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A constitutional misstep clips Pak Lah's wings yet again

THIS BELIEF IN THE UMNO-led National Front (BN) federal government the thirteen states and the federal territories of Kuala Lumpur, Putra Jaya and Labuan are for its raping is now vigorously challenged. It controls parliament and all but one, two or three states at different times in opposition hands, the sultans must therefore throw constitutional niceties to the winds and submit to superior power and authority. The conference of rulers and individual sultans were deliberately side-stepped to cause constitutional crises from the expulsion of Singapore in 1965 to the Selangor Bukit Cahaya Seri Alam agricultural park fiasco in 2005. In a nutshell, the BN government ignores the federal constitution when its policies and plans conflict with the supreme law.

Tengku Abdul Rahman, the first prime minister and a younger son of the Sultan of Kedah, had the political and regal authority to have his way but, except in the expulsion of Singapore, scrupulously kept the rulers informed and got their consent before a constitutional move. His successor, Tun Abdul Razak, had little patience with the rulers, and how he forcibly alienated the federal territory of Kuala Lumpur from Selangor provided his successors the precedent to rewrite Malaysia's geography. He could get away with it because his power came in part as a powerful chief in his home state of Pahang.

Tun Hussein Onn, who followed him, was a senior Johore aristocrat, the son of the first president of UMNO, but even he did not think twice in his time when he had to engage in some extra-consitutional skullduggery in Pahang and Perak. Tun Mahathir Mohamed had but contempt for the rulers, and force-fed a constitutional crisis to removing the sultans' immunity for his private actions, and put a sultan on trial for his private indiscretions. That law is unconstitutional. Now, his successor, Dato' Seri Abdullah Ahmad Badawi, caused another constitutional kerfuffle when he ordered the transfer of the agricultural park to federal control without discussing it with the sultan or the state government.

The four decades between Singapore's expulsion and the attempted unconstitutional annexation of Bukit Cahaya enhanced UMNO's political hold but paradoxically found even the UMNO state governments opposing its periodic but unconstitutional annexation of state rights. The prime minister and UMNO president still decides who the state mentri besar or chief minister of a BN administration in a state, ofren against the wishes of the sultan, the state BN assemblymen. Who are on the state executive committee is the domain of the BN constituent party presidents. All this ensures is a state administration out of touch with reality, breeding arrogance and corruption in equal measure, with no thought to why they are there. There is now a move within UMNO to let the state assembly to decide who ought to be mentri besar or chief minister and state executive councillors.

When an opposition party comes into power in the state – Kelantan, Trengganu, Penang, Sabah, Sarawak are the only states which had, or has, an opposition party in power – extraordinary steps are taken to reduce their constitutional rights. The eleven states in 1957 formed a federation in which they ceded some of their inherent powers to the centre, with the promise that any new rights that may arise would devolve to the states unless they voluntarily hand over to the federal authority. The federal coastal limits and rights come from its littoral states. But Putra Jaya does not honour that.

When the opposition PAS was elected to power in Trengganu in 1999, the federal government unilaterally and unconstitutionally denied the state royalties due from Petronas for oil exploration in its waters. But not to BN controlled states of Sarawak and Sabah. Why? Rather than allow Kelantan under PAS control to benefit from the gas fields in the state, it signed a joint development pact with Thailand. Yet in the disputed oil exploration between Malaysia and Indonesia in the Sulawesi area, tempers arise with threats of hostilities, Malaysia would rather go to war than negotiate a joint development pact in the area. Why?

The federal control of the states, and of UMNO at the centre, controlling the state administrations is challenged for two reasons: the federal leadership, in government and party, is challenged by the state UMNO and the states; and threatens to subdue them with constitutional powers it does not have. Because the UMNO president's reach is challenged at every turn, he sits atop an unusually greasy pole. Pak Lah hijacked the constitution to assume control of the Bukit Cahaya agricultural park as a political ploy to remove the Mahathir-appointed Selangor chief minister from his post with an engineered crisis. That this came about because of the UMNO president's own neglect of what should not is, of course, forgotten as the crisis developed. But the state chief ministers would not have taken the law into their own hands if the federal prime minister had not for BN chief ministers and mentris besar replicate in their states what the federal UMNO president does in his domain.

Pak Lah has egg on his face over Bukit Cahaya. He blames it on unspecified "certain" parties. Unless he meant the royal "we", only the Sultan protested the annexation in a still note last week. The mentri besar, Dato' Seri Khir Toyo, at odds with the sultan and the prime minister, and struggling for his political life, proved that when his future is at stake, the state and its resources are not worth the price. To cover up his constitutional infra dig, Pak Lah now hopes the land would be handed over in a long lease for federal management of it.

That looks a reasonable request, but it is not. Like the constitutional crisis in 1984, Tenaga Nasional Berhad forced to buy power from independent power plants after a manufactured power crisis, and the privatisation of water resources after a manufactured water shortage, plans for federal control of forests were decided a year earlier. The speed with which "experts" approved the plans and talked authoritatively about it suggest they had been primed long before the crisis blew in Selangor. In other words, there is bad faith in the central government's dealing with the states. It does not keep the conference of rulers informed, unless it has no choice.

But the worm turns. If the centre persists in devious unconstitutional means to annex state resources in stealth, the outcome would be as in Bukit Cahaya. Why cannot, if the intention is to prevent the rape of the forests, it ask for the right to manage for the state? Why must it insist it could only if they have physical control? The Bukit Cahaya affair may look trivial, but it has bridged an important constitutional divide. When the Sultan put his foot down with right on his side, Pak Lah could but retreat with as much grace he could muster to avert his first constitutional crisis. Rather more serious is how it has divided UMNO with more rooting for the sultans than for him.

Pak Lah has to watch his step. For as his mistakes mount, that he could be challenged for the UMNO presidency in 2007 cannot now be dismissed. For the forces ranged against him include the supporters of the deputy prime minister, Dato' Seri Najib Tun Razak, of Tun Mahathir, and those while not aligned to either oppose Pak Lah. Who could challenge him? Dato' Seri Najib certainly would not. When faced with a contest, he would rather make deals. He would not therefore openly challenge Pak Lah.

Whoever is chosen, and one name crops up more often than others, would be a tough opponent. He need not win, though that is possible; should he get more than 30 per cent of the votes, Pak Lah would be more damaged than he already is. It need not have been this way. He is the author of his own misfortune. He did not realise how weak he was, and thought he could rape the constitution as his predecessors did distressingly too often.

M.G.G. Pillai
pillai@streamyx.com