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Umno suffers even if it wins Bagan Pinang

by Ooi Kee Beng

The choice of Tan Sri Isa Samad by Umno to be its candidate for the crucial Bagan Pinang state by-election on Oct 10 casts serious doubts on the party’s insight into the country’s new political scene.

Isa’s candidature is a slap in the face of Umno veterans such as former premier Tun Dr Mahathir Mohamad and Tengku Razaleigh Hamzah who have been warning the party against reinstating someone who had been suspended by the party for political corruption; and whose suspension was used by the party to trumpet its resolve to check dubious practices.

Before March 8, 2008, such an audacious selection would have passed without much comment. But times have changed, and the public is particularly sensitive to arrogant behaviour among its leaders.

Umno would realise this if it were not as self-absorbed as it obviously is at present.

Isa, mentri besar of Negri Sembilan for 22 years prior to 2004, was suspended in June 2005 on seven charges of political corruption. The six-year suspension was later reduced to three after he appealed.

The fact that Umno lost the Permatang Pasir by-election on Aug 25 after fielding Rohaizat Othman, a lawyer who had been disbarred by the Bar Council for misconduct, seems not to have deterred the party from adopting exotic electoral tactics.

Perhaps the significance of that defeat was shielded from Umno by the deliberation that Permatang Pasir was not theirs to win in any case.

Bagan Pinang, on the other hand, is theirs to lose. Six of the seven by-elections held on the peninsula so far since the general election had involved seats held by opposition parties. This is the second involving a Barisan Nasional (BN) seat.

There was therefore all the more reason to expect the party to do all it can to avoid shooting itself in the foot once again as it did in August. Now, even if Isa does win, the party will have to pay a long-term price on the national stage.

While Umno may be more able to stand its ground in this case than in earlier by-elections, the constituency’s support for the party did fall from a victory margin of 4,411 in 2004 to 2,333 last year.

Should Umno lose in this electoral frontline state where the BN is only four seats away from dropping power, its runs a real risk that PR support will spread further in the peninsula’s southern regions.

After all, the parliamentary constituency of Teluk Kemang, within which Bagan Pinang is situated, is held by Kamarul Baharin Abbas of the opposition Parti Keadilan Rakyat. Of the other four state seats within Teluk Kemang, only one — Linggi — is under the BN.

Umno’s top leaders are playing a dicey game in placing short-sighted divisional demands before central concerns at this critical time for the coalition.

One misgiving that will linger after the by-election has come and gone, even among Umno supporters, is that this incident illustrates that Prime Minister Datuk Seri Najib Razak lacks control over the party at state and local levels.

This turn of events also shows that other BN members, despite being under as much pressure as Umno is to reposition themselves, are unable to advise their big brother to think beyond narrow party politics.

Whatever the result of the by-election, repercussions within Umno are to be expected. Discontented elements within it are bound to make their objections heard after the battle in Bagan Pinang is over, especially when this year’s general assembly, during which serious party reforms are to be announced, is just around the corner.

The party’s allies will be watching with bated breath, knowing that their own future depends on Umno’s ability to adopt bold and innovative reforms. — TODAY

The writer is a Fellow at the Institute of Southeast Asian Studies. His latest book is “Arrested Reform: The Undoing of Abdullah Badawi” (Refsa).

Part 2 - Gobbledegook and regurgitation in the written judgments of the Court of Appeal in Zambry v Nizar: Postscript - Zainun Ali JCA’s judgment

by N.H.CHAN
Postscript


On Tuesday, July 7, 2009 I posted an article under the above title on the web with various news portals and here. At that time I only had the written judgments of two of the judges Raus Sharif and Ahmad Maarop JJCA. I have just received the third judgment of Zainun Ali JCA. Below is my critique of the written judgment of Zainun Ali JCA.

The points that really matter

As I have said it before in the first part of this article, there are only two points that really matter in the appeal of the case in question. They involve the reading of two clauses in Article 16 of the Perak Constitution and an understanding of what the clauses mean. A very experienced judge, the late Lord Justice Salmon in a talk which he gave to young members of the English Bar, Some Thoughts on the Traditions of the English Bar, said:

… remember this, in few cases, however complex, is there usually more than one point that matters. Very seldom are there more than two and never, well hardly ever, more than three. Discover the points that really matter. Stick to them and discard the rest.

Actually, Salmon LJ was revealing to budding advocates the mind of a judge. The young advocates are informed, before they embark on their career, that a judge makes his decision by discovering the point that really matters or, exceptionally, the points that really matter. This revelation should place aspiring advocates on the right direction to becoming good advocates.

If a judge misses the point or points altogether, the whole decision becomes nothing but gobbledegook if it is unintelligible or a regurgitation of a lot of information on the facts and the law without understanding them. A decision which does not decide on any point that really matters is not a judgment at all. A decision which misses the point altogether is merely the extraneous ranting of an incompetent judge. At best, the legal principles described in the decision may be described as nothing more than obiter dictum or dicta; but if it is just to repeat known law (which is unconnected to any point in issue) as was done here in most of the judgment of Zainun Ali JCA, it is not even dicta. In truth, such a decision is useless because it cannot be cited as an authority as it is only regurgitating what is already known. But a decision that misses the point or points altogether is no authority on the issue or issues before the court. Because the decision did not decide on the issues or points that matter, such a decision is at best merely obiter dicta (the Latin phrase means “incidental”).

Professor Andrew Harding in his essay, Crises of Confidence and Perak’s Constitutional Impasse, gave an illustration of such a situation in Amir Kahar (Sabah, 1995) which the High Court judge in the present case had distinguished. This is what Professor Harding wrote:

Amir Kahar, [the High Court judge] said, was correct on its facts but did not raise the issue in question as the Chief Minister of Sabah in that case had in fact resigned and the only issue was as to the effect of his resignation with regard to the rest of the Cabinet; accordingly the court’s views in that case on the issue of confidence were merely obiter dicta (incidental).

If a judgment decides on the points that really matter, the judgment which decides on those points is described as the ratio decidendi of the decision (this Latin phrase means “the reason for a decision”).

The incidental part of a judgment which does not form the reason for the decision (the ratio of the judgment) is an obiter dictum (plural obiter dicta). This Latin phrase means “incidental”. An obiter dictum is never cited as an authority for the proposition it states, although an intellectually dishonest judge would treat it as such, in the hope that the reader would take his word for it and not read the whole judgment that he has referred to in support of his proposition. Sometimes an obiter dictum has much persuasive value depending on the standing of the judge. Such obiter dictum may sometimes be adopted by a judge as his judgment in an appropriate case. Only the ratio decidendi of a judgment can be used as authority for the proposition that it states. But the remarks which are incidental to the decision are obiter.

Let us now expose the fallacy of the judgment of Zainun Ali JCA

The judgment is 115 pages long - it is like using a blunderbuss to shoot at a target, scattering shots in all directions, and not hitting it. It is the longest of the three. Most of it has nothing to do with the two points that really matter in this appeal which we know are Clause (2)(a) and Clause (6) of Article 16 of the Laws of the Constitution of Perak. And when she does come to the two points that are the real issues in the appeal she misses the points altogether by giving a wrong reason for them.

Here at p. 12 is an example of irrelevant writing. This is what she wrote, p. 12:

Inclined as is the Federal Constitution towards the Westminster structure, it has its own peculiarities. The Westminster model is not to be found in one document, but could be seen in bits and pieces in the Magna Carta, the Bill of Rights, the Act of Settlement and a series of Parliament Acts. Conversely, the Federal Constitution however is embodied in one document and gathers unto itself various sources of law some of which are implicit. The unique presence of the written law, shot through with informal and unwritten sources in the form of conventions, prerogatives, discretionary and residual powers as such, help ensure the continuation of constitutionalism and the rule of law. Thus the sources of law in our Constitution are several. Article 160(1) of the Federal Constitution says it all. “Law includes written law, the common law, insofar as it is in operation in the Federation or any part thereof and any custom or usage having the force of law in the Federation or any part thereof”.


I think I should stop here. Enough is enough. I don’t think we, neither the reading public nor myself, can stomach any more balderdash. You can pretend to be erudite by regurgitating unconnected material of facts and jumble them up. You can even misread the history of England like not knowing the different period in history between the feudalism of the barons and a despotic king in Magna Carta and the Act of Settlement which came about after King James II fled the realm and the ascension of William and Mary to the throne of England. Unless you can connect the leap from thirteenth century England to the Act of Settlement in 1701 some four hundred years later, then everything that is said is nothing more than pretended erudition.

What is the Magna Carta?

I shall start with Magna Carta since she mentions it first. In order to understand the significance of Magna Carta in English history, it is necessary to know the difference between feudalism and despotism. The Charter marked the first step in the resistance by the barons to the despotism of King John in the thirteenth century. As Trevelyan wrote in his History of England, illustrated edition, p. 199:

For feudalism is the opposite of despotism… The barons and knights were protected from the king by feudal law and custom. When [the King] claimed service, aids or reliefs on a scale larger than the custom allowed, they resisted him on point of feudal law.

Trevelyan tells us:

The resistance to royal despotism in the thirteenth century was successful because the feudal class, unlike the squires of later times, was still to some extent a warrior class… they all had chain-armour and war-horses, some had gone on the Crusades, and many lived in a state of chronic skirmishing with their Welsh and Scottish neighbours. That is why the barons of Magna Carta… were able to put up a fight against the King.

I shall now let Lord Denning take up the story in The Family Story, Butterworth, 1981, p. 229:

On May 5, 1215, many of the Barons openly rebelled against the King. They renounced their fealty [loyalty in feudal times] to him. … On May 12 he [King John] ordered their estates to be seized. But the Barons marched towards London which, on May 17, opened its gates to them. This was decisive. The Barons, with the support of London, had the whip-hand. John had to sue for peace. … At length a truce was arranged from June 10 to June 15.

The first meeting at Runnymeade was on June 10, 1215. There were present King John, the Archbishop Stephen Langton, and some baronial envoys. At this meeting the Barons presented their demands and the King submitted to them.

At p. 230:

On June 15 the truce was due to expire. On that day the parties assembled in great numbers at Runnymede and agreement was reached on all points. The King and those present all solenmly swore to abide by the agreement. This day was regarded as so important that, when the Charter was afterwards drawn up, it was given the date, June 15.

