Tuesday, February 10, 2009

The Cost Of Winning


The Cost Of Winning

One cannot be faulted for thinking that those who claim the right to lead us understand that the system of constitutional democracy put in place by the Federal and State Constitutions circumscribes the authority and power of the Yang diPertuan Agong and their majesties the Malay Rulers.

They surely appreciate that this is particulars so in matters of governance where even if a royal discretion or prerogative is involved, such as is invoked where a Mentri Besar is appointed, such discretion is guided by constitutional prerequisites and that the process of checks and balances must necessarily inform the exercise of such discretion.

An aspect of this process is the taking of legal challenge against the Ruler concerned. The constitutional crisis’ in East Malaysia in 1966 and 1994 saw challenges against the Governors of Sarawak and Sabah respectively, for instance. The constitutional framework makes no distinction between a Sultan or Raja and a Governor where the exercise of such discretions is concerned. Both categories of personages are understood in law to be exercising constitutionally delineated discretion. Such exercises of power are open to being scrutinized by the courts of this country.

It is for that reason that it is said that the doctrine of separation of powers, so crucial to efficacious functioning of democracy, safeguards citizens from autocratic action on the part of any organ of this country. This is the bedrock that gives foundation to the sacred principle that no person is above the law.

I believe that this notion of guided discretion prompted the Prime Minister to say last March that the appointment of Datuk Ahmad Said as Menteri Besar by the Regent of Trengganu was unconstitutional. It is also a belief that the Regent had overstepped the constitutional limits of His Highness’ discretion that prompted UMNO assemblymen as well as UMNO agencies to protest the appointment and to stand by their preferred candidate, Datuk Seri Idris Jusoh. A similar situation in Perlis led to a well-publicized crisis within UMNO at around the same time.

In these incidents, and others like them, political parties and individuals had for their own reasons voiced their disagreement with the decision of a Ruler in the belief that the Ruler erred in going beyond what was legally permissible. There was no legal prohibition to them doing so, a state of affairs that remains unchanged. Such action cannot be criminalized for being seditious as the voicing of opinions aimed at showing that a Ruler had been mistaken is allowed. All leaders are capable of making mistakes and being able say that they have done so is a necessary part of democratic forms of government.

To say that such action amounts to treason is wholly incredible. Treason requires an intention to wage war, to cause bodily harm or death or to cause the deposing of a Ruler. Saying that the Ruler is wrong may be impolite or offensive but it can by no stretch of the imagination amount to treason, nor has it ever been suggested to amount to such.

Until now it would seem.

Mr Karpal Singh and his Pakatan Rakyat associates are in the line of fire and ironically, UMNO and its agencies have put them there. The charge: that they have committed treason and sedition in having publicly taken the position that the Sultan of Perak erred in having decided to allow the Barisan Nasional to form a government in Perak.

How what it is Mr Karpal and associates have said and done amounts to treason or sedition eludes understanding, just as how it differs in principle from what was done in Trengganu or Perlis last March. In as much some may have disagreed with those who protested the decisions of the Rulers in those States, they were entitled not only to their views but also to express those views. Their right to do so is a cornerstone of a system founded on the Rule of Law, one that Tun Mahathir relied on to strip away royal immunity when he was Prime Minister.

It is possible to infer from the manifest lack of basis for the fiery denunciations that behind them lurk questionable political objectives. The imminent UMNO assembly is more probably than not a factor that has shaped the way in which the recent “win” in Perak has been approached since.

The posturing and rhetoric is further so threatening in nature that it is not unreasonable to infer that a campaign of intimidation is underway. Its objective is self-evidently the communicating of a message to those inclined to challenge the legal validity of the appointment of the new Mentri Besar: that they do so at their own peril. Such conduct could fairly be characterized as being intended to subvert the due process of law. If so, this is a punishable contempt of court.

More worryingly, such conduct incites. Too often, political leaders get so lost in their politics to the extent that they fail to see that their rallying cries potentially have a less desirable kind of influence. In all societies there skulk individuals who take it upon themselves to force through a conclusion that they believe their community requires in supreme acts of deliverance. All they need is to receive the right message. Our leaders warn us about playing with fire yet they forget sometimes that it is they who ignite sentiments with potentially devastating consequences.

The situation in Perak has caused anger and pain. It may be that the only way in which the chapter can be closed is through a decision of the courts. For many, the decision itself may be less important than the process. An airing of grievances, such as a court hearing will allow for, is more often than not essential to the achieving of reconciliation. Resolution of this nature can only be in the interests of the state and its government, whoever forms it.

