RM254 BILLION - KE MANA?

Lucu Geli Geliman
mendengar Tun Det tiba-tiba tersedar diri menyoal
kemana perginya 'lion-'lion
apa terjadi pada RM254 'lion duit lombong.

Lucu Geli Geliman
mendengar Tun Det menyoal bertanya
padahal yang bertanya
lebih tahu dari yang ditanya.

nukilan,
Norman Fernandez
dalam bas JB-KL
22.07.2009

BILA KERAJAAN PAS ROBOHKAN GEREJA

Inilah gambar bangunan serba sederhana mirip rumah kos rendah yang telah dibina oleh Orang Asli Kg Jias, Gua Musang, Kelantan untuk digunakan sebagai gereja tetapi malangnya telah dirobohkan pada 4 Jun 2007 kerajaan PAS Kelantan.

Susulan dari itu, Tok Batin Kg Jias, Pedik Busu dan tiga orang pendududuk Kg Jiras pada 1 Julai 2007 telah memfailkan saman terhadap Majlis Daerah Gua Musang. Pejabat Tanah dan Dearah Gua Musang dan Kerajaan PAS Kelantan untuk angkara yang dilakukan.

Pada 16 Julai 2009, Hakim Mahkamah Tinggi Kota Baru, Tuan Mohd Azlan Hashim telah mendapati perobohohan gereja yang dilakukan pihak berkuasa adalah tidak sah dan salah serta mendapati tindakan pihak berkuasa selepas merobohkan gereja mencuba mendirikan balai raya menggantikan gereja sebagai menceroboh tanah Orang Asli. Mahkamah telah memerintahkan bahawa ketiga-tiga Defendan membayar ganti-rugi.

Alasan pihak berkuasa untuk merobohkan bangunan ini adalah kerana Orang Asli Kg Jiras yang beragama Kristian telah membina bangunan ini sebelum mendapat kebenaran pihak berkuasa. Tetapi hakikat sebenarnya ialah bangunan itu dirobohkan tidak lain dan tidak bukan hanyalah kerana ia adalah sebuah gereja. Adakah pihak berkuasa tempatan akan merobohkan bangunan tersebut jika Orang Asli Kg Jiras mendirikan rumah ibadat agama lain yang disenangi pihak berkuasa dan kerajaan PAS? Malahan apabila pihak berkuasa menyatakan kesedian untuk membina sebuah balai raya (dan bukannya membina gereja) menggantikan gereja yang diroboh ditempat lain untuk Orang Asli Kg Jiras, ini menunjukkan dengan jelas betapa kurang senang PAS melihat kehadiran sebuah gereja.

Sebelum ini Barisan Nasional banyak dikritik kerana telah merobohkan tempat-tempat ibadah bukan Islam. PAS sebaliknya menonjolkan betapa toleran mereka terhadap orang bukan Islam. Tokong dan patung Buddha di Tumpat selalunya di tonjolkan sebagai mercu tanda bukti toleransi PAS dan dengan niat untuk meraih undi serta mendekati penggundi Cina. Perobohan gereja Orang Asli, Kg Jiras dalam negeri yang dipimpin kerajaan PAS wajar menginsafkan orang bukan Islam apa yang telah dilakukan dan berkebolehan dilakukan oleh kerajaan PAS.

KENYATAAN DAP JOHOR

DAP JOHOR mengecam majalah al-Islam dan rencana Tinjauan al-Islam: Dalam Gereja Mencari Kesahihan Remaja Murtad; al-Islam edisi Mei 2009 dan tindakan biadab wartawan-wartawan majalah al-Islam yang telah memasuki gereja Katolik dan menjalankan pengintipan didalam gereja serta menghina umat Katolik apabila menyertai upacara roh kudus dengan menerima roti suci yang hanya boleh disertai oleh orang katolik yang telah dibaptis yang kemudian di ludah dan dirakam gambar.

DAP JOHOR menggesa pihak polis demi memastikan keamanan dan silahturahim antara kaum terpelihara menyegerakan siasatan dan mengambil tindakan terhadap majalah al- Islam dan wartawan-wartawan yang terlibat.

DAP Johor.
17hb Julai 2009

The Social Contract In Context

MARCH 31 – The in thing nowadays seems to be the phrase “social contract”. Every Tom Dick, hairy or otherwise, seems to be so well versed with this subject.

You make a bit of noise about the Federal Constitution and you would be referred to the “social contract”. You question a teeny wee bit about equality and you would surely be referred to the “social contract”.

I think the next time somebody cuts you off in a traffic jam, you should shout “social contract!” at that socially inept moron.

The latest outburst on the social contract had to of course come from Hishamuddin Hussein, the newly-minted Umno vice president. In his last speech as the Umno Youth Chief – of course, it was also a speech designed to garner votes for his VP-ship – Hishamuddin branded those who question the social contract as “arrogant”.

In his words: “Mereka begitu angkuh, sombong dan bongkak mempersoalkan kontrak social dan mempertikai hak kedudukan orang Melayu dan kaum Bumiputera. Kontrak sosial telah sengaja disalah tafsir dan dijadikan tajuk untuk menyemarakkan api perkauman.”

Before we talk of something important and of far reaching consequence, we should know what we are talking about. We should not just blabber aimlessly and throw about allegations and accusations as if it is our God given right to belittle other people.

