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Malaysia Today - Your Source of Independent News

Posted: 06 Dec 2011 08:13 AM PST

Sarawak Chief Minister Taib Mahmud flouted every constitutional rule when he rushed his 'confirmation' at 10.30pm immediately after the April 16 polls.

No doubt the democratic law recognises that a party which commands the most number of seats has the right to form the government. However, it does not state who, among the majority members of the legislature, should be selected to head a government.

Awang Abdillah, Free Malaysia Today

In a democratic system, after a general election is over, the process of forming a government will commence. Two standard democratic procedures are involved: the right to form a government based on the law of majority rule; and the power and functions of the legislature.

The universal democratic law of majority rule recognises that whichever political party or association of parties obtain (s) the majority of the seats in the general election will have the right to form a government.

Hence, a political party or an association of political parties that win (s) more than half of the total legislative seats will proceed to form a government. This is the democratic rule as practised by all democratic countries.

Then comes the legislature which is one of the three branches of government, with each having its own independent function.

The legislature is the supreme (legal ) authority in the country, which has the power to make and pass laws.

It has a say in the appointment of the chief executive of the government, who will then proceed to form the Cabinet. In the event the chief executive ceases to command the confidence of a majority of the legislators, Parliament or the State Legislative Assembly has the power to direct the chief executive to tender his resignation or that of his entire Cabinet.

The executive government is directly answerable to the House in matters concerning the state budget, its policies, duties and responsibilities to the state and people and the practice of good governance.

False belief

For too long the people were led to believe that the three branches of government – the Legislative, the Executive and the Judicial – are independent of one another. This is a false belief.

In this democratic system of government, the executive or Cabinet is subservient to Parliament or the State Legislative Assembly.

The Parliament is the body that makes and passes the nation's laws including the Federal Constitution, which will then be executed by the executive and these will constitute the body of laws of the judiciary.

In Sarawak, the State Legislative Assembly formulates and passes laws known as the Ordinances as stated in Article 26 of the state constitution.

A majority vote of the members of the legislature will decide who should lead the government.

For the state, the authority is vested in the State Legislative Assembly (DUN) as stated in Article 6 of the state constitution.

The state assembly has the jurisdiction to appoint the head of government as well as to remove him and his entire Cabinet through the democratric process of motion of loss of confidence in accordance with Article 7.

Whoever is elected to the post of the chief executive of the government by the majority votes of the legislators will then become the prime minister or chief minister of the country or state accordingly.

Legislators must select CM

Only with this democratic right and power can the said parliamentarian or state assemblyman command the confidence of the majority of the members.

Hence, winning a majority of the seats in the election is different from commanding the confidence of a majority of the members of Parliament or DUN.

In some democratic countries such as Thailand, the appointment of the prime minister has to go through this standard democratic procedure to ensure that the most able and acceptable member chosen by Parliament, will lead the government .

This procedure is not biased towards a party that wins the majority of seats because in most cases the party with the most seats will likely appoint its party leader as the chief executive, and the composition of the Cabinet will mainly come from the same party.

What is good in this procedure is that the chances of the majority party abusing its power can be minimised or averted by letting the majority of the lawmakers (including the opposition) decide who is the best person to lead the government.

This procedure provides for a check-and-balance mechanism in the House to ensure the practice of good governance.

The leader of a party or parties which has won a majority of seats in the state election, may not automatically be accepted as the chief executive of the government in the DUN.

He must prove that he actually commands a majority of the DUN.

Power of the legislature

This is because members elected to the DUN also consist of the opposition.

Though members of the Barisan National (BN) coalition, some among them and the opposition may not agree to the automatic appointment of a particular leader of the party as the chief minister.

In the case of Sarawak, the president of Pesaka Bumiputra Bersatu (PBB), who is also the state BN chairman, cannot appoint himself as the chief minister in the DUN.

The right procedure is to put it to the vote. The House will then elect one of the lawmakers nominated by the House to the post of the chief minister.

Whoever is chosen by a majority votes among the contesting members of the House will then be declared as the chief minister.

His command of the majority is vital because this is to ensure the most able and accepted member will lead the state government.

It will also avert the possibility of a vote of no confidence in the chief minister later, which may then destabilise the government.

The head of state will accordingly appoint the elected member officially as the chief minister of Sarawak.

Malaysians do not realise the extent of the power of the legislature in a true democratic system.

The legislature has the final say in the appointment of the chief executive of the government or in his removal or even that of the entire Cabinet.

Motion of no confidence

In the event the legislators later have lost confidence in any member of the Cabinet or the chief minister or the whole Cabinet, the former have the power to table a vote of no confidence in any one of the three without the need to hold a general or state election.

Then the chief minister has to resign and all the assemblymen have to go though the process of choosing a new chief minister.

In the latter case, the government has to resign en bloc and Parliament or DUN has to be dissolved and fresh election called.

The introduction of the motion of no-confidence is another check-and-balance mechanism on good governance.

The executive government or Cabinet should, by law, be directly answerable to Parliament or DUN for all its duties and responsibilities. It is also answerable to the people

The legislative sessions should be regular and frequent in order for the executive government to explain its budgets, progress on development projects, its administrative and economic policies and the implementation of these policies.

Since the legislature is a democratic institution, the Speaker has no right and power to stop or suppress the rights of any lawmaker to speak.

As a lawmaker is part and parcel of the legislature, the Speaker therefore should not mess around with the rights and power of the opposition lawmakers.

These assemblymen can make or break the leader of PBB-BN in the appointment of the chief executive in the DUN.