Though the Barisan Nasional may have won the day in securing the right to govern, it must ask at what cost to itself and, more importantly, to the rakyat. In this case, the winner does not take all.

(Malay Mail; 10th February 2009)

MIS

16 comments:

Anonymous said...

Dear Sir

I deigned to engage you as my lead counsel regarding a litigation I wish to undertake against my neighbour whose water buffaloes have trespassed into my sliver of land, trampled my crops and turned my water retention pond into their wallowing spot and the activities of which have caused me immense fiduciary distress and has virtually impoverished me as I cannot farm….But after perusing the above, I aborted my intention as it is somewhat obvious that you seem to sanction acts that violate the sanctity of our laws and cause even greater distress to the public at large. I am truly aghast by your misdemeanour, Sir, for I was given to understand that you were a just and sagacious wakil.

Sir, here I append the relevant parts of the Sedition Act (1948), with which I will humbly submit that perpetrators of lese majeste in Perak should be charged under and “lynched” if found guilty. I am referring specifically to one Mohammad Nizar bin Jamaluddin who by purporting and affecting to be the MB of Perak is actually liable to be charged under the aforementioned Act. Pray, correct me, Sir, if I assert that his brazen misdemeanours against the Perak Royal family does not constitute a ‘seditious tendency” as explicitly outlined in Section 3 (1) a and /or section 3(1) b and d of the said Act notwithstanding the fact that he can claim section 3 (2) a exempts him from such charges and clothes his acts of treason with the accoutrements of legality. I am dumbfounded that the said rag and by extension, you (by publishing the balderdash) would stoop so low as to consider Mohammad Nizar bin Jamaluddin’s vile acts as permissible under section 3(2)a.. For isn’t, the setting up and maintenance of a parallel illegal administration and the issuance of illegal edicts a gross infarction of the law and even more seriously a ploy to “ raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State.” Does not his misguided actions constitute an offense under section 4? Sir, please clarify these questions that plague my troubled soul for I am sure you have the wherewithal to do so and not be blinded by partisan politics.

In fact, although the ISA (a legislation which steadfastly support) may be applicable in this instance, I think there are enough evidence, both direct and circumstantial, to charge the said criminal under the Sedition Act (1948).

For the time being, I hope that your good-self will endeavor valiantly and strive assiduously to clear the fog enveloping us proles regarding Nizar’s dastardly acts and in doing so, restore my confidence in you as an esteemed wakil and consequent to which I will consider engaging you to act as my counsel in the aforementioned litigation.



Seditious tendency
3. (1) A “seditious tendency” is a tendency—

(a) to bring into hatred or contempt or to excite disaffection
against any Ruler or against any Government;

(b) to excite the subjects of any Ruler or the inhabitants of
any territory governed by any Government to attempt
to procure in the territory of the Ruler or governed by
the Government, the alteration, otherwise than by lawful
means, of any matter as by law established;

(d) to raise discontent or disaffection amongst the subjects of
the Yang di-Pertuan Agong or of the Ruler of any
State or amongst the inhabitants of Malaysia or of any
State;

(2) Notwithstanding anything in subsection (1) an act, speech,
words, publication or other thing shall not be deemed to be
seditious by reason only that it has a tendency—
(a) to show that any Ruler has been misled or mistaken in
any of his measures;
(b) to point out errors or defects in any Government or
constitution as by law established (except in respect of
any matter, right, status, position, privilege, sovereignty
or prerogative referred to in paragraph (1)(f) otherwise
than in relation to the implementation of any provision
relating thereto) or in legislation or in the administration
of justice with a view to the remedying of the errors or
defects;

Offences
4. (1) Any person who—
(a) does or attempts to do, or makes any preparation to do,
or conspires with any person to do, any act which has
or which would, if done, have a seditious tendency;

Thank you, Good Sir

Warrior 231

Perakienne said...

Isn't it annoying, how people who say that they "humbly" submit, are rarely, if ever, humble, as evidenced by the bigoted hogwash posted by warrior 231. Please la, when you need to use a dictionary of archaic terms to decipher his bombastic crap, I wonder if this guy is the best that UMNO can manage. I mean, seriously?
Regular Malaysians like myself just want to feel that our leaders want to and will actually listen to us. If they are so willing, why would they not allow for fresh elections if they are so certain that the people really want UMNO? Surely that would be the safer option than bulldozing their way through? Show us "proles" that we really have the "wherewithal" to decide for ourselves la. And while they're at it, let our courts decide on the legality or illegality of the incoming and outgoing administrations. WHat are they afraid of? Lots evidently, as they still need "laws" like the ISA to hide behind.