What is this creature called the “social contract”? Is there such a thing? Is it like any other contract? Must it be signed? And stamped? If so, who signed it? Before that, who drafted it? What are the terms and conditions? Can they be changed? What if it is breached? What are the consequences of such breach? Does anybody know? Allow me to explain this concept.

Human Beings and Their Natural Rights

Early philosophers, such as Plato and Aristotle postulated the existence of natural justice or natural rights. These concepts were premised on the theory that human beings were born with and naturally follow a set of “natural” morality and behavioural patterns which are independent of human made regulations.

The concepts of “good” and “evil” for example, are inherent in every human being. This being the case, the people’s grasp of and adherence to such “natural rules” are independent of human made regulations and their enforcement.

If we accept the postulations that human beings are born with a set of natural behavioural patterns, than we must also accept the fact that human beings are also entitled to several basic rights.

These are rights so fundamental to the existence of a human being that the denial or transgression of such rights would render his or her existence as a human being almost meaningless. The most basic of these rights are rights which are universal to every human being, regardless of creed and breed, of cultures and upbringing, of religion and school.

The advent of civilisations had seen humans transformed from being individualistic and stateless animals into socio-politico creatures. Cities were built and societies developed. Governments and states were born.

The rise of the states and the ensuing assumption of power by the states and their governments would see the surrender of certain individual rights to the states and governments for the greater good of the society in general.

The Social Contract as a Concept

If it was human nature to be able to roam free anywhere and at any time, and to take whatever was thought to be necessary to survive, why would humans then surrender these basic rights to the states or governments for such rights to be regulated or even curtailed?

Why must a human being respect a property which belongs to another and who, in that instance, defines and decides on the ownership of such property in the first place? Why would the people agree to follow and obey executive orders when the people, by nature, are born to be free of constraints?

Here lies the premise of social contracts. The earliest known articulations on social contracts were by Plato who postulated that members of any given society implicitly agree to be bound by the social contract by their continued presence within that society.

Implicit in most forms of social contracts is “freedom of movement”, which later was termed as one of the “natural rights”.

The postulations of a social contract existing between a society, a state or a government and the people centre on the needs of the people to build nations and to maintain social orders within their nations.

Thus, for the benefit of the nation, the people implicitly agree to surrender some of their rights to the state or government in exchange for social order and greater benefits to all.

Thomas Hobbes explained it clearly. In a state of nature, human beings have unlimited natural freedoms. However, these unlimited natural freedoms would impinge on each other’s rights as each person would feel free to do anything against each other (also described as “the rights to all things”).

Men then created civil societies where these rights were governed in order to establish a social order. In exchange for subjecting themselves to the state or government, the people gained “civil rights”, which were sacrosanct and unalienable, even to the state or government.

Social Contract as a Living Document and the Consequence of its Breach

John Locke argues that the social contract and the civil rights are living documents in that their terms could be renegotiated to suit the needs of changing times. These contracts and rights are only legitimate to the extent that they benefit the general interest. Locke even posits the rights of rebellion in the event the social contracts lead to tyranny.

The breach of these social contracts by the people would result in some form of punishment on the defaulting party, which could entail the loss of any or some of their civil rights.

Thus, a thief may lose his rights to freedom when he is sentenced to imprisonment for stealing.

A government which breaches the social contract by abusing its powers may consequently, argues Locke, be overthrown.

We have seen many instances where Locke’s position has been taken to its natural conclusion. In Thailand and the Philippines for example, the people rose to overthrow governments which were perceived to have breached the social contract by various abuses of their powers and transgressions of human rights.

However, in modern states, especially in a democracy, it is submitted that the natural consequence to a government for its failure to uphold the social contract through abuse of its powers would rest with the people’s vote in an election.

The real power therefore rests with the members of the state, namely, the people and the voters to elect a new government at an opportune time.

The Rights of the State vs the Rights of the People

The concept of social contracts also appeals to later day philosophers, such as John Rawls (1921-2002). He branded states which violate human rights as “outlaw states” and “benevolent absolutism” and argued that these states should not command mutual respect and toleration from “liberal and decent people”.

Rawls, of course, premised his postulations on the assumptions that human beings are both “reasonable and rational” and that we are reasonable only to the extent that we are able to achieve an end together within a set of specific regulatory principles.

In going about achieving this end, we, as the people, would affirm some fundamentally basic liberties or freedoms, such as “freedom of conscience, expression and association”.

Analysing all the concepts of the states or government versus the rights of the people, as well as the concept of the social contract between the two elements, the question is of course one of the quantity and quality of rights which the people are ready and willing to surrender to the state or government in exchange for the greater societal benefits which may be yielded from the state.

Are there in existence, for example, rights which are so basic and fundamental, which ought not to be surrendered at any cost? Or is the greater good of the state or society a justification for the transgression by the state of the people’s fundamental rights?

Are there rights which are so fundamental to the existence of the people that these rights are universal in nature? Or are there values, cultural, religious or otherwise, which make these rights vary from one society to another?

Mahathir Mohammad and Lee Kuan Yew are perfect examples of the propagator and practitioners of “benevolent absolutism”.

Both share a common perspective towards democracy. Under the guise of “Asian values”, they argued that democracy in Asia, particularly in Malaysia and Singapore, cannot and should not entail the concept of absolute “freedom” as practised in the West. Freedom, according to Mahathir, should be curtailed for the greater good of the country. What Mahathir and his ilk failed to address is the fact that no reasonable citizen of this country would question the curtailment of freedom for the greater good of the nation.

