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Friday, May 29, 2009

Shocked that Najib Shocked by Ah Long

The Malaysian Insider reported that:
"Prime Minister Datuk Seri Najib Razak said he was shocked at the cruel and inhumane treatment of ah long (loan sharks) on people who failed to pay up their debts.

"He wants the authorities to take action under the law against such merciless loan sharks.

“I also hope that Malaysians are aware of the risk involved and learn a lesson from the reported inhumane acts committed by ah long, that they should never borrow money from ah long,” he said after announcing the official projection of the country’s gross domestic product (GDP) growth rate, here, today.
It is very heartening to note the care and concern the Prime Minister has against the treatment meted out by the ah longs in enforcing their payment.

In that vein I am certain he too shares the same care and concern over the murder of Shaariibuugiin Altantuyaa by two of the Police DiRaja Malaysia's special branch and ensure that our nation's policemen never carry out inhumane acts on another human being. In case, the Prime Minister forgot the facts of the case, Altantuyaa was treated cruelly and inhumanely when she was shot twice at the side of her left head before being exploded by C4.

We sincerely hope the Prime Minister will advise the Home Ministry to ensure that in future, the Police DiRaja Malaysia's efforts, time and expenses are used to investigate, apprehend and prosecute to conviction offenders like the ah longs instead of going around murdering foreigners or even members of the rakyat like the Altantuyaa case.

Actually Prime Minister, there is nothing shocking about this kind of stories if you lived with the rakyat instead of your palace away from all of us and surround yourself with only the rich and powerful. When you live in the gutter, there's not much to be shocked about except perhaps to be utterly disgusted by the excesses of the Malaysian political and financial elite. But I am certain that will not shock you at all.

eh these people manyak pandai arr...?

Oct 20 2008 (Bernama)

Malaysia is not in a financial crisis and should not be talked into one, Deputy Prime Minister Datuk Seri Najib Tun Razak stressed Monday.

Meanwhile, in Putrajaya, Najib said the country's economy was fundamentally strong and will not go into recession.

"Malaysia will not go into recession," he said in his speech at a farewell ceremony for Prime Minister Datuk Seri Abdullah Ahmad Badawi at the Finance Ministry..

Najib said the finance ministry and its agencies had enough expertise to face the global financial crisis.

Nov 17 2008 (Bernama)

The Malaysian economy has shown it is not facing a recession, but expanding more slowly, according to the Deputy Minister of Finance Datuk Kong Cho Ha.

Following additional measures tabled as a "policy response" towards the global economic crisis by the government on Nov 4, Kong clarified that the country's economy is predicted to expand by 3.5 percent in 2009.

Saturday November 29, 2008 (the Star)

Governor Tan Sri Dr Zeti Akhtar Aziz said the country’s sturdy domestic demand, which has driven the key services sector, along with policies already in place, would be enough to see the country continue to post growth this year and next.

In shooting down talk of Malaysia entering into a recession, Zeti said the reason for slower growth had been the external sector.

December 05, 2008 (Daily Express)

Malaysia will not slip into full recession next year if the country's economy is well managed by the government, former prime minister Tun Dr Mahathir Mohamad said Thursday.

He said the impact of the full-blown recession could be eased as the country was linked to the world's economy only by trade.

"We can offset the full impact of the recession from affecting us as we are linked to the world's economy only by trade, but we have not invested much in the world's economy outside the country," he told reporters after launching the BrandLaureate Awards 2008-2009 at a leading hotel here.

Dec 6 2008 (Bernama)

Malaysia will not be in recession next year, particularly as the government's stimulus plan implemented starts to show results by the first quarter, Second Finance Minister Tan Sri Nor Mohamed Yakcop said Saturday.

"At this point of time, there is no possibility from our calculations that we will enter recession in 2009. Our calculations are based on the actual economic scenario now and also based on what we are going to do," he said after launching Yayasan Ekonomi Sejagat here.

Sunday January 11, 2009 (the Star)

Malaysia will not plunge into a recession but Malaysians would feel a ripple effect of the global economic turmoil, Second Finance Minister Tan Sri Nor Mohamed Yakcop said.

He said the the goverment had taken immediate measures such as the RM7bil stimulus package to meet the challenges ahead.

“The Malaysian economy is still strong although many big countries are experiencing a recession and economic contraction.

Jan 13, 2009 ( from MIDA)
According to Government forecast, the GDP growth for 2008 is projected at five percent and for 2009 the economy is expected to expand at least 3.5 percent.The Malaysian economy expanded by 4.7 percent in the third quarter of 2008.

Malaysia is facing a difficult time due to the global economic downturn but it is still not in recession yet, Second Finance Minister Tan Sri Nor Mohamed Yakcop said.

Friday May 29 2009 (the Malaysian Insider)


The economy in now in recession with economic growth to contract between 4 and 5 per cent in 2009, much worse than the original forecast of 1 per cent decline, prime minister Datuk Seri Najib Tun Razak said today.

Bank Negara announced worse-than-expected first quarter economic growth which shrank 6.2 per cent from a year ago, the worst quarter since it contracted 10.2 per cent in the fourth quarter of 1998 at the height of the Asian financial crisis.

Yes we are in technical recession,” Najib told reporters when asked whether Malaysia in recession.

FRIDAY 29th May 2009 (ARTiculations...)


Art Harun says: BOLLOCKS!!!

ps on 25th Feb 2009, this blog, in a post titled, " the economy - a stimulating idiot's guide" , had warned that recession was coming. This blog operates without any resource other than myself. No data. No info. No nothing. And yet it was right. Now. I should be the Finance Minister, no?

Thursday, May 28, 2009

Morons are everywhere!

Politics, among others, is about forming ideals and persuading others to agree with those ideals. In democracy, politics, ideally, is about representing the masses who share such ideals. It is about gaining power through the trust given by the masses and using that very same power to achieve the very ideals which form the basis of the support given by the masses.

It is about serving the State in a way he or she thinks is right. In a way which the voters believe to be right. It is at the point where the beliefs, dreams, aspirations and wishes of the voters meet with the beliefs, dreams, aspirations and wishes of the politician that the premise for the support for that politician is built.

Upon the procurement of that support, the politician must pursue such beliefs, dreams, aspirations and wishes on behalf of the State and her people to the best of his or her ability. Because those beliefs, dreams, aspirations and wishes have become the politician's trust.

All the powers which come with the position of the politician are to be used only for the purpose of achieving those things. And not for any other purpose.

That to my mind is the function of a politician who seeks to be in power and who is possessed with the power.

However, sadly, in our country, most politicians seek power - in various means - because of vanity, greed, ego and the primordial need to lord over the masses. Most of those who walk along the corridors of power are merely interested in the pursuit of self preservation and the idolisation of their "leaders" as if those "leaders" are some God-sent creatures worthy of adulation and worshipping.

The beliefs, dreams, aspirations and wishes of the masses are not important. In fact, they are never mentioned nor thought about. Politics, to these creatures, is about them and themselves. And themselves. And nothing more.

These people ought to be tied up and thrown into the sea, with a very heavy bulk of steel attached to their feet.

Just look at this report. There was nary a mention about serving the people. Or hatching a plan to make the State a better place. About dreams. About aspirations. All they talked about is about money. About this and that persona. About me scratching your back and you licking my balls. The people? The State? Well, who the hell are they?

Now if PKR is just about this and is full of people like this sad and moronic flesh and bones, may I suggest that PKR either clean its act NOW or it can choose to dissolve the party.

It just proves that morons are everywhere.

I am disgusted!

Wednesday, May 27, 2009

The Perak Crisis - my rebuttal to Lord Lester's opinion

Prologue

"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?"

The above was part of my comment at Malik Imtiaz's blog, Disquiet, on his article Crisis In Trengganu? What Crisis? That comment was posted on March 25th last year, when the whole nation was discussing the crisis in Terengganu and Perlis, where the Rulers in both states had refused to agree to appoint the candidate nominated by the leadership of the winning party as the Menteri Besar.

There was a populist school of thought then that the Rulers were well within their power to do so. I took a different stand. I had always thought that the notion of "absolute power" rested in the Rulers is, with respect, misconceived. I ended my comment with a word of caution:

"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."

Fair enough, what I said above has now become true. His Royal Highness the Sultan of Perak had decided in  mid-term to change the MB because HRH thinks that the previously appointed MB did not command the confidence of the majority anymore.

Hafarizam Harun's Article

My learned friend, Hafarizam, is one of the Counsels for the BN in the Perak crisis. After the decision of the Court of Appeal reversing the High Court's decision on the Nizar v Zambry case, he publishes his takes on the issue on his blog. As he was one of the lead Counsels in the case, and considering the fact that the PM had openly admitted that the BN had been advised by Lord Lester QC, I would presume that Hafarizam's position on the issue echoes that of Lord Lester's.

