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    Chapter 9

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    63 views11 pages

    Constitutional Landmark in Malaysia The First 50 Years

    Uploaded by

    MohdIzwan
    Chapter 9

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 11
    eer A \NTEVUTIONAL SLA UNWERSTY MALAYSIA CONSTITUTIONAL LANDMARKS in Malaysia The First 50 Yours 1957- 2007 ded By Andtew Hording and HP. Lee Contributor: Professor Abc At Bar ‘br Ruston Retna Balasubramanian tuk Manadew Shanker ‘orkouin VL. ton ProfesiorJetse WU Min Aun @ LexisNexis: ‘Menvens of rie LexisNoas Grove WoRtowiot ‘1-6, Jaya 33,3 lon Semanaat, Seksjen 15, 46100 Peraing my, Saeos Di Ge ARGENTINA Less Argentina, auc Anes AUSTRALIA Lesions Butterworths, Cote, ausrata Lesistews Verlag ARD Orac GmbH 8.Co KG, cae Lodstens Chile ta, Suaaco De rat | (CZECH REPUBLIC Nakina Orae so, Pe hhunaRy vG-Ore, Sie rmetan Buterworte (old ie, Ba NeW ZEALAND Butterworths of New Zealand, Weuneron rae Lexshents Boing Representative Office, Bs rouno Wydaumcie rawricre LeisNeds, Wau SINGAPORE Leste Scare TRETERNATONAL THLAMICONTERSTTY SOUTH AFRICA Butterworths SA, Domne | LIBRARY SWITZERLAND Stim veog AG, ame Cony we ENS UNITED KINGDOM ——_Lenisens Butterworth Tol, Loko sa Lessons, Dayton, Ono © Lexistons | Divion of Rae teaver (‘Sigspore) tL 009 | its reserved. No part of he publtion maybe reproduced or transmitted In any form or by any Ireans nclaing photocopying and recording, witout the wren permsion ofthe copyright olde, {pplation for whieh shouldbe aderessed fo the puteher Such writen permission must also be tae Deny person resutng in any may fem the ure of or relanes on Us publication Printed in Mlayie by ViarPiting sn Bhat dy Jotlbe vue Sypeset by Quadrennatech (Ina Pt CHAPTER 9 The Emergency Powers (Kelantan) Act 1977 Khairl Azmin Bin Mokhtar n 1977. decade star te procaration oferergeney inthe sate of Sarawak! another sate of ermargency wae declared, Thieme was deeced tthe state of Kelantan onthe east coast of the Maly Penrsuia “he 1977 Prochmation was stig similar tothe 1966 Prodamation except for 3 few deals. Both Procamstion relied ta a partie state andin both tates the partes in power were companent ofthe ruling coaltion The thrt or grave stun’ that le to The proclamation of emergency in both states Felted to the refisal ofthe head ofthe government to resign The dlerences, by no means inagrvicant ‘were that in Sarawak x concerned a Cie Mister apposedby the Federal Gvertment while in Kelantan itconceneda Menten Besar (Coie Mister) favored by he Feder] Goverment Avatar ference was that the 1977 Procamation was made bythe Yang & Petuan Agog with expect tos ov stato, while ‘the Proclamation over Sara was made by the Yang c-Prtuan Agog wth respect to another ate. This ‘chapter looks a the crcuetances leading to the postal rs which ined te State of Kelantan ae ‘the wee of emergency powers to resohet, Prolude to the Political / Constitutional Impasse in the State of Kelantan Kelantan has avs been acknowledged 36a eronghod ofthe Pan Maayan lac Party or Per Mam ‘Malaya PAS) Since independence the Akane, which ater became the Nationa Font or Barisan asinal IN), ha formed the goverment at feral ewe, However inthe State of Kelantan, since the 1959 general elec (theft prlamentary ad sate eleions eld in Mala ater Marla) PAS had amis arden aia Th Ft iy ar 1957-207 obtained 2 maorty ofthe seats nthe state and formed the sate goverment? This reflects a certain peculrit of he poi auto of the people of Klatan. The 1963 case