But what is being demanded is that such curtailment must be done in accordance with the law. Such curtailment should not, at any rate, be done without the due process of the law. That basic right is cast, almost in stone, in the Federal Constitution and that is a part of the social contract, if we want to harp on the same.

In truth, the Asian values which were being brandished about by Mahathir and LKY are but a lame excuse for benevolent absolutism. Pure and simple.

Underlying the “agreement” of the people to surrender some of their rights to the State for the greater good of the society as a whole is a system of “check and balance” which is ingrained in our justice and administration system.

Now, what is left to the people if such check and balance mechanism is obliterated by the government? Isn’t that a blatant breach of the social contract?

The point is this. Nobody in their right mind, and that includes me, is questioning the need for a controlled curtailment of some individual rights in favour of an orderly society. I hope I have made that clear.

What is being questioned is the mechanism of such curtailment. It must be done with due process of the law. That is the social contract. It stems from the realisation that the primacy of the individual has to be balanced with the paramountcy of society (to borrow the words of Shashi Tharoor in his excellent dissertation, “Are Human Rights Universal?” appearing in the World Policy Journal).

And, in my opinion, the element which provides the leverage between the two seemingly opposing rights is nothing but the law and justice system.

The Malay Annals (”Sejarah Melayu”) and the Social Contract

Just as the Magna Carta and the Bill of Rights 1689 defined early social contracts between the subjects and the English King or States, the Malays have their own version of a social contract.

This is contained in the Malay Annals, an excellent satirical work by Tun Sri Lanang which consists of and is believed to have been based on facts which were romanticised with folklores.

In it was narrated the story of Sang Utama Sri Tri Buana (the Palembang ruler from whom all Malay royalty claims descent) who, in his quest to rule the people, made a pact with Demang Lebar Daun, who represented the people.

Demang Lebar Daun promised that “the descendants of your humble servants shall be the subjects of your majesty’s throne, but they must be well treated by your descendants. If they offend, they shall not, however grave their offence, be disgraced or reviled with evil words: if their offence is grave, let them be out to death, if that is in accordance with Muslim law”.

To which Sang Utama replied: “I agree to give the undertaking for which you ask, but I in turn require an undertaking from you … that your descendants shall never for the rest of time be disloyal to my descendants, oppress them and behave in an evil way to them.” To which Demang Lebar Daun agreed, “ … but if your descendants depart from the terms of the pact, then so will mine.. subjects shall never be disloyal or treacherous to their rulers, even if their rulers behave cruelly and immorally … and if any ruler puts a single one of his subjects to shame, that shall be a sign that his kingdom shall be destroyed by Almighty God.” (as taken from the Tuah Legend website)

Thus was born the oft-quoted Malay saying, “Raja adil Raja disembah, Raja zalim, Raja disanggah”, which forms the basis of the loyalty of the Malay subjects to their King.

The Hang Jebat rebellion against Sultan Mansur Shah was an illustration of how this social contract was practised.

The Social Contract is Not Cast in Stone

As pointed out above, Locke argues that the social contract is a living document and its terms may be renegotiated as and when the needs arise.

Rawl on the other hand posits that we, as human beings, are reasonable only to the extent that we are able to achieve an end together within a set of specific regulatory principles. Thus, by no means is a social contract an unmovable object. As society evolves, generations and consequently values and cultures change, internal and external dynamics would redefine the society’s priorities and needs.

It follows that the social contract would change and vary in order to achieve newer objectives and ends. Thus in India, we would now see the practice of suttee, where a surviving widow would be burned alongside her husband’s body, being outlawed.

Slavery in the United States and other parts of the world become a practice which is frowned upon. Gay marriages are now permitted, even in Singapore. Such is the power of time and progress.

The Federal Constitution for example, had never contained provisions for the New Economic Policy or a new education policy.

In the aftermath of May 13th 1969 however, the NEP was introduced out of societal necessities as well as, probably, political necessity. Thus a new social contract was born. What about the new education policy, where the English took a back seat, as opposed to the pre-Merdeka policy where a certain degree of emphasis was given to the English language? Wasn’t that a change to the social contract?

The Federal Constitution is, to my mind, the social contract between the people of Malaysia and the State or Government. But it has been amended countless time to suit the needs of the society (although one could present a really substantive argument that it was amended for political expediency on countless occasions).

The Judiciary, for example, in whom was imbued judicial power in the original Federal Constitution (and thus the original social contract), was later deprived of judicial powers save and except provided for by the Parliament through yet another amendment of the Federal Constitution. Wasn’t that a change to our social contract?

Hishamuddin talked about the actions of some parties who dare to belittle our Royal institution. With respect, that is almost hypocrisy. Under the original social contract, the Malay Rulers cannot be sued in any Court. No legal action may be brought against any of the Rulers.

Mahathir Mohammad’s regime amended the Federal Constitution to allow the Rulers to be sued in a special Court.

Many of us would have read the recent suit by a bank against one of the Malay Rulers. Wasn’t that a change to our social contract? How about the necessity for Royal assent to a bill of law before that bill could legally become law? Originally that was the position. But again, the Federal Constitution was amended to do away with such requirement. Wasn’t that yet another change to the social contract?

Hishamuddin and his ilk should realise that nobody is questioning the rights of the Malays and the status of Islam as enshrined in the Federal Constitution. What is being questioned is the implementation of the government’s affirmative policy. There are obvious differences between the two.