At the bottom of p. 230 and at p. 231:

The peace did not last long. In a couple of months the parties were again at war. The King looked for aid to Rome. … August 24, 1215, Pope Innocent III purported to annul the Charter. … he excommunicated the English Barons. … But John’s death on October 12, 1216, at Newark Castle, altered everything. Early in the reign of the young King Henry III the Great Charter was confirmed by his regents. In the years 1225 it was re-issued by the King himself under the Great Seal. Magna Carter then took its final form, word for word, as it stands today as the earliest enactment on the Statute Rolls of England.

The Great Charter dealt with grievances of the time in a practical way. It gave legal redress for the wrongs of a feudal age. But it was expressed in language which has had its impact on future generations. It put into words the spirit of individual liberty which has influenced our people ever since.

…

We find set down in the thirty-ninth clause the guarantee of freedom under the law [all the clauses of the Magna Carta were in Latin; the translation is by Lord Denning]: (No free man shall be taken, imprisoned, disseized [deprived of feudal interest in land], outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land).

Immediately following, in the fortieth clause, is the guarantee of the impartial administration of justice [in Latin; Lord Denning gives the translation] (To no one will we sell, to no one will we deny or delay right or justice).

At pp. 231, 232:

The constitutional significance of Magna Carta is immense. It was thus measured by Bryce: “The Charter of 1215 was the starting point of the constitutional history of the English race, the first link in a long chain of constitutional instruments which have moulded men’s minds and held together free governments not only in England, but whenever the English race has gone and the English tongue is spoken”. When the colonists crossed the seas from England to countries the world over, they took with them the principles set down in the Charter. Those who went to Virginia took its very words. When they renounced their allegiance in 1776, they stated in their Declaration of Rights that “no man be deprived of his liberty, except by the law of the land or the judgment of his peers”. Thence the provisions of the Charter found their place in the Constitution of the United States. There it is revered as much as here.

The Bill of Rights 1688 and the Act of Settlement 1701

For this Lord Denning has put it succinctly in The Family Story, pp. 192, 193:

No member of the government, no member of Parliament, and no official of any government department, has any right whatever to direct or to influence or to interfere with the decisions of any of the judges. It is the sure knowledge of this that gives the people their confidence in the judges. … The critical test which they must pass if they are to receive the confidence of the people is that they must be independent of the executive.

Why do the English people feel so strongly about this? It is because it is born in them. We know in our bones that it will not do for us to allow the executive to have any control over the judges: and we know it because our forefathers learnt it in their struggles with the kings of England - the kings who in the old days exercised the supreme executive power in the land. Ever since the Act of Settlement in 1701 it has been part of our constitution that a judge of the High Court cannot be removed except for misconduct. … Secure from any fear of removal, the judges of England do their duty fearlessly, holding the scales even, not only between man and man, but also between man and the State. Every judge on his appointment takes an oath that he “will do justice to all manner of people according to the laws and customs of England, without fear or favour, affection or ill will”. Never since 1701 has any judge failed to keep that oath.

…

The Houses of Parliament enjoy certain privileges. One of them is freedom of speech. Erskine May says: “What is said or done within the walls of Parliament cannot be enquired into in a court of law”. The Bill of Rights 1688, art. 9, s. 1, says:

“That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.”

Now you know why I think she does not understand what she is saying. If she does understand what she wrote then she would not have decided the instant appeal in the way she did at the conclusion of her overlong judgment.

But what has all this got to do with the two clauses in Article 16?

But the most important point of all, after 114 pages of mumbo-jumbo that she wrote, is this: what has all this got to do with the two clauses of Article 16 of the Laws of the Constitution of Perak?

The United Kingdom does not have a written Constitution and in order to understand it fully one should be well acquainted with the history of England. Whereas Malaya and later Malaysia has a written Constitution which may be changed by a two-thirds majority in Parliament. But, here in this appeal the lady judge is, and should be dealing with, the two points that really matter which are the two clauses of Article 16 of the Perak Constitution.

After having said that, I shall go straight to the points at issue. How did she answer them? It took her 114 pages of circuitous writing before she finally came to the wrong conclusion that “His Royal Highness had … rightly exercised his constitutional powers as provided for and under the Perak State Constitution solely for the best interests of his subjects”.

I am stunned by her naivety. I am at a loss for words.

We all know that there is no provision in the Constitution of Perak which provides constitutional powers to the Sultan to act “solely for the best interests of his subjects”. For this judge to say that there is such a power when there is no provision in the Constitution of Perak for the Ruler to have such power is to mislead the uninformed public. A judge who misleads cannot be trusted. She has disgraced herself on the seat of justice.

Professor Andrew Harding took up 4 pages and Professor Kevin Tan 5 pages to come to the correct conclusion. Sometimes I wonder where these recalcitrant judges read law. I have a theory. One way is to memorise all the lecture notes - when I was a student in London I heard that many of our students memorized the notes supplied by Gibson and Weldon and passed their examinations. They forget that LAW is a reading subject. Ever heard of the expression, we joined a university or the Inns of Court to read law? You study mathematics or science but you read law.

After meandering for 114 pages she concluded, p. 114:

Thus I share the view expressed by my learned brothers Raus Sharif JCA and Ahmad Maarop JCA that in the context of this appeal, His Royal Highness had in the critical situation rightly exercised his constitutional powers as provided for under the Perak State Constitution solely for the best interests of his subjects. This decision being unanimous, the orders are as comprehensively set out in the judgment of my learned brother Raus Sharif JCA.

What I have said in my severe critique of Raus Sharif and Ahmad Maarop JJCA in the first part of this article applies, mutatis mutandis (allowing for the appropriate changes), to Zainun Ali JCA. Need I say more.

I am as much disgusted as most of you are of judges of such inane quality. In the present context, “learned” is a funny word. I know some of you may say that the word is only a title applied in referring to a member of the legal profession. It has no meaning. I hope so, otherwise it will mislead the public further.

Gobbledegook and regurgitation galore in the 2 written judgments of the Court of Appeal in Zambry v Nizar

by N.H. CHAN

Prologue


I shall start with an aside on the dictionary definition of the two words which feature in the title of this article.

Gobbledegook means unintelligible language.

Regurgitate means repeat information without understanding it. Regurgitation is the noun.

After you have read the article you should have an inkling of what I am trying to suggest with the words. You can then judge for yourself.

There are only two points that really matter in this appeal: Clauses (2)(a) and (6) of Article 16

Let us see if ordinary people like us can understand Clauses (2)(a) and (6) of Article 16 of the Laws of the Constitution of Perak better than the judges of this Court of Appeal.

Clause 16(2)(a) reads:

His Royal Highness shall first appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly.

Clause 16(6) reads:

If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.

The language of these two clauses, Clause (2)(a) and Clause (6), is easy to understand. There is no ambiguity.

Clause (2)(a) is definitive. It is only in this clause that the Ruler has been given the discretion to appoint a Menteri Besar which is based on his judgment.

On the other hand, it is only in Clause (6) where it is said that if the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly then he would be able to ask the Ruler to dissolve the Assembly. If the request for the dissolution of the Assembly is withheld by the Ruler (who has the discretion to do so under Article 18(2)(b)), the incumbent Menteri Besar has to tender the resignation of the Executive Council.

It is important that we note that there is no provision for the incumbent Menteri Besar to resign. In fact, in the present case, the incumbent Menteri Besar Nizar had refused to resign even though he was ordered by the Ruler to do so. Of course, all of us know that the Ruler has no such power to order anyone to do anything. It was unconstitutional of the Ruler to do so.

While members of the Executive Council hold office at the pleasure of the Ruler, it is not so with the Menteri Besar.

Clause (7) of Article 16 states:

Subject to Clause (6) a member of the Executive Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure.

That said, I return to the first part of Clause (6) which I am going to discuss below.

The proper duty of the conjunction “if” is to introduce a conditional sentence

The operative word in Clause (6) is the conjunction “if”. I refer to Fowler’s Modern English Usage (2nd ed) where it says:

if. To avoid possible ambiguity it may be prudent to confine if to its proper duty of introducing the protasis of a conditional sentence, and not to use it as a substitute for though or whether or (with not) to introduce a possible alternative.

In case you do not know the meaning of the word “protasis”, it means the clause that states the condition in a conditional sentence. In English the protasis is generally introduced by if or unless.

But don’t trust Microsoft’s word processor because it suggests the word “protasis” does not exist in the English language. Of course, Fowler is the authority on the usage of the English language (Churchill once wrote to the Director of Military Intelligence about the plans for the Normandy landings, “Why must you use intensive here? Intense is the right word. You should read Fowler’s Modern English Usage on the use of the two words”). Or you may use a good dictionary, not a condensed one, and you will find the word.

The dictionary meaning of the conjunction “if” means “on condition that, whenever” or “supposing that, in the event that”. In the present context, “if” is used to mean “on condition that, whenever”.

So that Clause (6) is to read like this:

On condition that “the Menteri Besar ceases to command the confidence of the majority of the Members of the Legislative Assembly, then,” he can request the Ruler to dissolve the Assembly.

This sentence means that “whenever” a Menteri Besar has ceased to command the confidence of the majority of the Assembly, he can request the Ruler to dissolve the Assembly. As stated in Fowler, the proper duty of “if” is to confine the word to introducing the protasis of a conditional sentence. The condition in the sentence is that the Menteri Besar’s loss of confidence in the Legislative Assembly has to be established first before the Menteri Besar can request the Sultan to dissolve the Assembly.


Therefore, it is only on the condition that a Menteri Besar has lost (ceased to command) the confidence of the majority of the Assembly before he can request the Ruler to dissolve the Assembly.

Definitely, it is not up to Nizar the incumbent Menteri Besar to say that he has lost the confidence of the Assembly. How could he be sure of that without a vote being taken at the Assembly? At best, Nizar could only be guessing. Obviously, the only way in which it could be shown with any degree of certainty that Nizar had lost the confidence of the majority of the members of the Assembly is to go to the Assembly itself for a vote to be taken.

But what happens when an MB had lost a formal vote of confidence in the Assembly and still refused to resign?

