Why good rulers should let bad politicians be

If we recognise democracy as a system in which the people make the final decisions, then a good monarch must accept the legitimate right of a bad politician to govern if the electorate so wish.

Why good rulers should let bad politicians be
by Wong Chin Huat

http://sun2surf.com/article.cfm?id=21405

What kind of role should a constitutional monarch play to ensure the good governance of his state? How interventionist can or should he be? These questions beg not a simple black or white answer, but perhaps more nuanced positions.

Firstly, we may need to classify different types of royal “interventions” – used here with a neutral connotation. Secondly, we may want to look into the constitutionality of such interventions from legal perspectives. Finally, we may want to look into the question of constitutionality beyond legality from the standpoint of democratic norms.

What should always inform our judgment is the nature of the constitutional monarch as a non-elected institution.

Not all institutions in a democracy are elected. Judiciary (except for some lower courts in US), independent central bank, the civil service, established church, the security forces, the election commission, the auditor-general’s office, the ombudsman commissions in some countries – which should be politically neutral – are all not.

These institutions do check and balance the elected branches of government – the legislative and the executive – in one way or another. Their non-elected nature can be seen as a virtue of being free from popular pressure. The democratic roles for the monarchy to play should be put in perspective in similar vein.

Monarch as an opinion leader

The mildest form of royal intervention is perhaps royalty acting as opinion leaders. The best examples at home would be the openly-expressed views of the Perak Sultan and Perak Crown Prince on issues like judiciary or nationhood.

Is such intervention justifiable from a constitutional or democratic standpoint?

In Britain where there is no written constitution but only constitutional conventions to follow, if Prince Charles takes a high profile position on whether Great Britain should adopt Euro as her currency or on human rights in Tibet, he would probably face harsh public criticism for stepping into the government’s business.

In Malaysia, many would agree that the Perak royalties’ affirmation of an inclusive and robust democracy is justifiable and desirable.

However, like the judiciary, civil service or the establishment of the official religion, the royalty as a non-elected institution must not go as far as making explicit partisan endorsement or dis-endorsement.

Such partisanship would paralyse constitutional monarchy whichever way the election outcome turns out. If the party disliked by the palace gets elected, it is hard for the administration and the royal household to enjoy a warm relationship with it. On the other hand, if the election outcomes go the way the palace wishes, the disliked opposition party would have no faith in the palace protecting its legitimate interests within the constitutional framework.

This is not to say that the royalties are deprived of their right to do what is best for the country. They can join electoral politics and seek public office. An admirer of Raja Nazrin argues that Malaysia would get her best national leader in the bright and fair-minded prince should he follow the footsteps of the late Tunku.

Monarch as a gate-keeper

The monarch may of course play formalised roles beyond influencing the public. They may act as a gate keeper to check on decisions made by the elected executive and legislative branches, but short of intervening in the latter’s formation.

Such gate-keeping powers include the royal power in appointing judges (by the Yang diPertuan Agong after consulting the Conference of Rulers, albeit on the advice of the Prime Minister [Article 122B, Federal Constitution]), in consenting to amendments to certain constitutional provisions (such as citizenship, royal power, parliamentary and legislative privileges, national language, special position of Malays and East Malaysian bumiputras [Article 159, FC]), returning bills passed by the parliament for reconsideration [Article 66, FC, removed in 1994] and appointing Royal Commissions to conduct inquiries on matters related to public interest [Commissions of Enquiry Act 1950 (Revised 1973)].

Many of these powers are also found in republics as forms of check and balance to the powerful elected institutions.

In parliamentarian republics (what constitutional monarchies become if the monarchy is abolished), the non-executive president (the functional equivalent of the constitutional monarch; may be elected or appointed) often hold some powers to check the powerful prime minister and parliament.

In Singapore, for instance, the elected president may examine government’s budget and its use of Internal Security Act.

Not unlike how royal commissions are appointed, the power to direct investigation through ombudsman commissions or independent counsels is often rested with the non-executive president or the legislature. In some other countries, ombudsman exists as a permanent institution.

These gate-keeping roles of the monarch are therefore comparable to those of the non-executive president, parliament, ombudsman commissions and other unelected institutions in republics.

