Crisis was the most radical historical events that truly
reform the structure of our Federal Constitution. Even though prior to it there had been several
significance amendments to the Constitution, but the 1993 Amendments is a piece of legislation
that brought a huge impact on our political system. As discussed before, the 1993 Amendments
was seek to get rid of the legal immunity that have been enjoyed by the Royalty since the
Independence 1957. In other words, prior to 1993, the Royals were completely above the law.

For the purpose of discussion, our group has our own opinions regarding the 1993 Constitutional
Crisis. Firstly, the 1993 Amendments is a reform that upheld the concept of rule of law. One of
the important pillars of the rule of law is no person or government is above the law. Prior to
1993, the Rulers were not liable or subject to the law of the land, making them completely free to
act without any liability.15 In this democratic era, it is unpleasant that anyone is above the law.
Everyone including persons, bodies or any institutions must be liable to the law. This is to ensure
that there will be no excessive abuse of power by any institution.

14
Bidin, A. (1993) The historical and traditional features of the Malaysian constitution. UKM Journal, Jebat 21. 3-20
15
Lee, H. P., Hereditary Rulers and Legal Immunities in Malaysia (1993), University of Tasmania Law Review, 12(2). 323-336

8
In our opinion, the amendment of Article 181(2) which allows legal proceeding against the
Rulers is parallel with the concept of the rule of law and consistent with the spirit of our Federal
Constitution. The society has to be proud of our strong implementation of the concept of rule of
law where everyone in this country can be brought to the court, even the Supreme Head of the
Federation himself. This situation is not happened in the United Kingdome where the Queen is
above the law and no court has the jurisdiction towards Her Majesty 16. Malaysia is the only
country that allows its monarch to be brought to the special court.

Secondly, in our opinion, the 1993 Amendments was an effort from the government to seek
balance between them and the Rulers. Since Independence, the Malays had realized that their
political and material wellbeing depends on a strong and united UMNO 17. It has to be noted that
prior to the 1993 Constitutional Crisis. There were quite some cases reported where the Rulers
have interfered the affairs of the government. For instance, it was alleged that the Royal family
of Pahang had put pressure on the state government regarding the timber concession. As the
Rulers were completely immune from the law, the government authority cannot do anything to
restrain the act but should obey the order of the Rulers. When the Gomez incident sparked out,
the government used it as the catalyst and a strong justification for them to gain political support
from the people to remove the legal immunity enjoyed by the Rulers. The removal of immunity
made the Rulers are accountable to the law and thus create balance power between the
government and the Royalty.

Lastly, at the time where the 1993 Amendments was tabled in Parliament, there was an
allegation saying that such motion led by the Prime Minister, Tun Dr Mahathir Mohamad is a
move that intended to make Malaysia as a republic country. Responding to this, our group
strongly believes that the 1993 Amendments are intended to save the royal institution itself.
Those amendments are to save the Rulers and the system of constitutional monarch in Malaysia.
Even though the royal immunity has been removed from the Rulers, it does not necessarily
means that the government intended to abolish the monarch. This can be seen where in the 1993
Amendments it includes the provision stating a member of Parliament is not protected by the
Parliament’s privilege if he or she make hate speech intended to abolish the monarchy – Article

16
AstroAwani. (September 19, 2017) Raja boleh didakwa – Tun Abdul Hamid. Youtube. https://www.youtube.com/watch?
v=CvKdU0QDsrI&list=RDOQUK2r3gBx8&index=25
17
Lee, H. P., Hereditary Rulers and Legal Immunities in Malaysia (1993), University of Tasmania Law Review, 12(2). 323-336

9
63(5). Apart from that, as pursuant to the new Article 183, a legal proceeding against the Rulers
must first have the consent from the Attorney General. This is to ensure the Rulers are not
dragged out to court by people for the purpose to embarrass them or for unfounded reasons. This
two provisions clearly protect the prestige and the sovereignty of the Rulers.

Conclusion

As we have seen, the 1993 Constitutional crisis involved in the redefinition of the Rulers’ role,
their position and the removal of the Rulers’ immunity. The result of this crisis marks a very
important turning point in the development of the constitutional balance of powers in the
Malaysian constitutional system. It is also strengthen the wishes of the Malaysian people where
the Rulers are expected to conduct themselves as constitutional Monarchs within a parliamentary
democracy.18 Besides, the removal of the Rulers’ immunity were an important example of a
constitutional development in Malaysia, where the executive rein in the influence and alleged
excesses of the Rulers was brought about with apparent public support, even though it will be
contradict with the historical reverence where the Malay Rulers and their importance as a symbol
of Malay unity.19

While, at the same time, the Constitution(Amendment) Act 1993 merely set a limit to and
redefined some of the provisions concerning the Rulers’ immunity, rather than abolishing the
immunity altogether, it involved a wide range of issues, some of which went beyond the legal
boundaries. The inability of the Rulers, irrespective of their deeply-entrenched position in the
Constitution, to dictate events decisively in their favour drives home the point that they need
more than just constitutionally-sanctioned powers in order to command authority or to initiate
changes in society.20 However, changes to the Constitution without complying with the
procedures prescribed by the Constitution would lead to crisis such as the 1993 constitutional
crisis. Lastly, the Malay Rulers can be considered as influencer in Malay society and politics in
the matter of the constitutional limits on their powers, but the 1993 constitutional crisis had
unofficially reduced the significance of the Malay Rulers in Malay society and in the politics of
Malaysia.

18
Lee, H. P., Hereditary Rulers and Legal Immunities in Malaysia (1993), University of Tasmania Law Review, 12(2). 323-336
19
M. R. Gillen, The Malay Rulers' Loss of Immunity (1994), s.n, University of Victoria BC Canada.
20
Bari, A. A., Harding, A., &,Lee, H.P, Constitutional Landmarks in Malaysia: the first 50 years, 1957-2007 (2007), Malayan
Law Journal Sdn. Bhd., Petaling Jaya, Selangor Darul Ehsan..

10
References

AstroAwani. (September 19, 2017) Raja boleh didakwa – Tun Abdul Hamid. Youtube. Retrieved
100https://www.youtube.com/watch?v=CvKdU0QDsrI&list=RDOQUK2r3gBx8&index=25

Bari, A. A., Harding, A., &,Lee, H.P, Constitutional Landmarks in Malaysia: the first 50 years,
1001957-2007 (2007), Malayan Law Journal Sdn. Bhd., Petaling Jaya, Selangor Darul Ehsan.

Bidin, A. (1993) The historical and traditional features of the Malaysian constitution. UKM
100Journal, Jebat 21. 3-20

Lee, H. P. (1993) Hereditary Rulers and Legal Immunities in Malaysia, University of Tasmania
100Law Review, 12(2). 323-336.

Lee, H. P. (1995) Constitutional Conflicts in Contemporary Malaysia. Oxford University Press

M. R. Gillen, The Malay Rulers' Loss of Immunity (1994), s.n, University of Victoria BC
Canada.

Sultan Azlan Shah. (1997) The new millennium: challenges and responsibilities. Universiti
100Kebangsaan Malaysia. Retrieved from
100http://www.sultanazlanshah.com/image/data/PDF/2004%20Book%202/Lecture_14.pdf

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