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

Najib now has to deliver on his promises

APRIL 3 — Brand-new Prime Minister Datuk Seri Najib Abdul Razak is not in an enviable position.

While some fear that he will try to be a second Tun Dr Mahathir Mohamad who will force party, Parliament and opposition to toe his line, chances are great that he will instead be a second Datuk Seri Abdullah Ahmad Badawi.

For one thing, Najib lacks the conviction and the self-confidence that Dr Mahathir had. Even if he chooses to show that he can be as Machiavellian as the next man, he has to convince a sufficiently large portion of the masses that the harsh measures he carries out are absolutely necessary. That will not be easy to do.

Secondly, given how little room Najib’s allies within the Barisan Nasional have to manoeuvre in, such a choice of direction would practically kill them off. What he really needs to do is to give BN component parties like the MIC, the Gerakan Parti Rakyat and the MCA goodies that their leaders can present to their potential constituencies.

Playing “tough guy” will instead work against allies trying hard to win back voters who deserted them because they compromised too much and allowed their party profiles to be subsumed under the federal government’s Umno-centrism.

Championing Malay ethnocentrism too loudly will not help Najib also because the emergent opposition coalition is now largely led by Malays as well. What is worse news for him on this front is that the Muslim card that Dr Mahathir used to good effect in the 1980s is not his to play. No Malay sees Najib as a religious leader in any credible sense.

Even when led by Abdullah, a man with respected religious credentials, Umno failed to gain ground among Muslims. The party led by Najib is definitely not able to adopt a position as champion of Malay Islam.

While BN and Umno had been using variations on their “Malay First” policy to justify most of their actions over a long period of time, their moral failings and the falling standards of governance had been supplying oppositional forces with endless possibilities — and time — to formulate ideas that find an easy response among voters of all ages and ethnic groups.

From this grew the opposition’s present impressive ability to repulse most of what the powerful central government can throw at it.

The strange coalition forged between the DAP, Parti Keadilan Rakyat and PAS, weak because of its apparent unholy mix, paradoxically enjoys the advantage, at least as long as they remain in opposition, of having collected most expressions of discontent against the BN government under its umbrella.

Najib’s biggest problem as he takes over from a disgraced Abdullah is that the opposition has a great discursive advantage over whatever his administration can think up. Datuk Seri Anwar Ibrahim and his allies keep focusing on governance issues, and call for more transparency, more accountability and more competence in government and the civil service. They talk about helping the needy independent of race, of welfare for the poor, of more freedom of expression, and of amending the affirmative action programme that favours Malays. All these find a ready audience.

Indeed, even the spiritual leader of PAS, Datuk Nik Aziz Nik Mat, has most recently declared his uneasiness over the term “Bumiputera”, saying that it smacked of racism.

What makes it less prudent for Najib to use harsh methods against his critics is that his personal reputation is badly injured by public association with the murder of the Mongolian national Altantuya Shaariibuu. Any future unwarranted use of draconian methods that can be directly linked to him will damage his image beyond redemption, if it is not that already.

What Najib would be well-advised to do at this stage, and given how the tide continues moving against him, is to do a repeat of the early Abdullah period, but with a desperate effort at ending with a different punch line.

Najib does seem to be in the promising stage at the moment. He wants Umno’s electoral structure reformed, somewhat in the way Dr Mahathir’s major opponent, Tengku Razaleigh Hamzah, had been calling for. He is also saying that Malaysia’s future development depends on ethnic fissures diminishing, something that most Malaysians would not disagree with, having said it themselves for so long.

But beyond parroting the calls for reforms first voiced by others, Najib has to deliver on his promises, and quickly. In that undertaking, the opposition will not be his main enemies. Umno’s warlords and power holders in the present enormous federal bureaucracies will be the ones he will have to combat. He might not have the ability to manage that.

The area where he can concentrate his efforts at showing leadership qualities is in national economic policy-making. With the global crisis getting worse by the day, he is offered the opportunity of being the prime minister who is able to soften its worst effects. Should he manage that, and in the process place the country in an improved international position when and if the next economic boom comes, then he will be able to leave a legacy far more excellent than any Malaysian anywhere in the world expects of him.

The writer is a Fellow at the Institute of Southeast Asian Studies. His latest book is "Arrested Reform: The Undoing of Abdullah Badawi". - The Malaysian Insider

Justifying the morality of defection

COMMENTARY by political editor Wan Hamidi Hamid

KUALA LUMPUR, Sept 12 ~ Three people were detained under the Internal Security Act - a blogger who expresses his freedom of speech, a journalist who reports what she heard and a hardworking wakil wakyat who is probably the victim of slander.

Is there something wrong with this picture?


