The sedition of Aziz Bari

He is purported to have said, 'Only God, not the Sultan, has absolute powers.'

The recent Menteri Besar crisis in Selangor has claimed another casualty apart from Khalid Ibrahim, who lost his job as MB.

Constitutional law expert Abdul Aziz Bari is now being investigated under the Sedition Act for his comments and articles regarding the Sultan’s exercise of his sovereign discretion in the appointment of a new MB. In these articles he is purported to have said, “Only God, not the Sultan, has absolute powers.”

The investigation is the police’s response to more than 100 police reports lodged against Aziz.

It was undoubtedly the failure of the Pakatan Rakyat partners to reach a consensus on a common nominee for the MB’s position that prompted a rare intervention from the Sultan and his use of his powers to settle the issue.

Law professor Azmi Sharom is another who has been charged under the Sedition Act for expressing his legal opinion regarding a similar issue. Azmi was charged for his comments on the sedition case against the late Karpal Singh, who had expressed the opinion that the Sultan of Perak’s action in the handing over of the state government from Pakatan Rakyat to the un-elected Barisan Nasional in 2009 could be questioned in a court of law.

The removal of Khalid from the MB’s position and the rancorous disagreement that ensued over who should replace him has brought into public view and discussion the role of a sultan within a constitutional monarchy.

In Malaysia, the monarch or sultan performs the dual main roles as “protector of the faith” and the “guardian (or a living repository) of Malay customs and tradition”.

Perhaps one should view the role of the Sultan of Selangor and the unusual exercise of his discretionary powers in the light of these two functions.

We can only surmise that in the exercise of his roles as “protector of the faith” and “guardian of tradition”, the Sultan would consider if the person he was choosing to be the MB could properly assist him in the discharge of those duties.

In the matter of the appointment of an MB, Section 53.4 of the Selangor State Constitution clearly gives the Sultan power to exercise his discretion. According to this section, “In appointing a Menteri Besar, His Highness may in his discretion dispense with any provision in this Constitution restricting his choice, if in his opinion it is necessary to do so in order to comply with the provisions of this Article.”

In lay terms it would mean that, the Sultan may put aside any of the conditions he finds limiting his choice if he feels those conditions are getting in his way of appointing someone who conforms to the overall requirements of the Article. In this respect, the overall requirement is for the candidate to have the majority support of the assembly. Hypothetically, if in his opinion another candidate may also enjoy such a support of the assembly, then the Sultan need not restrict himself in his choice.

For example, if both parents are equally loved by their children and one has to choose whether it be the mother or father who receives the honour of their love, then the one making the choice can pick either—the father over the mother, or the mother over the father—without breaking faith with the condition that the person will be loved by most of the children.

We will never be privy to what information the Sultan had access to, but we can be certain that he must have considered all the intelligence at his disposal before taking his very unusual course of action, which is his right to do. He did this without breaking faith with the words of the statute.

In the related issue of the sedition investigations and prosecutions, protests against the Sedition Act have certainly gained momentum. And there seems no shortage of people willing to sacrifice themselves on the pyre of reform, illustrating to the silent masses that the discursive space of the rakyat has for far too long been curtailed by fear and intimidation through the political abuse of the act. Its terms, references and definitions are so broad as to allow practically any activity to be deemed seditious with practically no defence against prosecution.

The flux of challenges to the act and the predictable counter response of more crackdowns is reminiscent of the Reformasi movement of 1998, although that movement was centred around a single personality. Reformasi was fueled by the infant Internet media of the time, which was relatively static and not as interactive as the social media of today with its widespread penetration and connectivity through smart phones.

The movement of today seems principled from multiple fronts. These martyrs for the freedom to express ourselves may see no alternative to becoming victims of the very act which they oppose.