I REFER to the report “Report Karpal” (NST, May 9) on possible action against Democratic Action Party chairman Karpal Singh following his questioning of the constitutional provision on the prerogatives of the Sultan as head of Islamic religion of the state and in matters relating to Malay customs and religion.

Karpal ought to be cautious in questioning such prerogatives and powers of the ruler. This has more to do with “legalities” and legal provisions, rather than the lesser concern of “sensitivities” to Malay adat or the Islamic religion as such.

In my experience dealing with related problems of the Negri Sembilan constitution, I find that this constitution is unique, albeit peculiar, in that Article 32 (in the First Part) provides for the preservation of the “ancient custom and the ancient constitution” set within the precepts of modern-day constitutionalism that is provided for in the Second Part, those that deal with modern-day democratic processes.

It is true that generally the ruler has to act on “advice” of the chief executive of the state — the menteri besar — under Article 40 of the Second Part. However, Article 16 of the ancient constitution preserved intact the prerogatives and powers of the ruler affecting Malay customs and religion. The emphasis to be pointed out here is that Article 16 (2) specifically provides that it is the menteri besar who must seek the advice of the Ruler on these two issues.

These legal and constitutional near-absolute rights and prerogatives of the ruler were put to rest by the landmark decision in the case of Datuk Othman Baginda versus Datuk Ombi Syed Ali Syed Idrus (1981). The appellant had failed to invoke the jurisdiction of the highest court to challenge the decision of the ruler in appointing the ruling chief of the territory. In declining jurisdiction to intercede, the court held that “it was forum non-conveniens”, and that the Ruler was the final arbiter and the court had no power. Viewed from this perspective, it is apparent that Karpal may have erred.

ABU HASHIM ABU BAKAR, Seremban

Source: NST – May 12, 2008