Friday, September 14, 2007

Why A Royal Commission?

There is a call for a Royal Commission. Some of us may be uncertain what such a commission is and how it can help.

A Royal Commission, as it is popularly known, is a commission that is established under the Commissions Of Enquiry Act 1950 (Revised 1973). This Act authorizes the DYMM Yang Dipertuan Agong to, where it appears to him to be expedient so to do, issue a Commission appointing one or more Commissioners and authorizing the Commissioners to enquire into -
  • the conduct of any federal officer;
  • the conduct or management of any department of the public service of Malaysia;
  • the conduct or management of any public institution which is not solely maintained by State funds; or
  • any other matter in which an enquiry would, in the opinion of the Yang di-Pertuan Agong, be for the public welfare (other than a matter involving any question relating to the Islamic religion or the Malay custom and/or inquiries for state purposes where Sabah or Sarawak are concerned.
What is important for civil society purposes is that it is the YDPA that issues (or establishes) the Commission. In doing so, there is no need for the YDPA to act on advice of the Prime Minister or Cabinet. As such, the establishment of such a commission is not a decision of the Government to take, or not to take, as the case may be.

This is important as it is highly unlikely that the Government would take any step towards an inquiry that could result in an expose of its wrongdoing. One of the more prominent royal commissions in recent times was the commission that conducted an enquiry into the assault on Anwar Ibrahim during his detention. The findings of the enquiry led to the prosecution and conviction of a former IGP.

As the Anwar Ibrahim commission showed, the powers of such a commission to delve into the evidence, through the summoning of witnesses and the holding of hearings, are sufficiently wide so as to allow for the Commission to get to the truth of a matter efficiently and efficaciously. The fact of its ‘royal’ status and the freedom of the YDPA to appoint His Majesty’s commissioners who are more usually retired and respected judges and community leaders, work towards inspiring confidence in such a Commission’s decision making process and the impartiality of its decision.

The terms of reference of a Royal Commission are determined by the YDPA. In this way, such enquiries differ from those conducted by SUHAKAM whose enquiries are more concerned with the question of violations of human rights or civil liberties. A Royal Commission can go deeper into causes than a SUHAKAM commission can and this, and the fact of the ‘royal’ status of the commission may in some circumstances lend more significance to the report of a Royal Commission.

***

As can be seen from the above, a Royal Commission would be an appropriate way in which the matters of Pantai Batu Buruk as well as the matters raised in the Petition Rakyat could be dealt with. This conclusion is premised on the following:

  • a Royal Commission is a method in which the YDPA could meaningfully respond to the call of the rakyat
  • a Royal Commission would be a way in which a seemingly independent and impartial enquiry process could be carried out. The rakyat have confidence in His Majesty. The Royal Commission would be, in effect, a manifestation of His Majesty’s concern for justice and truth, and his compassion for the rakyat, and the enduring truth of the Rule of Law
  • a Royal Commission could not only enquire into the events of Pantai Batu Buruk but also their causes including:
  1. the reasons for the refusal or withdrawal of the necessary permit for assembly;
  2. the need for such a permit in the first place; the actions of the police including the use of force and the carrying of firearms;
  3. the grievances of the rakyat that led to the fracas including serious concerns about the electoral process and the call for electoral reform

MIS

3 comments:

Lone said...

it looks like to request for a Royal Commission, we should petition his Royal Highness.
The Opposition Leader and the rakyat are barking up the wrong tree mostly.
But will his Royal Highness respond to such petition? Shouldn't his Royal Highness initiate such Royal Commissions in the present circumstances like in the Batu Burok incident?

Shanmuga K said...

I'm not so sure if the YDPA can exercise his personal discretion in this case.

See Article 40 of the Federal Constitution, where it seems the YDPA must always act on advice except in 3 instances:

a) appointing the PM (which is governed by an unwritten convention that the person commanding the confidence of a majority of the members of Parliament is invited to become PM)

b) witholding consent to dissolve Parliament

c) calling a meeting of the Conference of Rules to discuss a matter solely relalting to the privileged of the Rulers

Article 40 from www.lawnet.com.my is as follows:-

"Article 40. Yang di-Pertuan Agong to act on advice.

(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.

(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with
such advice.

(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:


(a) the appointment of a Prime Minister;

(b) the withholding of consent to a request for the dissolution of Parliament;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,

and in any other case mentioned in this Constitution.

(3) Federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions other than—


(a) functions exercisable in his discretion;

(b) functions with respect to the exercise of which provision is made in any other Article."

Malik Imtiaz Sarwar said...

Shanmuga,

I note your point. Thank you.

A thought in return. Ministerial power is, in general, recognised as descending from the prerogative of the crown, such prerogative vesting in ministers with the advent of constitutionalism and modern government.

The power to apppoint Royal Commissions of Enquiry is a prerogative that arguably, by virtue of the issuance of the commission being that of the monarch, has not been vested in the government.

Article 181(1), FC provides:

(1) Subject to the provisions of this Constitution, the sovereignty, prerogatives, powers and jurisdiction of the Rulers and the prerogatives, powers and jurisdiction of the Ruling Chiefs of Negeri Sembilan within their respective territories as hitherto had and enjoyed shall remain unaffected.

Article 40(2) provides for any other case mentioned in the Constitution. In Sim Kie Chon, the Supreme Court found the power of the YDPA to pardon non-justiciable by virtue of it being a prerogative. No mention was made of advice being required for the same.

There is room for the argument.

MIS