In any event, the social contract, as proven above, has been varied and changed on countless occasions, by none other than the BN government itself. Of course, the BN government would argue that those changes were necessary for the betterment of the society as a whole.

Why then, when anybody other than the BN leaders stands up to raise a question on the social contract, or when he or she would even dare to suggest a discussion on, let alone a change to the social contract, he or she would be deemed arrogant, or in Hishamuddin’s own words, “sombong, angkuh dan bongkak”? – Loyarburok

Article by Art Harun.

This was what Bernama Malaysia's national news agency reported on March 16, 2009.

Brunei Drops Territorial Claim Over Limbang

BANDAR SERI BEGAWAN, March 16 (Bernama) -- Brunei has officially dropped its long-standing territorial claim over Limbang, a northern division in Sarawak, marking a new era in the bilateral relations between both countries, Datuk Seri Abdullah Ahmad Badawi said.

The prime minister said the matter was part of the historic Letters of Exchange (LoE) inked between him and Sultan Hassanal Bolkiah of Brunei, which formalised the solution to the long-standing Malaysia-Brunei boundary issues, at the Istana Nurul Iman here Monday.

"It has been stated in the LoE that Brunei has dropped the issue and this means that Limbang is part of Malaysia," he told a news conference with Malaysian journalists before heading home at the end of his two-day visit to the sultanate.

Limbang, located on the banks of Sungai Limbang between the two halves of Brunei and covers an area of 3,978 sq km with population of more than 40,000, was annexed by James Brooke, the first Rajah of Sarawak, in 1890 to become the fifth division of Sarawak.

Abdullah, in thanking the Sultan of Brunei and his government for the positive action in making the solution a reality, said that border issues would now cease to haunt the relations between both countries.

"With the issue solved, Brunei and Malaysia can now enter a new era of bilateral relations and cooperation in various fields and there is no more unhappiness over the issue," he said.

A joint statement issued by both leaders stated that among the key points in the LoE was the modalities for the final demarcation of land boundaries between Brunei and Malaysia.

It also stated that the demarcation would be resolved on the basis of five existing historical agreements between the Brunei government and Sarawak government, and as appropriate, the watershed principle.

"Hereafter, all issues pertaining to land boundaries of the two states shall be accordingly resolved," it said.

The statement said among the key elements in the LoE was the "unsuspendable rights of maritime access" for Malaysian nationals and residents across Brunei's maritime zones en route to and from their destinations in Sarawak, provided Brunei's laws and regulations were observed.

"The solution of the maritime delimitation issue ensures certainty with regard to the delimitation of the territorial seas, the continental shelf and the exclusive economic zones (EEZ) of both countries."

The two countries would be able to enforce their rules and regulations and embark on new developments in their respective maritime zones," it said.

The two-page statement also stated that the LoE, which marked a historic and momentous occasion for Brunei and Malaysia, reflected the two countries' ability to reach a comprehensive, fair and equitable package solution in the larger interest of both countries.

It also said that both leaders believed that the signing of the letters would pave the way for the development of strategic partnership and closer collaboration in all fields, especially trade and investment.

Other areas are in energy and hydrocarbon resources, tourism, education, agriculture, infrastructure, banking, halal industry and people-to-people contacts with special focus on the Malaysian states of Sabah and Sarawak, it said.

Both leaders believed that "the brotherly relations between Brunei and Malaysia will contribute to the promotion of peace and prosperity in the region," the statement said.

They also instructed officials and representatives to follow up and monitor the full implementation of provisions in the letters, which marked the successful conclusion of negotiations, with historical, legal and other relevant criteria acceptable to both sides.

Abdullah, accompanied by wife Datin Seri Jeanne Abdullah, earlier led the Malaysian delegation, which included Foreign Minister Datuk Seri Rais Yatim and Education Minister Datuk Seri Hishammuddin Tun Hussien, to the historic occasion at the Istana Nurul Iman.

They were welcomed by the Sultan of Brunei and his consorts Raja Isteri Pengiran Anak Saleha and Pengiran Isteri Azrinaz Mazhar.Present was the Crown Prince of Brunei, Prince Al-Muhtadee Billah.

Abdullah then held a four-eye meeting with Sultan Hassanal Bolkiah before both of them adjourned to the signing ceremony which took place at the Cabinet Room.

It was witnessed by delegations from both countries including Brunei's Foreign Affairs and Trade Minister Prince Mohamed Bolkiah and Second Foreign Affairs and Trade Minister Pehin Datuk Seri Setia Lim Jock Seng.

Sarawak Chief Minister Tan Sri Abdul Taib Mahmud and Sabah Chief Minister Datuk Seri Musa Aman were also present at the signing ceremony.

Abdullah later left for home from the Brunei International Airport.-- BERNAMA

And here comes the pie-on-face!

Brunei denies Sarawak border dispute resolved

BANDAR SERI BEGAWAN, March 19 — Brunei has denied claims that the sultanate and Malaysia had resolved their territorial dispute over Limbang in Sarawak.

Brunei's Second Minister for Foreign Affairs and Trade, Pehin Dato Lim Jock Seng, on Tuesday set the record straight by denying there was any discussion on Limbang during talks on Monday between Malaysian Prime Minister Datuk Seri Abdullah Ahmad Badawi and Sultan Hassanal Bolkiah, the Borneo Bulletin reported yesterday.