Over the weekend, he had kindly invited me to link his article to my blog and I told him that I would post a reply. And so, here I am.

My Advice to Hafarizam's Attachment Student

But first, there is some house cleaning to do.

In The Tree Injunction - an opposite view from someone, I reproduced verbatim an e-mail which was sent to me from Hafarizam's office daring me to do the same. In that e-mail, I was labeled a lawyer who:

  • is misguided;
  • one track minded (yes, this is partly true because I am a keen track racer); and,
  • lacks judicial appreciation.

I was also asked to read the case of Stephen Kalong Ningkan again. In addition, the writer also said that "it is useless to talk to a lawyer who ‘confused’ others." The icing on the cake is the accusation that my 22 years of  legal practice just consists of "Ali Baba partnership", what ever that may mean.

I am told by Hafarizam that the e-mail and the whole post was written by an attachment student at his firm who assisted Hafarizam in the cases respecting the Perak crisis.

First of all, let me tell him or her that as a lawyer, I could receive as hard a blow as I give. That is the nature of my job. It is within his or her right to disagree with me or my opinion. But the mere fact that you disagree with me on an issue does not mean that I am misguided or that I have confused you or others. It also does not mean I lack judicial appreciation. It is after all a discourse. Although you are only a student, I have to respect your opinion despite the fact that I have more than 22 years of practice. The number of years in practice does not ipso facto mean that I am correct or more knowledgeable than you.

Secondly, please do not insult my partners by saying I have an "Ali Baba" practice. What do you mean? Does it mean that I maintain a practising certificate and sold it to my non-Malay partners like  those so-called Malay businessmen who sold APs or contracts? Or does it mean I get cases and "sub-contract" those cases to my non-Malay partners? For your information, I get briefed even from non-Malay lawyers. Your statement as such is an insult not only to my firm but many other firms with non-Malay partners.

Thirdly, please take your time when ever you are free to read the etiquette rules. Yes, there is such a thing. While doing your pupilage later, you even have to attend classes on it. In the legal profession, we do not insult fellow lawyers and we address them as our "learned friends" no matter how strong our disagreements are. As an attachment student, you have a long way to go. I am sure you would do well in the future and I wish you all the best.

Hafarizam's fisrt point - the practice in "other Commonwealth countries"

I am reproducing verbatim the relevant part of what was said by Hafarizam:

"Today's decision by the Court of Appeal is another high-watermark case on Constitutional law in Malaysia. It not only proves the point that I have been trying to make all along, but has placed Malaysian Constitutional jurisprudence at par with other Commonwealth countries, to wit a few, Australia, Canada and England itself, that the constitutional logic of the Constitution of Perak and the democratic imperative upon which the Constitution of Perak is based on the following thesis...

The powers to grant a dissolution of Dewan Negeri Perak and to appoint the Mentri Besar and State Executive Council members are among the prerogatives of HRH the Sultan of Perak. Consensus amongst parliamentarians and commentators is that there are instances in which the Monarch may refuse to grant a dissolution, especially to a minority government. For example, minority Labour Government of Ramsay McDonald requested for a dissolution, Herbert Asquith (Prime Minister between 1908 and 1916) stated in The Times for 19 december 1923, which was quoted with approval in Marshall, Constitutional Conventions (1986), at 38: "The Crown is not bound to take the advice of a particular minister to put its subjects to tumult an dturmoil of a series of general elections so long as it can find other ministers who are prepared to give it a trial. The notion that a Minister - a Minister who cannot command a majority on the House of Commons - is invested with the right to demand a dissolution is as subversive of constitutional usage as it would, in my opinion, be pernicious to the general and paramount interests of the nation at large."

In Canada, Governor General, Lord Byng, in 1926 refused to grant a dissolution to Prime Minister King after the latter's government had lost the support of members of other parties who provided its majority. There was no vote of confidence, but Prime Minsiter King imemdiately resigned. Mr Meighen, the opposition leader was invited form a government (see Hogg, Constitutional Law of Canada, 5th ed, at 9-30). Thus, the lauds and cries for 'Bubar Dewan' by fellow opposition members of 'Pakatan Pembangkang' are not only pernicious but has created deep division amongst the people of Perak. In hindsight, if YB Dato' Seri Ir Nizar has conceeded defeat on 4th February 2009, the people of Perak would not have to pay the heavy price of confusion, humilation and frustration the culmination of all was the the 7th May 2009 sitting."

(please note that I have re-paragraphed Hafarizam's post for ease of reference in this post).

It is ironic that Hafarizam had referred to the Ramsay McDonald affair and the "King-Byng" crisis in his post. I say it is ironic because these two instances actually support my postulation that the practice in the Commonwealth is that the Ruler had always dissolved upon being requested and the Ruler had no absolute power to ask the Premier to resign. I however admit that in the King-Byng crisis, the Governor General, Lord Byng had refused to dissolve upon King's request. However, there were extenuating and special circumstances in that case. I will touch on this later in this post.

The Ramsay McDonald Affair

Allow me to first clear a misconception in Hafarizam's post, where he says:

"....the Monarch may refuse to grant a dissolution, especially to a minority government..."

The Nizar-led Government in Perak is not a "minority Government". It is a coalition Government. There is quite an obvious difference there. A minority Government is a Government consisting of a party with the single largest number of seats in the Assembly but that party's seats are less than the total seats held collectively by other parties in the Assembly. For instance, if DAP has 60 seats, while PKR has 30 seats and the BN has 40 seats, a DAP government would be a minority government because its seats are less than the total seats held by PKR and the BN. However, in Perak, the situation is not such. There, PAS, DAP and PKR formed a coalition and the total number of seats in their coalition was higher than the seats held by the BN. Thus, it is a coalition government.

Secondly, Herbert Asquith could not have made the statement on 19th December 1923 in relation to Ramsay McDonald's request for a dissolution as quoted by Hafarizam because at that time, Ramsay McDonald wasn't even the Prime Minister yet!

The whole affair must be told in sufficient detail if we were to use this affair as a precedent.

McDonald became PM in 1924 when he formed a minority Government. As the Conservative had more seats, McDonald's Labour Party had to rely on the support of the Liberal Party. That made it difficult for McDonald to pass the necessary laws as he his position was precarious from the start.

His position became untenable when he rejected the Attorney General's advice to prosecute John Ross Campbell under the Incitement to Mutiny Act 1797 at the behest of some Labour backbenchers. Arising form that, motions for censure were initiated. McDonald quickly resigned  when the motions were amended to be one of no confidence. Had the motion been debated, McDonald would have lost. However, the day after the amendment, he asked for dissolution form the King.

And what did the King do? Even though McDonald's Government was only 9 months old, the King dissolved the Parliament and called for a fresh election.

The Conservative won in the ensuing election and they formed a Government.

However, McDonald made a return in 1929 after its May 1929 election. Again, this time, he formed a minority Government as Labour only had  288 seats to the Conservatives' 260, with 59 to the Liberals. Again, he had to depend on the Liberals which undoubtedly made life very difficult for his Government yet again.

To cut a long story short, his second minority Government did not last as well. During the Great Depression, his Government did not have any answer to the economics problem. His own cabinet was even split on the issue of public expenditure. He then submitted his resignation.

The King however persuaded him to form a "National Government" (something akin to the much talked about "Unity Government" which was being proposed by PAS recently). Note however that at this time, McDonald had submitted his resignation. He however did not ask for dissolution. The King, at his own initiative, persuaded McDonald to form a National Government.

McDonald accepted that suggestion and formed a National Government, which was actually a coalition between all the parties in the Parliament. This was viewed as a betrayal by his own Labour party. He even sacked some of his senior ministers from the Labour Party. Needless to say, in 1931, the Conservative forced him to agree to a general election.

Now, how does the Ramsay McDonald affair support Hafarizam's position? If at all, it supports my position that the Ruler (or in the UK then , the King) would dissolve the Parliament upon being requested. It also support my contention that the Ruler did not have the power to sack the Premier. Never at any time, the King asked for McDonald's resignation although it was crystal clear that McDonald did not command the confidence of the majority on two occasions.

The King-Byng Crisis

This crisis and its aftermath redefined the Canadian Constitutional position respecting the independence of the Governor General in making decisions on his own (without having to consult the British government).

This episode involved Prime Minister MacKenzie King and the then Governor General, Lord Byng. In September 1925, King requested a dissolution. Byng granted it. During the general election which ensued, Arthur Meighen's Conservative Party won 115 seats to 100 for King's Liberals while the Progressive Party had 22 seats.

