Saturday, March 29, 2008
Moves to waive summonses, cut wastage seen as populist
Friday, March 28, 2008
'Karpal's statement smacks of arrogance'
Wednesday, March 26, 2008
Discretion 'not absolute'
Monday, March 24, 2008
Lawyer: Parking summons waiver is wrong
Monday, March 17, 2008
Protecting the landowners
Sunday, March 16, 2008
What the law says
2. Then Emergency Regulations were amended by the Yang di-Pertuan Agong on Aug 9, 1965, to allow councillors to be appointed by state authorities. The 1965 regulations were extended after the May 13, 1969, incident by Emergency (Essential Powers) Act 1979 which were deemed to have come into force on Feb 20, 1971.
3. Section 6 of the Emergency (Essential Powers) Act 1979 provides that regulations made under the 1964 Act shall remain in force as if they had been made under the 1979 Act. It is interesting to note that section 2(4) of the 1979 Act provides that an Essential Regulation “shall have effect notwithstanding anything inconsistent therewith contained in any written law, including the Federal Constitution or the Constitution of any state.” The Emergency Regulations are still subsisting and have not been revoked.
4. In July 1965, a Royal Commission of Enquiry on Local Authorities was appointed under the chairmanship of Senator Athi Nahappan to look into revamping the local authorities. The commission recommended the resumption of local government elections, stating that: “In a country like Malaysia a suitably restructured local government identified with democracy, can serve not merely local interests but also reinforce and consolidate national unity, besides sustaining and preserving a democratic institution at local level.”
5. However, when the Local Government Act 1976 (Act 171) was enacted, it was expressly provided in Section 15(1) that “notwithstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect.” This means that the provisions in the Local Government Elections Act 1960 relating to elections have also ceased to apply.
6. However, some have argued that it is still legally possible as Section 1(4) of Act 171 allows the state authority to exempt any area within any local authority from any provision of Act 171, including Sections 10 (appointment of councillors by the state authority) and 15(1). The state legislature can then enact state laws to govern local government elections as it is empowered to do so under paragraph 4(a) of the State List.
7. Article 113(4) of the Constitution also provides that state law may authorise the Election Commission to conduct elections other than parliamentary and state legislative elections.
8. In other words, a state authority may suspend the application of Sections 10 and 15 of Act 171 and then cause the state legislature to enact laws governing elections for those local authority areas.
9. However, to enact state laws governing local government elections might still technically conflict with Sections 10 and 15(1) of Act 171 and the 1965 Emergency Regulations.
10. As Act 171 and the 1965 Emergency Regulations are Federal laws, Article 75 of the Constitution provides that if any state law is inconsistent with a federal law, the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.
11. Of course, it can also be argued that with the exemption, the conflict does not arise. But it will still conflict with Emergency Regulations. And this is a risky approach as the local government elections held pursuant to state laws can be challenged in court. If this is successful, the elections and decisions made by the councillors risk being declared null and void.
12. Therefore, holding local government elections is possible if the Emergency Regulations are revoked; Section 15(1) are repealed and Section 10 is amended. This can only be done if the Barisan Nasional government, which has a simple majority in parliament, also wants it.
13. Politically, the federal government under the control of the Barisan Nasional may just do it in order to control the local authorities in the Opposition states as most local authorities depend on the federal government for financial assistance. But this can work both ways. It may also be a gauge for the government to test public opinion before it calls the next general election.
14. To the rakyat, it is a good thing as it will become a new tier of check-and-balance on state governments, under the Barisan Nasional or otherwise.
This article was published in The Sunday Star on 16 March, 2008.
On shaky terrain
IF people of Pakistan, Taiwan, Thailand and Australia can do it, so can we. If Dato’ Anwar can swing 30% of Malay votes in Malay heartland, Hindraf 80% of Indian and DAP 50% of Chinese votes, we may see a new government. Vote opposition...” That was the text message I received from a friend in the Opposition a few days before the general election.
Obviously, when one lives in the bastion of Barisan Nasional – Johor – one could only dismiss it with a wry smile.
But a few days before the election, signs became visible that the Opposition was gaining ground, judging from the huge turnouts in their ceramahs-turned-rallies and anti-establishment mood prevailing in cyberspace.
