Public Forum : Whither the Constitution?

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Wither the Constitution?

Whither the Constitution? Lessons to be learnt from the Perak Crisis
Date : 9th December 2009
Time : 8.00 pm
Venue : MBPJ Civic Hall (Auditorium) Map
For GPS user : N3 05.824 E101 38.720
Admission : Free
Enq : 03-7981 2831
Organised by

Panellist :

  1. Dato Seri Nizar Jamaluddin – MP for Bukit Gantang, Pakatan Rakyat MB for Perak

  2. Professor Dato’ Shad Saleem Faruqi – the author of “Document of Destiny” and a constitutional law expert, he has taught for many years in local universities and is a regular columnist for the STAR.

  3. Professor Kevin Tan – from Yale University and author of numerous books and articles on the Malaysian and Singapore Constitutions. Besides lecturing in Singapore, he has also given lectures in constitutional law to students in Monash University in its campus in Kuala Lumpur.

View DAP’s Point of Interest in a larger map

  1. #1 by Jeffrey on Monday, 7 December 2009 - 3:22 pm

    ///Whither the Constitution? Lessons to be learnt from the Perak Crisis///

    Whither? It is going to Holland! Lessons to be learnt from Perak crisis? That’s not so important a question: the more important is what should be the lessons to be learnt from the larger Malaysian crisis of last 50 years in relation to our Federal Constitution.

    Very erudite and learned discussions on the topic by top constitutional experts on this topic only revolve round issues like whether, constitutionally, HRH Perak Ruler could deny PR’s MB the right to dissolve Perak Assembly, determine who has the majority and appoint BN MB Zambry in his stead without going back to the Perakians for fresh mandate via state elections.

    Now your constitutional experts can say you are right but what’s the point considering that they are not the final arbiters but the courts, and if the courts side the incumbent’s interpretation, your case is finished!

    Secondly, it’s the people : they are the ones who vote; they are more important : the most erudite interpretation of the Constitution by experts is of no use when it is doubtful the text and intent of the constitution, with all its legal jargon, is even readable and comprehensible to the majority of educated citizens, let alone ordinary citizens who supposedly, in theory, “own” the constitution that sets out the social contract of how they should be governed.

    Get Datuk Zaid Ibrahim to speak : he knows his perspectives and put it in effective layman’s language….

    Why lessons to be learnt from 50 years of Malaysian crisis and not Perak crisis?

    Because the Perak crisis can see no solution against the backdrop of a bigger Malaysian crisis involving the Federal Constitution – that in a nut shell, vests too much untrammelled powers unto the Executive/PM of which I will explain more in the next posting.

  2. #2 by Jeffrey on Monday, 7 December 2009 - 3:36 pm

    The Malaysian crisis is caused by our Constitution itself. It was quickly put together by the British in the hurry to extricate/exit. They looked at the similarities between Britain and (then) Malaya, they incorporated the common constitutional monarchy institution, tweaked it here and there to cater for differences such as for eg. rotation to be King amongst various Sultans. They then looked at other differences – the pluralistic racial composition and federal system of different states, and they came up with certain compromises demarcating federal and state jurisdiction, Special Privileges, Islam as the official religion along with some fundamental liberties. Much of the rest were modelled along British Westminster traditions including the importance of the British Executive Branch headed by the Prime Minister who controls and is in the position to control the Legislative Branch, the Judiciary and even the British Monarch, the Queen, who has to act on the advice of the Prime Minister.

    The British system inherited by us is very different from Baron’s Montesquieu idea of dividing and separating government power into three branches – executive, legislative and judicial, each checking the other, as is supposedly the American system. The Americans adopted Montesquieu’s ideas because their Mayflower founding fathers hated the political and religious strictures of the mother country and wanted to start on clean slate, putting in all the check and balance against human nature to abuse.

    This does not of course mean the present system in UK makes the all powerful British PM a despot. He cannot because much of UK’s constitution (which is not entirely written by legislation) is tradition, and tradition wise the English had fought many wars against their kings and governments for centuries to get where they are today in cherishment of their liberties. The English Judge plays fair (comparatively), the Civil Servant behaves neutral (comparatively). They don’t necessarily listen to the whispers of his all-powerful British Prime Minister.