vtted ty the Government of Ketan spit Tar Abd Raby the then Prime Minster of Malye are the Government of the Federation oF Malas ye another wstarce of th independent Kebrtanese mind-set resting he States ofthe Federal Goverment” “The casein some ways portays the Sat of Kelantan. wit ts PASed goverment asthe champion of states rights in Malaysian Federals ao as the naw advocate ofthe alty Rls. f PAS arty trod along the rh pat ould not only manage to havea good relaorhip with the Maly Rulers could replace UMNO (Une Malye Natioral Organon), hich has adioall been asscated with the Many Ruers.a the primary party ef the Malye Control ofa sate govenmet ges an oppostion party ands members tremendous pottal confidence. The ate coud be ved as an depencert goverment plntorm anda clar smb! of pot potential a beacon ef hope to party fllomers nother parts of ‘the country, Ths ges the rung party atthe federal level anther cause fr dlocng PAS Pom he seat of power hy Kelantan, In 197th the New Economic Ply place the then Pine Minster Tun Abd Razak the Aliance and UMNO Preset met he PAS President and Keli’ Menten Besa; Date’ Mahara Asi Muda, {aorm a rard coalion to further Malay terest and BN was formed by UMNO Alianee arcoppestion Partie PAS joined the cositon® Aca camponent ofthe coal PAS had to cooperate wth other omacnent partes inl mater inducing the allocation ef sat inthe general lection Consequety t ‘he 1974 general election, PAS has to gv up sore state seats in Kelartan at only 0 UMINO bt a0 MCA (aaysan Chinese Asocaton), and ta to cout the leaders ofthe colton ver nominees of ‘he pary for the elacion PAS noverthelss was alcate with the major of seat in Ketan, Upon BN victory inthe 1974 panera elect, a numberof mportant PAS lacrs ‘were brought nts the Federal Cabinet Tun AbGul Razak In Kelantan the BN, through the viciory of PAS UMNO and MCA representatives, fred the sate goverment ‘The crack betwen PAS and UMNO started to open immediately ale the 1974 election over the chesce of Kelantan Meter Besa Dat! Mohamad Ar now’a minister nthe Feder! Cabinet prefered ‘Wan ema bnWan afin Homer, Tan As Raz the then Prine Minter nominated Dat Motard [Nair another PAS Assambjman Inthe ene choice ofthe Prime inser prevaled and Datuk Maha [Nair was appointed the Manteri Besar with Wan lm a the Depury Menten Besar? This should have ven ade indextion to PAS that a a component of BN, tno lngarhad united and elective contro 7 ne 1959 laction PAS a fred yoerment nthe sate of Tern wich gropopialy acento ara Te Marta Bes f PS ed Ste permer in an wert ko (989-6), Dah Mes sud (1964-72) and Oa shard Ne (972 8) > arnt ef etn v Garant Fee of Maa Tk Ab Rats (963) M35 soi ss ch + Ferwtich seen us was te prose PRS fer 1570 982 tenga PAS wh were reg nto he eral Govermert ware Yr Rana wo ae rade Deputy nit he Cabra eta fe Dewan are (ager Case) ofan Gara ae Ne ses bitte Yaya Daa la (str Dv rata Ml Ketan al el Agra ‘Sam avons Courel for Mac rd Pim Aaa) Osher PAS mae wore gue poston Mtr ed orm nte atin fe Much re se bout te Care Sarg wih Han A ‘BH Shar Te sel Fur the Cerentino (Spee One Ur Pros 967, 8 az ] | “re coalon ha a nepte impact on PAS in Klan. Du ote merge the PAS ed goverment had operate wihn the lint nponed Oy hr marbersni ae BN. Every te atonony a RS ta eyoyed sony receded was perce some qrers that the Caton was ere tumors fo the aay dete PA ls compared tothe ted represents the ate Ecmesery.in eat cespte te oat, UMNO an PAS hae mere oar mates of (power and public poicy* “Te new Mente Besa who vas favoured by UMNO but not his own party had