Loyal Followers

Saturday, February 28, 2009

Death

I am here. I do not know whether I am lying down, standing up or sitting down. I can just feel my existence although I cannot feel the usual rush of blood through my veins nor do I inhale and exhale. I feel like I am constantly floating, from a place to another, without boundary. I am sure I am in a room although I could not feel the constraints of 4 walls, a floor and a roof. If I look in front, I could see far and yonder although not before long I would be at the place I was looking at a moment ago. I seem to move, and move fast at that, although I feel I am stationary all the while.

If I proceed to touch the walls, I would know of their existence. But they lack stature as walls and as physical boundaries. The room is lighted. White, blue, bright and dark, shades of gray and black, dawn and twilight, constantly interchanging as my mind wanders and my emotions vary. Speaking of which, the only tangible matter being present was my mind, and probably my emotions. The others are intangibles. It is as if I had lost all physical and biological matters. It is as if I am defying all laws of physic. It is as if there is no physicality to anything anymore.

After some time, I realise that I am free. I am free from all physical constraints. I am soaring. I am wandering in this huge matter of nothingness although at the same time I am aware of its fullness. I feel I am alone although I don't feel lonely. And although it is quiet I am not moved to seeking companionship. It is like I already have whatever and everything that I need. It is as if I am deeply satisfied. All my hopes, my expectations, my aspirations, dreams and fantasies are fulfilled just as I think of them.

And just as I am aware of my existence, I could feel Your presence. But I am not moved to seek to see You. Nor do I feel the need to touch You. Nor do I speak with or to You.

I finally understand You just as much as You finally embrace me.

Post script:

I had posted this piece at Navel Gazing on 24th December 2008. A dear friend of mine loses his dear mother today. I am reproducing this here as a dedication to him, his family and his departed mother. May God bless her soul and may my friend find the strength to let his mother complete her journey to find eternal piece. To my said friend, you know your mother has done well. She has left a good son.


Thursday, February 26, 2009

Elizabeth Wong - HRH has Spoken

Okay. I am reproducing the following excerpt from what is said to be the press statement by HRH the Sultan of Selangor on the Elizabeth Wong issue. The full press statement appears at Rocky's Bru. Among others, the Sultan says:

"His Royal Highness is upset and worried as of late the intrusion of someone’s privacy and private rights was being used to destroy one’s dignity and reputation. It is a sad thing as one’s life and private rights were being made public and subject to public scrutiny by publicising in the mass media.

To Yang Berhormat Elizabeth Wong, His Royal Highness felt sad and sympathised with her as to the unfortunate event she had suffered and hoped that Yang Berhormat Elizabeth Wong will remain calm and be patient in continuing with her life henceforth". (all emphasises are mine).

I am not involved at all in all these. I don't even know who Elizabeth Wong was until I saw her picture (not the naked ones, I must hastily add) in the media when her nude picture controversy came to light. But as a human being, I must express my gratitude to HRH the Sultan of Selangor for this extremely wise statement and position. I must say, and I am saying this without any intention of being patronising or condescending, that that was a Royal conduct befitting of a Royal and a Ruler who is wise, fair and is obviously full of humility.

Now. It is obvious that whoever who was involved in this sordid episode, apart from having committing a criminal offence, has saddened, worried and upset HRH the Sultan of Selangor. That means the person who took the picture. And also the person who made the picture public. That's not all. The hot shot editors of all the newspapers which exploited this issue for various reasons, journalists who partook in this disgusting and shameless journalistic voyeurism and those producers of all the TV news who also participated in this wholly shameful act of breach of privacy shamelessly masked as "berita untuk anda semua" have also saddened and caused HRH great upset and sadness. And if any politician(s) or political party or parties is or are involved in any way in this controversy, they are also guilty of making HRH the Sultan of Selangor upset, worried and sad.

The question to be asked therefore is this. Have all these people committed treason by making HRH upset and sad? Or by doing something which HRH deems unfortunate and worrying?