As the incumbent PM, King did not resign. He went to see Byng after the election and told Byng that he wanted to form a minority Government with the support of the Progressive Party. (The next thing which happened  is very important and to my mind explained why Byng had later refused to dissolve the Parliament upon being requested.) During that meeting, Byng had actually expressed his thoughts that perhaps King should resign and let Meighen  form a government as his party had the majority seats. In Byng of Vimy (by Williams, at page 305), Byng was quoted to have said to King that he (King) ought not to ask for dissolution in the future unless Meighen was first given a chance to govern. King apparently tacitly agreed to this. King then went ahead to form a minority Government.

His Government then was involved in a corruption scandal. The Progressive party's support was dwindling. King's Government then lost 2 motions in the Parliament and was about to face another confidence motion. Against what was agreed previously, King asked for a dissolution.

Byng refused it. King presented an order-in-Council seeking a dissolution. Byng still refused dissolution. King then resigned. Byng appointed Meighen as PM and asked him to form a government, which he did.

Whatever was the motivation of Byng, he was heavily criticised for his refusal to dissolve. SA de Smith in his book, Constitutional and Administrative Law at page 106 viewed Byng was  as being in an "embarrassing" situation. In fact, Byng's position became even more embarrassing when Meighan's Government only lasted for less than a week. Within a week of its formation, Meighan lost a vote of no confidence by one vote. Meighan quickly asked for a dissolution which Byng duly granted.

de Smith argued in his book at the same page that the fact that Byng granted dissolution to Meighan while refusing King's request for one would open Byng to allegations of bi-partisanship. That would taint the office of the Governor General, which was supposed to be above politics, especially partisan politics. In a speech in 1997, the Governor General of New Zealand, Sir Michael Hardie Boys expressed the opinion that Byng had been in error in not re-appointing King as prime minister on the defeat of Meighen in the vote of confidence.

Byng and Meighan were humiliated during the ensuing general election. King went to town to critisise Byng's initial refusal to dissolve. The result of all that was a  victory with a clear majority for King, who was seen by the voters as a victim of Byng's indiscretion. Meighan was seen by the voters as the villain and he even lost his seat.

Central to Byng's refusal to dissolve at King's request was also the tacit agreement that both of them had when King had insisted that he should continue to be the PM even though Meighan was clearly the majority holder in the Parliament earlier.

This, needless for me to point out, was not the case in Perak. HRH the Sultan had appointed Nizar as the MB of a coalition Government with a  majority. As far as information which are in the public domain is concerned, there was no understanding between the Sultan and Nizar that Nizar ought not to ask for a dissolution and in the event Nizar lost the confidence, Zambry ought to have been given a chance like Meighan.

Furthermore, King was losing support from the Progresive Party, an integral part of his minority Government. Whereas Nizar did not lose any support from within his coalition, except for the 3 who had jumped ship. In addition, there was also, at the point in time where dissolution was requested by Nizar, uncertainty over the position of the 3 "independent ADUNs" and their case were in Courts waiting for adjudication. Thus, even the loss of confidence was in doubt. Contrast this to the clear and certain loss of confidence on King's Government when the dissolution was requested by him.

If we superimpose the scenario in the Byng-King affair and the Perak affair now, and considering the underlying disbelief by the people of Perak at what is currently happening, would it be too far fetched for me to conclude that the BN would be defeated badly if an election is called now? I would even venture to ask whether Zambry would be able to hang on to his seat in that event. Meighan and the Conservative party of course found out the hard way in the ensuing election.

With all due respect, Hafarizam's reliance on the Byng-King crisis appears to be misplaced. It is clear that Byng was driven by a tacit understanding between him and King in not granting dissolution. However, history proved beyond doubt that what he (Byng) did was not in accordance with Constitutional spirit.

History also, I am afraid, will judge HRH's refusal to dissolve the Assembly.

Refusal to dissolve - the discretion of the Sultan and the role of Constitutional Conventions

On the power to refuse dissolution, Hafarizam said:

"The powers to grant a dissolution of Dewan Negeri Perak and to appoint the Mentri Besar and State Executive Council members are among the prerogatives of HRH the Sultan of Perak. Consensus amongst parliamentarians and commentators is that there are instances in which the Monarch may refuse to grant a dissolution, especially to a minority government."

Hafarizam then went on to quote the McDonald and Byng-King affairs as examples. I have shown above that the two incidences do in fact support my position that refusal of dissolution was uncalled for in the circumstances. I have also explained above that Hafarizam's position that the Perak Government is a minority one is not correct.

Article 18 (2) (b) of the State Constitution provides that HRH may act in his discretion in, among others, withholding of consent to a request for dissolution of the Assembly.

However, it does not necessarily mean that HRH has an absolute power in the matter. The question is, and has always been, how should HRH exercise that discretion rather than whether HRH has an absolute power or otherwise.

At this point, I must refer to a creature known as Constitutional Conventions. A Constitution is the mother of all laws. In jurisprudential term, it is the "grund norm". It is a living and breathing document. It is impossible for any Constitution to provide for each and every probabilities and possibilities. Thus a Constitution may be as brief as the US' Constitution or as long as the Indian one. It could also be unwritten as the British one. But what maintains the order of the state administration in matters where the Constitution is silence are the conventions, or accepted practices. It is when conventions are thrown out of the window that crisis happened.

de Smith in the same book, at page 55 says that "law and convention are closely interlocked." Foremost of all, Jennings, in The Law and the Constitution, says that constitution conventions "provide the flesh which clothes the dry bones of the law, they make the legal constitution work; they keep in touch with the growth of ideas."

de Smith summed up Dicey's position on adherence to conventions (in Dicey's Introduction to the Study of the Law of Constitution as follows:

"Dicey contended that the sanction which constraints the boldest political adventurer to obey a convention he might feel inclined to break was his fear that breach would almost immediately bring him in to conflict with the Courts and the law of the land."

de Smith then concluded that "obedience to conventions was therefore buttressed by the sanctions of strict law". He further explains that "the sense of obligation and the fear of disagreeable consequences which tend to induce people to comply with conventions are broadly similar to the corresponding feelings which conduce to observance of the criminal law".

Such is the importance of constitutional conventions that any breaches of or departure from conventions might bring untold consequences. The fear of these consequences drives the compliance with the conventions.

In my humble view, and I say this with the greatest of respect to HRH the Sultan of Perak, the crisis in Perak was not caused by a lack of power. It was driven by a departure from conventions in the exercise of HRH's discretion.

What is the convention or accepted practice in relation to the refusal of dissolution under a Constitution which draws its form and substance from the Common Law and a Westminster styled democracy, you may ask?

HRH the Sultan of Perak himself succinctly put in HRH's book, "Constitutional Monarchy, Rule of Law and Good Governance" that "under normal circumstances, it is taken for granted that the YDP Agong would not withhold his consent to a request for dissolution of Parliament. His role under such situation is purely formal."

It is also clear that the Premier has the power to request a dissolution at any time of his own choosing. Wade and Phillips, in "Constitutional Law" posits that " no sovereign could constitutionally refuse to grant a dissolution of Parliament at the time of his (the PM's)choice".

It is also of considerable interest to note de Smith's observance that "some modern writers have argued that the usage of acceding to request has hardened into a binding convention never to refuse a request, or the power to refuse exists in theory but not in practice, or that the monarch is too remote from political realities or too likely to be swayed by conservative influence or prejudice or too vulnerable to criticism to exercise an independent discretion. Hence such a refusal would now be highly controversial, unless the request itself was manifestly improper; and this fact alone must make any attempt at definition highly tentative."

Events in Perak in the past few months have elevated the above statement to a prophecy of sorts. Just look at the controversy surrounding the crisis now. Just look at the public ridicule over the entire issue nowadays. None of these would have occurred had conventions been followed.

The Perak crisis has morphed itself into a black hole which is sucking into it the whole administrative system of this country. Affected by the crisis is not only the 3 leaping ADUNs and the respective political personages who are jostling for power but also the various institutions which happen to be connected - by close proximity, usages or entanglement - to the crisis.

The Assembly is in a shamble. Its Speakers are in doubt. The Royal house has been ridiculed, though I must hasten to add, mostly unwarranted. It has even been used during by-elections as shouts of "derhaka" were provoked and relished by some politicians. The independence of the MACC (in postponing the case against the 2 leaping ADUNs), the police, the AG chambers and even the Courts has been questioned. The whole Malaysia is in fact a laughing stock. That is the price which we, Malaysians, are paying for this truly unnecessary event.

Perhaps we should read more and ponder on the wise words of learned writers, whose words now have become nothing short of prophetic. Consider what de Smith said:

"...the burden thrust upon the Courts when they are called upon to determine whether prescribed rules have been complied with in a politically sensitive situation is liable to be excessive. Whatever the outcome, the prestige of the Judiciary will probably suffer. If the rules have been set down, do not require the Courts to decide whether, for example, a Prime Minister has been validly dismissed. This is pre-eminently a question about the reins of power. If the constitutionality of such an act is disputed, the controversy is unlikely to be resolved by the pronouncement of a court."