But then, one may ask the hypothetical question (because this is not the case here), what happens when a Menteri Besar knows by a vote being taken in the Legislative Assembly that he has lost the confidence of the majority of the Assembly? Can he refuse to resign? Professor Kevin YL Tan in his essay which appears on the web portal LoyarBurok (www.loyarburok.com) tells us that:

This happened in Kelantan in 1977 when its MB, Datuk Mohamed Nasir refused to resign even though he had lost a formal vote of confidence in the Kelantan LA, been sacked by his own party, and had his request for dissolution of the LA refused by the Sultan of Kelantan. The impasse led to the declaration of a state of emergency by the Federal Government that lasted three months, after which the LA was dissolved for fresh elections.

Alas, this single precedent is not particularly instructive. No legal solution was possible and ultimately, the situation was resolved politically by the Sultan dissolving the LA and allowing fresh elections to be called. Perhaps, all rulers and governors should, as a matter of course, accede to requests by their respective MBs to dissolve the LA for fresh elections to be called unless the ruler has a premonition that a calamity might befall the state if he so acceded. That way, new mandates are quickly determined and the business of government can proceed once a new leadership is established. Indeed, the Sultan of Perak supported this view of a ruler’s powers when he was Lord President. In his 1992 essay, “The Role of Constitutional Rulers”, he opined:

“… under normal circumstances, it is taken for granted that the Yang di-Pertuan Agong would not withhold his consent to a request for dissolution of Parliament. His role under such a situation is purely formal.”

This point was picked up by counsel for Nizar and cited with approval by the High Court.

The Sultan has no explicit power to dismiss an MB under the Perak Constitution. Indeed, neither is the Yang di-Pertuan Agong empowered to dismiss a Prime Minister under the Federal Constitution.

It seems that ordinary people are better than these judges because they could understand what the two clauses mean

Now that you are apprised of the meaning of the two clauses that really matter in the appeal, you should be in a better position than the appellate judges who have missed the points to come to their decision.

We all know that whenever there is a situation when there is no Menteri Besar, such as when the incumbent Menteri Besar dies or resigns or has been disqualified as an Assemblyman (because Nizar is an Assemblyman) or has been removed from office by the Assembly, then the Ruler “shall first appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly”: so says Article 16(2)(a). This is the only occasion in which a Ruler can use his “judgment” to select and appoint a Menteri Besar.

We also know that a Menteri Besar, once he has been appointed by the Sultan under Clause (2)(a), cannot be removed by him. The Menteri Besar does not hold office at the Sultan’s pleasure.

The Sultan has no power to dismiss the incumbent Menteri Besar Nizar Jamaluddin or to declare the office of Menteri Besar vacant: so says Article 16(7), “Subject to Clause (6) a member of the Executive Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure.” (the emphasis is mine).

So that when Nizar refused to resign after the Sultan has declined to dissolve the Legislative Assembly, the Sultan had no power to dismiss him nor had he the power to appoint another Menteri Besar when Nizar is still the Menteri Besar as he had not resigned his office.

So then, how are we to determine a loss of confidence in the Assembly? Certainly not by an outsider like us. Not even Nizar himself was in any position to say that he did not command the confidence of the majority of the Legislative Assembly. Only the Assembly can determine if Nizar has lost the confidence of the majority of its members.

Therefore, the reality of the situation is that Nizar is still the Menteri Besar when he refused to resign and the Sultan has no power to dismiss him or to deem the office of Menteri Besar vacant.

The Sultan has no discretion or power to appoint a second Menteri Besar when the incumbent is still in office. The Perak Constitution does not provide for two Menteri Besar-s.

Any decision of the courts otherwise is a perverse one because such a decision is not made according to the Laws of the Constitution of Perak.

Don’t you think all of you ordinary people are better judges than these recalcitrant judges of the Court of Appeal? At least (now that you are informed of the constitutional provisions), you know how to apply the relevant law which is applicable in the present case, whereas the judges don’t seem to know how to do it.

Now that you know the law which applies, you are in a position to judge the two judges

So far the Court of Appeal has issued two written judgments. Let us see if the judges who wrote them come up to your expectations.

Raus Sharif JCA who sat as the chairman of this Court of Appeal meandered through 43 tedious pages of his 48 page judgment before he came to the conclusion that Article 16(6) makes no reference to a motion of loss of confidence to be passed by the Legislative Assembly and therefore he concluded that the High Court judge had erred in law. This is what Raus JCA said at p. 43:

For the above reasons, I find that the learned judge had erred in law in concluding that the only manner in which the loss of confidence of the majority of members of the Legislative Assembly could only be ascertained by way of motion to be passed in the Legislative Assembly. Such a finding is contrary to the provisions of Article XVI(6) of the Perak State Constitution which makes no reference to such a motion having to be tabled.

Remember my explanation above about the conjunction “if”? In the instant case the use of the conjunction “if” means “on condition that” or “whenever”. So that the opening words of Article 16(6) should read, thus:

On condition that “the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then,” he can request the Ruler to dissolve the Assembly.

In other words, the loss of confidence in the Legislative Assembly must be established first before the Menteri Besar can make his request to the Ruler for a dissolution of the Assembly. Obviously the only way to establish that Nizar has lost the confidence of the majority is to ask the members of the Assembly themselves. It would be incorrect to ask Nizar because he could only guess at his own popularity.

Undoubtedly, you must never ask the Ruler to determine the loss of confidence of a Menteri Besar in the Legislative Assembly as he has no power to determine on the status of the Menteri Besar’s popularity in the Assembly. And if the Court of Appeal was to confer such power on the Ruler, then it is a blatant refusal of the court to administer justice according to the Laws of the Constitution of Perak.

Of course, in Article 36(2) the Sultan is given a general power “to prorogue or dissolve the Legislative Assembly”.

Yet, the judge has relied on the Ruler’s determination that Nizar no longer commands the confidence of members of the Assembly. This is what Raus Sharif JCA said, at p. 40 of his 48 page judgment:

It is an undisputed fact that His Royal Highness interviewed the 3 independent members separately in order to ascertain whether they were really supporting Barisan Nasional. They informed His Royal Highness that they no longer supported Nizar as the Menteri Besar. Instead they declared their support to Barisan Nasional. At the end of it, His Royal Highness was satisfied that with the 31 members of the Legislative Assembly supporting the Barisan Nasional, Nizar no longer command the confidence of the majority of the members of the Legislative Assembly.

This is a trashy piece of reasoning coming from an appellate judge. Raus Sharif JCA seems not to know that the Ruler is only a constitutional monarch with no prerogative power to do anything but that which the law allows him.

Plainly, the use of the conjunction if in Clause (6) speaks volumes. The loss of confidence of the Menteri Besar in the Legislative Assembly must be established first before the Menteri Besar can make his request to the Sultan to dissolve the Assembly. In this case Nizar requested the Sultan to dissolve the Legislative Assembly before it could be established that the Menteri Besar has lost the confidence of the majority in the Assembly.

Without doubt, it must not be left to interested parties - neither Nizar nor Zambry and his cohorts - to determine the loss of confidence of a Menteri Besar in the legislature. Not even a constitutional monarch could determine the loss of confidence of a Menteri Besar in the Legislative Assembly because he has no power to do so. Not even the judges can confer on themselves a power which does not exist to determine the loss of confidence in the Legislative Assembly of a Menteri Besar except the Assembly itself. It would be unfair and unjust to do so.

The judgment of Ahmad Maarop JCA

Ahmad Maarop JCA arrived at the same conclusion as Raus Sharif JCA except that Ahmad Maarop JCA is more long-winded.

At p. 42 of his 76 page convoluted judgment Ahmad Maarop JCA said:

In conclusion, I hold that there is no mandatory and/or express requirement in the Perak State Constitution that provides that there must be a vote of no confidence passed in the Legislative Assembly against Nizar before he ceased to command the confidence of the majority of the members of the Legislative Assembly. The fact that he ceased to command the confidence of the majority of the members of the Legislative Assembly under Article XVI(6) could be established by other means. Thus, His Royal Highness was right in making enquiries to satisfy himself as to whether Nizar had in fact ceased to command the confidence of the majority of the members of the Legislative Assembly, in considering Nizar’s request for the dissolution of the Legislative Assembly.

It took this judge 42 pages to reach this conclusion.

At the recent launch of my book, How to Judge the Judges, on 29 June 2009, Mr. Justice Gopal Sri Ram FCJ remarked:

But where a judgment is tainted with intellectual dishonesty there is nothing much you can do except to expose the fallacy of the grounds put forth to justify a conclusion already reached before hearing counsel.

Now let us expose the fallacy of the finding of this judge.

The judge said that whether Nizar had ceased to command the majority in the Assembly could be established by other means. One may ask, what other means could there be? He could only give one example. He said:

Thus, His Royal Highness was right in making enquiries to satisfy himself as to whether Nizar had in fact ceased to command the confidence of the majority of the members of the Legislative Assembly, in considering Nizar’s request for the dissolution of the Legislative Assembly.

But, all of us know that the Sultan has no power to do anything except that which the law allows him.

As Professor Andrew Harding has correctly said in his essay “Crises of Confidence and Perak’s Constitutional Impasse” which is featured on the web portals Malaysian Insider and www.loyarburok.com:

Accordingly the issue seems to become, who was empowered to make the judgment as to whether the MB still had the confidence of a majority? The Judge gave a correct answer to this question by saying it is the legislature, not the head of state.

…

But as the Judge also said, it is in any event clear that the head of state is not given the power under Article 16(6), as he is under Article 16(2)(a), to make a judgment as to matters of confidence.

The judge in Professor Harding’s essay is the much respected Mr. Justice Abdul Aziz of the High Court.



Conclusion

I trust I have exposed the fallacy of the grounds put forth by the two judges of the Court of Appeal. All of you (the ordinary people), who have been informed of the relevant provisions of the Laws of the Constitution of Perak by reading this article, know that there are only two clauses of Article 16 which apply to the points that really matter before the Court of Appeal. In Clause (2)(a) the head of state is empowered to make a judgment as to matters of confidence. Whereas in Clause (6) he is not given the power to do so but the legislature is.

Mr. Justice Abdul Aziz in the High Court gave the correct answer by saying it is the legislature, not the head of state, who is empowered to make the judgment as to whether the Menteri Besar still had the confidence of a majority. And, I trust, all of you would agree with him.

Raus Sharif and Ahmad Maarop JJCA are wrong. They are wrong because there is no empowering provision in Article 16(6). They did not apply the law as it stands. Indeed they have blatantly refused to apply the Laws of the Constitution of Perak. They should be ashamed of themselves for not administering justice according to law. The common people of this country can now judge them for who they are.