All of us noticed that Hishamuddin Hussein, Zahid Hamidi, Khairy Jamaluddin et al have all come out strongly recently to support the Rulers. In fact Khairy was reported to have said that traitors should be banished. Demonstrations were organised to convey this message to those who were deemed to have angered the Sultan of Perak in particular and The Rulers in general.

I wonder whether, in the light of the above statement by the Sultan of Selangor, they would now do the same.

Alas, it astounds me that so far, nobody has come out to support the above statement by the Sultan.

Wednesday, February 25, 2009

the economy - a stimulating idiot's guide

Ha...ha... bloody HA. Malaysia apparently is - or is it "was"? - "insulated" from the global economics meltdown. Like, awesome dood! While the rest of the world - America, Japan and Germany included - were knocked out silly by the meltdown, Malaysia was smiling her way to an economics safety vault. These were respectively the biggest and 2nd biggest economy in the world as well as the biggest economy in Europe. And they were in trouble. But no, Malaysia is insulated because of our "diversified economy and strong foundations". And guess what? Our GDP growth next year was loftily projected to be 4.5%.

Despite many economists saying that the Malaysian Finance Ministry is living in dreamland, we continue our usual repeat therapy. For the uninitiated, "repeat therapy" is a process where we are all programmed to believe that everything which we repeatedly say will actually happen if we repeat it often enough. Abdullah Ahmad Badawi pioneered this mind technology. Remember when he repeatedly said "I am in control"? Or when he repeatedly chanted "I will be fair"? Yes. Things like that. And so, if we repeat "Malaysia's economy is insulated" many many times, than our economy might just, indeed, be insulated. Now. Repeat after me. "Cow dung".

The truth is the world economy is so bad and it is going to hit us like one big bad fiery meteor from hell. Just imagine. The International Labour Organisation projects that 23 million people are going to lose their jobs in Asia this year! (see here). 1% of that is 230000. Even if Malaysia "contributes" 0.5% of that, it would mean 115000 Malaysians would lose their job! And we are insulated? And what about the 300000 odd Malaysians who are now working in Singapore. If even 10% of them are retrenched, that means 30000 people without jobs. Add to that the reduction of working days due to production cut-off, cancellation of over-time, forced holiday and leave as well as bonus and salary increase freeze, have we ever thought what that would do to our economy? And we are insulated? GDP of 4.5%? Good God! Just this morning, the radio announced that Citibank Group had forecast that our GDP will in fact shrink to minus 1.5% this year! That means we will be in a recession. The big R is here. But remember what Abdullah and Nor Mohamad said earlier this year? No. We will not be in a recession. Now, please repeat that folks. Repeat it until you sleep.

All the numbers are slowly creeping out now. Malaysia's export has shrunk. In December 2008 alone, our export shrunk to 46 billion ringgit, which represents a 14.9% decline year on year. (see here). Our biggest trading partner, America, is in a financial black hole. Japan, our traditional trading partner is seeing their consumer index dipping southward at an alarming rate. And we are apparently, insulated. Which makes me wonder what magical economics inoculations have Malaysia been injected with all this while!

Let me tell about the economics in normal, easy to understand terms.

Lesson One: The Economy is Like a Set of Tits

Yes. We all would love them big. But the truth is, they are not naturally big. Well, most of the time, that is. To make the economy big, we would have to do something to it. We just cannot sit around looking at it and expect it to be big. No. That wouldn't do. We have to bring them to the operating table, cut them open and inject or put some silicon, prop them up and stitch them up together again. Then they will be big. But no, we cannot just do that. We have to look at them first. Determine what is wrong with them. What is not quite right with them. Go to the drawing board and plan. We would have to draw out the tits that we would want. The ones that we would love to have. Not any old tits which are big. This would entail research and studies. It would entail thoughts. And plans. We don't just inject and inject and inject. And stimulate and stimulate and stimulate. Otherwise we would have tits which are monstrous, ugly and totally useless!

Lesson Two: The Economy, Like Tits, Must be Proportionate

Just because big is good, don't think that the bigger they are, the better they will be. That is why China had to actually control its economics growth. They make the growth hovers around 8-10%. Sometimes it exceeds to 11%. But there must be control. Why? Because if we do not control the growth, the economy would grow too fast and a bubble effect would ensue. The bubble then, when it is too big, like tits, would burst! When it burst, it would bring down with it everything else.