The above statement could have been written as a real-life commentary of what has been happening in Perak and in our Courts recently. But that was written a good 36 years ago.

And that is the high price all of us pay when conventions are not followed.

Hafarizam opines:

"What it means, in layman's term is simply this, that YB Dato' Seri Ir Nizar should have resigned the day he met HRH the Sultan of Perak on 4th February 2009. His defiance on that day has dragged the constitutional crisis to where it was until the Court of Appeal decided today!"

I beg to differ. As shown above, authorities, Constitutional precedents and Conventions have shown that, when faced with a no confidence vote, a Premier is entitled to seek dissolution. When sought, conventions dictate that the Ruler should not refuse dissolution. In the Perak case however, dissolution was inexplicably refused. The MB was asked to resign instead. And a new MB was appointed.

Nizar was just exercising his right as the incumbent MB in asking for dissolution. That was his constitutional right. He did not cause the crisis.

The crisis was caused by events taking place after he exercised his right as such.

Dismissal of the MB

I have touched on this issue in my article The Perak Crisis - an unsolicited legal opinion and I would not repeat it here. Suffice to say that the notion that the Ruler has the power to dismiss the MB  under circumstances where the MB has lost the confidence of the Assembly, without more, is misconceived. Conventions dictate that firstly, dissolution must be granted when requested.

This is in line with the fact that under the Perak Constitution, by article 16 (7), the MB does not hold office at the pleasure at HRH the Sultan. L A Sheridan, in his book "The British Commonwealth - the development of its laws and constitutions" noted that "in the temporal sphere of politics the Ruler has been since 1957 a constitutional Ruler....a Ruler with limited powers....and that the MB or Executive Council should not hold office at the pleasure of the Ruler or be ultimately responsible to him but should be responsible to a parliamentary assembly and should cease to hold office on ceasing to have confidence of that assembly."

However, when the Constitution was framed, it makes the Executive Council to hold office at the pleasure of the Sultan but not the MB. And of course, when faced with a no confidence vote, the MB may request dissolution first.

de Smith agrees with this when he says:

"If a Government, having lost its majority...were to insist on remaining in office instead of offering its resignation or advising a dissolution, the Queen would be justified, after the lapse of a reasonable period of time, in requesting the Prime Minister to advise her to dissolve Parliament and, if he were to refuse, in dismissing him and his Ministers."

So, the exact methodology is this:

The first scenario:

  1. the Premier loses majority
  2. the Premier offers resignation - if this happens, the Queen appoints a new Premier and the matter ends there.

The second scenario:

  1. the Premier loses majority
  2. the Premier requests dissolution
  3. the Queen dissolves Parliament
  4. a general election is called

The third scenario:

  1. the Premier loses majority
  2. the Premier refuses to resign
  3. the Premier refuses to advise dissolution
  4. the Queen waits
  5. after a reasonable period of time, the Queen invites the Premier to advise her to dissolve
  6. the Premier refuses
  7. the Queen sacks the Premier

The Perak situation falls under the second scenario. Unfortunately, dissolution was not granted.

(In any event, it has to be pointed out that the loss of majority was, at the time of the request for dissolution,  not established clearly in the Perak crisis).

From the above, it is clear that the power to dismiss is just a residual power. It is a power which is necessitated by events rather than a power which is naturally imbued in the Ruler's armoury of discretions or prerogatives. It would be wise to take heed of what de Smith later said:

"A change of Prime Minister may be necessary because of the resignation, death or dismissal of the incumbent. The last possibility, dismissal, would arise only in highly exceptional circumstances and, one would suppose, in a near revolutionary situation."

It is therefore clear that this residual power cannot be exercised by HRH without having explored the possibility of executing any other Constitutional power. It is a power, which, in my humble opinion, is to be exercised as a definite last resort and after having explored all other possible avenues. Since Victoria came to the throne, all vacancies in the PM office have arisen through either death or resignation and never dismissal. de Smith pointed out that the last unambiguous dismissal of the Government took place in 1783!

Even if the Queen were to dismiss the PM, de Smith posits that the new PM must be prepared to advise dissolution of the Parliament at the "earliest practicable moment."

It is therefore clear that the new PM (or in the Perak case, MB), appointed upon the dismissal of the previous one under this residual power, is not appointed to rule but to advise the Ruler to dissolve the Parliament (or in the Perak case, the Assembly) so that power can be returned to the people through an election process. That is the true spirit of the Constitution. The true spirit which has been forgotten or put aside due to political expediency and possibly, greed.

That being the case, even on the assumption that Nizar had lost the majority support and that HRH the Sultan was right in dismissing Nizar, Zambry's function is not to rule but to advise HRH the Sultan to dissolve at the "Earliest practicable moment".

It is interesting to note that Mahathir Mohammad himself had thought that the Perak coup was wrongly done and handled. He then admitted that if an election is called in Perak, the BN would lose. It is therefore clear that the BN leadership is uncomfortably possessed of the knowledge that they would lose in an election, if it is called. Hence the refusal to advise dissolution of the Assembly.

Startlingly, de Smith had foreseen this situation when 36 years ago, he wrote:

"She (the Queen) would also, it is submitted, be justified in dismissing her Ministers if they were purporting to subvert the democratic basis of the Constitution - for example, by prolonging the life of a Parliament in order to avoid defeat at a General Election..."

In the circumstances, where the BN Government know full well that they are going to lose in an election, if it is called, it is my humble view that the BN Government lacks the moral, and even legal, ground and standing to rule Perak. That is, with respect,  an attempt to  subvert the democratic basis of the Constitution by prolonging the life of the Assembly in order to avoid defeat in an election.

It is therefore submitted with respect that the HRH the Sultan of Perak is now possessed with the residual power to invite Zambry to advise HRH to dissolve the Assembly. In the event he refuses, Constitutional Conventions would equip HRH with the power to dismiss the Government and appoint a new one just for the purpose of advising HRH the Sultan to dissolve the Assembly.

The real power could then be returned to the people through the ballot boxes.

I rest my case.

Post note: all emphasis, where ever appearing in any of the quotes in this post, are mine.

Monday, May 25, 2009

The Art of Rhetoric

I would like to believe that I am well trained in the art of rhetoric. It is a case of "syiok sendiri", of course. But then again, if I am not even able to be "syiok" about myself, how would others be "syiok" with me? And today, in the spirit of "syioksendiri-ism", may I bore all of you with my thoughts on this subject.

It is common knowledge that some of our Ministers - and members of Cabinet - are quite intellectually challenged. This is obvious from the various statements which they make in public. Zahid Hamidi's "we must respect their culture" - when he was trying to deflect the embarrassment caused to the BN, and himself, caused by the Chinese sexy concert - was but one example of an absolute failure of the brain to take control of the tongue.

Further back in time, Nazri Aziz's "he called me because I am his Minister" - uttered while attempting to explain why the Lord President called him to issue a denial respecting the Linggam tape - was a shining example of a lack of appreciation of how the legal system worked.

Mahathir Mohammad is a champion when it comes to rhetoric. After his retirement, he is fond of laying the blame for everything which has gone wrong on everybody but himself. "I did not sack Tun Salleh, the tribunal did", said him. Of course, he forgot that he was the one who established the tribunal. "I did not put Anwar in jail, the Court found him guilty and put him in jail". Yes, yes, haven't we all heard of that too. "I did not destroy UMNO, Abdullah did". "I did not this, you did".

What these esteemed intellectuals failed to realise, and appreciate, is the fact that their audience are not at all stupid. Their audience are not some 3 year-olds with phlegm running down their nose holding a half sucked lollipops standing still with mouth wide opened in awe of them and their speeches. In fact, it is quite stupid of them to think that we are.

The ability to project oneself to an audience is a must if one were to aspire to be a good politician and consequently, a good leader. What more if one is a Minister. Even more if one is a Foreign Minister.

Anifah Aman's obsession with the Altantuya murder and Anwar Ibrahim's moral standing in the USA was astounding, by any standard. It is taken right out of the book of diplomacy, namely, from the first paragraph of the Chapter titled, "What Not To Do". It was totally unprovoked, irrelevant and too insignificant, especially when viewed from the perspective of the State Secretary, "Her Excellency" Hillary Clinton. In fact, for our Foreign Minister to address her as such, is a protocol disaster for Malaysia.

