Constitutionally Speaking

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The Opposition (DAP, BERSIH, Pribumi) is just recycling old issues.  No matter if the issue raised had been clarified or debunked countless times before.  I did not include PAN in the parentheses because it would be ridiculous in my opinion to even consider it a political party given the cartoon characters that fills its ranks.  Not even BERSIH’s convoy in Penang could garner more than 50 supporters to join its convoy in that staunch Opposition state!  A sign of times, perhaps?  Issues like 1MDB is being played over and over again, especially by Mahathir’s Das Schwarze Korps but hardly gained any traction as people are bored of the same story being played repeatedly with goalposts changed to suit the message they try to send.

So, what should they do next?

Enter His Majesty Yang DiPertuan Agong.

Mahathir's Das Schwarze Korps creating a perception that the YDP Agong has the power to dismiss the Prime Minister
Mahathir’s Das Schwarze Korps creating a perception that the YDP Agong has the power to dismiss the Prime Minister

Before the independence of Malaya in August 1957, there were three parties to the discussion on the subject of the independence.  They were the Malay Rulers of the Federated and Unfederated Malay States; the British who, by virtue of treaties signed with the Malay Rulers, helped administer their respective state; and the Alliance party (UMNO, MCA and MIC) who, by virtue of winning all but one seat in the 1955 General Elections was the de facto voice of the people of Malaya.  Save for Pulau Pinang and Melaka, the rest of the states in Malaya were NOT colonies of Great Britain.  Therefore, the discussion was about the transfer of administrative powers from the representatives of the Malay Rulers (the British) to a government formed through the elections by the people of Malaya.  31st August 1957 was an independence from feudalism, not colonialism. (Read SeaDemon: The Road to Merdeka – Whom Did the British Prefer?, 17 September 2011)

You must understand that while the Rulers retain some of their functions, the government is run by those elected by the rakyat. This was done to ensure that democracy in then-Malaya was not to do away with the Malay Rulers.  Therefore, Mahathir’s attempt to get the Rulers Institution to dismiss Najib Razak for someone else as the Prime Minister, there is nothing that any of the Rulers could democratically do.  The Rulers, although above the law, are not above the Federal Constitution.  Like with the British advisors, there is virtually nothing that the Rulers could do without the advise of the Prime Minister or the Menteris Besar to affect the state or Federal administration except in a few circumstances.

Article 43(2) of the Federal Constitution states that:

2) The Cabinet shall be appointed as follows, that is to say:

(a) The Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House; and

(b) He shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament

What it says here is in order to have a functioning government, the Yang DiPertuan Agong would have to first appoint a Prime Minister who in his judgment is likely to command the confidence of the majority of the Dewan Rakyat members. The term ‘who in his judgment is likely to command the confidence of the majority of the members of that House‘ here is critically important and we shall visit this aspect later.  This term and Article must be read together with Article 40(2) of the Federal Constitution that says:

The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:

(a) the appointment of a Prime Minister;

(b) the withholding of consent to a request for the dissolution of Parliament;

What it means according to Article 40(2) of the Federal Constitution is that the Yang DiPertuan Agong has the discretionary power to appoint the Prime Minister subject to his own discretion but limited to the ambit of Article 43(2) of the same.  In Article 43(5) states that only Ministers can be dismissed by the Yang DiPertuan Agong on the advice of the Prime Minister:

Subject to Clause (4), Ministers other than the Prime Minister shall hold office during the pleasure of the Yang di-Pertuan Agong, unless the appointment of any Minister shall have been revoked by the Yang di-Pertuan Agong on the advice of the Prime Minister but any Minister may resign his office.

In Teh Chang Poh vs PP (1979 – 1 MLJ 50) William John Kenneth Diplock (Lord Diplock) opined the following:

Although this, like other powers under the Constitution, is conferred nominally upon the Yang di-Pertuan Agong by virtue of his office as the Supreme Head of the Federation and is expressed to be exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch and except on matters that do not concern the instant appeal, he does not exercise any of his functions under the Constitution on his own initiative but is required by Article 40(1) to act in accordance with the advice of the Cabinet. So when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.