Lesson Three: Look at the Whole Body, Not Just the Tits

This is very important. Just imagine a 36FF on a 4'8" body. Aiyoh! The economy must be looked at as a whole and not in minute little spots here and there. We have micro economics and macro economics. Both must compliment each other. In a way, the micro policies must be optimised in order to support the macro ones. We also must remember that the economy does not exist in a vacuum. The economy is just but a necessary element in a bigger circle consisting of the society as an entity. Towards this, politics too comes into the equation. Thus, the economy cannot be detached from its direct impact on social and political life. When planning the economy therefore, thoughts must be given to its societal impact. What for instance are we going to do about the people who lose their jobs? What about retraining? What about creating small business opportunities? Or new job skills? And have we thought of the rising criminal activities which are induced by economics uncertainties or difficulties? What about health problems afflicting the people due to the economics downturn? What about health care system? Are we going to sacrifice educations in favour of a quick financial gain elsewhere? And what are we going to do when all these turmoils are over? Back to the same old game? Or new games? If it is the latter, do we need new rules and regulations? Are we going to diversify in something else? New and uncharted economics territory?

Lesson Four: Stimulations Must be Total

Don't just concentrate on the nipples! If the so called stimulus packages are going to be aimed at the construction industry, then we might as well continue to launch more and more tolled road projects and dig a big hole and jump into it! Just this morning I heard over the radio that Road Builders (a subsidiary of IJM) had been awarded the extensions of a road by 12 kilometers immediately after the concession of the toll road it operates expires! Hmmm...one expires and another one springs to life.

Okay, okay, I digress. Anyway, as I was saying, the stimulus plan must be wide ranging and holistic in nature. There mustn't be a stop gap measure. The fact that we have to announce a second stimulus just about 4 months after the first one shows that the first one was not sufficient and not well planned or thought out. We do not want a 3rd stimulus after this. Or a 4th one. There must be one holistic stimulus. Have we ever heard China launching a second stimulus in 4 months? Or Germany? Or wherever?

Our Government is in the habit of introducing stop gap measures. While these may seem good at first go, problems will crop up time and time again if the root of it is not addressed once and for all. Any stimulus package must look at all angles. In particular, it must address all the questions raised in Lesson Three above.

Okay. I am going to stop here. Otherwise, I would have to start charging. After all, I am not insulated.

Monday, February 23, 2009

a question of etiquette

I was in the Federal Court this morning with Malik Imtiaz for the hearing of Raja Petra’s application to review four decisions of the Federal Court last week. The review application stemmed out from what we, the Counsel for Raja Petra, deemed as the “coram failure” of the Federal Court which sat to hear 4 motions filed by us last week.

Briefly what happened last week was as follows. When we were told that Justice Augustine Paul was sitting, we filed recusal application. When the appeal was called, Justice Paul, correctly in our view, said that he should not hear the recusal application as he had wanted everything that needed to be said be said without fear. He had also expressed that he wanted justice to not only be done but also be seen to be done. That was gracious of him, I think. He said that at the outset. The motion than was called and he excused himself. The 2 remaining Judges decided to continue. Imtiaz pointed out that under the Court of Judicature Act, the Federal Court must have 3 Judges. Justice Nik Hashim invoked section 78 which says that if a Judge is unable to continue hearing a matter, the other 2 may continue. And so they continued. We told the remaining Judges that our stand is that the sitting is unconstitutional. The Court then heard argument and dismissed the recusal. 3 other motions were also dismissed later when Justice Paul rejoined the Coram. Against that we filed a review, which came up for hearing today.

The purpose of this post is not to delve in the merit of the review. It has been heard and is pending decision. It is therefore sub-judice.

