Archive for category Constitution

A dangerous precedent in Selangor

By P Gunasegaram
Malaysiakini
Sep 24, 2014

QUESTION TIME Most legal authorities and previous judgments on such issues are clear on one thing – the sultan/governor/Agong must choose the candidate who is most likely to command the support of the majority of the state assembly or Parliament for the post of menteri besar/chief minister/prime minister.

And where it is clear that a single candidate commands that majority support, there is no need for the titular head of state to ask for any other names to be nominated but he has to follow the constitutional duty of endorsing the candidate who legally commands the majority support.

This is what a constitutional monarchy is about, where the the head of state lies above politics, does not interfere in the administration of the state, and whose only role here is an important, non-partisan one of ensuring the person who commands the support of the majority of the assembly is the chosen one.

That is the essence of Parliamentary democracy and this must not be allowed to be played around with by any party as the will of the people is reflected through elections in the composition of the state assembly and Parliament. The role of the monarch is to ensure that the will prevails no matter what. Read the rest of this entry »

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All Cabinet Ministers on Wednesday must decide whether they want a new Attorney-General who is committed to the goal of making Malaysia the “best democracy in the world” or they support the current sedition dragnet and “white terror” to turn Malaysia into the world’s worst democracy

The time has come for every Cabinet Minister to take a stand whether he or she supports the goal as promised by the Prime Minister, Datuk Seri Najib Razak, to make Malaysia the world’s best democracy or the reverse – supporting instead the sedition dragnet and “white terror” unleashed in the past month to turn Malaysia into the world’s worst democracy.

The country should be spared the farce of the Attorney-General Tan Sri Abdul Gani Patail announcing last Tuesday that his Chambers will review the cases of several individuals who were recently charged with sedition, including academician Dr. Azmi Sharom, followed by the outrageous response by the Home Minister, Datuk Seri Zahid Hamidi that the police will not cease and desist from sedition investigations aimed at suppressing criticism and dissent.

In the first place, was Gani sincere and truthful when he said that his Chambers would review the blitz of sedition charges? Let the Attorney-General announce details of such review, who are the officers in his Chambers who are conducting the review, when the review started and the terms of reference including time-frame of such review.

In fact, Gani owes the Malaysian people a full explanation why he gave the green light for such a spree of sedition charges as well as full accountability as to why those responsible in openly inciting racial and religious hatred, ill-will and conflict have been spared from any prosecution, despite the lodging of many police reports against the culprits? Read the rest of this entry »

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How many more will be charged with sedition?

– Ramon Navaratnam
The Malaysian Insider
15 September 2014

Most thinking Malaysians are getting increasingly concerned with the rapid pace of sedition charges levelled at well-known and well-meaning Malaysian personalities and intellectuals.

At the same time, there is considerable anxiety over the relative indifference and excessive tolerance shown to some obvious violators of the very open and loosely worded Sedition Act, which deeds urgent revision or replacement.

We therefore hope that the Attorney-General and the police will exercise more care to ensure that the growing public perception of practising double standards and selective justice will be addressed as a matter of high priority.

If honest opinions expressed in the interests of public debate and intellectual discussion on national policies and their proper implementation can be discouraged and even curtailed so harshly, then where and how is democracy to grow and mature in Malaysia? Read the rest of this entry »

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Cabinet on Wednesday should order a halt to the “white terror” intensified in the past month using the colonial law of sedition to create a new climate of fear after the Mahathir “Dark Age” as it is totally against Najib’s promise to make Malaysia “best democracy in the world”

I welcome the courageous stand taken by the Minister in the Prime Minister’s Department Dato Sri Idris Jala who is the first Cabinet Minister to openly speak out against the sedition charge against Universiti Malaya law lecturer Dr. Azmi Sharom.

Idris said the charge against Azmi was wrong and that the law professor should not be charged for sedition.

In a series of Twitter postings yesterday, Idris said: “Academic freedom is required in pursuit of knowledge.”

Stressing that Malaysia must continue to pursue moderation, Idris twittered: “Constructive criticism and dissent should be allowed, as long as it does not create serious fault in the social fabric of our society.”