“In actual fact, the claim on Limbang was never discussed. What was discussed was the demarcation of land boundaries on the whole,” Lim said in response to a question at the Legislative Council session.

He said a joint press statement issued on Tuesday mentioned that the demarcation of the land boundaries would be resolved on the basis of five existing historical agreements between Brunei and Sarawak.

“After that, a working group comprising general surveyors of the two countries will follow with the technical aspect to solve the land border issue.''

Malaysian media had widely reported Abdullah as saying that Brunei had dropped its claim on Limbang. The Limbang dispute can be traced back to the cession of the territory by Brunei to Sarawak's White Rajahs in 1890. The cession had been strongly disputed by the sultanate, which regarded the transfer as annexation by Sarawak.

The move had resulted in a significant reduction of Brunei's territory and cut the sultanate into two. — The Straits Times

WHAT A JOKE!

Ridwan courts infamy with his judgments — The Malaysian Insider

MARCH 12 — When Judicial Commissioner Ridwan Ibrahim put Perak state assembly Speaker V. Sivakumar in a straitjacket and curtailed his powers, two of Malaysia’s most illustrious judges must have been turning in their graves.

Tan Sri Chang Min Tat and Tan Sri Eusoffe Abdoolcader were legal giants, men of integrity, honesty, professionalism and whose legal judgments stood up to the closest scrutiny.

They were also among the judges who steadfastly upheld the position that the courts should not interfere or question the proceedings of Parliament or a state assembly, giving life to the doctrine of separation of powers between the executive, legislature and judiciary.

If Ridwan is interested, the score is 5-0 against him. A check shows that five cases have been brought before the courts by politicians seeking a variety of restraining orders and injunction.

The plaintiffs wanted the courts to stop a defendant from dissolving the legislative assembly; wanted an order of prohibition against members of the Committee of Privileges and an injunction to restrain the removal of a Speaker.

In all the cases, the courts were loath to interfere, relying heavily on Article 72(1) of the Federal Constitution which reads: “The validity of any proceedings in the Legislative Assembly of any state shall not be questioned in any court.’’

The five cases were:

• Fan Yew Teng v Government of Malaysia.
• Lim Cho Hock v Speaker, Perak State Legislative Assembly.
• Tun Datu Haji Mustapha bin Datu Harun v Legislative Assembly of State of Sabah.
• Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Hj Mohamed Adnan Robert.
• Haji Salleh bin Jafaruddin v Datuk Celestine Ujang.

In the Lim Cho Hock case, the plaintiff sought a declaration that the offices of the Menteri Besar and President of Ipoh Municipal Council cannot be held by the same person. He also wanted the court to rule that the appointment of the MB as President of the Council was null and void and that the state authority had exceeded its powers in making this appointment.

Justice Abdoolcader ruled that it was clear that the courts have no jurisdiction over proceedings of the legislative assembly.

It is not only in Malaysia that the courts have held that it was wrong and improper for actions or proceedings of the legislature to be questioned. Courts in India, Australia, Canada and New Zealand also have stayed true to this principle in cases such as Prebble v Television New Zealand, P V Narasimha Rao v State, Harnett v Crick.

So when Judicial Commissioner Ridwan Ibrahim granted an order restraining Sivakumar from convening any unlawful meetings, he was entering unfamiliar territory and he was going against legal precedent and the constitution.

Barisan Nasional officials and their supporters argue that Sivakumar overreached and acted outside his jurisdiction when he accepted the undated resignation letters of three Pakatan Rakyat lawmakers.

They also argue that Sivakumar’s decision to suspend Datuk Zambry Abdul Kadir and his six executive council members was unconstitutional and against the state constitution.

The only snag is that the Perak state constitution makes clear that “there shall be freedom of speech and debate or proceedings in the assembly and such freedom of speech and debate or proceedings shall not be liable to be impeached or questioned in any court or tribunal out of the assembly’’.

So can nothing be done against a rampaging Speaker? Isn’t there some action that can be taken against a partisan Speaker?

Of course, there is. Just not through the courts.

So how did Barisan Nasional react after the courts ruled in the five cases that proceedings in the legislature should not be questioned by the courts?

They did nothing because they were the beneficiaries.

The arrogance of a novice judge

NH CHAN is former Court of Appeal judge famous for his ‘All is not well in the House of Denmark’ comment regarding judicial corruption. He was then referring to High Court’s commercial division which was located in Wisma Denmark, Kuala Lumpur. The quote is based on Shakespeare’s ‘Something is rotten in the state of Denmark’.

I must say I was taken aback by the astonishing ruling of Ridwan Ibrahim, a High Court judicial commissioner.

He ruled that the lawyers “engaged by (Perak assembly speaker V) Sivakumar (left) had no locus standi to represent him in an application by Perak Menteri Besar Zambry Abdul Kadir, who is seeking a declaration that Sivakumar’s decision to suspend him and his executive council was unconstitutional and unlawful”.

I am appalled at the arrogance of the judge. I am quite sure he is not an expert in constitutional law and even if he were, in a case of such great public importance to the nation, it is wise to listen to the views of the other side. Especially in this case, when eminent counsel Tommy Thomas was available to assist him.

The judge could have invited him to submit as an amicus curiae - in Latin it means ‘friend of the court’ and when the phrase is used in a court of law it means ‘one who advises the court in a case’. I have done that many times even when I was in the Court of Appeal.

