Let’s hail the people of Bukit Gantang

So let's hail the constituents of Bukit Gantang. They have exercised their rights guaranteed by the Constitution without fear. In so doing, they have made known their choice of representative loud and clear. Is Nizar their choice of Menteri Besar too? Figure out yourselves …

Mohamad Hafiz Hassan, The Malaysian Insider

If Datuk Seri Nizar Jamaludin's now 'over-spun' utterance "Patik mohon sembah derhaka" is treacherous towards his Ruler, consider the following narration:

When the siege of the city of Madinah became too perilous and the Prophet [Muhammad, pbuh] sought to break the unity of the enemy groups by negotiating a [secret] agreement with the Taif group according to which they would withdraw on the payment of one-third of the city's agricultural product to them, Sa'ad Ibn Mu'az (the chief of the Aus tribe) came to know about it. He went up to the Prophet (pbuh) and politely asked: "Was the agreement sanctioned by revelation?" the Prophet replied, "No, but I am seeking to relieve you." Sa'ad took the document of the agreement that was about to be signed and tore it up, saying, "Now that Allah has strengthened us by you, how can they get from us now what they could not get before?"

Derhaka? Not at all. In fact the Prophet (pbuh) was pleased, so were all the Muslims. This narration was used by the former Rector of Al-Azhar University, Sheikh Mahmud Shaltut, in his book Min Taujihat al-Islam – 'From the Encounters of Islam' (1966) to illustrate an important principle in the concept of sovereignty in Islam.

It is that sovereignty belongs to God and His law and that the people is only entrusted with the authority to implement His law, to administer justice and to take all necessary measures in the interest of good government. (Kamali, Principles of Islamic Jurisprudence, 1991)

Even the Prophet (pbuh) himself as head of state was subject to the principle. As the above narration shows, in the Prophet's authority over the Muslims, there is a clear line between the revelation given to him and himself as a human being.

The early Caliphs who ruled over the Muslims after the Prophet (pbuh) were also always careful to clarify their status as rulers under the law, and not above it. The inaugural speech of the first caliph elected to office, Abu Bakr, is instructive on this.

He is reported to have said, "O people. I have been entrusted with authority over you, but I am not the best of you. Help me if I am right and correct me when I am wrong."

Numerous other instances, in particular during the caliphate of Umar Ibn al-Khattab, have also been recorded to illustrate the subordination of the ruler to the rule of law.

Thus, on the occasion of his succession to office after Abu Bakr, Umar is also reported to have asked the people to 'rectify any aberration' they might see in him. On hearing this, a man from the audience sprang up and said to the newly elected caliph, "If we see deviation on your part, we shall rectify it by our swords."

Insolent? Umar's response was to praise God that there was someone who would, in the cause of righteousness, remedy a wrongful situation.

In another instance, a man came to Umar and addressed him somewhat impudently saying, "Fear God, O Umar."

Someone who was present reminded the man that he was exceeding the limits of propriety in his words and conduct towards the caliph. Umar, however, responded by saying, "It would be no good if they (the people) did not remind us so and it would be to no good if we did not listen to them."

These and other recorded instances are also widely quoted to illustrate a corollary principle in Islam, that is, 'the people are granted the freedom to criticize and monitor government activity (hurriyat al-mu'aradah, also known as hurriyat al-naqd al-hakim) by means of sincere advice, constructive criticism, and even ultimately by a refusal to obey the government if it is guilty of violating the law.' (Kamali, Freedom of Expression in Islam, 1998)

Subject to conditions to ensure its validity, mu'aradah is a fundamental principle of the Islamic principle of government which entitles the people 'to tell the truth and expose transgression even when this entails opposing the ruling authorities.'

Now, are our Rulers above the law? Let's not split hair on this. No one is above the law. Specifically, no one is above the Federal Constitution, which is declared as the supreme law of the Federation [Article 4(1)].

The Rulers are constitutional monarchs – their sovereignty, prerogatives, powers and jurisdiction are derived from and subject to the Constitution [Article 181(1)].

To put it simpler, the Rulers must act according to the law. One finds in section 1(1A) of the Eighth Schedule of the Constitution a reiteration that the Rulers are constitutional monarchs.

They are duty bound to accept and act in accordance with the advice of Executive Council or of a member thereof, except in specific situations where personal discretion has been conferred.

Even so, the Rulers must act according to convention. 'In the overall scheme of the Constitution, the monarchs are required to reign, not to rule.' (Faruqi, Document of Destiny – The Constitution of the Federation of Malaysia, 2008)

Lest one forgets, subsection (1A) was inserted by way of constitutional amendments in 1994. It came on the tail of constitutional amendments of 1993 that removed the Rulers' absolute immunities from proceedings in any court [Article 181(2)].

The overall effect of both the constitutional amendments of 1993 and 1994 has been said to be 'quite revolutionary'. 'Immunities are abolished. Rulers can be sued by ordinary citizens and prosecuted by the state.'

By the way, the Rulers have always been subject to be challenged in court for their official actions since Merdeka.

The citizens too have rights guaranteed by the Constitution..

There are guarantees of both individual and collective liberties. It is noteworthy that these guarantees, contained in Articles 5 – 13, Part III of the Constitution, appear immediately after Article 4 that declares supremacy of the Constitution.

This indicates that they should be treated as important provisions, notwithstanding that there are important limitations to the liberties.

So let's hail the constituents of Bukit Gantang. They have exercised their rights guaranteed by the Constitution without fear. In so doing, they have made known their choice of representative loud and clear. Is Nizar their choice of Menteri Besar too? Figure out yourselves …

Mohamad Hafiz Hassan is legally trained and currently a researcher at IAIS Malaysia. The views expressed here are entirely his.