Tuesday, 9 February 2010

The Federal Court:- An Illusion of Justice & Hope!!

"A Thief! A Thief!
My Kingdom For a Thief!!"

“This decision is binding on the state government and the federal government.”
~Cecil Abraham, counsel for Zambry


Before I write anything else - allow me to say that I believe that Nizar was being foolish to hope that the courts would dispense justice. As I said elsewhere, if the Nizar wins in this case, then the stolen jet engines must be in my backyard. As expected, the court came up with some silly excuse for a judgement - which Gani Patail lauds as being rooted in "very, very sound reasoning".
So let's move on ....

Malaysia was built based on the Westminster parliamentary system of governance by the founding fathers.
According to the Westminster parliamentary procedure, governments often respond to a vote of no confidence by calling for a confidence motion. Parliament passes or rejects the vote. Typically, when a vote of no confidence passes parliament, the government official must either resign or seek a parliamentary dissolution or general election.

Malaysia Boleh/ 1-Malaysia or whatever you call it, however, says otherwise. They say that that the voice of the parliament is irrelevant - and there is no need for a vote of no confidence.
We had today, the judgement in the case of Zambry vs, Nizar - to determine the rightful MB of Perak. It was for all practical purposes a test of the Constitutional Democracy which Malaysia was to live by. However, it appears that the Federal court doesn't seem to believe that we are a parliamentary democracy - that authority is vested in parliament as in a Constitutional Democracy.
I have not read the full judgement but it was reported on twitter that the Judge said:-
"There is no requirement in State Constitution which requires vote of no-confidence to be taken in State Assembly"
"Federal Court notes that test that Nizar had lost confidence of majority of assembly had been satisfied at special palace meeting."
Aha - so all they need is a meeting at a kopi-tiam, and get the head of state to sanction their choice. The court says that the constitution doesn't stipulate that that one is necessary. Apparently the judge said that Nizar is obliged to resign according to article 16 (6).
Okay then - let me see what it says:-

  • Nothing in Article 16(6) says the sultan is involved in ascertaining a loss of the majority's confidence in the assembly.
  • Article 16(7) expressly states that the menteri besar does not hold office at the sultan's pleasure. The sultan therefore has no power to dismiss or direct a menteri besar to resign.
  • Article 16(5) also states that the executive council, which the menteri besar heads, is collectively responsible to the legislative assembly.

Strange .... but just as it doesn't say that a vote of confidence has to be taken, it also doesn't say that the Menteri Besar holds office at His Highness's pleasure or has to resign - in fact it states quite clearly that he is an exception from the ruler's "pleasure". It only states that the Executive Council does & has to. I really wonder how the judge came to such a conclusion- that the MB has to resign!!!
It seems that they demand specifics when it suits them, and they do not understand the principles of a parliamentary democracy or even why there is generality in constitutional law .....
“All persons (individuals, institutions and government) are subject to law.
Supremacy of the law is a fundamental concept in the western democratic order. The rule of law requires both citizens and governments to be subject to known and standing laws.
The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws.
Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner."

~Dr. Mark Cooray
So, the court believes that a band of thugs who happened to be elected into office can have a meeting with the head of state with his band of merry men to prove his majority. They do not believe that it is necessary for the majority to be proven through a vote of no confidence through a sitting in the Assembly!! Our "erudite" Attorney-General Gani Patail calls it a “very clear judgment with very, very sound reasonings.”

So there you have it - Parliamentary democracy has been subverted - or so it seems- by none other than the Federal Court itself!! What the Federal Court has effectively done today was to declare that the parliament/assembly is irrelevant. To me, what the Federal Court (Umno, actually) said today was simply this, "Screw the Assembly/Parliament - A "Palace Meeting" is enough to dislodge the Govt. As long as Umno gets power, all is fine and dandy!!"

For a nation to come crumbling down, there are but three kinds of people in leadership, with three different characteristics that is required, namely -
  • the untamed passions in a gifted man,
  • the wanton power in a weak man, and
  • the unteachable temperament in a privileged man.
How "lucky" we are, that we have all three in just one man, who I shall leave unnamed.

Malaysia it seems, is sailing rudderless in the high seas of a Constitutional Monarchy. At the rate we have been going since the days of Mahathir - after this ruling, while there is minimal danger of the country becoming an absolute monarchy, it is just a matter of time before the Federal Constitution is abandoned, and Malaysia becomes "Talibanized" in tribal laws, or simply turns into a banana republic of sorts with a military junta like Myanmar.
So much for 1-Malaysia ....

"There is a kind of dictatorship that can come about
through a creeping paralysis of thought,
readiness to accept paternalistic measures by government,
and along with those measures
comes a surrender of our own responsibilities
and therefore a surrender of our own thought
over our own lives and our own right to exercise the vote."

- Dwight Eisenhower
Meanwhile, old-man Mahathir is fixated on MV Agusta which Proton had sold without his approval (since they couldn't make anything out of it) - and is cheezed off that it could be sold for USD100million by the buyer (probably from a cartel) ..... to Harley-Davidson who really had the expertise to revitalize it!!
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