I hate to wonder what Americans and other civilised nations think of us. And to think about a headline on the Star proclaiming that "America wants to learn from us" - when in fact what was said was "we (America) must learn from each other (in dealing with the economic meltdown)" - makes me ticklish all over. That was "syioksendiri-ism" taken to the extreme!

Eco Umberto, in a paper given at University of Bologna on 20th May 2004 posits that rhetoric is a technique of persuasion. It involves discussing, arguing or debating over matters in order to find an opinion which is agreed to by the highest number of people. In short, it is the mechanic by which a consensus on a particular issue is achieved.

It is therefore important that the participants in that debate or exchange of rhetoric should work out arguments that are hard to dispute, to use proper and suitable language and also to "arouse in the the audience those emotions appropriate to the triumph of our arguments".

Let's analyse Anifah Aman's latest statements about Anwar Ibrahim's interview by the New Yorker recently. Hishamuddin Hussein was quick to say that Anwar was trying to "fool the world". Not to be left out, Anifah was quoted as saying that Malaysians should be “very, very hurt” by what was published in New Yorker and continued to say “Malaysian who do not feel embarrassed, is not Malaysian”.

That is a clear example of how a debater or participant in an exchange of rhetoric should not start his or her argument. That technique is called "captatio malevolentiae", a technique which is normally aimed at alienating the audience from the speaker and turning them against the speaker. It is like me, standing up in Court to begin my case by saying, "I know morons like you won't understand me but allow me to teach you". (I must hasten to add that I am not saying that there are moronic Judges in our Courts). Or, how about me saying, "I think you are an idiot if you don't agree with me on this".

The exact response of the audience to that kind of rhetoric would be one of isolation and soon, one of anger and resentment. "What do you mean I am an idiot if I don't agree with you?", would be the silent response. Soon, somebody would loudly say, "I am not the idiot, you are!". And from then onward, the debater would just be drowned with so much negative responses that his or her arguments would not even take off, let alone heard, dissected, analysed and agreed with.

Putting that to the fact, our obvious response to Minister Anifah would be, "what do you mean I am not a Malaysian if I don't feel embarrassed?" "If I am not a Malaysian, what am I, a Martian?", says a more cynical and sarcastic audience. "In fact, what you said, Mr Minister does not make sense. You said any "Malaysian who do not feel embarrassed, is not Malaysian". That is rather inconsistent. How could a Malaysian not be a Malaysian?", asked another one who was obviously more detailed and analytical.

Just to complete this short dissertation, allow me to explain the opposite of "captatio malevolentiae". It is called "captatio benevolentiae". This is aimed at getting approval from the audience by indirectly - and without sounding condescending - complimenting them. I can begin a debate on the abolition of the ISA, for example, by saying "I am sure the right thinking people in the room would agree with me that the ISA is draconian and uncivilised". Soon, everybody would be agreeing with me because then, they would be "right thinking". Or how about, "it is an honour for me to speak before such a distinguished and learned people".

And so, I supposed, Minister Anifah should have said, "I think right thinking people of Malaysia would be embarrassed at what Anwar said to the New Yorker."

I am sure all of you, highly intelligent readers of this post, would agree with that. :)

Friday, May 22, 2009

This is how it should be, damn it!!

"London police commander to face misconduct trial

LONDON, May 21 - Metropolitan Police Commander Ali Dizaei has been charged with misconduct and perverting the course of justice following his arrest of a man last year, the Crown Prosecution Service (CPS) said today.

The charges against Dizaei, one of Britain's most senior Muslim officers, follow an investigation by the Independent Police Complaints Commission (IPCC) into the arrest, which took place in a London restaurant.

"These charges relate to an incident in which Mr Dizaei, in his capacity as a police officer, arrested a man on allegations including assault," said solicitor Gaon Hart, of the CPS Special Crime Division.

"A decision not to charge that individual was made by the CPS in August 2008," he added in a statement.

"Following an investigation by the IPCC, a file was submitted to me in November 2008. I asked the IPCC to undertake further inquiries and I received the results of those inquiries this month." - Reuters"

(the news is taken from the Malaysian Insider )

A police Commander had wrongfully arrested a man. And the man was never charged for any offence. It was a clear abuse of the power to arrest. And that Commander is now being charged for misconduct and perverting the course of justice.

This is how it should be.

But in Malaysia, oh well...we all know how it is.

PS: By the time I do this update, it is confirmed that there will be no charges against the 5 lawyers who were arrested last week. The report is here. Which begs the question, why were they arrested? Minister Nazri told the Bar that there are Courts in this country and asked the Bar to allow the Courts to decide on whether the 5 lawyers had committed any offence. Now, where is the offence, may I ask?

Thursday, May 21, 2009

Dear Ambassador Todt,

Hi there. It's me again. Your friendly, average and simple Malaysian with no entitlement. I hope you are keeping fine. Please do. Because Malaysia, quite obviously, needs a French like you to be her Ambassador.

You know, actually, there were a couple more persons who were considered to be the Ambassador of Tourism. Dato' Shah Rukh Khan was one of them. But his propensity for not attending ceremonies, even when they were organised to ceremon-ised him, caused his disqualification.

I heard Hee Yit Foong, the lady ADUN from Perak, was also considered for this job. My inside source however told me that her inclination towards carrying morphable key-chain and pepper spray was a negative aspect causing her nomination for the job adversely affected. The final nail on the proverbial coffin was apparently struck when she was asked to orally shout a slogan to promote tourism and she instantly and very distinctively said "Come to Berak". Needless to say Mr Ambassador, you got the job.

You must be happy. I am too, if I were you. But unfortunately I am not you. You know, it takes people like Jamaluddin Jarjis years and years of being involved in politics and serving the peasants of Malaysia as a Minister before he would even be considered to be an Ambassador. Even then, he still hasn't got the job. But you got the job just 2 weeks after you became a 2nd hand Malaysian! Aren't you proud Mr Ambassador? I betcha! That is even faster than a Brawn GP car. (sorry, I wanted to say faster than a Ferrari, but .... well, you know what I mean).

One piece of reminder though. Please don't go about pinching some young asses in some bar, okay. The mere fact that you are an Ambassador does not mean that you could do that with impunity. Furthermore, I am sure Ms Yeoh would not be happy if you did that.

The word is Malaysia and France are now even. No, I am not talking about football. Because in football terms we are quite obviously not even. I mean, Platini, Le Blanc and Barthez could even play in the team with their balls collectively tied up together against our team and I am sure we would still lose by 13-1. And even then, the goal which we score would have been scored when Barthez was taking a ciggy break and Platini was having an impromptu prostate check. No. In football we are not even, quite obviously.

What I am talking about is this. We have a miserable singer who can't sing very well in France. He is Datuk Shake. And France has a guy who can't really drive well over here to become an Ambassador. Yes. 1-1. Even. That's what I mean.

If you must know Mr Ambassador (or is it Your Excellency? I mean our Foreign Minister addressed the US State Secretary as one the other day), Malaysia is truly Asia. We have people who behave like some Iranian Ayatollahs here. In fact, if you go to some of our government school, you would think you are in Iran.

And some women here behave like Imelda Marcos. In addition, there is a bit of Sultan Brunei in some of our royalties. Then sometime we have the FRUs, policemen and army lining up the streets like the Thai or South Korean army and police (although in Thailand they do that because there were thousands and thousands of protesters on the street whereas in Malaysia there were only people having breakfast in a restaurant and burning some candles on the pavements!).

We also have people who behave like Ferdinand Marcos and Suharto in Malaysia. And the Tamil tigers are also here, apparently. We also have quite strong traces of the Talibans here, even in the Parliament sometime. Try bringing a Bible in Malay and I am sure you will be meeting these. Added to that, Malaysia also are very closely connected to Bangladeshis, Burmese, Indonesians, Vietnamese and what have you. Apart from that, there also appear to be many Chinese babes from China in KL, especially at night.

In our administration, our Anti-Corruption Commission (MACC) and its empowering law is loosely based on the Hong Kong set up. But of course, implementation and enforcement wise we are different la.

There you go. Without doubt, Malaysia is indeed truly Asia.

As the Tourism Ambassador, I am sure you must also come up with schemes to promote tourism here. I think you should tell Yen Yen or whoever is responsible to not use Visit Malaysia Year 2009 or 2010 or 2011 anymore. Tell her to use "Visit Malaysia Year Every Year" instead. That way, the Ministry concerned would not have to make new posters, flyers and whatever promo stuffs every year because the year keeps on changing. Safe some trees and more importantly, money. After all, the Ministry, through Pempena, had lost a lot of it sometime ago.

I am sure you know how to do your work very well. But, please do allow me to teach you anyway. Here are some suggestions on the do's and don'ts.