However, the conduct of my learned friend, the Senior DPP, moved me to post this. He made a preliminary objection. Not on any substantive ground. But some grounds which, to me are totally personal. He branded our application for review as an attempt to “judge shopping”; driven by malice; is contemptuous and an abuse of the process of Court. I could live with the last ground. But the first three made me absolutely livid. I sat there shaking my head in utter disbelief and anger.

I notice nowadays Counsel just love the phrase mala fide. Never mind them not really understanding the phrase. Another phrase which many Counsel love nowadays is “misleading the Court”. Sometime we impress a point of law to the Judge and tells the Judge what a case may mean. The opposite Counsel then has a different view. That would be alright. All he needs to say then is that “I beg to differ from my learned friend on his reading of the case”. But no. Nowadays many Counsel would say, “he is misleading the Court!”. Good God! What is happening to our profession?

Back to the Raja Petra’s case today. Why must the Senior DPP say that? How can we be branded as malicious? How can we be accused of Judge shopping? And contemptuous? We took a stand. Our stand was that the last Federal Court sitting was invalidly convened with only 2 Judges. That is based on our reading of the various provisions of the Court of Judicature Act. That is our considered opinion and we filed an application for review based on our considered view as such. It is a position of law which we took. We could be wrong. And if we are, the Federal Court today would say so. And they would say so after hearing both parties. But it is within our right to file the application in order that the issue may be ventilated to the fullest. It was not vexatious. Indeed the Federal Court today heard us and the Senior DPP fully. Where is the malice? Or abuse? Or contempt? Or the Judge shopping?

We are doing our very best for our client. A client who is going to lose his personal liberty and freedom for two years. All without due process.

It saddens me that nowadays many lawyers are not beyond leveling serious charges against their opponents without any basis whatsoever. Just 2 months ago I was accused of Judge shopping in Chambers. It riled me up so much that I shouted at my opponent in front of the bemused Judge. I then pointed my finger at my opponent and told him off despite the learned Judge’s timely intervention. I was so angry. I admit. I lost my cool. And just now I almost lost my cool as well. Luckily Imtiaz was the lead Counsel. He did well. He maintained his cool and answered the Senior DPP’s so called preliminary objection without being emotional.

I think lawyers should not make serious allegations of wrongdoing against their opposite numbers without really good basis. Malice, Judge shopping, misleading the Court and contempt arising from serious misdeeds are, even in civil cases, subject to proof beyond reasonable doubt, a burden of proof used in Criminal charges. They should not therefore, under any circumstances, be leveled against Counsel at a drop of a hat! It brings greatly adverse connotations about the Counsel in question and we should all be aware of that.

We are men and women of law. And we should at all time behave as such. And being men and women of law, we should know that etiquette and decorum are what which separate us, the learned people of the law, from the street orators.

Sunday, February 22, 2009

FREEDOM

And an orator said, "Speak to us of Freedom."

And he answered:

At the city gate and by your fireside I have seen you prostrate yourself and worship your own freedom,

Even as slaves humble themselves before a tyrant and praise him though he slays them.

Ay, in the grove of the temple and in the shadow of the citadel I have seen the freest among you wear their freedom as a yoke and a handcuff.

And my heart bled within me; for you can only be free when even the desire of seeking freedom becomes a harness to you, and when you cease to speak of freedom as a goal and a fulfillment.

You shall be free indeed when your days are not without a care nor your nights without a want and a grief,

But rather when these things girdle your life and yet you rise above them naked and unbound.

And how shall you rise beyond your days and nights unless you break the chains which you at the dawn of your understanding have fastened around your noon hour?

In truth that which you call freedom is the strongest of these chains, though its links glitter in the sun and dazzle the eyes.

And what is it but fragments of your own self you would discard that you may become free?

If it is an unjust law you would abolish, that law was written with your own hand upon your own forehead.

You cannot erase it by burning your law books nor by washing the foreheads of your judges, though you pour the sea upon them.

And if it is a despot you would dethrone, see first that his throne erected within you is destroyed.

For how can a tyrant rule the free and the proud, but for a tyranny in their own freedom and a shame in their won pride?

And if it is a care you would cast off, that care has been chosen by you rather than imposed upon you.