The full text of the two judgments can be found on the internet. If you have difficulty in finding the cases, try www.loyarburok.com here. If you, as a layman, find the judgments unintelligible then that is what the word gobbledegook means. On the other hand, if you find the lengthy judgments merely repeating information which is unnecessary to the two points that matter in the appeal then that is precisely what regurgitation means. So now you can appreciate the title of this essay. - Loyarburok.com

Do the honourable thing, Najib

MAY 15 — The last three months have seen a flurry of activity on the Perak political front. All of this was without any doubt occasioned by Datuk Seri Najib Razak’s blatantly cynical, barefaced manipulation of human greed. Najib is no novice when it comes to money matters. He succeeded spectacularly in seducing the three most unremarkable and positively unpleasant Pakatan Rakyat characters to declare themselves independent supporters of the Barisan Nasional.

They have, as to be expected, denied most vehemently that they had succumbed to any such unworthy and degrading temptation as money. Conventional wisdom, on the other hand, says that Malaysian politicians will only transfer their party allegiance for cash, and not principle. I leave you to draw your own conclusion in this particular case.

Najib’s single act of subterfuge has been remarkable for the damage, and repercussions, to the Malaysian body politic, quite apart from damaging further his own already seriously bruised reputation. If he thought what he had done was an example of cutting edge political sophistication, I suggest he should think again. He has by his reckless adventure only succeeded in portraying himself as nothing more than a common garden variety, and not the statesman that we thought he would become given his father’s honoured place in our history and his family credentials.

In the event, he seems to me to be no better than Tun Dr Mahathir Mohamad, the roughneck street fighter. What a bad start for someone who begins his premiership on a discordant note, encumbered with enormous baggage to boot: any chance of redeeming himself has gone down the Sungai Perak, baggage and all. However, all is not lost. If he has any sense of self-worth, justice and integrity, he should take immediate steps to untangle the political mess he created. My father’s injunction to me as a very playful boy was, “Don’t start something you can’t finish.”

It is still relevant and appropriate advice, in my view, to give particularly to Najib who desires so devoutly to be loved and embraced as a people’s prime minister. He should practise what he is preaching so fervently about the importance of “feeling the pulse” of the people. If his close advisers are not telling him what really is going on in the towns and cities, big and small, as well as in the poor and neglected villages and hamlets up and down the country, then let me tell him some inconvenient truths about Perak that he might not particularly want to hear.

The people of Perak and, by extension, the overwhelming majority of the people of this country want to see an immediate end to the unseemly and totally disgraceful and disgusting display of political opportunism by the Umno-BN axis that has dragged the much-loved Sultan of Perak into political controversy that could have been avoided in the first place. His Royal Highness could have been spared the indignity of being reviled and ridiculed if Najib had thought more carefully about the fallout from his politically immature act.

As a responsible “people’s prime minister”, he has a duty to the people and the Sultan of Perak to return some semblance of order to their state which has since become the butt of some very unkind jokes. Najib does, of course, recognise that what the people want is for the state assembly to be dissolved so that fresh elections may be held. He is on record as admitting this as a way out of the current impasse, but claims that it is really up to the Sultan to decide.

We naturally respect his concern not to be seen to interfere with royal prerogatives. However, we wish he would stop playing poker and drop the hypocrisy because the reality is that he exercises considerable influence in matters of state, and he jolly well knows it.

The Perak crisis is pregnant with potential for mischief making, and you do not have to be the director of the Special Branch to know that unless something was put right quickly, the seething public anger could be exploited by enemies of the state to the detriment of our nascent democracy, peace and security. Najib must finish the dirty job he started by going back to the people. His Royal Highness the Sultan will not stand in the way of a just and popular solution. This is the only way to stop the rot that has already paralysed the government of Perak. Another day’s delay to dissolve the state assembly is another opportunity lost to return Perak to political sanity. Najib cannot just sit tight and look the other way hoping the crisis he fomented would just blow away.

The choice for the prime minister is a simple one: either elect to conduct himself like a common, opportunistic politician and face the dire consequences of his perfidious behaviour or a statesman who is concerned more with nation building on a lasting basis than opting for short-term political gains that may well turn out to be illusory. His 1 Malaysia, already riddled with contradictions and inconsistencies, will not amount to anything if the Perak crisis remains stuck in limbo. The ball is in his court. -- The Malaysian Insider

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About the Author:
Tunku Aziz, one of the prime movers in setting up Transparency International Malaysia, in happier times was regarded by Prime Minister Abdullah Badawi as "one man (who) was able to harness his personal passion and deep commitment to the values of ethics and integrity, give it a larger purpose and meaning, and turn it into a force to transform society for the better." Why then was he left out of the MACC Advisory Group? He is regarded as being too outspoken for comfort and, therefore, difficult to handle.

A Most Courageous Judge - A High Court Judge Succeeded Where The Federal Court Failed

By Matthias Chang
Tuesday, 12 May 2009 09:24



The pressure on the High Court Judge to do what is “politically correct” must have been intense. There is a culture prevalent among some members of the judiciary that it is better to make “politically correct” decisions so as to secure one’s career than to do justice on the spurious ground that there are appellate courts which should bear the weight and responsibility of such controversial decisions.

It is the passing-the-buck syndrome. These judges would surmise that if they handed down a judgment which is not politically correct and on appeal, the judgment is overruled, it is as good as ending their career – cold storaged till retirement age. Better that the Federal Court (the Apex Court) being the final authority, bear the brunt of the Executive’s wrath as they have the advantage of strength in numbers, as the corum of the Apex Court can be enlarged to nine. There is safety in numbers.

Therefore, credit must be given to the Honourable Justice Datuk Abdul Aziz Abdul Rahim for handing down this historic judgment.

Lawyers are officers of the court and like judges, must likewise be courageous in the discharge of their duties. They must not pander to the whims and fancies of their client, no matter how powerful.

If a case is crystal clear and the client is wrong, it behoves the lawyer to advice the client accordingly so as not to pervert the course of justice.

A courageous lawyer in such circumstances will also lend assistance to a Judge to arrive at a just decision and not succumb to the temptation to do what is deemed “politically correct”.

The observation of the Judge as to the conduct of the State Legal Adviser, Datuk Ahmad Kamal illustrates the above principle. It was reported in the Sun newspaper and I quote:

“On the issue of the affidavit by Perak State Legal Adviser Datuk Ahmad Kamal Md Shahid, Abdul Aziz ruled that he was not a neutral and impartial witness. ‘It was his own admission that he was instructed by the respondent’s counsel to affirm the affidavit. The word instructed is a very strong word. To me, he is not a neutral or impartial witness; his testimony was coloured by the instruction that he received,’ said Abdul Aziz.

“Kamal is the State Legal Adviser and his duty is to advise on all legal matters referred to him, including advising Nizar on the draft proclamation…”

Given the above observations by the said Judge, it seems to me not right for the Counsel for the respondents to “instruct” the State Legal Adviser to affirm an affidavit in the manner in which it was done.

It has been indicated by the Prime Minister that Barisan Nasional would be appealing to the Court of Appeal against the judgment handed down by the High Court.

If, the Prime Minister is sincere in his comments that politicians must be humble and gain the trust of the rakyat, then he must practice what he had preached. And if he has the confidence and trust of the rakyat, he should have no qualms in agreeing to the dissolution of the Perak State Assembly, have a snap election and let the rakyat be the ultimate judge as to which government they want to rule over them in the state of Perak.

If the Prime Minister insist that might is right, he will be the first one-term prime minister in Malaysia. While Badawi has the ignominious distinction of having wrecked the Barisan Nasional, it would be Najib who will be vilified for burying UMNO under the rubbish heap of history.

Members of UMNO, you better ensure that Najib makes the right decision or your “gravy train” will be derailed for good.

Najib must clear his own mess

The MALAYSIAN Insider - I never for a moment thought I should live to see the day when a traditional hereditary ruler of a Malay State has taken such a rapid slide in his people’s estimation, approbation and adulation as has the Sultan Azlan Shah of Perak. It took one unfortunate, ill-conceived and ill-considered decision over a petition by the Pakatan Rakyat Mentri Besar Datuk Nizar Jamaluddin, to dissolve the Perak State Assembly that has turned Perak into a politically difficult and dangerous situation.

His Highness Sultan Azlan Shah is no ordinary ruler. As a former Lord President and head of the Malaysian judiciary, he ascended the throne of Perak as someone well-qualified by education and training for what, for all practical purposes, is a largely ceremonial sinecure. Be that as it may, the position carries a heavy constitutional responsibility.

It has become quite apparent that while his legal knowledge may be assumed to be extensive, his training more than adequate, his wisdom in dealing with a delicate and important political matter of public concern, on reflection, has in my humble opinion, turned out to be questionable. A great deficiency in a ruler who showed so much early promise of being a wise, liberal minded and benevolent leader.

When the final chapter of the Perak constitutional fiasco comes to be written, the country, and the world, will be able revisit and understand better the magnitude of the debilitating effects of the royal decision on the Malaysian body politic. Malaysians, in particular, will view with horror the ugly scars left on their nation’s nascent democracy, and they will be constantly reminded how one hasty error of judgement was enough to trigger a political tragedy of the worst imaginable kind. A Greek tragedy pales by comparison.

The saddest part of all is that the resultant unseemly legal wrangling could have been avoided. The fact that the flawed decision was not reversed, within a day or two when it became abundantly clear that the decision not to dissolve the Assembly and call for fresh elections was manifestly unfair and unethical, was nothing if not sheer carelessness, in all the circumstances. I maintain that even now it is not too late to reverse that politically fatal decision and bring to an end this disgraceful episode in the history of participatory representative government in our country.


There is no disgrace or humiliation in coming to terms with one’s honest mistake. No one, even the wisest among us, is infallible. If the Sultan believes, as we know he does passionately, that his royal duty is to serve the public interest, then NOW is the time to give that commitment practical effect.

The Perak fiasco is not about to run out of steam. We must accept that the situation will get worse before it gets better. I saw the images from the State Assembly “sitting” on national television at lunch time today (7 May 2009) with a sense of unbounded revulsion. The scene of warring politicians shouting invective was not a joy to behold.