LAT, Ipoh. said...

MIS,

I have just proposed you and Art Harun as our learned friends to be the lead counsel to assist the legal panel of PKR,Perak concerning the constitutional crisis faced by the oppressed Rakyat here. I sincerely hope you and Art Harun could render your legal assistance & jurisprudential wisdom to shed some light in this age of darkness ! By the way, how to contact you ? We Urgently need you !

Malik Imtiaz Sarwar said...

LAT,

PKR leaders like Sivarasa and William Leong know how to get in touch with us. I understand that the legal team has been assembled already. Thanks for the vote of confidence.

MIS

LAT, Ipoh. said...

Thanks ! Hope to see you and AH in Ipoh High Court when the due time come ! Gos Bless.

Anonymous said...

Dear Sir
I was extremely flabbergasted by the comments of one "Perakienne" who had the temerity to accuse me as an UMNO stooge when in reality I am apolitical farmer who firmly avows that the only Constitution worth upholding is the Constitution of the Almighty, Allah SWT as outlined in the Holy Quran and the authentic Hadis. However, this is in no way implies that i am a supporter of PAS who i aver solemnly is nothing more than an "imposter" party claiming to fight for the cause of Islam to camouflage their real nefarious intentions i.e., to drink the elixir of intoxicating power in cahoots with sundry dissolutes and other perfidious charlatans!

IF (and i stress this conditional) ever there was a political party that would be amenable to me :AKIM would be the one and only but then I harbour an avowed hatred of democracy and its various shenanigans, realising that it has brought untold misery on me and my fellow proles,that to deign any thought of participation in this public and orgiastic "once every 5 years love fest" is both grossly abominable and downright reprehensible to my constitution!

Please Brother Perakienne, I solicit your empathy and earnestly beseech you to desist from labeling me a bigoted UMNO minion for such perverse accusations are both a monstrosity and a deep slur on my reputation. However, i forgive my dear Perakienne for your presumtous accusation and exculpate you of any vile intentions against my unbesmirched honour. Rest assured that I will not pursue this matter in any court of law, notwithstanding the fact that i have the right to do so, in cognisance of the fact that the slur was uttered in ignorance and under the extremely stressful situation that befog the Pakatan rabble.

Anyway, dear Sir (blogmaster), i cannot as yet fathom what I said or did or did not say or do in that post that contributed to this unfortunate chain of events and such vehement rancour in that comment by Perakieene.

Please sir, i beseech you to answer my simple query regarding one Mohd Nizar bin Jammaluddin for I totally abhor such beastly and depraved reaction to the honour of HRH the Sultan of Perak, who happens to be my monarch as well seeing that I am his subject as his suzerainty extends over the little hamlet i reside in somewhere out in the boondocks, a crow's flight or so from ...........

Further, I appeal to your good self to desist from being entangled in the legal shenanigans planned by the party of Conspirators for i am afraid your esteemed reputation will be gutted beyond redemption in the Bonfire of vanities that pakatan plan to kindle and ignite ala Guy Fawkes. Sir, I pray and hope the Almighty will grant you the wisdom and amity to see the Truth of reason and avoid the alluring scent of Deceit.

I look forward to reading your informed response to my query (timestamped 1pm above) and also your insights into the observations I made yesterday in another post. Thanking you in advance Sir.

Bless you, Sir.

P/S= I am accused of writing in an archaic manner??? Blimey...what and how the f#@*?


Warrior 231

A "perfidious charlatan and Conspirator" said...

Speaketh the pseudo-intellectual. Dearest Warrior 231, in response to your first post, I have but one thing to say. "An Unjust Law is no law at all."

The principle of law is not that anything enacted by legislature goes. The higher principle of natural justice is always the overriding bar at which every piece of legislation is to be measured against.

Does The Sedition Act (which was enacted by the British no less to deal with the UMNO troublemakers.) observe the final goal of law? Justice sir. That's all the common man wants. Is Sedition just? Minds of legal acumen far greater than yours have decided not. (Re: UN Declaration of Human Rights.)

Sir, forgive me for calling you stupid in the earlier paragraph but then you go ahead to defend the use of the ISA. Which makes me believe now, beyond a shadow of a doubt, that you are nothing more than a sad, deluded man who has had the benefit of good English teachers.

Anonymous said...

Seditious tendency?

Pernah terjadi kepada DYMM Sultan Johor - oleh UMNO

Pernah terjadi kepada DYMM Sultan Kelantan - Oleh UMNO

Pernah terjadi kepada DYMM Sultan Terengganu - Oleh UMNO

Pernah terjadi kepada DYMM Sultan Idris - Oleh UMNO

Pernah terjadi kepada semua Raja Raja Melayu - Oleh UMNO

Berapa orang yang didakwa di mahkamah?