And if it is a fear you would dispel, the seat of that fear is in your heart and not in the hand of the feared.

Verily all things move within your being in constant half embrace, the desired and the dreaded, the repugnant and the cherished, the pursued and that which you would escape.

These things move within you as lights and shadows in pairs that cling.

And when the shadow fades and is no more, the light that lingers becomes a shadow to another light.

And thus your freedom when it loses its fetters becomes itself the fetter of a greater freedom.

Kahlil Gibran, The Prophet
(emphasis is mine)

Friday, February 20, 2009

The Malaysian Crisis – whither “kesopanan Melayu”?

While “Ketuanan Melayu” is undoubtedly the battle cry for UMNO and its whole leadership, scant attention is given to the other hallmark of the Malays, namely, “Kesopanan Melayu”. The Malays are well known for their “sopan santun”, a Malay phrase of which I find difficulty in finding the exact English equivalent, mostly because that concept, like the Malay amuk, is almost alien to Westerners. Perhaps the closest English equivalent would be “courtesy”. The concept of “kesopanan” is not alien to all of us and the Malays are in fact well known for being courteous to everybody. The Rukunegara even acknowledges the importance of such element. Thus, the fifth element in the Rukunegara is “kesopanan dan kesusilaan” or loosely translated, “courtesy and morality”.

A look at the political landscape of Malaysia lately would leave everybody to wonder whether “courtesy and morality” are dead and buried, as far as our politicians are concerned. The fifth element of our Rukunegara might just as well be “hypocrisy and whetever-suits-me”.

When Jamaluddin Mat Radzi was earlier accused of having sexual intercourse with some prostitute from China, he was reported to have said that it was a “donation” (or “sedekah” in Malay) and it would not be good to refuse such “donation”. The Barisan Nasional leaders of course had made such a huge cry over that episode. As event would have it, Jamaluddin was duly charged for corruption.

The clowning glory to this episode is now complete when the Barisan Nasional led government was formed in Perak with the support of a majority consisting of, among others, Mr Jamaluddin-can’t-refuse-any-donation-Mat Radzi as supposedly an “independent assemblyman.

The irony in all these is of course the fact that prior to September 16th last year, when the heat of a Federal Government takeover was causing the Prime Minister sleepless nights, the Barisan Nasional leaders would come out in TV3 news saying that political defection and power takeover through defection is unconstitutional and undemocratic. But of course, it is undemocratic and unconstitutional if it happens to the Barisan Nasional while it is totally acceptable and morally correct if it is done by the Barisan Nasional.

Then, when Karpal Singh was screaming on top of his voice that he would sue the Sultan of Perak for what he opined as an unconstitutional act, the UMNO leaders went berserk. WE WILL DIE FOR THE SULTAN. TREASON! Blah blah blah… Demonstrators went to the street in Perak. In Kuala Lumpur, they assembled in front of Karpal’s office. Threats were made to demonstrate every day until Karpal apologise. Khairy even said Karpal should be banished. Traitors are killed, said the crowd. Like bloody wow wow…

Who was the one, or rather which party was the one, who took away the immunity of the Rulers? In whose era was there not one, but two constitutional crisis involving some very belligerent attitudes towards the Rulers? In which era was the Royal assent to Parliamentary bills was deemed unnecessary before that bills become law of the country? When was that the Rulers were belittled and decried as “zalim” through various statements and repeated showing of old Malay movies which portrayed the olden Malay rulers as stupid, bad and greedy? Granted, the immunity was taken away so that the Rulers could be brought to the Courts for any wrongdoing –which is and should be the right of every aggrieved citizen to do- but the manner in which it was done was demeaning to the Royal institution. But of course, if it’s UMNO, it’s okay. And now, when Karpal wants to question the Sultan’s constitutional act in Court, that’s not okay. That’s treason. And what did we use to do to people who commit treason? So asked Khairy. The crowd said, yes, we kill them. Well, said Khairy, now we banish them. Awesome!