To use a medical analogy, the Perak affair will be a running sore. Only the Sultan of Perak can provide an effective cure. To ignore what is obviously an untenable constitutional position is an act of grave irresponsibility, and while the Prime Minister thinks it is a great idea for him to give the impression that he is above it all, I should like to remind him that he is not blameless, far from it. It was his active act of muddying the Perak political waters that brought about this current crisis in the first place.

He now has a chance to show that he is not a partisan prime minister, but a national statesman who is prepared to intervene decisively to put matters right in fairness and equity.

Looking back, it was not such a clever personal coup after all. His machination was so abysmally repugnant even judged by the consistently low ethical and moral political standards of UMNO/BN that I find myself wondering whether I could trust him enough to buy my next second-hand car from him; this is the same man trying to persuade us to buy his 1 Malaysia. What a man! (With apologies to G.B.Shaw)

The Lesson From Perak

M. Bakri Musa
www.bakrimusa.com


The current political paralysis in Perak reflects the major failures of our key institutions. It is a total breakdown at the palace, the legislature, and the permanent establishment. It also exposes the glaring inadequacies of the judicial system which has yet to adjudicate this critical and urgent matter of state.

It is not however, the failure of the people, as some pundits have implied by quoting the old adage that we deserve the government we get. It is the voters’ prerogative whether to grant the incumbent party a stunning victory, humble it with an unstable slim majority, or even throw it into the ranks of the opposition. Canada and Italy have a long history of minority governments, and they have managed well.

A mark of a mature democracy, or any system for that matter, is the transfer of power from one entity to another smoothly and predictably. Perak is a spectacular failure; it is also a preview for Malaysia.

Perak is one of three state governments that changed hands as a consequence of the 2008 general elections. In the other two, Kedah and Penang, the transition went much smoother. There were hiccups of course, like the destruction of state documents and the dissolution of legislators’ wives’ club in Selangor, for example. That reflected more infantile behaviors than institutional failure. Why Perak should be the exception merits careful consideration.

We used to assume that if only we could get qualified and experienced people, then no matter how battered or inadequate our institutions, those people would rise up to the challenge. In Perak, we have a sultan who by any measure is the most qualified and experienced, having served as the nation’s top judge for many years. Yet his decision in this critical matter, which demanded the most judicious of judgment, proved to be unwise and precipitous. And that is putting it mildly.

This is not hindsight. Even at the time when he made that pivotal decision (which was the singular event that triggered developments which culminated in the spectacle of May 7), the voice of the people was loud and clear. Only that the sultan refused to hear or chose to ignore it. No amount of subsequent royal pontifications will ever rectify or justify this error. Only a reversal of that earlier erroneous decision would.

It was too bad that Sultan Azlan Shah deputized his Raja Muda to the May 7th opening of the legislature. While that may have spared the sultan the spectacle and embarrassment of being physically entrapped by the bedlam, he missed a splendid opportunity to witness firsthand what his modern-day version of hulubalangs was up to! Instead it was his Raja Muda who was left to cool his heels for a good six hours! Well, let us hope that at least it was an edifying experience for him.

It was nonetheless pathetic to see the Raja Muda reduced to pleading for respect for his speech! Few, not even the normally pliant mainstream media, bothered to carry his speech in full. So much for the respect that he desperately sought!


Amazingly in his speech, the Raja Muda did not deem it important or necessary to comment on the ugly spectacle he had just witnessed and been a part of. He remained aloof and strangely uncurious. He must have been in temporary suspended animation, oblivious of his immediate surroundings, during his six-hour wait. He was from another planet, earlier programmed to deliver his royal speech and then leave! Nothing more; for that you would have to reprogram him again!

The principal political protagonists here were Barisan Nasional’s Zamry Kadir, a Temple University PhD, and Pakatan’s Nizar Jamaluddin, a professional engineer fluent in multiple languages. Then there was the Speaker of the House, Sivakumar, a lawyer by profession. Their impressive diplomas and credentials meant nothing; they only looked impressive when framed and hanged on their office walls.

Instead of being the stabilizing force and buffering factor, the permanent establishment, from the State Secretary to the State Legal Advisor and the Chief of Police, was hopelessly ensnared in the mess through their highly partisan performances. They rapidly degenerated to being part of the problem (and a very significant one at that) instead of the solution.

As for the judiciary, it failed to appreciate the urgency and gravity of the crisis. Thus the case did not merit an expedited hearing and left to meander through the usual slow judicial pathway. By contrast, the 2000 American elections that saw the Florida ballot counts being litigated, the case ended up at the Supreme Court for a definitive decision in a matter of days, not months.

Lessons Learned

Thanks to modern technology, those who were not there in Ipoh could still follow the unfolding events in real time, trumping the severe censorship machinery of the government. Not that it was ever effective, just like the rest of the government.

Unfortunately there is not much that we could learn from the sorry spectacle. Even to declare that it reflected the sorry state of our institutions would be inadequate. Besides, we already have too many affirmations of that sad reality.

The next reflex reaction would be to declare, “Everyone is to be blamed!” While that is an understandable response, it does not solve anything, for the corollary to that statement would be that no one is to be blamed. That would be a cop out; we are all not equally culpable.

Everyone in the chain of events could have stopped if not reversed the destructive sequence right up to the day before the infamous debacle at the legislature. Failing that, the buck must and should stop somewhere. In our system, the buck stops at the highest level, the palace.

Consider the chain of events again. First there were those renegade legislators switching party affiliations. No law against that; it was their choice. Perhaps that would galvanize the leaders of the party they had deserted to do a better job of screening and scrutinizing their future candidates. Maybe primary elections among party members (as in America) instead of a decision from headquarters would produce better and more reliable candidates. That certainly would be a useful lesson.

However, this being Malaysia, things get more interesting. It turned out that those turncoats were earlier being investigated for corruption. Miraculously after their switchover, the charges were not pursued! So far no journalist has any thought of following that lead.

Even if those characters were pure, their switching over should never have triggered such a mess. Surely they could wait till the next sitting of the legislature to introduce whatever vote of no confidence they may have in mind of the leadership, and thus bring down the sitting government in the traditional and only legitimate way.

Even if leaders of the Barisan coalition were to petition the sultan to dismiss the sitting Chief Minister (which they did), the sultan ought to first also hear out the incumbent before making a decision. Common sense dictates that. One does not have to be a judge or have read the weighty tomes of legal luminaries to appreciate that elementary dictum. Hear both sides before rendering a decision! Even a new father knows that.

Sultan Azlan Shah cannot pretend to be able to read or predict the thinking of his legislators after only a few moments of “chat” under the most severe royal protocol at the palace. That would be the height of royal arrogance. In any other circumstance, decisions made under such surroundings could be considered as coerced. Besides, it is their collective judgment expressed openly in a properly convened legislative forum that matters. Not only could you not predict individual behaviors, you could never foretell the group dynamics and the final collective decision.

If our political leaders make a mistake, they are held accountable. Just ask Abdullah Badawi. The buck with the present imbroglio stops at the palace, with Sultan Azlan Shah. Unfortunately in our system at present, there is no effective system of checks and balances with respect to our monarchs, both at the state as well as federal levels. They are also immune to prosecution in the conduct of their official duties. There is no mechanism to fire or censure them. The Special Tribunal is only for prosecuting their personal misconduct. Well, at least that is a beginning, a measure of some accountability.

Regardless whether we have an effective system of checks and balances with respect to the sultans, our society has irreversibly changed. The old feudal order is now gone, for good, and never to return. Get used to it! In today’s world, the people is sovereign. Just ask the descendents of the late Shah Pahlavi and King Farouk, or closer to home, the Sultan of Sulu.

I tried to convey this in my poem, Makna Merdeka 50 (Meaning of Merdeka 50), I wrote to commemorate our 50th year of independence. I quote a couple of stanzas:

Rakyat negri bukan nya kuli

Untok di kerah ka sana sini

Zaman purba tak akan kembali

Mungkin menteri di buang negri!

Renungkan nasib si Idi Amin

Yang Shah Pahlavi pun tak terjamin

Pemimpin negri mesti meninggati

Rakyat – bukan Raja – yang di daulati!

(Blessed with freedom and reason are God’s children/To lords and kings we are not beholden/The feudal order has long been toppled/Let’s be clear, the sovereign is the people!

Ponder the fate of one Idi Amin/That of Shah Pahlavi was equally grim!/Those realities our leaders must heed/“Power to the people!” is the new creed.)

That in essence is the pertinent lesson from Perak.

1 Malaysia? Not Even 1 Perak!

By Dzulkifli Ahmad

The Malaysian Insider, MAY 9 — It has finally come to this. An impasse or a deadlock in the Perak state assembly for the last three months has finally turned into anarchy. A total disgrace to the nation witnessed by the entire world. In utter contempt of the legislative body, the ugly scene where a disputed speaker could summon the sergeant-at-arms to forcibly remove the rightful speaker tells it all. It wasn’t just crude and brute but smacks of contempt for the august House. The rest was hell broke lose, total chaos and a great dishonour to the nation, quite unknown and unheard of in any civilised society.

What has become of the BN government under the newly minted premiership of Datuk Seri Najib Razak? Only into the first month of his regime, he has already committed excesses which indeed spell doom for this nation. The recent spate of detentions is totally uncalled for and extremely disturbing. And all these after pronouncing his famous mantra of 1 Malaysia! Disgusting. Is he out of his mind? What 1 Malaysia is he talking about? He can’t even put 1 Perak in place!

What is most disconcerting is the fact that the entire fracas could have been tactfully avoided if only the BN could wait for the outcome of the judicial review submitted by Mentri Besar Datuk Seri Nizar Jamaluddin that will be heard in the High Court in Kuala Lumpur on Monday. Nizar would by then know whether he is successful in having the High Court proclaim him as the rightful Perak mentri besar. Why did they want the assembly to proceed in haste despite knowing of the pending ugly scenario that will shame all? Many are still left wondering.

The court decision could bring to an end the prolonged impasse in the state triggered by the defections of the three Pakatan representatives to become BN-friendly independents. This situation has allowed BN to have the strength of numbers in the state assembly, which resulted in the Perak Sultan requesting that Nizar step down and immediately appointing Datuk Zambry Abd Kadir as the new mentri besar in February.

Justice Datuk Abdul Aziz will make his ruling on Monday after having heard submissions from Nizar’s lead counsel Sulaiman Abdullah. For the record, his lead counsel has reminded the court that the function of the monarch is to appoint a mentri besar after the general election and to dissolve the assembly.