MELAYU BETUL LAH MUDAH LUPA.

Anonymous said...

Warrior 231 said "...in reality I am apolitical farmer who firmly avows that the only Constitution worth upholding is the Constitution of the Almighty, Allah SWT".

Then why need express so excessively when everything will be judged on judgment day by An uncorrupted and truly impartial Judge.

Let us all pray for Divine intervention (not from the palace) that judgment day comes sooner for all who had failed in the worldly duties to Him. Then the others can democratically choose again their rightful representative to rule on our lands.

Anonymous said...

I only understand this, bila dua gajah bertempur, kancil mati ditengah.
I am a registered voter. Doesn't my vote mean anything?
Who is going to listen to the voice of the voters? I thought that a democratic government is formed by the party having the majority of the votes, which means, based on the voices of the people. However, this is not the situation in Perak. Sir and Warrior 231, can I sue my wakil rakyat for breaching my trust, for not representing my voice in the government? Can I as a voter dismiss my wakil rakyat? Finally a point to ponder, who has the greater power, the people's voice or the Ruler's voice? Pls enlighten me.... TQ

Damansara said...

I would like to express my highest gratitude, particularly to PR, and offer my sincerest apology for my misreading of your true intention in all this political drama especially in Perak Darul Ridzuan.

I have never seen in my whole life where each and every ADUN and MPs working their butt out to serve the people.

PR has definitely waked-up the sleeping BN, and the entire tongue-twister politicians from both political divide.

I now can only hope and pray that both PR and BN will up the ante to dethroning each other all over Malaysia.

The least, it keeps our mind away from the ‘real issue’ – the depleting economy.

Again my apology.

Anonymous said...

To many Malaysians of the older generation, UMNO youth is just a bunch of uncivilized monkeys, trouble-rousing types.

If questioning by act of reason and legality is taken an act of treason, this government is no better than the British colonial government. More than Nazism or an imperial government of the ancient civilisation, that's where UMNO should belong.

Just a tribe with bigotry mindsets.

monk

Anonymous said...

Dear Malik,

I trust you are busy trying to get a Federal Court judge to recuse himself these last few days and therefore have your hands full. But even if you have a second to spare, I hope you will not respond to a certain farmer's queries until he tells us if he had written in the same vein to those who questioned the legality (through press conferences/demonstrations)of the Kedah and Trengganu Sultans' exercise of their respective prerogatives some months ago, and whether he had raised similar questions that would have 'plagued his troubled soul' when all the Sultans were targetted by Mahathir?

And since he is deep in all things legal, I insist he furnish concrete proof of the evidence that he will submit to you, not merely his say so.

For if he cannot let us have it, he is a hypocrite and a troublemaker and may his neighbour's buffaloes have an enjoyable time on his farm.

anti-warrior 231

donplaypuks® said...

UMNO/BN will whip up these 'sedition' and 'lese majeste' issues since they control the Press and they know of no honest way to win back electorate support since the debacle of March 2008.

But believe me. The ordinary citizens of Malaysi are not fooled that easily. Not as long as they cannot explain how what they said in Trengganu & Perlis is any different from Karpa'ls words.

More than that, they have to explain how UMNO could get away with banners referring to the TRengganu Sultan as 'Natang (or binatang=animal).
http://donplaypuks.blogspot.com

Malik Imtiaz Sarwar said...

I decided to close this thread of discussion as judging by comments being posted things were getting unnecessarily personal.Sifting through them to ensure that they were appropriate for publication was taking too much time. To be fair, there are those who have left neutral comments. An even handed terminating of discussion however required that even these were not published.

Warrior 231 has a point of view that I do not agree with. I do not think sedition or treason has been committed by Nizar or Karpal for the reasons that I have explained here and in other postings on the subject of sedition. To say that any expression of disagreement amounts to either is taking it too far. To say that what was done was an intentional attack dressed up as a legal viewpoint is a conclusion that does not present itself clearly. We must agree to disagree on this.

The legal team is working hard on the Raja Petra ISA appeal by the Government which resumes on tuesday, 17th. Regrettably, that has to be the focus for the moment. My apologies to those whose comments have not been posted. Thank you for having taken the time and effort to do so.

MIS

Hamidi said...

Assalamualaikum Malik.

I personally share and agree with your opinion about the alleged "treason". I believe that this incident shows discrimination by the present government.