And so when Elizabeth Wong’s picture in the nude - taken apparently while she was sleeping and unbeknown to her – made its round in the tabloid and the government bulletins, Khir Toyo – he whose face is as fair as snow white – screamed that she should resign. Hmm…you have your naked picture taken while you are sleeping and without your consent and you should resign because you are…erm…immoral. Forget about your right to privacy. Forget about betrayal. Forget about catching the scum who did that to her. Forget. She must resign. Because she is immoral. Err dear Encik Khir, how about the guy who accepted the sexual donation in Perak who is now an independent ADUN on whose support you rely to form a majority government? Okay with you?

And then there were three. Yes. Three guys who are vying to be the UMNO Youth chief. One is the son. The other is the son in law. The last one is the fair looking guy, the keeper of the ADUN’s morality. They met and they talked. The son said he will be like his father. The son in law said we must all reform. The other one said we lost because we are not Islam enough. Well well well…what is Islam enough? Or what is enough in Islam? And what is not enough? Accepting sexual donation from prostitute from China is enough? Sex with underage girl is enough? What? Pray tell me.

Oh, we shall also maintain ISA. And why is the police not using ISA against the street demonstrators? That is not good. Excuse me Mukhriz. Your father is the biggest ISA abuser in Malaysia. Remember Operasi Lalang? And even a former DPM could be detained and given a black eye by none other than the IGP. Oh, by the way, speaking of demonstrators, which demonstrators are you talking about? The one at Karpal’s office? The one in Perak with threatening banners? The one along Jalan Tun Razak abusing a woman? The one in front of the Bar Council’s building questioning a private seminar? Or the one in Amcorp Mall lighting up candles and singing? Which one? All of them?

Sometime, being a Melayu, one must remember, is not all about being a Tuan. It is about embracing the whole Malay concept. And that includes “kesopanan dan kesusilaan”. And being hypocritical about things is just not kosher Malay.

Pure and simple.

Monday, February 16, 2009

And I Shall Pray

I am sitting here feeling numbed to the bone.

I know justice is subjective. But when it concerns universal rights, justice should be, and in fact, is objective. It is in that event objective because it concerns rights which are universal. Yes. Universal to all people, regardless of breed or creed. Regardless of religion or faith. Of upbringing or education. That is why they are called universal rights.

The premise of universal rights lie with the acceptance that all human beings are born the same and are entitled to several inalienable rights. These rights are inalienable because they are essential to all human beings. Take any of them away and we would become lesser human. Take my freedom and I would be as good as dead. "Give me liberty, or give me death", says a wise man. What is life without liberty, if I may ask. What is life if you take away my freedom? What is there to live for if I have no right to express what I believe, to practice my faith, to associate myself with those whom I find aggreeable? For what is life without life itself?

Thus it is cowardice - nay, extreme cowardice - and blatant betrayal ,when the State of which I am but a part takes away my inalienable rights without adhering to the due process of the law. Rights which are central and essential to my being. Rights which define me, and others, as human beings. Rights which dignify me and others as human beings. Rights which distinguish me and others as human beings and not some creatures which we are free to cage so that their beauty could be admired by us at their expense. So that their fury could be encaved for our perceived safety and pleasure. So that we could control and mechanise them to our liking and whims.

Outside the moon is shining bright. What beauty. What glory. But sight without touch is an incomplete pleasure, almost an unfinished painting. As much as life without liberty is us living without being alive.

And I could only pray. For God is also universal. And He is my Lord. And their Lord. And everything happens because He wills it.


Friday, February 06, 2009

The Perak Crisis - an unsolicited legal opinion

The disagreement between the Terengganu palace and the BN's leadership over the choice of the Menteri Besar last year prompted Malik Imtiaz to write Crisis In Trengganu? What crisis? on his blog, Disquiet. I had taken a differing view than that which was taken by Imtiaz in that article. Basically I was, and still am, of the opinion that the role of the Rulers in the political arena should be approached with a degree of circumspection. I posted 2 comments to that post and it would not be out of place to reproduce a part of my comments here:

"The notion that the Rulers are a part of check and balance mechanism to the wide powers of the executives is to me, wishful at best. The reality is the Rulers are not part of the administration of the country. The check and balance mechanism embedded into our system (and every democracy with a constitutional monarch) only consists of the executive, legislative and of course, the judiciary (in some Scandinavian countries, an ombudsman is an integral part as well).....To adopt a literal approach would vest a certain level of absolute power in the Ruler where such power does not exist in the first place. Can we imagine a situation where the Ruler may decide mid-term to change an MB because he thinks that MB does not command the confidence of the majority anymore?
We are now riding the populist wave of a political reform yet unseen before. It is a result of deep rooted anger against the BN government. But lets not allow our emotion to colour our judgement by creating, or allowing to create, a dangerous precedent, a precedent which we all may live to regret later."

The looming constitutional crisis in Perak now underscores my sentiment exactly.

The Power of The Sultan to Appoint the MB

Article 16 of the Perak Constitution says that the Sultan shall appoint the Executive Council ("EC"). He must first appoint as Menteri Besar from the members of the Legislative Assembly who "in his judgment is likely to command the confidence of the majority of the members of the Assembly." Then on the advice of the MB, the Sultan shall appoint other members of the EC.

We stop at this juncture to consider this provision. The Sultan did not have to ensure that the potential MB does command the confidence of the majority. The word "likely" in the above provision gives a certain level of subjectivity to the whole process. And quite how the Sultan was to perform that function is not spelt out.

Article 16 (6) is very important. It says:

"If the MB 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."

If we could now look at this provision closely. There is no subjectivity here. It does not say, for example, "if the Sultan is of the opinion that the MB ceases to command the confidence of the Assembly", or "if it is likely that the MB has ceased to command the confidence of the Assembly". It says clearly that "if the MB ceases to command". That means this provision kicks in only and only if, it could be factually proven that the MB has ceased to command the confidence of the Legislative Assembly. In other word, the Sultan is not imbued with the power to make his own subjective judgment over this fact and matter . For this provision to operate, it must be established as a fact that the MB has ceased to command the confidence of the Assembly.

How is that fact established then? In countries practising the Westminster typed democracy, this fact is established with a vote of no confidence on the floor of the Assembly.

Next to be examined is Article 16 (7). It says:

"Subject to Clause (6) a member of the Executive Council other than the MB shall hold office at His Royal Highness' pleasure, but any member of the Council may at any time resign his office."

It is of paramount importance to note that only the MB does not hold office at the pleasure of the Sultan. From a literal reading of this article, it is clear that the Sultan may therefore sack any member of the Executive Council but not the MB.

Can the Sultan Ask the MB to Resign?

With all due respect to HRH the Sultan of Perak, I don't think the Sultan has the power to ask for the resignation of the MB. It has been argued elsewhere that the provision of the Interpretation Act 1948 would give the power to the Sultan to dismiss the MB. While I concede that section 94 of that Act gives the power to dismiss in every instant where a power to appoint exists, it must be remembered that the Interpretation Act does not apply "where there is something in the subject or context inconsistent with or repugnant to the application" of the Interpretation Act.

Where is the context inconsistent with the application of the Interpretation Act here? The answer lies with Article 16 (7) above. It is clear that the MB does not hold office at the pleasure of the Sultan as opposed to the other members of the Assembly. Had it been intended that the Sultan should have the power to dismiss the MB as well as the other members of the Executive Council, Article 16 (7) would not have made such a glaring and clear exception so as to expressly preclude the MB from the operation of that Article.

Excersise of the Sultan's Powers

There are 2 broad categories of powers which the Sultan is vested with. The first type are powers which the Sultan shall act in accordance with the advice of the Executive Council. There is no discretionary power here. Whenever the Sultan is advised to exercise these powers, the Sultan has no choice but to exercise that power in accordance with the advice given.

Secondly there are powers which the Sultan may exercise in his discretion. These powers include:

  • power to appoint the MB
  • power to withhold his consent to a request for the dissolution of the Assembly.

Here lies the problem. The MB has requested the Sultan to dissolve the Assembly but the Sultan has refused to do so and had asked the MB to resign instead.

Was the Sultan Right?