Sulaiman has emphatically argued that under no circumstances can the Ruler decide to investigate or hold an inquiry to find who commands the majority and then appoint a new mentri besar. While admitting that there is a lacuna or loophole in both the Federal and Perak state constitutions on matters of removal of the mentri besar or the chief executive, such powers are, however, not provided for in the constitutions, argued the lead counsel.

Now that the situation has turned into such a dreadful ending, one can’t help thinking why has the monarch, who was once Lord President of the Supreme Court, a great legal mind, allowed this impasse to turn so chaotic and into anarchy. Couldn’t the monarch have averted all this by dissolving the legislative assembly on that fateful Feb 5 and render back to the rakyat their mundane and democratic role of electing a new government for the state in accordance with and abiding by the rules and dictates of a free and fair electoral process.

That would have doubly served the interest of safeguarding the sanctity of the constitutional monarch much as it would render the right of choosing the government of the day to the people of Perak. By so doing, not only would the monarch be above politics but actually seen to be so.

Regrettably that wasn’t made possible by political bigotry that now attempts at hoodwinking the rakyat by spinning the slogan of 1 Malaysia. It takes a different paradigm shift of mindset and leadership to bring the nation out of this mediocrity and to propel it to greater heights.

The unfortunate events of May 7 have undoubtedly showed that sanity must return in order to restore order and stability to the government in Perak. And that can only be possibly achieved by dissolving the legislative assembly and holding fresh elections. Until such time, the people of Perak and the rest of the nation must be in black, to together say that we are repugnant to consigning the death of democracy in Perak! -- The Malaysian Insider

Dr Dzulkifli Ahmad is the PAS director of strategy and also Kuala Selangor MP.

Open Letter To PM Najib

Now Is The Time To Prepare A Massive and Sustained Counter-Attack Against Anwar - Do Not Fall Into Anwar’s Trap of By-Election Theatrics


By Matthias Chang
Friday, 01 May 2009 09:56

It takes POLITICAL MATURITY and COURAGE to walk away from a tactical fight so as to win the ultimate war.

Anyone who has studied the Art of War by the greatest military strategist Sun Tzu will agree that one should only go to battle when victory is a certainty and when we have the overriding advantage and force in all aspects.

When we fight, it must be “total victory and a crushing defeat for our opponents”. Nothing less will suffice. Anything less is a waste of time and resources

Already, Anwar is planning for another possible by-election in Selangor. Why?

Anwar needs the mass media coverage to stay relevant. He is a Chow Kar!

Ignore him and treat him like a nuisance and he will in time be treated as irrelevant. He is like a naughty school boy craving for attention. Ignore him.

The people needs time to realize the sheer immaturity of Anwar and his brand of politics.

The people have forgotten that he is a CONVICTED CRIMINAL and was convicted for abuse of power and corruption by two Federal Courts. This is unprecedented in the history of criminal law in Malaysia!

Since Badawi took power and even in the 2008 General Elections, there were hardly any worthwhile criticisms of Anwar Ibrahim in the Barisan Nasional controlled mass media.

Today, there is even less. It is as if there is a reluctance to criticize him, seemingly on the stupid and naïve conclusion that he had suffered enough after six years of imprisonment. Yet, he was lawfully and rightly convicted of a heinous offence – abuse of power and corruption. Some say that this is a reflection of the Malay culture. This is the ultimate fight for survival for the soul of UMNO and the MALAY LEADERS better get this inside their heads!

The Zionist controlled manchurian candidate has been groomed to take over the country. Stop blaming the Chinese for being “disloyal” and what not. No one dare say it. This is essentially a fight for power between two Malay factions for the control of the country. Nothing more, nothing less! This is real-politics!

DEAR PM,

You have just set up a new Cabinet. Even the brightest and the most hard-working needs time to settle into his job and discharge the awesome responsibility. On the average it takes from six months to a year to formulate policies and get them implemented.

The key word is FOCUS, FOCUS, FOCUS!

DON’T BE DISTRACTED. HAVE PATIENCE. THE PEOPLE WILL BE GRATEFUL WHEN THEY REALISE THAT THE ECONOMY IS THE PRIORITY AND NOT ANWAR’S STUPID THEATRICS AND ZIONIST FINANCED GUTTER POLITICS.

He has threatened you with a funeral procession. Don’t react. Stay cool! There is a way to counter his seditious and defamatory theatrics. But don’t resort to law. People don’t understand and or have no time to analyse in depth complicated legal issues.

There are other ways to push Anwar down the memory hole.

Now is the time that you plan for a massive and sustained COUNTER-ATTACK.

The danger to your administration is NOT ANWAR AT THIS STAGE OF YOUR POLITICAL LIFE.

The greatest danger is the Trojan Horses within your party and ranks.

Learn from the experience of the Badawi regime. Those who shouted loudest in defence of Badawi and attacked Tun Dr. Mahathir actually “killed” Badawi.

These people are around you and they are shouting and will shout the loudest to prove that they are loyal barking dogs. But they are just barking dogs.

Their actions will destroy your administration as it enhances the perception that you need barking dogs to do the dirty work. Go to the ground and discover this for yourself.

Riding the commuter train will not reveal such raw feelings which the public have against such barking dogs and ultimately your own image. Such barking dogs actually give the perception that you are weak. Likewise the corrupt leaders.

You don’t need them to rally support within the party and or to counter the hidden faction/threat within the ranks.

The office of the Prime Minister is awesome and its authority applied judiciously and with determination will in most cases resolve such issues.

Don’t reject my analysis. Just ponder and then you will realize that I am right.

Look at my record as the Political Secretary to the fourth Prime Minister. If I had not been successful, why is there a need to emulate Tun in appointing a Chinese and a non-Barisan Nasional component party member as his Political Secretary? Why are some leaders trying to recruit “Chinese” political secretaries and or special officers? They are barking up the wrong tree. This may sound arrogant, but common sense must prevail.

They got it wrong by seeking candidates from Barisan Nasional component parties. Why do you need a MCA or Gerakan representative serving as a political secretary or special officer when you have the leaders in your Cabinet offering their views from a MCA/Gerakan perspective? A political secretary from the ranks of a party is a subservient and subjective political instrument. If you want to listen to an echo do just that!

Think out of the box! If you cannot see the difference, then there is nothing to say! There are many good professionals out there should you want to recruit the best.

To develop a Grand Strategy to Counter-Attack Anwar, just ask yourself these simple questions:

What is your greatest strength, Barisan Nasional’s greatest asset?

What is the most obvious weakness of Anwar and his so-called state governments of Kelantan, Kedah, Penang, Selangor and (Perak)?

The greatest military victories were built on simple ideas and plans.

Give Perak to them and it will be their quagmire! Believe me. Don’t waste time in Perak. The Royal Household has created a big hole. Get out of it now!

I promised in my last posting that I will not criticize you and your government for now.

In this posting, I am offering you a way out of the malaise that has gripped your administration, a left over of the Badawi regime! First get rid of this infection as one would against the swine flu.

The key is: THINK OUT OF THE BOX.

I wish you every success.

But please be considerate as well for if you fail, we have the right to put things right.

---

About the Author:

Matthias Chang is a Malaysian of Chinese descent. He is a Barrister of 31 years standing and once served as the Political Secretary to the former Prime Minister of Malaysia, Tun Dr. Mahathir Mohamad. He is the author of three bestsellers, “Future FastForward”, “Brainwashed for War, Programmed to Kill”, and “The Shadow Money-Lenders and the Global Financial Tsunami”, published in the US and in Malaysia. Since his student days in England in the late 1960s, he was and still is, actively involved in the anti-war movement spanning a period of 41 years. He is a Catholic but enjoins all to promote inter-faith understanding. He resides in Kuala Lumpur, Malaysia, and can be reached at matthias@skzcchambers.com or matthiaswenchieh@gmail.com

Does Umno care what Malaysians think?

APRIL 24 — Come on Malaysia, stop feigning surprise and indignation.

Umno has always had a different value system from the rest of the country.

This is a party which has celebrated chauvinists, defended the corrupt and provided refuge for individuals with question marks draped over themselves.

So why should it surprise Malaysians that Tengku Adnan Tengku Mansor (V K Lingam video clip fame) was re-appointed as the secretary-general of the ruling party and Malacca Chief Minister Datuk Seri Ali Rustam (corruption) and Tan Sri Rafidah Aziz (Approved Permits) were appointed to the supreme council by Datuk Seri Najib Razak.

Their appointments merely confirm what many suspected — the bar is much lower for Umno. It also suggests that despite all the flowery talk of change, the new prime minister cannot toss out realpolitik considerations when making decisions on the country or party.

There was a major spin campaign by the Najib camp after he unveiled his Cabinet line-up several weeks ago.

They noted how several individuals touched by scandal were dropped from the line-up of ministers and how this signaled a desire by the PM to start with a clean slate.

Much of that spiel was puff and fluff.

More than eighty per cent of those appointed ministers were old faces and a sprinkling of them had dodgy records.

The fact is that Najib had to fall in line and follow the old BN formula of picking the Cabinet.

He had to reward component parties and loyalists, and make sure all states had representatives as ministers.

That is why the slim line Cabinet was jettisoned for a bloated one.

Similar considerations were at play today when he appointed Ku Nan, Ali and Rafidah.

Najib wants to be inclusive and cast his dragnet as wide as possible. He wanted Tengku Adnan Mansor because this chap is an operator, a true party warlord who can organise the troops and get his hands dirty if the need arises. He is also fiercely loyal to the party president.

So what if the Putrajaya MP was censured by the Royal Commission on the VK Lingam video clip for being one of the main actors who fixed the appointment and promotion of judges.

So what if the commission recommended that authorities investigate him and others for a slew of offences?

The commission in its report last year said that “having regard to the totality of the evidence and for the reasons stated, we are of the view that there was, conceivably, an insidious movement by Lingam with the covert assistance of his close friends, Vincent Tan and Tengku Adnan

Tengku Mansor, to involve themselves actively in the appointment of judges, in particular, the appointment of Tun Ahmad Fairuz Abdul Halim as the Chief Judge of Malaya and subsequently as Court of Appeal president.’’

The Attorney-General has since said that no further action will be taken against some of the individuals implicated.

But truth be told, Ku Nan’s involvement in this sorry episode was never a problem with Umno members.