Although admirable and commendable for daring to speak out against Azmi’s sedition charge, it is a great pity that Idris did not have the full courage of conviction that constructive criticism and dissent are lifeblood of any meaningful transformation of Malaysia to take an equally forthright and courageous stand against the sedition blitz intensified in the past month to stifle criticism and dissent which saw the malicious prosecution and persecution of some 20 Pakatan Rakat Members of Parliament, State Assemblymen, a journalist, a lawyer, an academician and several social activists under the undemocratic and repressive colonial law of sedition. Read the rest of this entry »

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Putrajaya’s sledgehammer strategy might blow up in its face

COMMENTARY BY THE MALAYSIAN INSIDER
1 September 2014

Somewhere in there, lurks a strategy to the Najib government’s decision to use the Sedition Act as a dragnet against citizens of this country.

Critics argue that it is to cower Malaysians into silence, to discourage dissent of any kind, to send a chilling message that thinking is not allowed.

Others say Putrajaya is borrowing out of the playbook of the PAP government in Singapore, a government famous for its sledgehammer approach. In fact, just recently, Umno’s main mouthpiece Utusan Malaysia even suggested that Malaysia look south. Read the rest of this entry »

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Is Najib administration the most shambolic premiership in Malaysian history – with right hand not knowing what the left hand is doing?

Is the Najib administration not only on auto-pilot but the most shambolic premiership in Malaysian history, with the right hand not knowing what the left hand is doing?

Malaysians are entitled to ask this question following the anonymous statement from the Prime Minister’s Office yesterday, insisting that the slew of sedition charges against Pakatan Rakyat leaders was a court matter and the government has nothing to do with it.

The anonymous Prime Minister’s Office statement said:

“Any charges under the Sedition Act are a matter for the courts. Malaysia’s judiciary is independent, as the verdicts of many cases prove.” Read the rest of this entry »

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AG should resign or be replaced if he cannot discharge his duty of public accountability to explain whether he has been guilty of selective and malicious prosecution in recent slew of charges against PR MPs and Assemblymen

Although the Attorney-General Tan Sri Gani Patail is vested with the sole discretion under Article 145 of the Malaysian Constitution “to institute, conduct or discontinue any proceedings for an offence” , he owes the Malaysian people a duty of public accountability to explain whether he has been guilty of selective and malicious prosecution in the recent slew of arrests and charges against Pakatan Rakyat Members of Parliament and State Assemblymen.

The new-fangled charge against the PKR Vice President Rafizi Ramli yesterday, for example, was just incredulous and most extraordinary.

Rafizi is charged under Section 504 of the Penal Code on “Intentional insult with intent to provoke a breach of the peace” which states: “Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any offence, shall be punished with imprisonment for a term which may extend to two years or with fine or with both”.

Rafizi was accused of issuing “defamatory and provocative statements” against Umno members through a statement he made in February, linking Umno with an incident where a Molotov cocktail was thrown at a church.

There have been legion cases of DAP, PKR and PAS members being “defamed” and “provoked” by UMNO/BN leaders and spokespersons, particularly since the 12th General Elections in 2008, but have anyone been arrested and prosecuted in the past six years under Section 504 of the Penal Code, which could lead to the disqualification of a sitting Member of Parliament or State Assemblyperson, resulting in by-elections?

Absolutely none. Why then has this new-fangled charge been trotted out against Rafizi which could lead to his disqualification as MP for Pandan followed by a parliamentary by-election? Read the rest of this entry »

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DAP lawmaker accuses A-G of selective prosecution in sedition charge

BY V. ANBALAGAN, ASSISTANT NEWS EDITOR
The Malaysian Insider
29 August 2014

Seputeh MP Teresa Kok wants to transfer her sedition charge from the Sessions Court to the High Court in a bid to expose what she says is selective prosecution by Attorney-General Tan Sri Abdul Gani Patail.

The DAP national vice-chairman said in an application to transfer her case that Gani refused to frame charges against racists and extremists who threatened public order, ridiculed other races and those from minority religions to create disharmony and riots.

She said the High Court was the appropriate forum to investigate that the charge against her amounted to selective prosecution.

She also said the matter could only be brought to the Federal Court if her trial started in the High Court.

“There are many delicate legal questions that will be raised because the A-G’s discretionary powers superseded a citizen’s right to equal protection under the law,” said Kok in the affidavit sighted by The Malaysian Insider.

Sessions judge Norsharidah Awang will hear the application to transfer the case on September 18. Read the rest of this entry »

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Who is ‘likely to command the confidence of the majority’?

— Gurdial Singh Nijar
The Malay Mail Online
August 25, 2014

AUGUST 25 — The Selangor Constitution obliges the Sultan to appoint as the MB “a member of the State Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly”: Article 53(2)(a).