As the results turned out, an unprecedented swing took place from all the races in the country, particularly the urban and poor Malays.
The voting pattern has obviously emerged with Malays now not hesitating to vote for the DAP and the non-Malays, for PAS. Similarly, how many of the Malays were actually Indonesians-turned-Malaysians, no one knew either. Neither would one dare to surmise what the outcome would have been if more than four million Malay unregistered voters had cast their votes this time.
However, one thing is certain – the taboo of replacing the Barisan government has been broken. The people now have opened their eyes to know what people power can do and that the Barisan is not invincible after all.
While many this time had just wanted to register a protest vote, they as well as the Opposition probably did not expect that that would bring about a change in four state governments.
The other thing is also certain – fear no longer works now for Malaysians.
Whatever it is, the results obviously showed the populace’s unhappiness with the Barisan government. The Obama-change mood was prevalent as all that many voters wanted to tick on the ballot paper was any party, as long as it was not the Barisan.
It did not matter to them that:
• the DAP is now working with PAS, and vice versa.
• PKR candidates hold wholly divergent views on race and religion – with those fielded in the cities believing in freedom of religion under Article 11 and others in the Malay heartland who do not.
• a DAP candidate has been disciplined by the Advocates & Solicitors Disciplinary Board; and
• a PKR candidate in Penang has wrongly stated that he is a member of the Malaysian Bar Council when he is not.
The Barisan government, instead of portraying itself as compassionate, such as creating the environment for the release of Datuk Seri Anwar Ibrahim from prison and the setting up of the Royal Commission of Enquiry on the Lingam tape, launched what voters viewed as personal attacks against Anwar.
The Prime Minister’s caution that the non-Malays would not be represented in the government did not go down well with them who took it as a threat. Likewise, his statement that he did not want to form a government based on one race did not appeal to the urban Malays who felt that he was counting his chickens before they were hatched, similar to the Gerakan leadership announcing the three possible candidates for the Penang Chief Ministership before they had even been elected.
Also, we must not forget the last-minute about-turns by the Election Commission on the use of unstamped statutory declarations and indelible ink.
All said, this time round we must give credit to the Opposition for being able to ride on the wave of anger, not so much of change, against the Barisan. For example, the Opposition put up posters relating to the keris incident in Chinese majority areas and that of the Zakaria mansion in Malay kampungs in Penang.
As for the MCA, it only obtained 15 out of the 40 parliamentary seats it contested. Comparatively, among the Barisan component parties, the MCA’s top leadership is the least controversial. Moreover, the MCA’s amendment of its constitution allowing its President to hold office for not more than three terms went down well with the people – something no other political party or leader in the Barisan and Opposition had tried doing. Also, many MCA elected representatives served their constituencies well through their service centres.
While many had expected a reduction in the MCA seats this time round, none had expected such a dismal performance. What actually caused it?
Two plausible causes:
• The urban population in Kuala Lumpur, Selangor and Penang where many MCA seats are situated wanted a strong Opposition; and
• MCA’s association with Umno, Gerakan and MIC – a victim of one for all, all for one principle.
The mood in the cities is that the Barisan’s 2004 win of 90% of the seats had made them too powerful to the extent of becoming an elective dictatorship. Most were concerned about the independence of the judiciary and the rule of law, and the revelations in the Lingam Tape enquiry woke up many on such a need even though these revelations were more related to events that took place during the Mahathir administration.
So, when Malay intellectuals started appearing in DAP ceramahs advocating a need for that, this only strengthened the Chinese urbanites’ resolve. This was also egged on by the former prime minister, Tun Dr Mahathir, who still commands much respect among the Chinese community, when he too advocated for a strong voice against the Government.
The Malays and Chinese, too, were attracted to Anwar’s statement that the Opposition would work on a new economic agenda based on need rather than race as the NEP has only benefited the well-connected.
It follows that even if one had put the best MCA leader in the Klang Valley, he would still have lost. That was what happened to a good Umno minister like Datuk Sharizat Jalil, who lost to a political novice.
Secondly, the swing against Umno caused the MCA to lose in Chinese marginal seats which depended on Malay votes. The people of Penang’s dissatisfaction with Gerakan and wanting to change the Government also translated into votes against the MCA.