I think you should, while promoting tourism to Malaysia your second home, advise the potential tourists on several matters. First and foremost, tell them not to wear black upon arrival. That is a complete no no. Then, if they are thinking of bringing as a souvenier to any of their Malaysian friend a bible in Malay, tell them to forget about that. In fact, tell them not to bring more than one bible (even if it is in English) for any one group. Preferably, they should be in Latin. That is because we Malaysians are adverse to the Bible as do vampires to the crucifix or garlic. Don't ask me. I don't know why.

Further, I think you should remind that old couples, especially Americans, should not sleep together in a hotel room, particularly in Langkawi. Otherwise, some religious authorities officers, or people claiming to be from such authorities, might storm into their room and arrest them for khalwat or adultery.

Upon arrival, the tourists must see the grandeur of our airport. If you have the chance, bring them to the LCTT too. They would notice that our airport serves not too many people and airplanes. But still we must build another LCTT for whatever reason. On the way to KL, you of course can tell the tourist to make a detour to the F1 Circuit to see some races. But do tell them not to waste their time. Because they can witness better, and more exciting, motorcycle races along the Kesas highway or somewhere in Bandar Tun Razak or Cheras at 3am. But do tell them not to bring any wallet or handbag while watching, okay?

Malaysia has nice places in abundance. Places with high historical values are also around. I think the first place to go is the KLCC. They used to be the tallest buildings in the world. But now they are the tallest twin towers in the world. You must tell the tourist Mr Ambassador, that the KLCC is proof that a man's ego can manifest itself into many things. And one of it is the desire to build the tallest buildings.

Indeed, Malaysia is entered as the country with the most number of records in the record book. Longest teh tarik. Biggest bunga manggar. Longest beef grill. Biggest kites. I heard we are now attempting to have the most number of Speakers in a state legislative assembly and the most number of Menteri Besar - at the same time - in a state as well. Not to mention the quickest change of government in the whole world. Like at 11am today you have one government and at 11.30 am tomorrow you have another government. Things like that. It is like quicker than a Ferrari pit stop, if you know what I mean. Do you know what I mean?

The KLCC is also home to what we Malaysian think is the most highly capitalised condom shop in the world. It is called Valuecap. Nobody knows what it does although it loses billions and was given more billions. But judging by the name, it must be something to do with condoms we suppose.

The KLCC is also the buildings featured in the movie "Entrapment". But the darn Hollywood people made us look so bad when they doctored the picture in that movie and made it look like the KLCC was situated at the fringe of a dirty river. Not that we do not have dirty rivers here but that is totally misleading. Malaysians and the Malaysian Government do not like misleading statements especially when foreigners are the one who make them. You see Mr Ambassador, in Malaysia only the mainstream media are licensed to mislead.

On my part however, I objected to the movie because of a scene in which that wrinkly old man was hugging, rubbing and kissing the pretty babe. Please don't be upset Mr Ambassador. I am not talking about you and Ms Yeoh. I was talking about Sean Connery and Zeta Jones in that movie.

After that, the tourists could be brought to Brickfield, our very own "Little India". But they must not miss visiting the police station there. This is where lawyers were arrested simply because they had wanted to see their clients in the station. Oh yes. While visiting this place, please don't wear black or carry any candle. T-shirts with the words "Head Hunter" printed on it should be okay.

At night, perhaps you could suggest that the tourists take a trip to our own "Chinatown". This is at Petaling Street. What makes this "Chinatown" so unique, you may ask. Well, this is the only Chinatown in the world where there are more Bangladeshis and Burmese than there are Chinese. It is a Chinatown like no other. In fact it is a non- Chinese Chinatown. Here, not only the whole Malaysia is on sale. Here, the whole world is on sale. They can buy Rolex, Panerai, Franck Mueler and whatever watches for 40 bucks. And various handbags from Italy at such low price.

I mentioned just now about "the whole Malaysia is on sale". Well, this is one of those projects that we have where during certain time of the year, all shopping complexes will be having "sales" where huge discounts are offered. Now don't you go thinking that the whole Malaysia is for sale. That is seditious.

The next day, perhaps they all should go to Klang. On the way though, please make sure they stop at the forested area somewhere near the Subang Dam at Puncak Alam. This is where the body parts of a certain Mongolian woman (you know la...the one that I told you not to mention her name in my last letter to you), were found. She is believed to have been murdered here and blown up to pieces at this area. I doubt it. Because there is no record of her ever coming to Malaysia. If she wasn't in Malaysia, how could she be murdered in Malaysia? Rumour has it that she was actually abducted by alien submarines. I tend to believe this more.

While in Shah Alam, do go to the High Court. This was where a very brave Judge ordered the release of an ISA detainee despite the law purportedly allow him to only scrutinise comas and full stops when a release application is made.

In Port Klang, please visit the PKFZ. This is a port support complex built to Malaysia's highest standard. Nothing was left unattended in the building of this complex. The cost was originally 1 billion. It later became 2 billions. Then 4 billions and now it is 10 billions. Some say it is 12 billions. It is an awesome complex. I mean, it is such a complex complex. Very complex. It is so complex that a report about it had taken months to prepare and be read by the Minister. Probably the report itself has become complex now.

There is also a palace to visit in Klang. But the owner has passed away. So, let's not talk about it.

Oh, I forgot. While on the way to Shah Alam, don't forget to stop at a condominium called Tivolli Villa. This is a historical place. It was in one of the condominium here that our former DPM was accused of having committed sodomy. The only thing is, the sodomy was supposed to have occurred even before the condominium was completed. I told you before, we are very unique people.

By the way, at this juncture, may I remind you to tell the tourists that sodomy is a crime in Malaysia. So, all those tourists who are gay, please take note. If they are caught, they could be charged and the mattress on which they commit the act could be brought to Court. Just be careful on what they do in Malaysia. We are all very upright - morally, that is - here. After all, we have "Asian values", you know. Speaking of which, we also have the "Malay Dilemma". And the "Melayu Baru". As well as the "Melayu Glocals". Now we have "One Malaysia".

Further to the north, of course, you would want to bring the tourists to the state from which Ms Yeoh comes, namely, Perak. Go to the state capital, Ipoh. There is a tree there which is of some significant. A whole session of the state legislative assembly was convened and proceeded under that tree. Tell that to the tourists. Then go to the state secretariat building. Look at the legislative assembly house. This is where they have 2 speakers. And 2 MBs. Two governments too. This is also a place where a key chain could morph itself into a pen drive and later a pepper spray.

This assembly is also probably the only assembly where the police could come in and forcibly removed the Speaker. And it is also the only assembly house where a meeting could remove the Speaker even before the meeting actually started. (the sodomy occurred in a condominium before the condominium was actually completed and the Speaker was removed at a meeting before the meeting started - you see the trend here?). Weapons could also be brought in. And please do visit the mamak restaurant nearby. But please do not have breakfast there. You might get arrested.

While there, do find a football player dubbed the Pangkor Pele and get your autograph signed by him. After all, Malaysia is not only truly Asia but also truly Brazil at times.

Up south, the tourists should go to Melaka and take a ride on a Ferris wheel known as the "eyes of Melaka". This is a very special Ferris wheel. It is a mobile one. It was in Kuala Lumpur and later it moved itself to Melaka. It is probably the most expensive one too. In KL, it costs the Government 30 million bucks per year. Yes. Thirty millions. Apparently it was hand made by the French. I don't know. That was the rumour. Don't be surprise if next year, they would build a contact lense for that "eye" at a cost of 15 millions or something.

Then you all can go to Johor. On the way to Johor Baru, the state capital, please do stop at Batu Pahat and go and have lunch or something at Katerina Hotel. This is the hotel where a former Minister had sex with a personal friend. The sex act was secretly taped and soon DVDs of the "show" was distributed to the public. Come to think of it, while in Petaling Street, the tourists might be able to buy this DVD as souvenier for their beloved ones. Don't forget to buy the t-shirt as well. It is printed "My dad goes to Malaysia and all I get is a sex DVD". Awesome!

Speaking of souveniers, if the tourists choose to buy that DVD as a souvenier, they can choose to buy another tape or recording just to complete their collection. Buy both and their collection would be considered "premium". Yes. Complete their collection by also buying the Linggam Tape. They will not be disappointed. From the Linggam Tape, the tourists could, for example, learn that someone who looks like someone and sounds like that same someone, might not be that someone after all. Very unique indeed.

Finally, you all will arrive at Johor Baru. Here, the attraction is of course the "crooked bridge". But hang on. It is not there yet. It was supposed to be there. Then it was not suppose to be there. Now it is supposed to be there again.

Please do also visit a cluster of rocks called "the middle rocks" in the straits between Johor and Singapore. These cluster of rocks should be called "the middle finger" because it is obviously Singapore showing us, in Malaysia, its middle finger. But do go there only during low tide. During high tide, the rocks will be submerged. You see, this is again very unique. Malaysia is probably the only country where her international boundary is dependable on the tides. I am sure the tourists would be interested to know.