READ MORE HERE

Anwar Ibrahim's Dubious Trial

Posted: 05 Dec 2011 07:34 PM PST

Unfortunately, what the evidence has shown most clearly is not that Anwar was guilty or not guilty of having what the government termed "unnatural consensual sex" with his former aide. It is rather that the trial was skewed so badly in the government's favor that the opposition leader demonstrably did not get a fair trial.

By John Berthelsen, Asia Sentinel

After nearly two years of conflicting and often suspect testimony, the so-called Sodomy II trial of opposition leader Anwar Ibrahim is scheduled to finish this week in a Kuala Lumpur High Court, with final summations by both sides.

It is a trial that has been condemned internationally by legal scholars and human rights activists as designed to take Anwar out of Malaysia's political equation.

Political sources in Malaysia have been building several different scenarios. Given the tone of the trial so far, it appears likely that Anwar, the opposition leader of the three-party Pakatan Rakyat, will be convicted despite a vast number of prosecutorial missteps. That would probably make him a martyr in Malaysia because his followers – and many others – believe he is being railroaded into jail on false charges.

Under another scenario, the judge, acting under orders from the government, would declare him not guilty, which would be followed immediately by a prosecutorial appeal, which would keep Anwar embroiled in more months of legal entrapment that diverts time and energy away from leading the three-party Pakatan Rakyat opposition. It would also give the Malaysian judiciary a thin tissue of respectability.

A then-24-year-old aide, Mohamad Bukyairy Azlan Saiful, made the charge on June 29, 2008, shortly after Anwar had led Pakatan Rakyat coalition to a historic sweep of five Malaysian states, winning 82 parliamentary seats in 2008 national elections and breaking the ruling Barisan Nasional coalition's two-thirds majority hold on parliament. He was arrested at his home on July 16 of that year, by a contingent of 10 carloads of police commandos and was locked up overnight in a Kuala Lumpur jail.

The trial, which began in February 2010, has been marred by what appear to be egregious prosecutorial errors and a long series of prejudicial rulings by High Court Judge Mohamad Zabidin Mohamad Diah. Critics say the proceedings appear certain to once again tarnish Malaysia's reputation in international circles and play a role in destroying whatever confidence there was in the country's legal system. The case has been condemned by the Geneva-based Inter-Parliamentary Union, 60 members of the Australian parliament, Amnesty International and Human Rights Watch and prominent leaders from Commonwealth nations including Paul Martin of Canada and others.

From the very beginning, when Saiful sought to get doctors to certify that he had been sodomized, doubts began to surface. Saiful first went to a private hospital, where a doctor found no evidence of penetration and told him to go to a government hospital. At the first government hospital, doctors also told him they had found no evidence of tearing or scarring that would have indicated his anus had been penetrated. He was forced to go to a third government hospital where he finally found a physician willing to say the act had taken place.

In the intervening months, as the trial has droned on, an array other doubtful factors have made the case look like it was manufactured to rid the Malaysian political scene of one of its most charismatic figures, and that the country's court system, never regarded as independent since former Prime Minister Mahathir Mohamad fired the Supreme Court in the 1980s, was bending over backwards to do the government's bidding.

Gordon Trowell, in a report for the Inter-Parliamentary Union, pointed out that the charges had been levied just as Anwar was making a spectacular return to the political scene from a long period in the political wilderness following his first sodomy trial in 1999, when he was jailed for six years on charges that have been universally condemned as rigged.

Mistakes made over DNA samples call into question whether the evidence could survive in a rational court of law. Police officials have testified that Saiful didn't offer to be tested for DNA samples until 56 hours after the alleged incident, and he said he hadn't defecated during those two days, which could have corrupted the sample.

Other testimony indicated that the samples taken from Saiful were kept unguarded in a police office for 43 hours without refrigeration before they were turned over to the laboratory for analysis. Chemists testified that as many as 10 different DNA samples had been found in Saiful's rear, making the whole analysis process suspect.

That any samples could be taken from Anwar is also questionable. Under Malaysian law at the time, suspects could refuse to give DNA samples. However, the Dewan Rakyat, Malaysia's parliament, passed a law repealing the consent requirement after Anwar's arrest. In most courts, law cannot be applied retroactively.

Although Anwar refused to give a DNA sample, items issued to him during his overnight stay in jail were analyzed and a sample was found. Zabidin in March handed Anwar a major victory by throwing out the purported DNA evidence because it had been taken without his permission. However, a week later, after the prosecution demanded it, Zabidin reversed himself and said the evidence could after all be entered into the court despite the retroactive nature of the law.

Then there is the series of meetings that Saiful has acknowledged in court, at the home of then-Deputy Prime Minister Najib Tun Razak and his wife, Rosmah Mansor, on June 24, 2008, two days before the alleged sodomy took place and others with Rosmah's close confidant, the former track star Mumtaz Jaafar, as well.

Saiful also acknowledged meeting secretly twice with Rodwan Mohd Yusof, a senior assistant police commissioner, before the alleged offence took place. Rodwan became famous, or infamous, in Anwar's 1998 Sodomy I trial when he illegally removed Anwar's DNA samples from forensic custody and planted them on a mattress allegedly used by Anwar for a homosexual dalliance. To protect the integrity of the prosecution's case, the presiding judge, Augustine Paul, expunged the entire DNA evidence at the time.

There is also the question of entrapment. Saiful testified that on the day in question he had taken lubricant with him to Anwar's condominium – hardly the act of an innocent aide who had no idea that the then 63-year-old Anwar was about to jump him for unnatural sex. Surveillance cameras in filmed the former aide in a lift in the building but Anwar said he was having a meeting with a group of economists at the time Saiful allegedly showed up.

READ MORE HERE.

Kredit: www.malaysia-today.net

Selasa, 6 Disember 2011

Malaysia Today - Your Source of Independent News

Malaysia Today - Your Source of Independent News

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