    The trouble is that we do. We took their system in 1957 giving primacy and sweeping powers to the PM and the executive Branch but we don’t have their counter-balancing traditions – instead we have “feudal traditions” of unquestioning loyalty, allegiance and obedience to the leader (since time of Malacca Sultanate). Come a strong leader like Mahathir, and in no time the office of PM controlled the rest of the institutions from Parliament, Judiciary, and Constitutional Monarchy to Civil Service to do his bidding. For this reason the Constitution had been changed umpteenth time (since 1971) to consolidate the Executive position including Article 10(4), making it a seditious act to question the government.

    So whither the Constitution? It has failed us to the extent that it fails to check the untrammelled powers of the PM/Executive. Indeed it provides a system that allows him to introduce legislations, control Parliament and make further laws to buttress the Executive’s power; to manacle the other judicial branch as evinced by the 1988 Judicial Crisis when Lord President and 5 senior judges opposing the PM were sacked!

    So what is there to discuss about “whither the Constitution” and “lessons to be learnt from the Perak Crisis”??? The lesson to be learnt from the larger Malaysian Crisis in last 50 years is the fundamental flaw in our constitution providing for very little check and balance against the Executive/PM’s powers!

    Thats what that should be discussed. It is the fundamental problem leading us to where we are today. For the Perak case cannot be resolved by intelligent discussions when one asks who is arbiter who has authority to determine whether your points discussed are valid or invalid, constitutional or otherwise – and in larger scheme of our Constitution, who controls this arbiter….The irony is that he might well be someone (proxy for power) with whisky in one hand and a cell phone in the other directing the strings from some inner sanctum of his library!

  3. #3 by albert308 on Monday, 7 December 2009 - 5:36 pm should extend invitation to Zaid Ibrahim as panelist because he has solid view point in laymen term. He is brave in this sensitive issue as comments involve Perak sultan institution. Hope to see him there.

  4. #4 by boh-liao on Monday, 7 December 2009 - 5:53 pm

    Y no Lingam speaking 1?

  5. #5 by Onlooker Politics on Monday, 7 December 2009 - 9:28 pm

    “It has failed us to the extent that it fails to check the untrammelled powers of the PM/Executive.” (Jeffrey)

    At the state level, most state governments do have the built-in system to provide checks-and-balances on the power of the Menteri Besar through the intervention of the State Ruler. In some states such as Negeri Sembilan, where the District Officer is also the head of the District Land Office, most District Officers will be appointed only after approval has been sought from the State Ruler. In other states, such as Johore, where the District Land Office is being administered by a Land Administrator (Pentadbir Tanah), the appointment of the Land Administrator will have to be done at the acknowledgement of either the State Ruler or the heir-apparent of the State Ruler, such as Tengku Mahkota of Johore.

    At the Federal level, our Federal Constitution has indeed failed us in many ways with respect to providing an effective system of checks-and-balances for checking against the excessive administrative power of the Prime Minister. The Yang Dipertuan Agong was not given a lot of power in the appointment of key government officers, such as the appointment of the IGP or the MACC Chief Commissioner. The power of selecting the IGP and the MACC Chief Commissioner was vested in the hand of the Prime Minister, with the official ceremony of key post appointment being performed in the presence of the Yang Dipertuan Agong as some kind of bureaucratic formality.

    The Prime Minister usually does not have to seek permission from the Yang Dipertuan Agong first in the appointment of the key post officers, as it is deemed just a formality for the Yang Dipertuan Agong to put his signature and official seal upon the letter of appointment and the Yang Dipertuan Agong has no political power to reject the appointment. In other words, our Federal Constitution has already made the paramount ruler of the nation a rubber stamp with no counterveiling power. That’s the reason why it is common for us to find that only the Prime Minister’s cronies will be appointed to head the security forces and armed forces of Malaysia. Sometimes the Conference of Rulers may attempt to intervene in the appointment of the President of the Federal Court, who is the Chief Judge of the Judicial Branch of the Federal Government. However, the intervention of the Conference of Rulers will not see much impact that is to be created on the improvement of the Judicial system, for the Conference of Rulers will still have to act on the advice of the Prime Minister in accordance with the Federal Constitution. The basic flaw of lack of checks-and-balances on the Prime Minister of Malaysia indeed lies in the structure of our Federal Constitution, which has given too much excessive and discretionary administrative power to the Prime Minister.