I wish you all the best in your job.

yours sincerely

A Harun

ps I have always wondered. Why do the French call the French toast a toast although it is not toasted?

Wednesday, May 20, 2009

Where do they go?

I want you to find a newspaper now. You can try NST or The Star. Now. Serious. Go. Go. I can wait. Got it? Good. Okay, now turn to the classified sections but particularly to those auction pages. Easy to find one. You just look for those pages sponsored by banks that do a much nicer column or area for all the properties they are trying to auction off. Those are much more helpful and easier to look through than those awful ones which are contained in an advertised court order. Now take a close look at many of those apartments and houses being auctioned off. How much do they go for? Quite pathetic isn't it? You have some apartments being auctioned off for as low as RM 100k+. What's crazier are those being auctioned off that only cost something like RM 15 - 30K+. And I am fairly certain these are not second homes. These are I think some people's only homes. If they were comfortable enough, they will definitely not live there and sell it off to upgrade themselves.

So what concerns me is not so much that those properties cannot be sold but where are those people who cannot afford such cheap housing going? Think about it. You're poor. You're allocated this house. Then, for whatever reasons, you cannot afford the house. And that is your only house. You are booted out eithr now or later, when the new purchasers come in. Then what? If you are single perhaps you can swing it, but if you have a family? Where can you move them to? And you can bet that these people will also be unhappy, and then if that goes on long enough, perhaps even angry. Angry at themselves, angry at others, angry at life. Because they are also powerless, their anger is then made more pronounced by frustration.

If this trend keeps up, more of the impecunious will be sent into the streets, abandoned land and little nooks and crannies, in a state of anger, frustration, helplessness and poverty.

And when their anger and frustrations begin to boil over. And when our policemen are too busy lining their own pockets and carrying out the bidding of their political masters. And when our politicians are busy lining their own pockets and feeding us lies. And when our royalties are ensconsed in their luxurious and privileged surroundings.

Then where do we go?

Tuesday, May 19, 2009

Arresting The Illegal Arrests

In my article "Is the Malaysian Bar Pathetic?", I asked the question, "who polices our police?" This question is brought to the fore recently when the police arrested five legal aid lawyers who were trying to see their respective clients at the Brickfield Police Station.

The Scene

On the night of 7th May 2009, about 14 persons assembled in front of the Brickfield Police Station. They were apparently holding a candle light vigil for Wong Chin Huat who were earlier arrested for the grave offence of sedition by suggesting to the public to wear black. It was a peaceful assembly. No shouts. No screams. Just some harmless activists wearing black holding candles. They were arrested.

Some time after they were arrested, 5 young lawyers arrived at the police station asking to see their clients who were arrested earlier. Again. No shouts. No screams. Apart from the OCPD of course. Although he was within hearing distance from the lawyers, he had of course to use a loud hailer. The lawyers spoke softly. Nicely. They coaxed him. Pleaded with him. Even begged him.

The OCPD asked them to disperse because according to him, the lawyers were assembling illegally. (I must make a mental note to not go to the police station in future in a group of more than 3. Because under the law, that is illegal assembly. Never mind my intention.) The lawyers argued that they should be allowed to see their clients. They were told that their clients have signed a form saying that they have waived their right to see lawyers.

The 5 young lawyers - of which 4 were young girls and one man - asked to see the alleged waiver form. The police did not show them. (Event would show later that the police were lying as the arrested persons never signed any such form). Finally, the OCPD lost his cool. He ordered the arrest of the lawyers. The lawyers were then arrested.

The whole episode did not take place in Zimbabwe or Rhodesia during Ian Smith's time. It happened on the 7th of May 2009 at Brickfield Police Station. Watch exactly what happened at Malaysiakini.tv.

The Dungeon Treatment

Their statements were taken. They were made to wear the lock up suit. One of the girl was told that the lock up suit was not washed, for whatever reason. When they were being brought from one block to another, their hands were handcuffed. (Note: I think the police were mindful that drugs worth 1 million ringgit could disappear from their own store room and so they were just taking precaution to ensure that the lawyers did not disappear too).

The male lawyer were driven to another police station. In the car he asked where he was being driven to but the police officer said he did not know. Meanwhile, in the outside world, nobody, including his family, knew where he was! Efforts to locate him proved futile as family members and lawyers were given the normal run around from one station to another. He finally ended up at Taman Tun Ismail police station.

The Absolute Outrage and the Condemnation

About 200 hundred lawyers met at the Courts the next day to show support. The Bar called an EGM on 15th May. 1400 lawyers attended. A resolution was passed to condemn the act of the police. In addition the Bar Council was given the power to sue the police for the unlawful arrests. To cap it up, the Malaysian Bar demanded the immediate resignation of the Investigating Officer, the OCPD, the IGP and the Home Minister.

My Two Cents' Worth of Verbal Diarrhea

The arrests were a blatant transgression of our fundamental rights. Article 5 of our Federal Constitution specifically provides that an arrested person shall have the right to legal consultation. The Criminal Procedure Code also says so. (see my article "Is the Malaysia Bar Pathetic?" on this). The arrests were a vulgar attack on basic human rights. It was the proverbial middle finger to all of us. I could go on and on like a chipped CD. But I will stop.

Deflect and Attack

As a law student, I was taught to answer questions without lying and without actually answering them. It is an art in itself. There are apparently seven ways. The absolutely no-class way of doing that is to say "no comment". That is for people with the lowest level of sophistication of course.

Another way is of course to ask the question back to the questioner. "What are you talking about?", for example. My favourite is to say something real dumb and irrelevant. When I am asked questions which I do not want to answer, I would sometime say, "the moon is a harsh mistress". Completely harmless. Completely artful. Completely nonsensical. And irrelevant. It will leave the questioner speechless while giving me time to scoot off!

The IGP and Nazri Aziz however take the cake on this issue. It puts my "the moon is a harsh mistress" answer in the drain. Here's an excerpt of what these two said.

The IGP was quoted as saying:

“Are lawyers immune to the law? Can they do whatever they want without fear of any action being taken against them? Lawyers should set good examples and follow their professional procedures when discharging their duties,”

The full report is here.

Nazri Aziz would not want to be left out, would he? Here's what he had to say:

“The Bar Council is supposed to be a role model. If police enforce the law and among those caught are their (Bar Council) members, they have to accept it. We have the judiciary. Let the court decide whether the five lawyers are guilty or not,”

The full report is here.

This is what we call "deflect and attack". It is answering question, without lying and of course without answering the question. An they have added a twist. While they were doing so, They also attack. Brilliant.

So now, instead of them dealing with the real issue, namely, whether the police's actions were lawful and acceptable, they deflected the issue by saying the "Bar Council" is not above the law and it was intimidating the police from discharging their duties.

Dear Minister Nazri. In the first place, non of the Bar Council members were arrested. Those arrested were members of the Malaysian Bar, not members of the Bar Council. Could you at least be briefed properly on the difference between Malaysian Bar, Bar Council and members of the two please. And who is intimidating who? Lawyers intimidating the police? Where were the tear gasses and acid laced water? Because the last time I checked those things would have been brought out if the police were feeling intimidated.

And dear IGP. No. We are not saying lawyers are above the law. The mere fact that the lawyers were arrested is proof enough that we are not, is that not the case? The question is this. ARE THE POLICE ABOVE THE LAW?

That question can only be answered by considering a sub-issue. And that is, whether the arrests were lawful or otherwise.

The Law

The police, like any other servants of the state, must follow the law. They cannot simply arrest anybody they like and under any circumstance which they perceive warrant an arrest.

Under section 23(1)(a) of the Criminal Procedure Code, any police officer, without an order from a magistrate and without a warrant, may arrest any person against whom "a reasonable suspicion exists" of his having been concerned in any seizable offence. (I shall not discuss what is seizable or non-seizable offence).

So, under the law, the police can only arrest when there is "reasonable suspicion" that the person whom the police wants to arrest has been concerned with an offence.

The next question is this. What constitute "reasonable suspicion"? If a policeman sees a man, dressed in baggy pants and big jacket, with hands in his pockets, from which a small barrel-like instrument could be seen protruding from one of the pockets, walked into a bank, can he arrest that man? What about a lady, caught along Dataran Merdeka at 1am, wearing a tight skirt and a tank top, with condoms in her handbag. Can she be arrested?

The answer to those questions depends on the circumstances. On whether it would be reasonable for the police, at that very time, to suspect that the man or lady was concerned with an offence. This question has been argued and decided by the Privy Council in a case known as Chong Fook Kam & Anor v. Shaaban & Ors [1968] 1 LNS 23. The phrase "reasonable suspicion" was succinctly explained by Lord Devlin:

"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove". Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete."