Therefore, Constitutionally-speaking, the Prime Minister can only be replaced in only two circumstances:

  1. when the Prime Minister loses the majority of support of the members of the Dewan Rakyat (therefore the appointment of a new one would have to be based on the judgment of His Majesty the Yang DiPertuan Agong that has the most majority support of the Dewan, or,
  2. A General Election causes the Prime Minister to lose his parliamentary seat, and His Majesty would have to appoint one before appointing a Cabinet as prescribed in Article 43(2)(a).

The Yang DiPertuan Agong therefore cannot act ultra vires.

So, why is Mahathir’s Schwarze Korps so eager in pushing the idea of the Rulers Institution being able to remove a Prime Minister?

The answer is: propaganda that only zombies would accept at face value.

Just like the 1MDB issue where Schwarze Dummkopf A Kadir Jasin et al are saying that the investigation into the case has stopped altogether, whereas the Inspector-General of Police had announced on 19 August 2016 that the investigation into the 1MDB issue has entered its second phase!

I guess Mahathir’s interest in ousting Najib Razak is just so one of his Pribumis could be appointed as the Prime Minister. For that reason he is trying to make a pact with Anwar Ibrahim’s PKR. He knows that his lie about the powers of the Agong to remove Najib Razak will soon be debunked, and that it is just noise – no substance.  Therefore, he would need to work with PKR, DAP and jumpers from the BN to oust Najib Razak in accordance with Article 43(2)(a).

However, despite declaring that Muhyiddin would become the Prime Minister if the Opposition wins, we all know that the protem President of Parti Pribumi would never make it as the Prime Minister.  Muhyiddin has far too many baggages that would be easy to pick on.  His son Mukhriz is the favourite contender. He said so HERE.

Mahathir's confession that he wants his son Mukhriz to become the PM instead of Muhyiddin
Mahathir’s confession that he wants his son Mukhriz to become the PM instead of Muhyiddin

Well Muhyiddin, you have been had!

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Sabah: Stashed Water

I still remember reading the above article when I was doing a search on water woes almost four years ago.  53 years after the formation of Malaysia we still have places that have no regular treated water supply. Hence, I find it disgusting that RM114 million in cash was found stashed in a house in Sabah by the Malaysian Anti Corruption Commission recently which does not include the ones that are still stashed in five vaults that are yet to be opened.

According to this portal called Anti-Fitnah Sabah the latest bust by the MACC is related to the Sabah water project that commenced in 2010 costing the Federal Government RM3.3 billion under the purview of the Ministry of Rural and Regional Development (Kementerian Kemajuan Luar Bandar dan Wilayah or KKLW).

The project was executed and implemented by the KKLW with very minimal participation of the Sabah Water Department (Jabatan Air Sabah or JAS) whose role was to prepare through a limited tender process 10 local companies to carry out the project.

These companies are controlled by the Director and Deputy Director of the JAS. They are Ag Mohd Tahir bin Mohd Talib and Ir Teo Chee Kong respectively. Ag Mohd Tahir IS NOT the Treasurer for UMNO Bahagian Kimanis as claimed by a certain disgruntled menopausal whining auntie in Perak. That would be Datuk Rizal @ Raymond Godfrey Abdullah, whom I seriously hope would sue the auntie.

Although the Sabah State Government had requested for the funds that is channeled through the KKLW to be channeled through the State Treasury, the request was never approved.

Now how many water projects under the KKLW has there been? Although I’ve taken the liberty to post some screenshots of the projects here, thanks to a world wide web friend but you can also see the documents on a public domain.


Now, that is a lot of projects and they go back as far as 2011. Who was the Minister for KKLW then? Shafie Apdal. He was minister from 10th April 2009 until his removal in the 29th July 2015. Is he involved? I don’t know. Let us see the outcome of the MACC investigation but the Anti-Fitnah Sabah blog surely allows us an insight into the goings-on in Sabah.

RM114 million is a lot of money. You could finance at least 20 candidates in a general election.

This is going to be interesting indeed.

Water: Azmin Should Stop Blaming Others

Mengapa? Why?
Mengapa? Why?

For the umpteenth time, the Petaling district in Selangor have to face waterless days because someone decided the rivers are the best place to dump chemical wastes.  What has the Selangor state government done about it? Apart from blaming the Department of Environment, the Menteri Besar, Azmin Ali has done nothing.

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Investigation by the Selangor water authority has traced the pollution to its source and not only have taken water samples from the alleged source, but even named the source.  Yet, Azmin chose to blame the Department of Environment for being slow in acting against the perpetrator citing that the Selangor Water Management Board has no authority to act.