    If Malaysia is to see any improvement in the system of checks-and-balances in respect of the key government post appointments, the Parliament must first agree to do a major overhaul on the Federal Constitution in order to remove the procedural influence and control of the Prime Minister in respect of the judicial appointment and of the prosecuting appointment. However, it seems that the probability of having a major overhaul in the Federal Constitution in the near future in order to cut down the power of the Prime Minister is almost negligible in view of Najib’s strong belief in Machiavellianism in political deployment. Therefore, we can only put up the hope on Pakatan Rakyat for bringing BIG GOOD CHANGES to the political structure of the Federal Government of Malaysia by the next General Election!

  6. #6 by frankyapp on Tuesday, 8 December 2009 - 1:59 am

    Hi Onlooker Politics,it’s this present system determined under the constitutions and abused by the prime minister, are the two core reasons for the rampant corruption throughout the country.How can democray,credibilty,integrity and transparency be viable when one man is given absolute power. Everybody knows that absolute power corrupts absolutely.I think Malaysians must amend most of these constitutions asap to avoid further going down the drain.Look at America ,see how the chairman of the federal reserves had been grilled by the senate committee members just recently over Boomberg,CNBC and other channels.Can we not introduce this into our constitution ? In the US,there are three separated level of governace such as the executive,the senate and the judiciary.Can we not have these system too in our constitution ? If we are all sincere and genuine to control corruption in the interest of our country,I see why not ?.

  7. #7 by frankyapp on Tuesday, 8 December 2009 - 2:11 am

    We cannot only hope PR to make such big changes,we should make it a MUST that PR should make such big changes in our political structure of the federal government of the country if they want to take over from the corrupted Umno/Bn in the next GE.

  8. #8 by Onlooker Politics on Tuesday, 8 December 2009 - 3:18 am

    As Jeffrey has pointed out, Malaysia adopts the system of Westminster style of parliamentary democracy, which has given the fusion power to the Prime Minister by way of controlling the Executive as well as the Parliament at the meanwhile. Therefore there is no true separation of powers in existence among three government branches in Malaysia.

    Some people may perceive that the Judicial Branch of the Federal Government of Malaysia is supposed to be independent from the Executive Branch as well as the Legislature Branch. However, since the Head of the Federal Court (formerly the Supreme Court) is appointed with a tenure period by the Yang Dipertuan Agong at the recommendation of the Prime Minister, there is indeed no true judicial independence in Malaysia, for the Head of the Federal Court will have to seek the political patronage of the Prime Minister for the Chief Judge’s personal prosperity in the retirement plan. In the United States, quite similar to Malaysia the Chief Justice of the U.S. Supreme Court is also being appointed based on the recommendation of the head of the Executive Branch, namely the US President, and on the approval by the Legislature (a Bi-cameral system comprised of Senate and Congress). However, once the US Chief Justice has been appointed, no one can really ask him to step down unless he has been impeached by the Legislators (Senators and Congressmen) with majority votes due to his alleged major misconduct or criminal offence. It is worth-noting that the post of the US Chief Justice is a life appointment, which means that the Chief Justice himself can continue to serve until he dies or until he chooses to voluntarily retire. Because of the life appointment, we can see that normally the US Chief Justice can rule and judge in an independent, fair and just manner without fear or favour from any interested party. Not even the US President can influence the decision making process of the Chief Justice. The life appointment of the Chief Justice has indeed given the true separation of powers to the Judicial Branch of the American Federal Government.

    We do sometimes find that an old Chief Justice may voluntarily choose to retire early before he passes away. This is usually done with the sole reason that the Chief Justice himself would like to lay path for a successor of he himself who shares the same common religious or political ideology as him.