30 of the 56 members of the Assembly have already sworn on oath a declaration that they support Dato Seri Dr Wan Azizah. This constitutes 53.5% of the members of the Assembly – a clear majority; and in any event a majority that is higher than that which led the Sultan of Perak to appoint an MB on the basis that he commanded the majority. This exercise of discretion was accepted by the Federal Court in the Perak case (Nizar v Zambry).

Secondly, PAS has also expressed its support for Dato Seri Dr Wan Azizah, although the Party also proposed an additional name. This means that Dato Seri Dr Wan has the cumulative support of 43 out of the 56 members of the Assembly — an overwhelming 77% of the majority of the members of the State Assembly. Read the rest of this entry »

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Snap polls could see chaos and uncertainty in Selangor, forum told

By Zurairi AR
The Malay Mail Online
August 23, 2014

KUALA LUMPUR, Aug 23 ― The Sultan’s consent to dissolve the state assembly for snap polls would be an irreversible decision that may send the state hurtling into chaos, Prof Dr Abdul Aziz Bari told a forum on the mentri besar crisis last night.

The regularly-cited constitutional expert expressed fears of possible attempts to trigger unrest that may allow Putrajaya to regain control of Selangor via an emergency.

“If it is dissolved, we can do nothing … If this Monday His Highness decides to dissolve it, then it will be dissolved,” Aziz said of the state assembly.

Mentri Besar Tan Sri Khalid Ibrahim is set to meet the Selangor Sultan on Monday, according to sources familiar with the matter. Read the rest of this entry »

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Seamless, orderly transfer of power to Wan Azizah

– Tommy Thomas
The Malaysian Insider
21 August 2014

The unanimous decision of the Pakatan Rakyat coalition to support Datuk Seri Dr Wan Azizah Wan Ismail as the next Menteri Besar of Selangor means that she will be able to secure 43 votes in a confidence motion in the 56-member Selangor State Legislative Assembly.

One cannot imagine a clearer case of a candidate commanding the confidence of the majority of the Assembly.Yet, there is much disinformation clouding the matter. Read the rest of this entry »

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‘Allah’ struggle not over, moderate Muslims should lend support, says UN official

by Jennifer Gomez
The Malaysian Insider
6 July 2014

The struggle for the right of non-Muslims to use the word Allah in Malaysia is not over, a United Nations official said, suggesting that moderate Muslims and intellectuals get on board to lend weight to the church’s fight.

UN Special Rapporteur on freedom of religion and belief, Heiner Bielefeldt, said many Muslims believe the court ruling undermines the credibility of Islam.

“A vast majority of Muslims will agree that it undermines Islam by turning Allah into a personal name of the Islamic God,” he said in a phone interview from Germany.

Muslim scholars and clerics, both locally and worldwide, have criticised the ban, pointing out that the word predates Islam and it meant “God” in Arabic.

Former Perlis mufti Datuk Dr Mohd Asri Zainul Abidin, known to supporters as the “voice of reason” and to critics as a “promoter of liberalism”, was one of those who had criticised the ban. Read the rest of this entry »

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Was justice done to the Herald?

Mohamed Hanipa Maidin
Malaysiakini
July 2, 2014

COMMENT Personally I was upset with the decision by the Federal Court refusing leave for the Herald to appeal against the decision of the Court of Appeal. As a lawyer I found the decision was weird. As a Muslim I am of the view justice was not done to the Herald.

We all know that the issue raised by the Herald in the Federal Court was very, very important. Needless to say that being the final arbiter of any legal controversy the Federal Court should have held that the Herald ought to be given the leave to appeal.

Yes, an appeal to the Federal Court is not automatic, meaning that the Herald needed to obtain leave to appeal. Nevertheless, the practice has been that the apex court would normally grant the leave when the issue at hand involves novel and crucial legal or constitutional question and the same also attracts public interest.

No doubt the issue raised by the Herald had met all the legal prerequisites for leave to be duly given. It had raised a very important constitutional issue namely the correct interpretation of Article 11 of the federal constitution in particular Article 11 (4). Via the appeal, the Herald sought to be enlightened by the apex court the proper meaning and perimeters of freedom of religion enshrined in Article 11 of our highest law of the land. Read the rest of this entry »

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Any back-door attempt to enforce hudud is illegal, says Ambiga

V. ANBALAGAN, ASSISTANT NEWS EDITOR
1 July 2014

There is an attempt to rewrite the Federal Constitution by using “the back door” to introduce hudud but that plan will fail as it is illegal, says former Bar Council chairman Datuk Ambiga Sreenivasan.