A case law, decided by our Court in 1966 bears important resemblance to the crisis in Perak now. In Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187, the Governor of Sarawak received a letter signed by 21 members of the Council Negri (equivalent to the Legislative Assembly) expressing no confidence in Stephen Kalong Ningkan as the Chief Minister. The Governor then asked Stephen to resign. Stephen refused to resign. The Governor then declared that Stephen and all the members of the Supreme Council (equivalent to the Executive Council) as having ceased to hold office. A new Chief Minister was then appointed by the Governor. The case ended up in the High Court where among others, a declaration that the purported dismissal of Stephen as the Chief Minister was ultra vires the Constitution and was therefore null and void.

The Sarawak Constitution contain provisions which are almost identical to the provisions of the Perak Constitution.

Article 6 (3) provides:

"The Governor shall appoint an Chief Minister a member of the Council Negri who in his judgment in likely to command the confidence of a majority of the members of the Council Negri and shall appoint the other members in accordance with the advice of the Chief Minister from among the members of the Council Negri."

By Article 7, it is provided as follows:

"(1) If the Chief Minister ceases to command the confidence of a majority of the members of the Council Negri, then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the Supreme Council.

(2) A member of the Supreme Council may at any time resign his office by writing under his hand addressed to the Governor, and a member of the Supreme Council other than the Chief Minister shall also vacate his office if his appointment thereto in revoked by the Governor acting in accordance with the advice of the Chief Minister.

(3) Subject to cll (1) and (2), a member of the Supreme Council other than the Chief Minister shall hold office at the Governor's pleasure."

Notice the almost identical provisions. It has to be noted that the Sarawak Constitution also provides, (as do the Perak Constitution) that the Chief Minister does not hold office at the pleasure of the Governor.

The Court held as follows:

i) for Article 7 (1) to kick in, there must be a vote of no confidence from the floor of the Assembly. Mere letters signed by the members of the Assembly expressing no confidence to the Governor was not sufficient.

ii) the Governor had no power to dismiss the Chief Minister under the Constitution.

iii) the purported dismissal of the CM was then ultra vires the Sarawak state Constitution.

What is even more important is the learned Judge's observation in respect of the exercise by the Governor of his discretionary power to appoint a CM and to withhold his consent when there is a request to dissolve the Assembly. This is what His Lordship said:

"A lot has been said about the duty and powers and discretion of the Governor. His paramount duty is to "act in accordance with the advice of the Supreme Council or of a member thereof acting under the general authority of the Council". (Article 10(1). There are two occasions when the Governor has a discretion, that is, when he can act without, or even contrary to, the advice of the Supreme Council. Those occasions are in the performance of the following functions -

(a) the appointment of a Chief Minister;
(b) the withholding of consent to a request for the dissolution of the Council Negri. (Article 10 (2) ).

As regards (a), nobody could be so foolish as to suggest that a Governor could appoint a second Chief Minister while there was still one in office. As regards (b), this probably has in mind a situation of splinter parties, as has been the case in France, when a general election could not be expected to show an overall majority for any one party. In Sarawak, it seems to me that a Chief Minister may advise a dissolution, even though he has not as yet lost the confidence of Council Negri. In such circumstances, the Governor's refusal to dissolve might be conventionally unconstitutional, although not illegal."

This is still good law as this decision has never been overturned by a higher Court.

Conclusion

With the greatest of respect to HRH the Sultan of Perak, it would appear that the above case law does not lend support to the actions which have so far been taken in Perak.

I would like to end this post by quoting R H Hickling from his excellent book, "Malaysian Law" (Professional Law Books Publishers 1988), where he said:

"The advent of constitutional government in Malaysia marked the beginning of the end for the prerogatives of the Rulers. While assiduously reserving these prerogatives by express savings in the state constitutions, the very act of defining rights and powers restrict them. With the advent of formal constitutions government in Johor in 1895, limitations on arbitrary rules set in, and the pattern was set for progress to the modern concept of constitutional government: that is to say, not merely government in accordance with the provisions of the constitution, but government in accordance with the wishes of the elected representatives of the people."