    In order to have true judicial independence, the Malaysian legislators should consider a constitutional amendment which will provide a life appointment to the post of the head of the Federal Court. This is the best way to ensure that the Head of Federal Court can serve everybody in a fair and impartial manner without having to worry about the possibility of being sacked by the Yang Dipertuan Agong at the recommendation of the Prime Minister.

    Right now, many people do not trust that the head of the judicial branch of Malaysia can serve effectively independent from the Prime Minister, in view of truth that the Prime Minister is being given the power to make recommendation to the Yang Dipertuan Agong for sacking any judges with good reason such as when the judge is found guilty of corruption or without good reason such as when a judge has offended the Prime Minister. Does anyone think that the Prime Minister will agree with the system of life appointment of the head of Federal Court?

  9. #9 by Jeffrey on Tuesday, 8 December 2009 - 7:46 am

    ///We cannot only hope PR to make such big changes,we should make it a MUST that PR should make such big changes in our political structure of the federal government of the country if they want to take over from the corrupted Umno/Bn in the next GE.///- #7 by frankyapp.

    There are 3 problems here:

    1. I have not thus far heard Pakatan Rakyat (PR) talked about untrammeled constitutional powers of the Prime Minister as being a problem or that it is within their agenda to amend our Federal Constitution to trim these untrammeled powers if they come to power;

    2. Any such attempt will in many instances require 2/3 majority in Parliament: if PR does not have the 2/3 majority, the BN opposition will block these amendments;

    3. But even if PR has the2/3 majority, PAS will not agree to it for it is within their strategic calculation that when PR comes to power it will most likely be a PAS’s leader who will take the position of Prime Minister (since PAS is the more dominant Malay based party than PKR) and he would need the PM’s powers to make all relevant appointments (including a Shariah Chief Justice) to push and realize their ultimate agenda of a theocratic Islamic state in fulfillment of what in their view is the Almighty’s wish for Malaysia.

    Which could be the reason for a faction that Nik Aziz scolded not immediately forcing an immediate showdown with the Spiritual leader but to wait like a cobra on the side, untiol the right time to strike when Nik Aziz, who is not expected to hold his position for long for reasons of heath and age, retires. They wouldn’t join UMNO for now because PM’s position won’t be given to them to effect significant changes, and the chances of being in that powerful slot are better if they ride with PR instead to the next 13th General Election which according to their calculations will not see Anwar at the helm by reason of the sodomy charges leveled by the present government, trying its best not to make the same mistakes in conducting the trial as during TDM’s time.

  10. #10 by frankyapp on Tuesday, 8 December 2009 - 8:45 pm

    Hi Jeffrey,analysing your three reasons, # 2 is not a problem,2/3 majority is attainable. # 1,yep,it’s time PR must start talking to the rakyat as to how to trim, like you said those untrammeled powers.Say Jeffrey,are you pretty closed to LKS,Anwar or Uncle Nik or atleast one of them ,if yes,I suggest you go and tell them asap.Malaysian voters are pretty smart now,they know what’s rhetoric,what’s truth,hence tell them{PR leaders} not to “main main ” with the rakyat.As for #3,don’t you think it’s LKS and Anwar busisness to tackle with PAS to seek and come to a formicable solution before the GE.If not,then tell them if they really want to offer the rakyat an alternative political party. Yep,my worry is with PAS islamic ideology but if they want UMNO out,they should compromise with DAP/PKR in the interest of PR to overthrowing its main common enemy.Don’t you think so ,Jeffrey ?.I think Umno/Bn could continue to rule since 1963 is because the voters have never ever been given a chance to vote for a genuine alternate party.

  11. #11 by tenaciousB on Wednesday, 9 December 2009 - 6:12 pm

    UMNO reinstated that ningkapoop ismail? and they say he has been punished sufficiently but ahmad ismail says ‘i didn’t do anything wrong’, so this donut is not remorseful and yet UMNO reinstates him? This is a blow to MCA and gerakan. Jokers! Rest in peace you spineless humans.

  12. #12 by k1980 on Thursday, 10 December 2009 - 8:43 am

    Forget about the constitution– the police state has taken over

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