Therefore, let me introduce this seemingly alien State Enactment to the clueless Menteri Besar:

Selangor Water Management Board Enactment, 1999
Selangor Water Management Board Enactment, 1999

There are powers accorded to the Board that the state government.  Section 40(1) of the Enactment states that the Board has the responsibility to arrange and control all water resources. This includes buffer development, the management, use and the conservation of water sources while Section 41(3)(d) the Board is allowed to take whatever steps deemed necessary to protect water from contamination and the improvement of its quality. Which part of the Enactment that is not clear to either the Members of the Board, or Azmin himself?

Section 43(2) of the said Enactment empowers the Director of the Board to instruct by writing any activity, work, structure or building that is located within the flood zones, river reserves, or coastal areas that the Director deems to cause the degradation in quantity of water flow, quality of water, or to cause pollution to improvise or stop the activity, or to modify or to relocate the building.  The Director even has the power to enter such premises at any time and inspect as given by Section 43(3).

I have, in different previous posts (Water, Water Everywhere dated 28th October 2011 and Water, Water Everywhere Part 2 dated 4th November 2011), pointed out the need to protect the water catchment areas.  The value chain starts at water catchment areas and therefore it is imperative that state governments take steps to protect these areas by gazetting them under a specific Act for Water Catchment Areas, and not as it is now, under the Forestry Act.  We often find water resources polluted by human activities in these areas such as logging (legal and illegal), farming, plantation, manufacturing, animal husbandry and indiscriminate dumping of rubbish despite having these areas gazetted under the Forestry Act.

Lo! And behold! The power had already been given to the Board through Section 48 of the Enactment which you can read below (unless you are one of those who criticised Zahid Hamidi for his poor command of the English language while you cannot even speak in Bahasa Malaysia despite holding a Malaysian Identity Card):

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So, what are you waiting for, Azmin? Why are you still playing the blame game? This is the effect of the incompetency of the Pakatan government that politicises every single thing that has now caused misery to hundreds of thousands of water account holders in Selangor.  And not only that, the arrogance of biblical proportions that your Executive Councillors and you have make you think that you have the right to play with the lives of those in need of water such as at the Serdang Hospital that had had to declare an emergency for being in dire need of treated water supply.

Screenshot of Free Malaysia Today's post on the emergency situation at the Serdang Hospital (http://www.freemalaysiatoday.com/category/bahasa/2016/09/27/tiada-air-sejak-jumaat-hospital-serdang-dalam-darurat/)
Screenshot of Free Malaysia Today’s post on the emergency situation at the Serdang Hospital (http://www.freemalaysiatoday.com/category/bahasa/2016/09/27/tiada-air-sejak-jumaat-hospital-serdang-dalam-darurat/)

Since being given the power to administrate, the Pakatan-led state government of Selangor has given the rakyat nothing but excuse upon excuse to NOT solve its water woes.  Starting with saying that there would be enough water and the Langat 2 Water Treatment Plant is not needed and one suggested by a Pakatan-suporter that there are better alternatives to the Langat 2 WTP.  Yet, nothing was done to solve the problem.  And only in February 2014 that the state government conceded that the Langat 2 WTP is needed after all, a realisation that caused former Menteri Besar Khalid Ibrahim his job as the rest of his administration and also party office holders did not subscribe to his view.

The Pakatan-led state government should pull its act together and stop giving excuses when it is empowered to protect water sources.  If it does not have the political will to do so, make way for the party that would.

Period!

Pertahanan: Terhempas Atau Pendaratan Kecemasan?

Helikopter Sikorsky S-61A4 Nuri milik TUDM yang telah melakukan pendaratan cemas di SMK Balung, Tawau
Helikopter Sikorsky S-61A4 Nuri milik TUDM yang telah melakukan pendaratan cemas di SMK Balung, Tawau

Hari ini saya diajukan beberapa soalan dari berbagai pihak mengenai kejadian yang melibatkan sebuah pesawat helikopter Sikorsky S-61A4 Nuri milik TUDM di Sekolah Menengah Kebangsaan Balung, Tawau.  Untuk memudahkan penulisan, izinkan saya menulis dalam bentuk soalan-soalan yang telah diajukan kepada saya:

SOALAN 1: Media telah menggunakan perkataan “terhempas” namun pihak TUDM menggunakan istilah “mendarat cemas.”  Boleh Kapten terangkan perbezaan kedua-dua istilah tersebut?