taken several hgh rofl action such as calng forthe mestigtion of legions af compton of mentbers of is partyand ancling a tier company late tat Beneted PAS, Natural; tere meszres used resentment ‘tin he party? Hi led aarp to unseat Datuk Mohamad athe President af PAS in ne 1975, Pod sharpened factional in PS and agarsated resentment aginst hin Cals fr his resqaton are ‘ade eit accusations tat he was cser to UMINO than PAS, and apparent forgetting Pat he was 8 PAS member These deveopmerts nat only soured reatons between the Datuk Mohamad Ast and Datuk Mofurrad Ns factions but alo beteen UMNO and PAS, Cals were made requanty to review ASS colton with UPIINO The death of Ton Abd Raza the actect ofthe UMNO-PAS merge |976may have further strained te elton beeen the two partes PAS cists with the ditrtin cf the benefits of cosition were ef the view that the naw UMINO leaders haiti smosthy for PAS." “These separate but elated predicament ony urter exacerbated thealreacy rind reauonsip between PAS and UPINO partial at tat level Kelantan Die is promise to step down, which was ater alowed by cas or to resign when he fle to |p bythe promised dite the Manter Besar eld onto his ofe and fought off is expusion om the pry? Consquentya mation ofa conkdence warped against hr nthe Aso} inscaé of Sepp ‘lun the Marten Besar raqurte the Regent 2 the Head af State to dsobe the sate lglture The gent (he Suan had that time become the Yang &-Fertan Agorg) nether requested the Ment ‘Bezartoreigninacordance wth the maton no dssoved the assy twas dames tat hese problems prompted poticl and corsttutional impasse which in tury provoked untowardncidens that ed tothe Sate of emergency being declaren the tte GMa Magan ais The Sc Gensen Srgipore: Oxo Univers Pres 991 6 Shean abve.n 7.38, The notions the cation tates UMINO-PAS ware conc Tn Ab Fak Drab Fvnan rapa he Pine inser mel Oop Pe Mies sn ao the UMNO Peseta Depa Fresden op ne tana ard Oats ahead ans Psd nA Gala aah on he her Dra ‘atin Adu Rak ded 1973 176 respecte: Ab ar Hara was epee am PAS N74. Aer the cng aap in UPN upon he dese an Al ah Dak Ano conduct rein wth Dats Hesan ont Pine Mineral UMN Preset). Dr Maa Moferad (Depa ve Mt nd [rN py rsa engl ugh (ana ner UPNOS Vee Peers Caran aan (rN Sate Luton Came Shar. above 07.38 "eae cred that the Menta Sesr had vtn tothe PAS Prost inant Ne would rete on Bi 'higat 197 owe the dae cre wart tose reapaton Sete 977 be Kara PAS Sine Laon Comin G2 darned een of tok ohana Naw lewedy noe meson ‘ino crfaece mur the Mere Ger gun te Sate ogetve Maser Sereny naire M on . 2k Sepenber 197 te Nona PAS Cra excite Conroe demand Dak Meenas egylon ‘nthe ay tnererthe Mes Sear tes puede tar on 29 Sete 377 ‘het Corl bce Comme (CE) voto pel Datuk Hota Nar on PAS erro ei ‘Ber Goon The cxisordeson howe na cna Yorn nay theta igh Cour FAS CEC hac she mang itr neu Oabean eco expe Or Paras Nise ole hs ‘ena PAE pre a -coraree moon he Se apes ey (LA). Ath [3 October 977 Iresngof he SL fe nnconsee oon ase Metter es aspires AI2DPAS Aseria td (rhe rate, tamed Nas 2 UMN and ore MCA Assman aed ot whe De wte west Sorgeouted ba 380 py Contra andra les. Fre ty Yrs 957-2007 Constitutional issues and Events Immediately Piorto the Proclamation of Emergency ‘Motion of ‘No-confidence’ and Refusal to Resign (One of the corsintona issues ang rom the incident is the refuel ofthe Menter Besar to resin expt the passing of no-canicence maton andthe apparent recon ois equest or the soliton Of the assembiy The Menter sar who & the head of State Goverrmert and the Presdant of the Execiaie Counts