Judges of far greater eminence than this judicial commissioner have often asked lawyers of great experience who are in the court for their valued views. Yet this judge thought he knew everything that he did not require any assistance from one of the top lawyers in the country.

Dick Hamilton in his book ‘Foul Bills and Dagger Money’ wrote:

“It is always easy to criticise judges, and some of them deserve it from time to time; but it is even easier to underestimate the difficulty of their task, and to take their successes for granted. No member of the Bar pretends to understand every branch of the law. ... But a High Court judge has to deal with any sort of case which comes before him.”

In order for the judge to tackle all sorts of cases which come before him, the wise and able judge is always humble enough to ask any of the lawyers in court who is an expert in his field for assistance.

Here we have Thomas (right), who is one of the top lawyers in the country only too willing to assist the judge, yet this probationary judge, who thinks he knew more about law than some of the most eminent judges who have sat on the bench, refused to hear him out.

Here’s how to judge the judge

You cannot judge a judge unless you know the basic law yourself. But you do not have to worry because I shall now provide you with the law applicable so that you are in a position to judge the judge.

You may be surprised at your own ability after you have read this. You might think that even a layman, after reading the applicable law, knows what is the right decision to make. And when a judge does not know the correct answer, it makes you wonder how such a thing could have happened.

I shall start with section 24 of the Government Proceedings Act 1956. I have highlighted the important words for easier reading.

Sub-sections (1) reads:

“(1) Notwithstanding any written law -

(a) in civil proceedings by or against the Federal Government...

(b) in civil proceedings by or against the Government of a State, a law officer ... authorised by the Legal Adviser of such State ... may appear as advocate on behalf of such Government...”.

As you can see, this sub-section is not relevant as it only applies to civil suits brought by or against the state government, not a public officer.

And sub-section (2), which is relevant on the subject of discussion, reads:

“(2) Notwithstanding any written law in civil proceedings to which a public officer is a party -

(a) by virtue of his office; or

(b) in his personal capacity, if the Attorney-General certifies in writing that it is in the public interest that such officer should be represented by a legal officer; a legal officer may appear as advocate on behalf of such officer...”.

This sub-section only applies to civil suits brought by or against a public officer. In such a case, a public officer may (the word is 'may' not 'must') be represented by a legal officer which could include the legal adviser of the state.

Therefore, there is nothing in section 24 (2) of the Government Proceedings Act to suggest that a public officer if he sues or if he is sued must be represented by a legal officer such as the state legal officer.

In any case, section 24 (2) of the Government Proceedings Act only applies to civil proceedings to which a public officer is a party. Therefore, the question is, does the speaker of the Legislative Assembly of a state hold office as a member of the public service? If he does, then he is a public officer.

Article 132, Clause (3) of the Federal Constitution states that:

“(3) The public service shall not be taken to comprise -

(b) the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a State.”

So now you know that the speaker and the members of the Legislative Assembly of a state are not part of the public service as they do not hold office as public officers. Therefore, section 24 (2) of the Government Proceedings Act does not apply to them.

Now we all know, except the judge because he thought he knew better, that Thomas could not be prevented to appear for the speaker Sivakumar. If only he had heard Thomas out, instead of barring him from speaking, he would not have made such a grave error.

Courts can’t question validity of assembly decisions

According to newspaper reports, the case is an application by (BN-appointed menteri besar) Zambry Abd Kadir to the court to declare the decision of speaker Sivakumar in the legislative assembly to suspend him and his six exco members as unconstitutional and unlawful.

The question is, can the courts decide on the validity of the proceedings in the Legislative Assembly?

The answer is staring at us right here in the Federal Constitution. Article 72, Clauses (1) to (3) states:

“(1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

(2) No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof.

(3) No person shall be liable to any proceedings in any court in respect of anything published by or under the authority of the Legislative Assembly of any state.”

So now you know from the Federal Constitution itself that the validity of the suspension of Zambry and his six exco members by the speaker in the state assembly cannot be questioned in any court.

From what we have read from the newspapers, it seems that there is an injunction against the speaker.

You may wonder how an injunction can be obtained against the speaker when our written constitution says that “no person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of the State”.

NH CHAN, who is former Court of Appeal judge, lives in Ipoh. This is an abridged version of the original article.

Malaysiakini / March 9, 2009.

Hey! I’ve Been Offered US$1,350,000 By Some Coon!


Yesterday, I received this email.


From : andrewmaurice@cantv.net
Sent : Tuesday, 3March, 2009 4:16 PM
To : andrewmaurice@cantv.net
Subject : This is very important,please reply


Good day my dear, I am Andrew Maurice. Nationality sierra leone. I am 23 years old, a student. I lost my father years back. He died during the political crisis in my country. My late father was one of the directors under Tijan Kabbah government.

My mother is aged and she is 62 years now an old woman. We are leaving in Cote D'ivoire since past six months. It is my desire to write from my heart hoping that you will help us. My father diverted some huge some of money which he deposited with a bank in this country when he was alive,in fact in a brife i introdution.

All the information will be given to you when i hear from you. This money totaling us$ 9,000,000.00 ( Nine Million United States Dollar. Now we are seeking for a trusted person who will receive this money into his/her account for onward investment.

We have decieded to give you 15% of the total sum for your kind assistance.It is an inheritace and our last hope. Show your interest and we proceed on the next step of action. Thanks and God bless you.