Istilah “terhempas” menggambarkan suatu situasi diluar kawalan.  Sebagai contoh, pesawat mengalami kegagalan sepenuhnya fungsi alat kawalan yang mengakibatkan sesuatu pesawat itu terus jatuh diluar kawalan (uncontrolled descent).

Contoh-contoh dalam negeri yang terbaik termasuk kejadian helikopter terhempas yang mengorbankan Allahyarham Datuk Seri Jamaluddin Jarjis pada tahun 2015, dan kejadian helikopter terhempas di Sri Damansara pada tahun 1997.

Akibat kejadian “terhempas” kebiasaannya akan mengakibatkan kemusnahan total kepada kerangka pesawat, disertai kehilangan jiwa dan/atau kecederaan parah kepada majoriti penumpang.

Mendarat cemas” ataupun “pendaratan kecemasan” ialah suatu tindakan yang dilakukan sebagai respon kepada sesuatu kejadian kecemasan, contohnya respon juruterbang kepada kegagalan fungsi enjin pesawat. Dalam kejadian semalam pada pengamatan saya, juruterbang telah bertindak untuk cuba mendaratkan pesawat di suatu tempat lapang di antara dua blok sekolah menggunakan kaedah “auto-rotation” namun telah tidak cukup masa untuk mencapai kawasan tersebut.  Siasatan oleh pihak TUDM akan memberi lebih pencerahan mengenai kejadian ini.

SOALAN 2: Pada pendapat Kapten, apa punca kejadian? Adakah ia boleh dielak?

Semua kejadian boleh dielak. Namun kita tiak boleh menjangkakan sesuatu yang bakal berlaku walaupun semua langkah telah diambil untuk mengelak sebarang kejadian yang tidak diingini.  Contoh terbaik: Lewis Hamilton terpaksa keluar dari perlumbaan F1 di litar Sepang baru-baru ini walaupun sedang mendahului para pesaing lain akibat kerosakan enjin walaupun penyelenggaraannya amat baik.  Hanya siasatan terperinci dapat memberi gambaran punca kerosakan kepada pesawat Nuri tersebut dan juga kereta yang dipandu Lewis Hamilton tempoh hari.

SOALAN 3: Masalah teknikal dikatakan antara punca kejadian. Adakah wujud faktor tersebut atau Nuri itu sendiri tidak boleh diselenggarakan lagi kerana usianya yang sudah lanjut?

TUDM, sayap udara TLDM dan Pasukan Udara Tentera Darat mempunya rejim penyelenggaraan pesawat yang amat baik. Usia lanjut sesebuah pesawat itu tidak banyak memainkan peranan sekiranya penyelenggaraan adalah baik.

SOALAN 4: Adakah pesawat Nuri kita terlalu tua dan tidak sesuai lagi untuk latihan memandangkan komponen dan besi pesawat sudah uzur dan haus seperti didakwa sesetengah pihak?

Masih banyak varian Sikorsky S-61 yang masih digunakan di seluruh dunia termasuk juga yang digunakan oleh State Department Amerika Syarikat.  Malah ianya juga salah satu helikopter yang digunakan untuk mengangkut Presiden Amerika Syarikat.  Tentera Udara DiRaja New Zealand masih menerbangkan pesawat Hercules C-130 mereka yang sudah berumur 51 tahun. Usia pesawat bukan merupakan faktor.

SOALAN 5: Apakah sudah sampai masa Nuri digantikan bagi megelakkan insiden yang sama berlaku? Jika tidak, adakah Nuri masih lagi perlu digunakan?

Nuri adalah pesawat yang masih diperlukan.  Aset-aset Nuri TUDM juga kini diserapkan ke dalam Pasukan Udara Tentera Darat untuk tujuan “air mobility.” TUDM menggantikan pesawat Nuri bukan kerana usia atau masalah penyelenggaraan tetapi adalah kesesuaian peranan yang dimainkan oleh TUDM seperti Combat Search and Rescue, Special Forces Insertion and Extraction yang memerlukan helikopter berperanan khusus.  Pesawat Nuri juga telah melalui beberapa proses penambahbaikan kerangka dan avionics untuk menentukan ianya selaras dengan keperluan masa kini.  Ini termasuk peningkatan upaya gearbox, bilah kipas utama dan bilah kipas ekor dan pautan data digital. Malah peningkatan upaya pesawat Nuri dengan memperkenalkan “glass cockpit” atau kawalan digital sepenuhnya yang sesuai digunakan dengan teropong kegunaan malam (night-vision goggles) telah dilakukan untuk sesetengah pesawat Nuri.