"But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police enquiries are examples of those factors with which all judges who have had to grant or refuse bail are familiar."

"There is no serious danger in a large measure of executive discretion in the first instance because in countries where common law principles prevail the discretion is subject indirectly to judicial control."

"There is first the power, which their Lordships have just noticed, to grant bail. There is secondly the fact that in such countries there is available only a limited period between the time of arrest and the institution of proceedings; and if a police officer institutes proceedings without prima facie proof, he will run the risk of an action for malicious prosecution."

In short, the power to arrest is not to be taken as a God given right to do whatever the police like. First there must be reasonable suspicion that the person has been involved in some manner with a criminal offence. Than the police must think whether the arrest was really necessary. Would granting him a bail to secure his attendance at the police station be enough, for example. Is there a possibility of escape? Is the person going to commit another crime if not arrested? These are the questions which the police are confronted with before an arrest could be made.

And as to whether the police can be sued for making an illegal arrest, well, Lord Devlin has answered it in the passage above. The power of arrest is subject to judicial control.

So, what the Malaysian Bar wants to do, ie to sue the police, is not an intimidation. It is a process by which the police's actions could be judged. Nazri Aziz says we have Courts in Malaysia. Yes, of course we have. And that is where the lawyers are going this time. What is the problem.?Where is the intimidation? Like, what's the fuss? Kedahans would say, "hang sakit tang mana?" ("where are you feeling painful?")

The Icings on the Proverbial 15 tier Cake

The PM was quoted by Utusan Malaysia as saying:

‘‘Kita juga akan menguatkuasakan undang-undang dengan cara paling berhemah,’’

Loosely translated, that means "We will also enforce the laws in a courteous way".

The full report is here.

Ladies and gentlemen, please have a look at the video at Malaysiakini.tv. Watch it carefully.

Was there a reasonable suspicion that the 5 young lawyers were committing an offence? Was there a necessity for the arrests?

And as a last question, was the law being enforced in a courteous way?

You tell me.

Monday, May 18, 2009

A New Product From Apple - the iSpray

I received this in an e mail just now. I don't know who created it. I want to share it here.

moon-phoenix_3-in-1_usb-whatchamacallit

Letter From The US Committee to Protect Journalists to the PM

Committee to Protect Journalists
330 7th Avenue, 11th Fl., New York , NY 10001 USA

Phone: (212)465-1004

Fax: (212) 465-9568

Web: www.cpj.org

E-Mail: info@cpj.org


HONORARY CO-CHAIRMAN
Walter Cronkite
CBS News
HONORARY CO-CHAIRMAN
Terry Anderson
CHAIRMAN
Paul E. Steiger
ProPublica
EXECUTIVE DIRECTOR
Joel Simon
DIRECTORS
Andrew Alexander
The Washington Post

Franz Allina
Christiane Amanpour
CNN
Dean Baquet
The New York Times
Kathleen Carroll
The Associated Press
Rajiv Chandrasekaran
The Washington Post
Sheila Coronel
Columbia University
Graduate School of Journalism
Josh Friedman
Columbia University
Graduate School of Journalism
Anne Garrels
National Public Radio
James C. Goodale
Debevoise & Plimpton
Cheryl Gould
NBC News
Charlayne Hunter-Gault
Gwen Ifill
PBS
Jane Kramer
The New Yorker
David Laventhol
Lara Logan
CBS News
David Marash
Kati Marton
Michael Massing
Geraldine Fabrikant Metz
The New York Times
Victor Navasky
The Nation
Andres Oppenheimer
The Miami Herald
Burl Osborne
The Dallas Morning News
Clarence Page

Chicago Tribune
Norman Pearlstine
Bloomberg L.P.
Dan Rather
HDNet
Gene Roberts

Philip Merrill College of Journalism
University of Maryland
Sandra Mims Rowe
The Oregonian
Diane Sawyer
ABC News
David Schlesinger
Reuters
Paul C. Tash

St. Petersburg Times
Mark Whitaker
NBC News
Brian Williams
NBC News
Matthew Winkler
Bloomberg News
ADVISORY BOA R D
Tom Brokaw
NBC News
Steven L. Isenberg
Anthony Lewis
Erwin Potts
John Seigenthaler
The Freedom Forum
First Amendment Center


May 14, 2009


His Excellency Najib Razak
Prime Minister of Malaysia
Office of the Prime Minister
Federal Government Administrative Centre
Putrajaya , Malaysia 62502
Via facsimile: 011-603-8888-3444


Dear Prime Minister Najib,


The Committee to Protect Journalists is writing to express its longstanding concerns about Malaysia 's restricted media environment and to urge you to undertake reforms that allow for greater press freedom, both for the mainstream and fast emerging online news media.


CPJ welcomed your decision, announced during your first national address as prime minister on April 3, to remove the three-month ban imposed in March on two widely read opposition-aligned newspapers, Harakah and Suara Keadilan. Your April 6 speech to the Malaysian Press Institute, in which you acknowledged and promoted the media's role in articulating diverse political views and building democracy, also sent a positive signal of reform.


We were especially heartened to learn of your publicly stated intention to launch a comprehensive review of the draconian Internal Security Act (ISA), which has been used by previous governments to harass and sometimes imprison journalists and broadly suppress freedom of expression in the name of upholding national security.


At the same time, your government has taken repressive actions that, in our view, represent a clear danger to journalists and their ability to cover important news events. That includes this month's mass arrest of more than 80 opposition politicians, activists, and others who opposed your government's attempt to seize control of the state legislative assembly in the northern state of Perak, according to international news reports.


We were troubled to learn that journalists and press freedom advocates were among those arrested and detained, including Wong Chin Huat, a writer, academic and chairman of the Writer's Alliance for Media Independence, a prominent local press freedom group. At least two journalists, Law Tech Hao, the editor of Suara Keadilan, and Josh Hong, a political columnist at Malaysiakini, a leading online news service, were arrested on May 6 while covering a candlelight
vigil for Wong held in front of a Kuala Lumpur police station, according to the local Centre for Independent Journalism. Both reporters, the organization reported, were released without charge.


The arrest and harassment of Hong, a prominent online commentator, continues a disturbing trend of denying Internet freedom. Outgoing Prime Minister Abdullah Badawi's administration, in which you served as deputy prime minister, backtracked on a prior government commitment to maintain an uncensored Internet. In the process, his government cracked down hard on high-profile bloggers, including Malaysia Today founder and prominent blogger R aja Petra Kamarudin. He was jailed
last year under the ISA for his critical online writings and now faces additional criminal defamation an sedition charges--all of which carry possible jail terms for guilty convictions.


You have vowed in your public addresses to work toward establishing "One Malaysia," a call for reform that, as you put it in your April 3 inaugural address, aims to put "people first." CPJ believes that a meaningful step in that direction would entail comprehensive changes to the many laws and policies that have long been applied to undermine press freedom in your country.


We call on you to rescind the renewable licensing system for print publications, which governments typically employ to pressure editors and journalists to soften and self-censor their news coverage. CPJ also asks that you move to abolish the ISA, Sedition Act, Official Secrets Act, and criminal defamation laws--all of which give legal precedence to notions of national security over press freedom. We also advocate that you restore Malaysia 's past commitment to a free and
open Internet.


CPJ strongly believes that your new government is uniquely placed to democratize Malaysia . Implementing new policies and amending old laws
that promote, rather than restrict, press freedom, would in our view represent genuine reform. Thank you for your attention and we await your reply.


Sincerely,
Joel Simon
Executive Director
CC:
Information, Communications, and Culture Minister Rais Yatim
ASEAN Secretary-General Surin Pitsuwan

Commonwealth Secretary-General Kamalesh Sharma
U.S. Ambassador to Malaysia James R . Keith
American Society of Newspaper Editors
Amnesty International
Article 19 (United Kingdom)
Artikel 19 (The Netherlands )
Canadian Journalists for Free Expression
Freedom of Expression and Democracy Unit, UNESCO
Freedom Forum
Freedom House
Human R ights Watch
Index on Censorship
International Center for Journalists
International Federation of Journalists
International PEN
International Press Institute
Karen B. Stewart, Acting U.S. Assistant Secretary for Democracy, Human
Rights, and Labor
The Newspaper Guild
The North American Broadcasters Association
Overseas Press Club

My comment:

I really hope this letter is not going to be met with the usual reply from our Government boys and girls. You know, replies such as: " please do not interfere in our domestic matters", or "you have no right to comment on our domestic matters", or "why don't you register yourself as an NGO" or "why don't you run in our election, if you dare?". Because really, such replies sound so dumb!