The MIC President’s refusal to step aside also caused 80% of Indian voters to turn against the Barisan in these marginal seats.
Further, the Opposition this time round parachuted well-known activists from civil rights groups who are intelligent and eloquent compared to the MCA whose hands are still tied as it had to first consider grassroots leaders who are more used to looking at local issues rather than larger issues like freedom and human rights.
Take the Bakri parliamentary seat, for example. The swing against Umno actually helped the DAP candidate when Malays too voted for the DAP. Umno lost the state seat Sungai Abong to PAS in the Bakri constituency.
This phenomenon of the Johor Malays voting against Umno appeared to also happen in the Johor/Malacca border areas as Umno also lost the Maharani seat to PAS while votes against Umno in the Muar parliamentary constituency also increased substantially.
Most of all, it must not be denied that the MCA’s constraints in speaking up openly on certain issues affecting the Chinese community also cost the MCA dearly.
The Chinese no doubt had wanted the MCA to stand up to Umno on the keris incident, its warning given to the MCA for saying we are a secular state and issues like freedom of religion, erection of places of worship and education, but the party was prevented by the spirit of Barisan rather than lack of courage. For the MCA to do that in the pre-election period when Umno was hugely dominant would mean they had to leave Barisan, which would be more detrimental to the interests of the Chinese.
It now appears that this closed-door and quiet diplomacy with Umno on sensitive issues started by past MCA leaderships is no longer an option. If in these four years, the DAP can prove to be an effective voice for the Chinese, the MCA may very well become irrelevant. Therefore, the last thing the party should face now is internal bickering. United, they can still dong shan zai qi (make a comeback).
All in all, it is time for the Barisan component parties to work even closer together. The spirit of cooperation should not just be there during election time.
One urgent area is for Barisan state governments to expedite land and building plan approvals for non-Muslims’ places of worship. Such approval often take a long time, if not years to come.
And if the Barisan is not able to eradicate corruption and poverty regardless of race, it may just be wiped out by the Opposition in the next election if people living in the Opposition states are experiencing less corruption and better rights and quality of life.
In a way, it is good competition but only in the next election can one finally conclude whether a two-party system has emerged, that is, provided the Malay votes do not swing back to Umno.
All in all, politicians must be able to feel the pulse of the nation before the ground moves, let alone shake.
As an American writer, Simeon Strunsky, once wrote: “People who want to understand democracy should spend less time in the library with Aristotle and more time on the buses and in the subway.”
Thursday, March 13, 2008
Polls show democracy is very much alive
The results of the 12th general election have rendered the Barisan Nasional government incapable of amending the Federal Constitution or making uniform laws for all the states without support from the opposition, observes ROGER TAN
THE people have spoken in the 12th general election. Their voice is supreme and we must respect it. The election results show that democracy is very much alive in our land. As American journalist Sydney J. Harris once said: "Democracy is the only system that persists in asking the powers that be whether they are the powers that ought to be."
The effect of this election not only means that the Barisan Nasional government will now be unable to amend the Federal Constitution without the support of the opposition, neither will it be able to make uniform laws for all the states in respect of any matter enumerated in the State List (Second List, Ninth Schedule of the Federal Constitution) under Article 76(3) of the Federal Constitution if the opposition states do not adopt them, save for matters relating to land and local government under Article 76(4).
The other effect will be on the local authorities and councillors appointed by previous state governments in Penang, Kedah, Perak and Selangor.
Under the Local Government Act 1976 (Act 171), it is the state authority (which is essentially the state executive council) and not the federal ministry of housing and local government which has control over the local authorities.
Under Section 10 of Act 171, the mayor or president and councillors of the local authorities are appointed by the state authority. Even though their terms of office cannot exceed three years, their appointments can still be revoked by the new state authority.
Therefore, the new state authority may replace the current mayor, president and the councillors with new appointees. Or it may also decide to keep some or all of the current councillors because the menteri besar and state authority can still give directions to the mayor or president and the local authorities from time to time.
Similarly, the penghulu or village heads and members of the Village Security and Development Committee or Jawatankuasa Keselamatan dan Kemajuan Kampung (JKKK) can be replaced too.
The next issue is the opposition's election promise to re-instate with immediate effect local government elections. Is this legally possible?