Ini menunjukkan pesawat Nuri masih lagi relevan, terutama untuk tujuan pengangkutan saiz sederhana atau penghantaran platun infantri ke medan.

SOALAN 6: Apa nasihat, cadangan, pandangan Kapten kepada TUDM demi masa depan aset seperti Nuri dan keselamatan pengguna helikopter tersebut?

Kementerian Pertahanan perlu menentukan “end-user” mendapat bajet yang diperlukan untuk menentukan perolehan, pengoperasian dan penyelenggaraan aset-aset bukan sahaja TUDM, malah untuk Angkatan Tentera Malaysia amnya, dapat diteruskan dengan baik dan memenuhi doktrin Angkatan Tentera Malaysia.

Pesawat Sikorsky S-61A4 yang telah diserap oleh Pasukan Udara Tentera Darat
Pesawat Sikorsky S-61A4 yang telah diserap oleh Pasukan Udara Tentera Darat

1BestariNet: When Will Muhyiddin Be Investigated?

Muhyiddin spoke on a PAS platform recently on 1MDB
Muhyiddin spoke on a PAS platform recently on 1MDB

Muhyiddin recently appeared on a PAS platform in Kuala Terengganu to speak about 1MDB etc.  He was invited on the capacity of a former Deputy Prime Minister before the formation of Parti Pribumi which he is a pro-tem President.  Not once did he address the long-standing question from especially the PAS members – how much did he make from the 1BestariNet scandal?

PAS first asked this question back in April 2012. Mahfuz Omar of PAS asked then why was the project not given to known telecommunications players such as Telekom Malaysia, Celcom or TimeDotCom who would be able to provide better Internet backbone to support the project.

The 1BestariNet project is a RM4.077 billion project over 15 years to provide 4G Internet connectivity as well as virtual learning environment for 9,924 schools nationwide.  YTL, a known favourite of Parti Pribumi’s founder Mahathir, secured a RM663 million package signed by Muhyiddin when he was the Minister of Education.  The Public Accounts Committee (PAC) in 2015 concluded that the implementation of the First Phase of the project is a failure. Not even a project steering committee and project technical committee were established at ministry-level to ensure its smooth implementation.

Responding to the PAC report, Economic Advisor to the Concerned Social-Minded Association (Persatuan Minda Sosial Prihatin) Suud Ridzuan called for Muhyiddin, the then Deputy Prime Minister cum Minister of Education to step down to facilitate the investigation into the scandal.

According to the PAC, this project is a failure. Why was there a need to spend so much for this program?” he asked. “I urge the Malaysian Anti Corruption Commission to investigate.”

The BN-friendly portal www.pru14.tv also raised a few doubts about the project.  They are among others:

  1. the installation of 1BestariNet Receiver Integrated System (1BRIS) communication towers that are supposed to transmit and receive high-speed wireless data in schools that do not have the appropriate LAN (Local Access Network) structure,
  2. the refusal by YTL to pay RM1,200 per month to the Ministry of Education (MoE) as recommended by the Property Valuation and Service Department for each 1BRIS site. The MoE has thus far bowed down to YTL by allowing them to pay RM1,000 for each 1BRIS site instead;
  3. the installation of the 1BRIS towers increased the electricity bill for each school by RM120 to RM150 monthly.  With YTL’s refusal to pay the RM500 for each 1BRIS tower site, the MoE would have to fork out between RM5.77 million to RM6.92 million each year until the expiration of the contract.

The portal also alleged Muhyiddin’s son-in-law’s involvement in the project, an allegation that has gone unanswered by Muhyiddin.

Perhaps the MACC should seriously look into this issue as it has gone almost forgotten.  Nabbing errant GLC office-holders may be a good thing, but letting a former senior Minister go free after hunderds of millions tangible rakyat‘s funds have been spent without tangible good results will not go down well with the majority.