Merely as a check to the powerful elected institutions, the non-elected – by birth instead of by expertise – nature of the monarchy is not an issue here.

Interventionist monarchs – rather than rubber-stamps – in this sense are undoubtedly good for Malaysia, not only as an electoral one-party state which she was until March 8, but also during and after the democratic transition.

Monarch as the arbitrator

What is controversial is the monarch’s role as the arbitrator in the electoral game, in other words, the referee or even the “king-maker” to the elected institutions.

Much like the president in a parliamentarian republic, the monarch has power in two inter-related matters: (a) consent to the request by the chief executive to dissolve the parliament or legislature; (b) the appointment of a prime minister or a chief minister.

The exercise of the power not to dissolve the house has been called for by some civil society groups. Before the parliamentary dissolution on Feb 13, the Coalition for Clean and Fair Elections (Bersih) had appealed to the Yang diPertuan Agong to withhold dissolution until and unless the electoral process and system is cleaned up.

In view of recent developments, such position of Bersih must be contextualised. It is a democratic demand only under this condition: that the government has not lost its parliamentary majority through a no-confidence vote or outright defection of parliamentarians.

Had the government been toppled through parliamentary revolt or withdrawal of component parties, the need for a new electorate’s verdict must prevail over any concerns for electoral reform.
Without fresh elections, the new government would be formed among the old parliamentarians elected in a flawed election. And if formed through co-option of opponent parliamentarians, the new government would enjoy only less legitimacy than the ousted one.

For this reason, the exercise of royal discretion to reject a call for fresh election when the incumbent government loses its parliamentary support, even though legally constitutional, is not democratically legitimate.

The exercise of the second power – royal discretion in appointment of the chief executive – however is perfectly legitimate in a hung parliament/ legislature or when the legislative majority is fragile or ambiguous.

The royal discretion – the power usually also held by the president in parliamentarian republics – can be comparable to the decisive vote of the chair when there is a tie in votes in a committee meeting.

In this sense, the royal role in facilitating the formation of new government in Perak should be largely viewed in a positive light.

Hence, the ultimate controversial point is when the monarch’s choice of the chief executive differs from the one explicitly expressed by the legislative majority.

Given that the provisions related to these arbitrative powers are largely similar in the federal and state constitutions, the episode we saw in the past weeks may well repeat itself at the federal level in the near future.

While one may argue whether party choice in the past should constitute constitutional convention to bind the royal decision, the larger question is perhaps beyond legality.

Due Process,
not Good Outcome

Constitutionalism is not about the mere existence of a written constitution. It is about how government’s power is limited by constitution. Constitutional monarchy should be viewed in similar vein that it is not merely a monarchy with constitution, but a political system where the monarch’s power is adequately limited by constitution.

In the recent controversy, many have justified the royal intervention with the unsuitability of a particular politician to lead the state and the moral duty of the monarch
to protect the best interest of his state.

Such argument points to our fundamental understanding of democracy: is it about the good outcome or the due process?

If the intrinsic value of democracy is about having good rulers, then it is certainly justifiable for a good monarch to remove a bad politician despite the electoral mandate enjoyed by the latter.

On the other hand, if we recognise democracy as a system in which the people make the final decisions, then a good monarch must accept the legitimate right of a bad politician to govern if the electorate so wish.

Culturally, these two positions reflect deeper difference in values.

The first position is in line with Asian values promoted by Tun Dr Mahathir Mohamad and Singapore’s Minister Mentor Lee Kuan Yew where the outcome is more important than the process, the ruler knows better than the ruled, and the end justifies the means.

The second position, on the other hand, is fundamentally grounded in the West’s liberal democratic tradition. Democracy is about everyone’s right to make a choice and bear the outcome of such choice. Provided it is made in due process, the wrong choice of the majority must be respected and no great ruler is entitled to correct it.

An admirer of the benevolent despots, be it King Louis XIV of France, Sultan Qaboos bin Said Al Said of Oman or King Chulalongkorn of Thailand, may choose the first position.

A believer of constitutional monarchy has no such luxury.

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