Andrew Maurice

I want to warn others about these coons and their scams.

Pokok Demokrasi Perak

Power of Speaker to Convene Legislative Assembly
Contributed by Tommy Thomas

I have been asked to advise whether the Speaker of the Legislative Assembly of Perak was entitled in law to convene the Legislative Assembly on 3rd March 2009. Ultimately, the issue turns on whether the last meeting of the Assembly in November 2008 was prorogued (“di-berhentikan”) or adjourned (“di-tangguhkan”). If it was prorogued, only the Sultan of Perak (“HRH”) can summon the Assembly: if it was adjourned, then the Speaker can convene. According to my instructions, what was adjourned sine die in November 2008, was the Third Sitting of the First Session of the 12th Legislative Assembly of Perak. This opinion is written on that factual basis.

A. THE STATE CONSTITUTION OF PERAK

2. The starting point in the analysis is the Laws of the Constitution of Perak, and in particular Articles 36 and 44. Article 36 deals with the summoning, prorogation and dissolution of the Legislative Assembly. Article 36 (1) and (2) read as follows:-

“(i) His Royal Highness shall from time to time summon the Legislative Assembly and shall not allow six months to lapse between the last sitting in one session and the date appointed for its first sitting in the next session.

(ii) His Royal Highness may prorogue or dissolve the Legislative Assembly”.

It should be noted that Article 36 does not deal with adjournment of the Assembly. Article 44 (1) states that the Legislative Assembly shall regulate its own procedure and may make Standing Rules and Orders for “the regulation and orderly conduct of its own proceedings and the conduct of business”. Article 44 (1) recognises the well settled constitutional principle that the Assembly is the master of its procedure, and its sovereignty over its internal affairs cannot be questioned by any external body.

B.THE STANDING ORDERS

3. Pursuant to Article 44 (1) of the State Constitution, the First Meeting of the Second Session of the Seventh State Legislative Assembly of Perak passed Standing Orders on 23rd March 1988. Standing Order (“SO”) 88 is the definition order. The expressions “meeting”, “session” and

“sitting” are defined in SO 88 as follows:-

“ ‘meeting’ means any sitting or sittings of the Assembly when the Assembly first meets after being summoned at any time and terminating when the Assembly is adjourned for more than fourteen days or sine die at the conclusion of a sessions”;

“ ‘session means the sittings of the Assembly commencing when the Assembly first meets after being constituted, or after its prorogation or dissolution at any time, and terminating when the Assembly is prorogued or dissolved without having been prorogued”;

“ ‘sitting’ means a period during which the Assembly is sitting continuously (apart from any suspension) without adjournment, and includes any period during which the Assembly is in Committee”.

A review of the definitions given to the 3 terms would indicate that a meeting is the shortest period, followed by a sitting, while a session is of the longest duration.

4. It is significant that the definitions of these expressions in SO 88 reflect their ordinary meaning as the Oxford English Reference Dictionary (2nd Ed. 1996) indicates:-

“adjourn : put off, postpone, break off with the intention of resuming later.

prorogue : discontinue the meetings (of Parliament) without dissolving it.

sitting : a time during which an assembly is engaged in business.

meeting : persons assembled.

session : a period during which meetings of assembly are regularly held.”

5. Adjournment is the subject matter of 3 Standing Orders. Pursuant to SO 15 and 16, upon a motion for adjournment after the completion of all business in a sitting, Mr Speaker is entitled to adjourn the Assembly. The first pre-condition for such adjournment is the completion of all business. What is thus being adjourned is a sitting, and not a session  a session can consist of numerous sittings. When an adjournment motion made under SO 15 and 16 is carried, Mr Speaker declares “That this Assembly do now adjourn”. The adjournment referred to in SO 17 is entirely different because it entitles Mr Speaker (with the support of the majority of members) to change the order of business of a meeting of the Assembly by permitting a “definite matter of urgent public importance” to be debated on an urgent basis. Thus SO 17 is not relevant for present purposes.

6. It appears as if no express SO gives Mr Speaker the power to recall the sitting of an Assembly that was adjourned by him, as occurred in November 2008. Because what was adjourned in November 2008 was only a sitting, and not a session, what is clear is that HRH’s power to summon does not at present arise because Article 36 (1) of the State Constitution refers to “one session” and the “next session”. If it is not a question of the discretion of HRH to summon a session, then by implication only, Mr Speaker has such power with regard to sittings and meetings of the Assembly. In the event of doubt regarding his power, Mr Speaker can rely on the residuary powers conferred on him under SO 90. Further, a decision or ruling by Mr Speaker on his power is final and not open to appeal pursuant to SO 43 and 89 : only a substantive motion passed in the House can review it.

C. THE BRITISH PRACTICE

7. SO 90 provides that when the Standing Orders are silent on any matter, Mr. Speaker may give directions, “and in giving such direction Mr. Speaker shall have regard to the usages of Commonwealth Parliamentary practice so far as such usages can be applied to the proceedings of the Assembly”. Accordingly, reliance can be made on the practice and procedure of the British Parliament, which is the mother of all Parliaments. Erskine May ’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament is the leading text on the subject in the Commonwealth. I have reviewed the relevant commentary in Chapter 13 in its 23rd Edition (2004).

8. According to the learned authors of Erskine May (all of whom are clerks of the House of Commons):-

“ ‘A Parliament’, in the sense of a parliamentary period, is a period not exceeding 5 years which may be regarded as a cycle beginning and ending with a proclamation.