Detaining without trial Malaysia Today editor Raja Petra Kamarudin, Sin Chew Daily senior reporter Tan Hoon Cheng and Seputeh MP Teresa Kok is seen as the wrong signal sent by the Barisan Nasional (BN) government. Malaysians, even those who want the ISA abolished, are wondering about those who are really trying to inflame racial tension.

In the art of who gets what, when and how, politics is all about power. And that's what Datuk Seri Anwar Ibrahim is doing. And with the latest development, time is on his side.

The detention of the three people-serving citizens while Anwar's trying to get BN MPs to his side will probably will hasten the pace.

"Invoking the ISA just days before Sept 16 is clearly an attempt to engineer an atmosphere of fear and instability that would justify the government's heavy-handed tactics against those aligned with the political opposition," said the PKR de facto leader.

Even his allies Pas and DAP who are principally opposed to party hopping, have now come up with justifications for accepting BN MPs.

Pas' revered religious scholar Datuk Nik Abdul Aziz Nik Mat has this to say:

"If you allow Umno to continue ruling the country, the honour of the country is at stake. If you talk of party hopping, Umno in the days of Datuk Asri Muda (the former Pas leader in the 1970s) has been trying to buy over Pas leaders.

"Umno is the teacher of party hopping. They taught people to be dishonourable."

The Kelantan menteri besar who is also the party's spiritual leader reiterated that party hopping would be tantamount to betraying the people's trust but explained that it was acceptable if the intention was to free the country from a corrupt Umno and BN.

Whether his remark is based on religious convictions, Nik Aziz has shown his political acumen to justify realpolitik, a skill usually underestimated by his detractors.

After the March 8 general election, Datuk Seri Abdullah Ahmad Badawi held a series of secret meetings with top Pas leaders under the pretext of Malay unity which among other things offered the Islamist party to cooperate with Umno.

At the same time, Perak and Selangor Umno also offered their Pas and PKR counterparts opportunities to cross over to BN.

Nik Aziz's strong supporter, Selangor Pas deputy commissioner Khalid Samad, offered his view on democracy and the morality of crossing over.

"Is it democratic and moral for the BN to go into the 12th general election last March using the full weight of the state apparatus behind them? The media, government agencies, the budget, the police, with the postal votes securing them victories in various seats, the indelible ink issue, the doctored voters registration, etc,etc?

"The crossover is said to be due to money changing hands, i.e. loyalties being bought! The only ones buying loyalty is the BN," he wrote in his blog recently.

In 1973, opposition parties Gerakan, People's Progressive Party and Pas, as well as Sabah and Sarawak parties, crossed over to the newly-formed BN in 1973.

In 1990 the ruling Parti Bersatu Sabah left BN to join up with the then Tengku Razaleigh Hamzah's Semangat 46. Over the next two state elections, BN bought over a number of PBS assemblymen as well as helped some of them to form new parties. In 2002, PBS rejoined BN.

For DAP supremo Lim Kit Siang, it is all right if the BN MPs are motivated by noble principles of saving the country from further drift and loss of direction of the BN government and for the political, economic and national betterment of the people.

He believed that if that was the case, the BN MPs' honourable and principled action to leave BN would gain the sympathy, support and respect of all Malaysians.

"DAP and I had maintained since the 1970s that elected representative should resign if they want to defect, return the mandate to the voters to seek their approval in a by-election on a question of principle.

"(This) will banish the disgraceful political spectacle of money politics where MPs and state legislators could be bought and sold in the market place and end unprincipled, unethical and dishonourable politics.

"This honourable option for an MP to resign and cause a by-election to seek a new mandate from the electorate to endorse his resignation or defection was closed in 1990 when the Constitution was amended to bar any MP who resigns from his seat from standing for election for five years," he said.

He also said more Malaysians had come around to the view a change of government was not only timely but has become an imperative national agenda, adding that this was also the view of many BN MPs.

It is now beyond justification.

Ten days ago the prime minister who said that the media must not be afraid of honest reporting while upholding truth and justice has again backtracked on his promise when his administration arrested the journalist, the blogger and the politician yesterday.

For DAP publicity chief Tony Pua, the government has lost all moral authority to rule the nation.

Just a few hours before she herself was detained, Selangor executive councillor Kok who is also DAP national organising secretary in her press statement said: "If the government wishes Malaysians to continue supporting it as a legitimate democratic government, it should immediately and unconditionally release Raja Petra and rescind the 'show cause' orders issued to the three dailies (The Sun, Sin Chew Daily and Suara Keadilan)."

Opposition leader Anwar knew the political game well when he said, "The dastardly act of detention without trial will do nothing to abate the current government's declining credibility, and in fact will likely hasten its eventual collapse."