appointed by the Ruler" Tne appomtment is based on the Res jm a0 vio commands the confidence ofthe mejonty ofthe members ofthe State Lepsaive Ass thin ‘the same proven stated thatthe Ment Besa sll have the option eer to request the Rader disoke the Legislative Asembiy or tender the resguaon of the Emcutve Counc and imply his potion as Merten Besar) n the even he ceases to command the confidence ofthe maorty ofthe Frambers of the Assent ‘The motion of ro-confdenc’ passed by the Lagiatve Assembly of Kelantan on 1S Qctober 1977 required the Mente Bonar to take one ofthe optone aval to him He eventual decided not to ‘esgn but requested the Regent to dsl the Assay which war tact refined, a the sence oF inaction ofthe Repent may be understood to mean. The ensuing esto s'est eave the Meter Besar with no option butt resign? The answer see tobe postive, such ever, the refs of the enter Besar orsign orto tender the resigration ofthe Executive Couel tartar to reaching ‘the Constitution aa the concep of popularly lected government Furthermore the a fori resgation accor wth patiamertary practice flown the passage ofa no-confidence motion, The refs of the Menten Besr to step down despite owing that he no liga commande the confidence of the ‘aor, and in the Hight ofthe Regent's tact dspproval of his request or dsslution of the ase, Could be reared a enact unbecoming and uneonstitonl whieh unfortunate tggered event that led to the procurtion of emergency. Ie shou be note that when the moton ofno-confence was passed the Mente esa was na longer 1 menber of PAS! He was opposed by representatives fram hs former party unanimously inthe ‘Aconbijneverholes the Mantar Basu sti recaned support om some member othe party. ARNOWBN ‘he sippor cl notlegaly tly himremaring cfc fr the vote fo conidance cr ae the seine from hs party. the Meter Besar seems to ave beloved that he sil had moral rot legal authori, hover weak it might have bee. to cig power* ‘The Menter Besar might bo ave argued that. as a component ofthe BN coaltion the oie ofthe selection ofthe Mente Besar ets with the President or canal aadership ofthe BN, and nat of the component party unlatealy In Tat the decion ofthe Merter Bear not to reign was made ater Ceosultation with Dr Mahathir Mohamad, the then Deputy Pre Minster ho was acting on behalf of the Prime Mister ta sok the criss Kelartan.” This apumert chim tat in practice seems to be the The loam provincia +2 othe Sched to the Fedral Coat Seon 22) sates ‘Thetseete Cour hallbe ppt as lows tutta ye (2) he ule sa est appa as Mente Barto prec over the Excite Cals maar fhe egie ‘sant vo hie per he to conind iecnknce ote majory the rembas of he Aso Saxton 20) prone, Whe Mere ese cse to ommanateconkooe ofthe rary of he mores ie Legit sar, er ins att recut he ar dances the Lage Aes oa respon of he Beate Cura Tre Ralgous Counc and sera Nr nd Ste PAS Indes, eng thers ugprtnd sk Mena "Shaun above 7,350 Prime Miniter as head ofthe rung coalition who chooses the heads of goverentin states conte by ‘he BN Such an mpresion create bythe fat hat tates where he BN goer the olathe Head ff Ste hasbeen rece to nber slap hen i comes to appaiment f th head of the ofthe state |joverrment" Homes persuasive as this view may be, the lw remains tat the head of stat has stron Ih determing who shal be the Menten esr or Chief Miter To interpre lire amounts £0 tefance ofthe lar ad unambiguous words of the Corsution The require thatthe Mente Besar or Chie Minister must bea member ofthe Aster and appoints members f te Executive Counc fom [mong Members