The remark was in reference to a move to table a private member’s bill in Parliament that will allow Kelantan to enforce its Shariah penal code in the PAS-controlled state.

The east coast state has been governed by the Islamist party PAS since 1990.

If passed by a simple majority vote, the bill will give effect to the Kelantan Shariah Criminal Code Enactment II of 1993. Read the rest of this entry »

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At their first Cabinet meeting, will the three MCA/Gerakan new Ministers insist on Jamil Khir retracting two parliamentary statements for flouting BN consensus and established policies or choose to keep quiet to keep their Ministerial posts?

The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikkhism and Taoism (MCCBCHST) has issued a most timely statement to point out that there are no historical document to contradict the fact that Malaysia was intended to be a secular state all the way back to Merdeka in 1957 and the formation of Malaysia in 1963.

Contradicting the recent parliamentary statement of the Minister in the Prime Minister’s Department, Datuk Seri Jamil Khir Baharom that Malaysia was not a secular state, MCCBCHST president Jagir Singh said historical evidence and provisions in the Constitution dispel any doubts that the nation’s founding fathers had intended the nation to be a secular, not an Islamic state.

He cited historical documents such as the Alliance Memorandum submitted to the Reid Commission in 1956, and the white paper issued by the British government in June 1957, to contradict Jamil Khir’s claim that Malaysia was not intended to be a secular state.

For instance, the Alliance Memorandum jointly submitted by Umno, MCA and MIC to the Reid Commission specifically stated that they wanted a secular state, although the religion of the state was to be Islam. Read the rest of this entry »

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Let Liow and Mah prove MCA and Gerakan will be Umno’s equal in government by restoring original BN consensus and getting their first Cabinet meeting to disown Jamil Khir’s parliamentary statement that “Malaysia is not secular state”

After the Prime Minister Datuk Seri Najib Razak’s announcement of his re-appointment as Cabinet Minister on Wednesday, MCA President Datuk Seri Liow Tiong Lai declared that MCA and UMNO share equal roles in the Barisan Nasional (BN) framework, as well as in the government, in accordance with the BN’s traditional system of consensus.

Liow said MCA will not play second fiddle to UMNO in the Cabinet.

This is also the stand of the Gerakan President, Datuk Mah Siew Keong.

Just “as the proof of the pudding is in the eating”, let Liow and Mah prove that MCA and Gerakan will be UMNO’s equal in government by restoring the original BN consensus and getting their first Cabinet meeting to disown the Minister in the Prime Minister’s Department, Datuk Jamil Khir Baharom’s parliamentary statement that “Malaysia is not a secular state”. Read the rest of this entry »

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Recent revival of hudud controversy another deep UMNO plot to cause dissension and break-up of Pakatan Rakyat

PAS Shah Alam MP Khalid Samad has accused UMNO behind the controversial raid and seizure of Malay and Iban Bibles by the Selangor Islamic Religious Department (Jais) and the disruption of the Hindu wedding of Zarinah Abdul Majid to regain power through the backdoor after losing the Selangor state government in two successive general elections.

This was in fact not the only mischief UMNO was up to, as the recent revival of the hudud controversy was another deep UMNO plot to cause dissension and break-up of Pakatan Rakyat.

A study of the recent revival of the hudud controversy will show that it was all initiated by UMNO when the Minister in the Prime Minister’s Department, Datuk Seri Jamil Khir Baharom made the surprise announcement in Parliament during the winding up of the Royal Debate on March 27 declaring that the Barisan Nasional Federal Government was prepared to help the Kelantan State Government to implement hudud law, even suggesting that PAS move a private member’s bill in Parliament on the matter.

That started off what is to become a three-month-long revival of the hudud controversy, plunging the three Pakatan Rakyat component parties of DAP, PAS and PKR to the second crisis to engulf Pakatan Rakyat in the six-year history of the alternative coalition.

The first crisis faced by Pakatan Rakyat was in September 2011 which nearly led to its break-up and was also over the hudud controversy. It was only when Pakatan Rakyat leaders from PAS, PKR and DAP finally reaffirmed the common policy programme proclaimed earlier by PKR, PAS and DAP leaders in the formation of PR as PR’s common priority agenda that PR was saved from an early demise.

