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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Just Ranting, Laaaaaaawwww!

Let me just rant.

If you read the title above with a Malaysian-Chinese accent, you’ll get the effect.

What is unique about our Federal Constitution and the laws made under it?  That it has both the “secular” and “Islamic” features.  The “secular features include Articles that give the Federal Constitution its supreme status, that the provision of Islam as THE religion of the Federation of Malaysia does not depart from any other provision, that the Syariah courts have limited authority, so on and so forth.  Meanwhile, its theocratic features include provisions that allows the independent nature of the Syariah courts from the civil courts (Article 121 (1A)), ALL Muslims are subject to the Syariah laws, State support for Islamic religious institutions, preaching of any religion to Muslims is regulated, that the concept of Malay and the religion of Islam are intertwined, and several other provisions made pertaining to Islam being the religion of the Federation. Bear in mind that Articles 4(1) and 162(6) of the Federal Constitution affirm the supremacy of the Federal Constitution over Parliament – contrary to popular belief.

Now, what am I ranting about? Initially, I wanted to rant about ESSCOM and the latest kidnapping, but since two recent issues are more pressing than Mentek’s failure-blame-placed-on-the-police-army-and-navy issue.  They are the comment made by Tan Sri Khalid Abu Bakar, the Inspector-General of Police on the issue of the custody of two children to two sets of parents of different religion as well as Menteri Besar of Selangor’s plan to seek audience with HRH The Sultan of Selangor on the possible return of Bibles confiscated by MAIS/JAIS to the Bible Society of Malaysia.

A bit of background on the first issue: custody.  Two couples namely Muslim-convert Izwan Abdullah and ex-wife S.Deepa, and M. Indira Gandhi and her ex-husband, also a Muslim-convert Mohd Ridzuan Abdullah. Both men converted to Islam without the knowledge of their respective wife resulting in the latter claiming for custody of their children.  Well, it is slightly more complicated than how I have described the case but that is the gist of it. The civil courts have granted custody to the wives while the Syariah courts sided with the husbands. In both cases, the children were converted to Islam without the respective wife’s prior knowledge.

How did the IGP get into the line of fire?  The IGP has refused calls from certain quarters of the public to get the Royal Malaysian Police involved by upholding the various courts order and suggested for the Welfare Department to take custody of the children instead.

I agree with the IGP that the police should not get involved in the custody struggle, but on the other hand the police cannot ignore an arrest warrant issued by the court.  The dilemma here is that the police is expected to uphold both laws, civil and syariah. However, we must all look at the broader picture.  What the IGP said is right.  The children in the custody fights should be under the care of the Welfare Department.  People from the Welfare Department who say otherwise are either ignorant of the law, or are just trying to wash their hands in this matter.  Section 17(1)(h) says that a child is in need of care and protection if there is a conflict between the child and his parents or guardians, that family relationships are seriously disrupted, thereby causing the child emotional injury. Section 18 of the same Act gives the provision for the Welfare Department to take the child into temporary custody.

Why am I in agreeable with this measure?  Even with Ridzuan arrested and placed in custody for contempt of court, he is still entitled to the normal legal channels and can file an appeal against the custody order made in favour of his ex-wife by the High Court.  Only when ALL legal channels have been exhausted, and a final court decision has been made regarding these two cases then the Police should carry out the final order. With the children in custody of the State, the parents can have equal and neutral access to the children at pre-determined times, regulated by the Welfare Department.  All conversions should go through a process where the original Identification Card be held by the religious officer performing the conversion, and the conversion to be registered at the National Registration Department for the converted to receive an Identification Card.  The process should also include a meeting with the spouse/family of the person wanting to convert before any conversion to take place.

Now, back to the issue of the confiscated Bibles.

I have written at length on this issue earlier this year.  I even provided the background why they can use Allah in Sabah, Sarawak and even Indonesia but not in Peninsular Malaysia here ,here and here.

The Majlis Agama Islam of Selangor (Selangor Islamic Religious Council) and the Jabatan Agama Islam Selangor (Selangor Islamic Religious Department) or known to many simply as MAIS and JAIS respectively, are adamant to uphold the Control and Restriction on the Propagation of Non-Islamic Religions Enactment, 1988 under which the Bibles in the Malay language are confiscated.  May I remind everyone that the Enactment is a strict-liability State law, and not a law made under the Syariah context. It applies to all, non-Muslims and Muslims alike.  On 11th June, the Attorney-General, Abdul Gani Patail announced that JAIS had erred in seizing the Bibles, and that no charges would be made, rendering the case closed.

Just as I thought the A-G as a useless human being in this particular post, I strongly believe that the statement he made and how he came to this decision are driven by grave errors.  Firstly, the A-G had made irrelevant introductions to the case by treating the case as one that involves national security. This is because the A-G’s Chambers had recorded statements made by Home Ministry officials indicating that the Bibles do not fall under their purview, therefore do not involve national security. This, my dear A-G, is not about national security. It is about the dangers to public order and moral. Due to the statement made by the A-G on this matter, the Menteri Besar of Selangor, Khalid Ibrahim, will be meeting His Royal Highness the Sultan of Selangor to discuss the issue of returning the Bibles to the Bible Society of Malaysia. Making matters worse is the Prime Minister himself has seen fit to get involved in the melee that is a State prerogative by suggesting that MAIS meet up with the A-G to discuss way forward.

Here is what MAIS and JAIS should do in the case of the useless Attorney-General: go to court and apply for a writ of mandamus to compel Gani Patail to do the right thing. Gani has erroneously digressed from the crux of the issue and have added to the confusion of many, with the possibility of creating a wrong precedence.  The A-G as a public officer should have carefully studied the issue AS IT IS, and not introduce irrelevant matters such as national security before coming to a decision.

May I remind MAIS that in the case of the A-G, to refer to Teh Cheng Poh @ Char Meh v. PP  case where Lord Diplock who was a member of the Privy Council opined in 1978 that the Attorney-General had erred in allowing for the trial of a 14-year old juvenile in the High Court. The 14-year old was represented by the late Karpal Singh. Therefore, MAIS should apply for a writ of mandamus. Meanwhile, MAIS should also file a police report against Shah Alam MP, Khalid Samad, who suggested that MAIS’s authority over JAIS be removed, effectively usurping the powers of the Sultan of Selangor in an unconstitutional manner.

In both cases mentioned above, the rule of law must prevail and should not be allowed to be manipulated by anyone, especially by the politicians, and cool heads should prevail.  Government agencies should also act without fear or favour in exercising the provisions of the law.  Meanwhile, public officers who cannot perform tasks expected of them should be removed.

Gani said statements recorded from Home Ministry officials also indicated that the books did not fall under their purview and, thus, did not involve national security. – See more at: http://www.themalaysianinsider.com/malaysia/article/bible-seizure-case-closed-no-prosecution-says-a-g#sthash.J58v3D4q.dpuf
Gani said statements recorded from Home Ministry officials also indicated that the books did not fall under their purview and, thus, did not involve national security. – See more at: http://www.themalaysianinsider.com/malaysia/article/bible-seizure-case-closed-no-prosecution-says-a-g#sthash.J58v3D4q.dpuf
Gani said statements recorded from Home Ministry officials also indicated that the books did not fall under their purview and, thus, did not involve national security. – See more at: http://www.themalaysianinsider.com/malaysia/article/bible-seizure-case-closed-no-prosecution-says-a-g#sthash.J58v3D4q.dpuf