They could not understand what the fuss of judge fixing was all about.

Indeed, they were upset that the Tun Abdullah Ahmad Badawi administration made public the commission’s report.

In Ali’s case, he was probably co-opted into the supreme council to assuage his supporters who remain upset that he was barred from contesting the number two spot in the party after being found guilty of money politics by the Umno Disciplinary Board.

The Chief Minister who upset the Chinese community with some pointed barbs has played the role of loyal party man since being prevented from taking part in the party polls.

While chief ministers and mentris besar are usually appointed to the supreme council, if Najib wanted to make a statement about the importance integrity in Umno he could have overlooked Ali.

But...

Rafidah’s inclusion is not surprising.

Najib wants to close ranks in Wanita Umno and send a message that winners don’t gain everything, and losers don’t lose everything.

Despite being backed by Najib’s supporters, the former Minister of International Trade and Industry was thumped by Datuk Seri Shahrizat Abdul Jalil for the top position in the women’s wing.

She was one of the Umno officials who played a critical role in convincing Abdullah that he would not be able to obtain 58 nominations from the divisions to defend the party president’s position.

Rafidah was a minister in Abdullah’s first term as PM but had to live with a big cloud over her head after Tun Dr Mahathir Mohamad questioned her over the distribution of Approved Permits.

She denied any wrongdoing but the former prime minister has never retracted his allegations that there was abuse in the AP scheme. More recently, the Opposition has alleged that APs were given to a company owned by her relatives.

Still, these allegations and question marks over her character may not matter much in Umno. So there is little downside for Najib to have appointed her to the supreme council.

What lesson should Malaysians take from this exercise?

Simple, that there is one set of standard for the men and women of Umno and a higher set for

the rest of the country.

It has been that way for a long time.

Does the party care what the rest of the country thinks? Apparently not.

Government vs Mafia

22 Apr 09 : 8.30AM

By Wong Chin Huat
editor@thenutgraph.com

WE are now told by the new Prime Minister Datuk Seri Najib Razak that by-elections are bad because they distract us from dealing with the economic crisis.

Tunku Abdul Rahman (left-Public domain) This aversion towards elections is nothing new to Malaysia. In the spirit of learning our national history, let's revisit some past decisions made by Alliance/Barisan Nasional (BN) leaders.

The BN's track record

In March 1965, Tunku terminated local elections, which were mostly won by opposition parties, especially in the urban centres. Tunku promised to restore local elections once the Indonesian Confrontation was over. Of course, he never did. Neither did his five successors. Their reason? Elections are a waste of money.

Lee Kuan Yew (right - Public domain) In August 1965, Tunku expelled Singapore from the federation of Malaysia because Singapore Premier Lee Kuan Yew — like Datuk Seri Anwar Ibrahim 43 years later — was actively courting East Malaysians to challenge Umno rule. To be fair to Tunku, his Umno colleagues actually wanted a more repressive solution — Internal Security Act (ISA) detention for Lee and his People's Action Party lieutenants.

In 1966, Sarawak Chief Minister Datuk Stephen Kalong Ningkan — from the Sarawak National Party (SNAP) — was ousted unconstitutionally following dubious defections, much like Perak's Datuk Seri Mohammad Nizar Jamaluddin 43 years later. When the Borneo High Court ruled to reinstate Ningkan, he wanted to let the people decide.

However, before Ningkan could dissolve the legislature, the Tunku administration proclaimed emergency rule in Sarawak. The Federal and Sarawak constitutions were amended so that a motion of no-confidence could be passed and a more compliant chief minister appointed.

Mustapha Harun (left - Public domain) The late Tun Mustapha Harun was allied to Tunku and also avoided elections in Sabah. In 1969, when the Malaya Alliance struggled to hold onto power, Mustapha's Sabah Alliance bagged the state's 16 seats through "walkovers". In later years, he even contemplated making himself a sultan.

Tun Abdul Razak also had his moments in outmanoeuvring the electoral process. He expressed an aversion to "politicking" and preferred to focus on administration and development. After 1969, he gradually co-opted all but two parliamentary opposition parties, DAP and SNAP, first into coalition governments and later in 1974 into the BN.

His reward? A total of 47 walkovers or 31% of parliamentary seats in the 1974 elections.

In 1974, Razak also carved Chinese-Malaysian-majority Kuala Lumpur out of Selangor presumably to ensure that opposition parties like the DAP could never capture the state. The new Federal Territory was not to have its own state government, or any elected government for that matter.

Hussein Onn (right- Public domain) Razak's successor, Tun Hussein Onn, took a slightly different tack when faced with political difficulties. For example, he declared an emergency and imposed direct rule in Kelantan in 1977 when PAS, then a member of BN, tried to oust their own menteri besar, Datuk Mohamad Nasir, who was much-liked by Umno. Hussein lifted the emergency and went to polls four months later when Umno had strengthened its base. Umno and Nasir's splinter party, Berjasa, eventually thrashed PAS in the election.

While elections under Tun Dr Mahathir Mohamad were arguably never free or fair, he was particularly innovative in his own party's elections. In 1988, he effectively purged Tengku Razaleigh Hamzah's supporters, by triggering the deregistration of Umno and the creation of Umno Baru. To protect the incumbents, Mahathir introduced the quota for nominations for the presidency and other senior positions, which Najib now proposes to remove.

In 1994, Anwar, then deputy prime minister and Umno deputy president, brought down the Parti Bersatu Sabah (PBS) state government through mass defections of lawmakers within a month after elections. Denying the use of financial inducement and coercive measures, Anwar recently reiterated that he merely "invited" those defectors. Of course, no fresh elections were called.

Musa Hitam (Source: vod.uum.edu.my) One BN leader who made markedly different decisions was former Deputy Prime Minister Tun Musa Hitam. As the acting prime minister in 1985, he prevented Tun Mustapha's plot to install himself as Sabah chief minister despite not having a legislative majority, through — yes, even then — a palace coup.

But Musa's decision can be seen to be the exception rather than the rule in the BN's elections track record.

In February 2009, Najib orchestrated the downfall of Perak's elected government and installed Datuk Seri Dr Zambry Abdul Kadir as menteri besar.

While Anwar's Pakatan Rakyat (PR) has no legal or moral ground to protest the defections in Perak, why didn't the BN subsequently allow for a fresh poll?

Their answer is the usual — elections are disruptive and wasteful, and now bad for the economy.

Why are elections a must?

Why must we have elections to decide our governments?

Why can't we opt for horse-trading among lawmakers; palace coups; the rule of judges; military coups; mutinying police officers; mutinying bureaucracies; or mob rule à la Thailand's People's Alliance for Democracy (PAD) as alternatives to topple and install governments?

PAD supporters armed with makeshift batons and golf clubs, 2008
(Pic by Mark Micallef, source: Wikipedia commons)

Provided the people do not protest, these methods may well be much smoother, more efficient, peaceful and attractive to certain types of investors.

So, why must the so-called liberal democrats and constitutional monarchists protest?

The answer, in a nutshell, is that elections distinguish a government from a mafia or triad.

A state is similar to the underworld in three senses: (a) they extract money; (b) they control territory; and (c) those living on their territories cannot opt out from being their subjects.

Tilly (right - Source: columbia.edu) Why do governments fight against foreign countries (war-making), suppress domestic rebels and outlaws (state-making) and offer law and order for their subjects (protection)? So that they may have the power to extract their subjects' resources (extraction).

Charles Tilly, the American sociologist, called a spade a spade: war-making and state-making are but organised crimes. Four centuries before him, Tang Zhen, a Chinese thinker in Imperial China, called emperors thieves who fed on their subjects.

It is clear that in political theory, there is only a thin line between a government and a mafia or triad. While a government collects "taxes", a mafia or triad collects "protection fees". Sometimes, the mafia or triad is the government and carries out most governmental functions. For example, Kapitan Yap Ah Loy was both in 19th-century Kuala Lumpur.

Yap Ah Loy (left - Public domain) So, what is the real thin line between a government and a mafia or triad? That mafias or triads do not know how to employ a public relations company for legitimacy branding?

No. It is elections. It is the principle of "no taxation without representation", which ignited the American Revolution.

No mafia or triad will allow their subjects to elect their Godfather or Patriarch. You only have a duty to pay protection fees, but no right to elect your protector.

In a civilised world, a state must not be like a mafia or triad. That's why electoral processes and elected governments must not be subverted.

This month, when you pay your income tax, remember to cherish elections. Without elections, what you pay is only protection money.

The Godfather (© Paramount Pictures)

---

A political scientist by training and a journalism lecturer by trade, Wong Chin Huat is based in Monash University Sunway Campus. He hopes his home state will soon cease to be a kleptocracy propped up by unelected institutions. If democracy can only be restored with two more by-elections in Perak, he would appreciate any act of God.

The Last UMNO Prime Minister

As it now stands, Najib is doomed to be the last UMNO Prime Minister. He will not be even a “one-termer.” He will go down in history as our shortest-serving Prime Minister. Worse, it will be recorded for posterity that he was the Malay leader who brought down a once glorious organization, UMNO, an institution his late father was so instrumental in setting up.


by M. Bakri Musa

Newly-sworn Prime Minister Najib Razak created a buzz when he released 13 prisoners detained under the Internal Security Act (ISA) and lifted the ban on Harakah and Suara Keadilan, publications of the opposition parties. He also promised “a comprehensive review” of the ISA, a statute long abused to silence the government’s critics.

Malaysians long yearning for a change applauded him. There were skeptics, of course.

Alas that was last week. This week the hopes of those citizens were cruelly crushed when they saw the real Najib with the announcement of his new cabinet. Far from being a team that would wow Malaysians, Najib’s cabinet was, as Tunku Aziz put it, “a team of recycled political expendables.” And a bloated one at that!

The skeptics were right; Najib’s earlier act was nothing but a big and cruel tease.

This roster of “political expendables” was the best that the man could offer, from a leader who only a week earlier warned his party that it should “change or be changed.” When given the ultimate freedom to choose his own team, Najib stuck to the tried and true, or what he thought to be so. So this was Najib’s brave version of “Berani Berubah!” (Dare to Change!).

Najib is incapable of change; there is nothing in him to suggest otherwise. He could not even recognize the need for one, much less respond to it. Change would be totally out of character for the man. Far from welcoming or be invigorated by it, change would threaten him.