If PR had broken up over the hudud controversy in September 2011, then the historic result of the 13th General Elections last May which saw PR winning 52 per cent of electoral vote and reducing the Najib federal administration into a minority government, with PR winning 89 Parliamentary seats and 229 state assembly seats (excluding Sarawak) would not have been achieved. Read the rest of this entry »

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MCA and Gerakan cannot dismiss Jamil Khir’s “Malaysia is not secular state” statement in Parliament as a personal view but must demand a retraction and a clear Cabinet and BN Supreme Council pronouncement that Malaysia is a secular state with Islam as official religion

After more than a week, both the MCA and Gerakan Presidents have finally come out with a position today on the parliamentary statement by the Minister in the Prime Minister’s Department, Datuk Seri Jamil Khir Baharom that Malaysia is not a secular state, but both have tried to evade the issue by dismissing it as merely Jamil’s “personal view”.

The excuse that a Minister is giving his “personal opinion” might be used if the Minister is speaking outside Parliament, but it is completely unacceptable when a Minister makes a speech or a statement in Parliament.

There is no such thing as a “personal view” when a Minister speaks in Parliament, whether in speeches or in replies to parliamentary questions, as whatever the Minister speaks in Parliament is in an official capacity on behalf of the Barisan Nasional Cabinet which binds all Ministers under the doctrine of collective Ministerial responsibility. Read the rest of this entry »

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Another fatal defect in Speaker Pandikar’s ruling that Malaysia is not a secular state was his sole reliance on Jamil Khir’s explanation and failure to canvass all views in Parliament on the controversial subject, including those from non-UMNO Ministers/MPs from BN

Yesterday I said that Tan Sri Pandikar Amin Mulia had exceeded his powers and functions as Speaker of Parliament when he passed judgment on the Malaysian Constitution ruling that Malaysia is not a secular state.

This is because it is not the role or function of the Speaker of Parliament to interpret the Constitution and make a Constitutional ruling which becomes an authority quoted by all and sundry as the law of the land.

Although Pandikar has limited his interpretation to “merely for the purposes of this House” and not an opinion to be “an authority” in the country, there is no doubt that it would be quoted by various quarters as an “authority” both inside and outside Parliament to justify the arbitrary, dubious and controversial stand that Malaysia is not a secular state.

Another fatal defect in Pandikar’s ruling that Malaysia is not a secular state was his sole reliance on the explanation by the Minister in the Prime Minister’s Department, Datuk Jamil Khir Baharom and his failure to canvass all views in Parliament on the controversial subject, including those from non-UMNO Ministers and MPs from Barisan Nasional.

As the DAP MP for Bandar Kuching, Chong Chieng Jen had tried to point out in Parliament after Pandikar’s ruling yesterday, as far as Sarawak and Sabah were concerned with regard to the formation of Malaysia in 1963, Jamil was very wrong to say that Malaysia is not a secular state “berdasarkan kepada fakta sejarah yang menunjukkan bahawa Malaysia telah ditubuhkan berasaskan Kerajaan Islam Kesultanan Melayu dan Raja Raja Melayu merupakan Ketua Agama bagi negeri masing masing” – as both Sarawak and Sabah (and Singapore, which was a party to the Malaysia Agreement 1963) did not have a history of Malay Rulers. Read the rest of this entry »

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Putrajaya being ‘deliberately divisive’ to hold on to power, says report

The Malaysian Insider
20 June 2014

Malaysians are wondering whether Putrajaya’s unspoken political strategy is to divide the predominantly Muslim-Malay country along racial lines in a bid to hold on to power following sharpening racial and religious tensions, the Edge Review reported today.

This follows incidents that have rocked Malaysia’s delicate racial and religious relations – acts by Muslim authorities, who snatched a body at a funeral and disrupted a Hindu wedding ceremony on suspicion that the deceased and the bride respectively might be Muslims.

The weekly said there were also signs of a campaign by the country’s civil service to push a religious-inspired agenda.

The report cited other similar incidents, such as the threat by the Selangor Islamic Religious Department (Jais) to destroy the 301 Bibles it seized from the Bible Society of Malaysia and the refusal of Inspector-General of Police Tan Sri Khalid Abu Bakar to follow a court ruling in a highly publicised custody battle that ordered a Muslim convert father to return the children to the mother, who was a Hindu.

The weekly took Prime Minister Datuk Seri Najib Razak to task for “not helping the deepening discord”. Read the rest of this entry »

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