ofthe Azembiy ithe important aement of respansbe goverment ™ Moreover the practice ofthe BN and ts components poll pracice of the rng pry nt does not moat 25 etna practice or conventon, nd thus canot be sai o have the fore fa Silence of the Regent The power to dssohe the Assy one ofthe Head of State's dicetionary powers a express and ‘embeded inthe Federal Consttuon and Sate Consttutions thus the Stas decsion to dissolve or not ta dsove the Asemby his pesopative and his appronal or dsapproval of sch request tendered bythe Menten Besar cannot be said ta be legal or unconeutona” hia celate question however a ‘wheter was the Regent lence orindecson wtich read nthe emergency" Tan Suan was of the view thatthe Regent felt thatthe prowling postal tual and canon was bad enough. ae "rely held hs hae between IS Octaber and November 1877 which was the mest sgifcant period Cf the polita and constitutions cr. |The Regent.amingta cbsene costtuoralrecitte, tok lepl advice when he Meter esar requested dlzolton, An observer states hat he Regent, eft io his own devices woud have granted a desolation ‘thin few day" However, az events lou evidence, be inaction was in orer or solitons °0 fererge rather thant inten the poticaltersion "As A Bot Cains Prisha Te Laas Qk Laer The Ctr Pes, 20). "Sms othe Far Contato 26) rice tat he er yan dzeton nthe opoivt ‘fa ene Bar On tesa nos I) ser at naps Here Be he utr naynhe Soot, ‘epee wih ary povton'n re Contato of tet ecg hs choce of eran Sear NSB {tBu todo so nero cong th he provaone of ean aston 122 ®Drczen of Mak courts prove theca at contra cones i racepale m2 sur of aun cosinor aw On of theresa rhs unger ra fourth site ‘writen centton for es eh agate on cena coneon var fected by the cur 8 “Gromer af Se of ata «Cnr fh Feo Moly rk A Ram (1963) MU 355, SS ro sewn rate acson nr fe art ees ts of % Sine 80 te Fase Costaton +12) ‘met and atm opty i ony pree thesis ne oma he een so a al bean ‘lara econ soe ch 3 See Al Hain iw, Gormert ante Cotton Moly kas Langu Maga a jul 996) 162 © he Suan Mays rt na Sha Expres Low (Nagpur Al Reporter 980, % tah The flan Cin of (977 gatas fr Feds, Discusion Piece of Comment Sides Unies of Landon & ones andy Mayne i es 157-207 ‘As the cis nde feral leaders had vied to provide formulas for non-cnfontational soins, Representing he Prime instr was Dr Mahathir wha was Sent to Kelantan to of a peace fora. The formula however was rejected and in reply PAS submitted couerprepasae A second proposal bythe Prine Mitr submited tar was ako reected Eventualy on 2 Naverbet aftr the rection ef the second propo hn Fuesin On, wha epic Tin Alek Razacasa Phe Mister eta PAS delegaton led by Datu Asn order to reslve the deadlock Aer two hours of tense negations. the Prime Minister give PAS 72 hours to respond to his proposals it was cared that Tun Fan tated that repose ware made inthe nae othe Prime Minster acd not hs apy ache of UMNO ov te BN He abo isued an ultimatum: accept the repasas or federal rue wil be mposed over Kelatan”” “The negtition process coud hae allyed concerns tht the Regetsinicton wis improper Kou be sai tht he was wating fo the corficig partis to solve the prblem and come up with an greed formula, Unfortunatly si ater tured out dplemacy boke down, “The sence ofthe Regent over the reqs for dalton was also due to intervention by his fhe ‘who was teang d:Pertuan Agong atthe time. A welexpererced and dient mana he advised Ni Sen to temporse Souncrgs were taken with a vw ta an akeratve Sate Goverment bated on &

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