Unfortunately for Najib, Malaysia has changed. Incapable of change, he is doomed to be changed come the next general elections, from Prime Minister to Leader of the Opposition. He will be our shortest serving chief executive, our Gerald Ford. Ford was the unelected American President who assumed office following Nixon’s forced resignation over the Watergate scandal. Like Ford, Najib too was not elected to the highest office. Ford was subsequently rejected by voters; the same fate awaits Najib.

For Malaysia, that would truly be a wasted decade, with the first half already being squandered by Najib’s predecessor, Abdullah Badawi.

The True Najib

Najib is the obedient first son, the loyal subordinate, and the traditionalist aristocrat. He even inherited his father’s ancient tribal title, Orang Kaya Indera Shahbandar! How quaint in this 21st Century! His career path has been straight and narrow, on a track that had been conveniently laid down for him by others who felt indebted or grateful to his illustrious father.

Najib has never shown a talent for striking new paths. Even his ascendance to the Prime Minister’s office was paved by others, in particular Tun Mahathir and Muhyyudin Yassin. Najib must remember that a favor offered is a favor owed.

Just as he was the obedient son, Najib was also the dutiful and loyal subordinate. His blind obedience to Abdullah Badawi drew the wrath of Tun Mahathir. As for experience, Najib has been dependent on paychecks from the public purse all his adult life. He never had to meet a payroll; he has no idea of the trials and challenges of that endeavor; nor does he appreciate the sense of accomplishments and independence of those who have.

This is not the profile of a leader capable of making radical changes that Malaysia so desperately needs now.

Unfortunately the track Najib is on now ends at his office. Ahead, for him and the nation, is uncharted territory, with steep hills to climb and wide canyons to traverse. Turning back is not an option, as that path so carefully crafted by earlier leaders is now destroyed for lack of maintenance and prudent use.

That Najib is now portrayed as an agent for change is more a tribute to his highly-paid public relations operatives and the all-too-eager-to-please toadies in the mainstream media. However, you could pedal a dud only for so long; sooner or later the ugly reality would emerge and the bubble burst.

When that inevitability happens, beware! Voters react with vengeance when they feel that they have been hoodwinked by their leaders. Ask Najib’s immediate predecessor, Abdullah. The by-election results since the last general elections are portends for Najib and his party.

Totally Inept and Inadequately Prepared

Najib assembled his cabinet only last week. Even then he spent that limited time talking with leaders of his Barisan coalition instead of with potential candidates. He is clearly being negligent. He knew he will be Prime Minster months ago; he should have been interviewing and short-listing candidates all along. Being unopposed as president of UMNO and thus freed from having to campaign, he had plenty of time to preview his choices prior to last week.

I am particularly concerned with the choice of his deputy. Did Najib have a private session with Muhyyudin before selecting him? Nowhere is it written that UMNO Deputy President should also be the Deputy Prime Minister. Najib is trapped by tradition.

Najib should have done a “Khairy Jamaluddin” on Muhyyudin, that is, keep him out of the cabinet and make him focus on rebuilding the party. God knows, UMNO needs intensive rehabilitation as much as its Youth wing, if not more so. Dispensing with Muhyyudin would strengthen Najib’s image as a reformer, quite apart from taking the sting out of having singly excluded Khairy from the cabinet.

Najib gave the very important Education portfolio to Muhyyudin. Is Najib assured that Muhyyudin agrees with him on the major policy issues, in particular the highly contentious matter of continuing the teaching of science and mathematics in English? Muhyyudin is unusually quiet on this.

It is equally hard to be enthusiastic on the rest of Najib’s team. This is what happens when you choose your cabinet based on pleasing others, especially those whom you owe favors.

Najib struggled to get his team, just like Abdullah and Mahathir before him. Like them, he too found the pickings slim as he fished only in the same polluted and shallow puddle of UMNO and Barisan. He did not have the courage to venture beyond.

Najib unwittingly revealed much in his first few days as Prime Minister. Thanks to his PR team, Najib managed to sound very positive, at with his promise of “a comprehensive review” of the ISA. That sent orgies of praise for the man in the mainstream media and elsewhere. The more perceptive (or skeptical) would note that he specifically did not mention anything about repealing it.

Then there was his announcement on the release of the 13 ISA prisoners “with immediate effect.” In Najib’s lexicon, “with immediate effect” means at least three days later! This shows how much he is in tune with the actual workings of the civil service.

If I had been Najib’s communications director, this is what I would have done. Knowing how easily our civil servants could screw things up, I would first check with the Home Ministry, specifically the Chief of Police and Prison Director, to arrange for the release of the prisoners. Send them to the nearby rest house at government expense if their families were not yet ready to receive them. I would then alert television stations and other news media so they would be there to cover it.

Only after assuring myself that all those meticulous preparations are in place would I have Najib make his announcement. Imagine the dramatic impact when the split screen on the nation’s television screens would also show the prisoners being released as he made the announcement. It would also showcase the crispness of Najib’s new administration. Had he done so, he would have been spared the embarrassment of his orders being delayed for days because of – you guessed it! – paperwork!

On the day Najib announced his new cabinet, the judge in the long running Mongolian model murder trial rendered his judgment. Najib had been trying hard to ignore the grizzly tragedy, but it kept cropping up at the most inopportune time. His strategy is to stonewall, banking that the success of his policies would make citizens forget the gruesome crime.

Najib is gravely mistaken in this. Even if his ethics were beyond reproach, Najib would find his policies a tough sell. Conversely, if he could clear up those sordid allegations (assuming of course he is innocent, a huge supposition) he would find that with his personal credibility now enhanced, the public would more likely buy into his policies. Stonewalling is no strategy.

As it now stands, Najib is doomed to be the last UMNO Prime Minister. He will not be even a “one-termer.” He will go down in history as our shortest-serving Prime Minister. Worse, it will be recorded for posterity that he was the Malay leader who brought down a once glorious organization, UMNO, an institution his late father was so instrumental in setting up. All destroyed in just two generations; the first to build it, the second to destroy. Truly a very Malay story!

For those who warmly applauded Najib on his first few days in office thinking that his was the dawn of a new day for the nation, I hope they would translate their disappointment into effective action. Deliver to Najib his own KPI (Key Performance Index) at the next general elections. It will be less than four years away; plenty of time to lay and grease the track for Najib’s (and UMNO’s) exit. ---M. Bakri Musa

Sivakumar remains Umno’s stumbling block

Mohamed Hanipa Maidin sits on the Pas central committee and is the Pas legal adviser. He is also a lawyer who blogs at peguampas.blogspot.com

On Thursday the Federal Court declared that the three independent Perak state assemblymen have not resigned and remain as state assemblymen. A five-man panel, in an unanimous decision, made this declaration after it ruled that the Election Commission has the right to decide the status of the three state seats.

The three — Hee Yit Foong (Jelapang), Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Mohd Jailu (Changkat Jering) — had applied to the Federal Court for an interpretation of points of law in the Perak Constitution with regard to vacancies of state seats and whether it was the EC or the Speaker of the Perak legislature who had the final say in determining the vacancy of a state seat.

Court of Appeal president Justice Alauddin Mohd Sheriff, who chaired the panel, said the EC was the rightful entity to establish if a seat in the Perak State Assembly was vacant.

One may ask whether the Federal Court decision finally determines once and for all the legal status of the three assemblymen. The simple answer is a resounding no.

Before I share the reasons, it is germane to highlight here the thrust of the Federal Court’s judgment.

Basically the court was asked to determine the following issue, namely which authority has the power to determine the casual vacancy of the three state seats. Was the power vested in the speaker or the EC?

Since the court ruled that the power was vested in the EC, the latter was therefore entitled to establish that the three state seats were not vacant. Be that as it may the EC was not required to hold any by-election in those three state seats.

As the EC had made a decision that the three state seats were not vacant, it therefore follows that the three state assemblymen remain as state assemblymen.

It is submitted that despite the aforementioned decision of the Federal Court, the legal status of three assemblymen could still be challenged. There are few reasons for that.

The Federal Court merely decided which authority was empowered to determine the casual vacancy of the state seats. Nothing more, nothing less.

Just because the EC has the power to determine the casual vacancy of a state constituency, that does not ipso facto mean such a decision is valid and good in the eyes of law. The legality of the decision of the EC may still, under the law, be challenged by any aggrieved party.

The Federal Court’s judgment did not touch upon the issue of the legality of the EC’s decision and the reason being it was not asked to do that by the three assemblymen.

It is trite law that any decision by a public authority such as the EC is susceptible to judicial review. Since the court has not decided on the legality issue of the EC’s decision, the EC’s decision can still be quashed by the court if it is proven that it was legally flawed or tainted with elements of illegality or irrationality or procedural impropriety or bias or mala fide, etc.

To his credit, Perak Speaker V. Sivakumar has filed an application for a judicial review against the decision of the EC in the Kuala Lumpur High Court. The latter has fixed the hearing of the application in May.

Even the Federal Court conceded that its decision did not prejudice the judicial review application filed by Sivakumar. When one of the lawyers representing Sivakumar, Ranjit Singh, asked if the decision meant that it would be without prejudice to two related judicial review applications in the Kuala Lumpur High Court, Justice Alauddin said: “It is understood (that it would be without prejudice).”

In the circumstances, until and unless the court has finally determined the status of the three assemblymen via the judicial review application by Sivakumar, the status of the former remains in limbo despite the Federal Court’s decision.

If that is the case one may ask whether Sivakumar has the power to restrain the three assemblymen from entering the state assembly. Frankly speaking I can see no reason for Sivakumar not to exercise his power to bar these three individuals from going in.

Nowhere in the Federal Court’s judgment is said that Sivakumar is prohibited from restraining the three state assemblymen from entering the state assembly. The three assemblymen merely obtained declaratory reliefs and such reliefs, from the legal perspective, are incapable of imposing any obligations on Sivakumar. In other words as far as Sivakumar is concerned , the declaratory reliefs obtained by Umno are impotent.

In short, one may conclude that the Federal Court may send the three assemblymen in but it seems to me that the Federal Court implicitly allows Sivakumar to send them out in the absence of any order restraining Sivakumar from doing that.

Despite the victorious judgment obtained by Umno, that per se does not help it in curbing Sivakumar’s power. No matter what it takes, Umno has to acknowledge that Sivakumar remains its stumbling block “dulu, kini dan selamanya”. ---The Malaysian Insider