A session is the period of time between the meeting of a Parliament, whether after a prorogation or a dissolution, and its prorogation. During the course of a session either House (Commons or Lords) may adjourn itself on its own motion to such date as it pleases. Sessions are of indeterminate length but …….usually run from October or November of one year to October or November of the next.

The period between the prorogation of Parliament and its reassembly in a new session is termed a ‘recess’, while the period between the adjournment of either House and the resumption of its sitting is properly called an ‘adjournment’ (although in practice the word ‘recess’ is generally used in this sense also). A prorogation terminates a session; an adjournment is an interruption in the course of a single session.”
(my emphasis)(See Page 272)

9. In a discussion under the caption “Prorogation and Adjournment”, Erskine May states:-

“The prorogation of Parliament is a prerogative act of the Crown. Just as Parliament can commence its deliberations only at the time appointed by the Queen, so it cannot continue them any longer than she pleases. But each House exercises its right to adjourn itself independently of the Crown and of the other House…
(my emphasis)(Page 274)

The difference between prorogation and adjournment becomes clearer from a practical perspective by considering their effect. The effect of a prorogation is to suspend all business, including committee proceedings, until Parliament is summoned again, and to end the sittings of Parliament. Further, all pending proceedings are quashed. An adjournment does not have the same effect on parliamentary proceedings as does a prorogation. Upon reassembling, each House proceeds to transact the business previously appointed, and all proceedings are resumed at the stage at which they were left before the adjournment. Erskine May also discusses the recall of Parliament during adjournment. “When Parliament is dispersed through the adjournment of both Houses its reassembly can be effected either by proclamation or under powers specifically conferred by each House on its Speaker”. (Page 277).

10. A similar distinction between prorogation and adjournment is made in Halsbury Laws of England (4th Ed, 1997 Reissue) in Vol. 34 : see Paragraphs 720 to 727. In Paragraph 720 under the heading “Power of each House to adjourn”, Halsbury states: “Each House of Parliament has the power to adjourn its sittings for any period of time to be determined by an Order of the House. Power is given by standing orders of the two Houses to the Lord Chancellor and the Speaker respectively, if they are satisfied that the public interest requires it, to summon the Houses to meet on an earlier date than that to which they have been adjourned”.
(my emphasis)

11. The practical advantages of an adjournment over a prorogation are discussed by Eric Taylor in “The House of Commons at Work” (9th Ed. 1979) as follows:-

“Since the beginning of the last war it has been thought better not to prorogue on 31st July, after all, but merely to adjourn the House for the summer, the reason being partly that it is more difficult to summon the House together again quickly after a prorogation, and during an adjournment the Speaker has power to summon it in case of emergency. This expedient was felt to be necessary during the uneasy war and post-war years. It is also useful to have a week or so after the Recess to clear up odd business. In any case the result was that the House was, and still is solemnly prorogue one day, and solemnly opened again by the Queen a day or two later, there being now no intervening Christmas holiday.

It may occur to the reader to ask why Parliament is prorogued at all, and why the House should not remain in Session from the time that it is elected until the time that it is dissolved, and a new Parliament is elected. The natural answer will be that Parliament likes to ‘clear its books’, just as a business firm clears its book at the end of a financial year. All Bills which have not reached the statute books by the end of the Session are killed automatically by prorogation. All notices of motions disappear from the Order Paper. It is a drastic but quite salutary process.”
(my emphasis)(Page 52)

12. These practical aspects are also considered in a leading British constitutional law text. In “Constitutional and Administrative Law” by de Smith and Brazier (8th Ed, 1998), the following commentary appears:-

“Sessions: prorogation and adjournment. It is the invariable custom for the life of a Parliament to be divided up into a number of sessions. These are usually of about one year’s duration, though there is no fixed practice……..;

……Nowadays the Commons sit for about 180 days altogether during a calendar year. Each House determines, on the Government’s initiative, on which dates it will adjourn and reassemble…….;

…..A session of Parliament is terminated by prorogation, a prerogative act; a short formal speech is made on behalf of the Queen, summarizing the work done during the session, and the Parliament stands prorogued till a named dated, which (unless prorogation precedes a dissolution) will be only a few days later, when a new session will be opened by the reading of the Queen’s speech…….;

…..The reason why Parliament is adjourned, instead of standing prorogued, in midsummer is strictly practical. In the first place, if it becomes necessary to recall a prorogued Parliament to deal with a matter of unexpected urgency, a royal proclamation has to be issued. It is simpler and may be more expeditious to reassemble an adjourned Parliament; this can be done by the Speaker and the Lord Chancellor acting on the Prime Minister’s quest…...”
(my emphasis)(Page 230)

13. It is thus plain and obvious that the Speaker in the elected House of the British Parliament, the House of Commons, has the discretion to recall the House during an adjournment, which is factually a different category from prorogation. Thus, the Speaker of the Perak Legislative Assembly is entitled under SO 90 to “have regard to the usages of Commonwealth Parliamentary practice”, in this case, the settled practice in the House of Commons, as to his own power to convene a sitting of the Assembly during adjournment.

D. CONCLUSION

For these reasons, in my opinion, Mr Speaker is lawfully empowered to convene the Fourth Sitting of the First Session of the 12th Legislative Assembly of Perak on 3rd March 2009.

Dated this 1st day of March, 2009.

Tommy Thomas