The last local government elections were held in 1963 under the Local Government Elections Act 1960. However, they were suspended after the Confrontation with Indonesia pursuant to the Emergency (Suspension of Local Government Elections) Regulations 1965 and Emergency (Suspension of Local Government Elections) (Amendment) Regulations 1965 made under the Emergency (Essential Powers) Act 1964.
Since then, councillors have been appointed by state authorities. The 1965 regulations were extended after the May 13, 1969 incident pursuant to Section 6 of the Emergency (Essential Powers) Act 1979, which provides that regulations made under the Emergency (Essential Powers) Act 1964 shall remain in force as if they had been made under the 1979 Act.
Then, when Act 171 was enacted, it was expressly provided in Section 15(1) that "notwithstanding anything to the contrary contained in any written law, all provisions relating to local government elections shall cease to have force or effect". This means that the provisions in the Local Government Elections Act 1960 relating to elections have also ceased to apply.
However, some have argued that this is still legally possible as Section 1(4) allows the state authority to exempt any area within any local authority from any provision of Act 171, including Sections 10 and 15(1). The state legislature can then enact state laws to govern local government elections as it is empowered to do so under Paragraph 4(a) of the State List.
Article 113(4) of the Constitution also provides that state law may authorise the Election Commission to conduct elections other than parliamentary and state legislative elections.
In other words, a state authority may suspend the application of Sections 10 and 15 of Act 171 and then cause the state legislature to enact laws governing elections for those local authority areas.
However, to enact state laws governing local government elections might still technically conflict with Sections 10 and 15(1) of Act 171 and the 1965 Emergency Regulations (presumably still in force).
As Act 171 is a federal law made under Article 76(4) and not under Article 76(3) of the Federal Constitution, which deems laws passed by Federal Parliament as state laws, it follows that Article 75 of the Constitution provides that if any state law is inconsistent with a federal law (Act 171 and the emergency laws), the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.
Of course, it can also be argued that with the exemption, the conflict does not arise. But that is a risky approach as the local government elections held pursuant to state laws can be challenged in court. If this is successful, the elections and decisions made by the councillors risk being declared null and void.
Therefore, holding local government elections is possible if Section 15(1) is repealed and Section 10 amended. This can only be done if the Barisan Nasional government, which has a simple majority in parliament, also wants it.
However, nothing is impossible these days. Politically, the federal government under the control of the Barisan Nasional may just do it, as most local authorities depend on the federal government for financial assistance. It may also be a gauge for the government to test public opinion before it calls the next general election.
To the rakyat, it is also a good thing as it will become a new tier of check-and-balance on state governments, under the Barisan Nasional or otherwise.
Tuesday, March 4, 2008
Rule of law in Fiji in dire straits
• Mr Roger Tan, Advocate and Solicitor, Malaysia;
• Dr Loretta de Plevitz, Senior Lecturer, Faculty of Law, Queensland University of Technology, Australia;
• Ms Felicia Johnston, IBAHRI Programme Lawyer, United Kingdom; and
• Mr Daniel Woods, Rapporteur
If the allegations made against Chief Justice Fatiaki were true, then they warranted investigation and consideration by an independent tribunal. Alternatively, if the allegations were false, the interim regime's suspension of the Chief Justice was entirely without foundation, constituting a serious and unwarranted violation of the independence of the judiciary. There is no conclusion that can be drawn from the resolution of the suspension of the Chief Justice that does not have serious negative implications for the rule of law in Fiji.
Another concern is the conduct of judges who have been appointed or promoted following the December 2006 coup and who have heard cases that relate to the constitutionality of their own appointments. This breaches the law of recusal, which prohibits judges from presiding over a matter in which he or she holds an interest.
The 118 page report contains 31 recommendations (pages 93-97) which the IBAHRI calls on the interim regime and/or other relevant bodies to implement as a matter of urgency to restore the rule of law in Fiji.
Included in the recommendations are the following:
Justice Richard Goldstone, Co-Chair of the IBAHRI Council, stated: ‘This independent and impartial review reveals the extensive deterioration in the rule of law in Fiji. It is evident that measures implemented by the interim regime have negatively impacted on the judiciary, the legal profession, the Human Rights Commission and the media. Steps should be taken to restore democracy and a robust rule of law in Fiji.’