Kua Kia Soong
It is seriously concerning that there are continued police investigations into former MP Tony Pua, arising from his comments on Malaysia’s constitutional monarchy.
This issue is larger than any individual. It concerns whether constitutional discussion can take place freely in a democratic society governed by the rule of law.
It is equally concerning to witness the silence of party and numerous civil society groups. This includes the DAP, Bersih, Muda, Bersama, the Malaysian Bar and numerous Malaysian civil society organisations.
Organisations that have historically defended constitutional liberties should speak consistently whenever constitutional discourse becomes the subject of criminal investigation.
A fundamental question must be addressed. Why should the mere lodging of police reports automatically lead to criminal investigations into constitutional commentary? Police reports are allegations, not proof that an offence has occurred.
The decision to investigate should always be based on whether there are objectively reasonable grounds to suspect a criminal offence may have been committed – not simply on the volume of complaints received.
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Malaysia’s constitutional order is founded upon constitutional monarchy under the Federal Constitution.
The Agong and the state rulers exercise important constitutional functions.
Executive government, and the development and implementation of public policy, are ordinarily undertaken by elected governments. These governments act within the constitutional framework and are subject to democratic accountability.
Public discussion of these constitutional arrangements is not only legitimate but essential to constitutional democracy. Constitutional propositions should be examined through legal reasoning, scholarly debate and democratic discourse. They should not become the subject of criminal processes unless there is a proper legal basis for doing so.
Defending the freedom to discuss constitutional principles does not imply agreement with every opinion expressed. It reflects a commitment to the rule of law, freedom of expression and constitutional government.
All political parties, the legal profession and civil society organisations should reaffirm these principles publicly. They should also explain whether they believe constitutional commentary should become the subject of police investigation merely because complaints have been lodged.
The strength of a constitutional democracy is not measured by how it treats popular opinions but by whether it protects the space for lawful constitutional debate when opinions become controversial.
Government according to the Constitution
Malaysia’s constitutional order is founded upon constitutional monarchy, not absolute monarchy. That distinction is fundamental to understanding the Federal Constitution and the constitutional arrangements of every state.
The Agong is the constitutional head of the federation. The Malay rulers and state governors serve as constitutional heads of their respective states. Their offices occupy a position of the highest constitutional dignity and are integral to the structure of government established by the Constitution.
At the same time, Malaysia is also a parliamentary democracy.
The Federal Constitution contemplates that executive authority is ordinarily exercised through a cabinet. This cabinet is headed by the prime minister, who commands the confidence of the House of Representatives.
Similarly, at state level, executive authority is ordinarily exercised through the menteri besar or chief minister and the executive council. They are responsible to the elected state legislative assembly.
This reflects the constitutional principle of responsible government. Those who formulate, administer and defend public policy are elected representatives, who remain politically accountable to the electorate through democratic institutions.
The constitutional role of the monarch is therefore distinct from the political role of elected governments.
The monarch serves as the constitutional head of state, performs functions conferred by the Constitution and safeguards constitutional continuity. Where the Constitution expressly provides, the monarch also exercises personal discretion.
The elected government, by contrast, bears primary responsibility for proposing legislation, determining public policy and administering government. It also manages public finances and answers politically for those decisions before Parliament or the state legislative assembly.
These respective constitutional roles are complementary rather than competing. Constitutional monarchy does not diminish democratic government, nor does parliamentary democracy diminish the constitutional status of the monarchy. Each derives its authority from the Constitution and performs a distinct constitutional function.
For that reason, discussing the constitutional allocation of powers between the monarchy and elected governments is neither novel nor improper. Constitutional law necessarily requires analysis of the respective functions, powers and limitations of constitutional institutions.
Lawyers, judges, academics, parliamentarians, journalists and citizens have long debated these issues in legal scholarship, judicial decisions and parliamentary proceedings. Such discussion is an ordinary feature of every constitutional democracy governed by the rule of law.
If expressing a view about the constitutional relationship between the monarchy and elected government is enough to invite criminal investigation merely because complaints have been lodged, an unfortunate precedent is created.
Constitutional discourse should not become contingent upon whether organised groups choose to file police reports.
The proper response to constitutional arguments is constitutional reasoning, legal analysis and public debate – not the routine use of criminal investigations. This should happen only where there is a genuine and objectively sustainable basis to suspect that a criminal offence has been committed.
A constitutional democracy demonstrates its maturity not by suppressing debate about constitutional institutions. It does so by allowing such debate to proceed openly, respectfully and in accordance with the law.
Protecting the space for lawful constitutional discussion ultimately strengthens, rather than weakens, Malaysia’s constitutional monarchy. It affirms that the Constitution itself remains the supreme framework within which all constitutional institutions operate.
Dr Kua Kia Soong is a former MP and director of human rights group Suaram.
The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.
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