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Posted: 06 Sep 2012 04:26 PM PDT

The act of arresting, handcuffing and detaining 19-year-old Ong Sing Yee will start a backlash against the authorities.

Mariam Mokhtar, FMT

In the past, Malaysia's Sedition Act 1948 was used to silence the political adversaries of the ruling administration. Today, Prime Minister Najib Tun Razak's government has deemed it necessary to curb individuals, NGOs and even teenagers.

This government refuses to understand that it needs to summon the courage to tackle the necessary and urgent reforms demanded by the electorate. It should not take the easier option of hounding teenagers and people who dare criticise.

The act of arresting, handcuffing and detaining 19-year-old Ong Sing Yee for 15 hours and then interrogating her without the presence of her lawyer, will start a backlash against the authorities.

Ong's crime? She had been charged with sedition for stepping on posters of Najib and his wife, the self-styled First Lady Rosmah Mansor, during the Janji Demokrasi march on the eve of Merdeka Day at Dataran Merdeka.

If Najib and the police would really like to make an impact, they should raid people's homes and arrest, handcuff and detain all those people, including and especially Malays, who use newspapers with Najib's photographs to line their cat litter trays. Some do this with relish, because they claim, this is their own form of silent protest.

Photos of Najib seem to attract all sorts of contempt. Not so long ago. It is alleged he had to arrest boys for throwing bricks at his pictures on KTM trains.

MP for Puchong, Gobind Singh Deo, had already said that stepping on photographs of the prime minister and his wife is not sedition. Najib and his wife are not rulers, nor are they the government. Najib is merely a government servant.

In May, NGO and social activist Irene Fernandez was charged with sedition. A Jakarta daily reported that she had claimed Malaysia was unsafe for migrant workers.

Curbing free speech

In June, the Sedition Act was used by the Johor police to investigate the former Perak mentri besar, Nizar Jamaluddin for his comments on the Sultan of Johore's purchase of the car registration number plate, WWW1. The number plate had cost the Sultan RM500,000 and Nizar opined that the money could be put to a better use, such as helping the poor.

Kosmo, an Utusan publication which printed two cartoons on the controversy, escaped censure.

"Why the double standard in only charging me whereas no action has been taken against Kosmo for the same offence? Is it because Kosmo is an Umno paper whereas I am a Pakatan leader?" asked Nizar.

At the time, Azmi Sharom, a law lecturer at the Universiti Malaya (UM) also criticised the use of the Sedition Act 1948, to prosecute individuals.

"The underlying theme is the government is using all these powers to curb dissent against the government, to curb criticism of the government.

"What they are doing to Nizar is very clearly to suppress his right to free speech, his opinion. This is obviously a bad law… It is bad faith on their part. If they think something is bad, then don't use it. Get it fixed first," said Azmi.

Signs of desperation

It is easy to see what is happening. Najib and members of his Cabinet are clearly showing signs of desperation and fear.

Najib and his administration lack original ideas to push through reforms. They have failed to act on their promises. What happened to the National Harmony Act which Najib promised last June, to replace the Sedition Act?

Malaysia now has an opposition which is strongest and the most credible party to take on the BN government.

READ MORE HERE

Constitutional posers for GE13

Posted: 06 Sep 2012 04:03 PM PDT

Once Parliament is dissolved, a general election need not be held immediately. The Constitution permits a delay of 60 days from the date of dissolution.

Dr Shad Saleem Faruqi, The Star

A GENERAL election may be around the corner. So we need to brush up on our knowledge of the constitutional principles relating to elections.

No fixed term: Under Article 55(3) of our Constitution, the life of Parliament is stated to be five years from the date of its first meeting. As that date was April 28, 2008, the existing Parliament will automatically dissolve when the sun rises on April 28, 2013.

However, it is constitutionally permissible for the Prime Minister to advise the Yang di-Pertuan Agong to dissolve Parliament before the expiry of its term and thereby to give himself the advantage of choosing the most favourable time for the electoral contest.

This is in contrast with many Commonwealth countries including Britain which have enacted laws to have fixed term legislatures. Malaysia may wish to emulate this wholesome practice.

Early dissolution: Though the King is a constitutional monarch required to act on advice, in the matter of early dissolution, he has been explicitly vested by Article 40(2)(b) with a discretion to accept or reject his PM's counsel. Conventionally, however, he always obliges though in exceptional circumstances he may not do so.

Elections: Once Parliament is dissolved, a general election need not be held immediately. Article 55(4) of the Constitution permits a delay of 60 days from the date of dissolution. This means that contrary to popular expectations of early polls, the next election can be held as late as the last part of June 2013!

One must note, however, that the timing is not for the PM to determine. The nomination date, the date of polling and the campaign period are in the hands of the Election Commission, which must act with independence and impartiality. The present law permits a campaign period of no less than seven days though news has it that for the next election, the EC will permit 10 days.

Interim period: Between the dissolution of one Parliament and the convening of the next, who steers the ship of state? The Constitution is gloriously silent on this important issue. For this reason, the British constitutional convention is adopted that the incumbent PM who called the election continues to remain in office in a caretaker capacity.

Powers of the caretaker PM: Leadership during interim periods poses problems of democratic legitimacy for the caretaker government. This is due to the fact that once Parliament is dissolved, the PM ceases to satisfy the twin requirements of Article 43(2).

These requirements are that the PM must belong to the House of Representatives and he must in the judgment of the King command the confidence of the majority of the members of the House. As the House ceases to exist, the legitimacy rug is pulled from under the PM's feet.

For this reason there is worldwide debate about the need to impose clear curbs on the powers of interim governments.

In Australia, a Caretaker Convention has been drafted to outline that the proper role of such a government is to be a night watchman, to hold the fort, not to initiate radical policies, not to dismiss or appoint new judges or undertake significant economic initiatives.

In India, the President has on several occasions vetoed caretaker governments' measures because exercise of such powers may embarrass the government to be formed.

In the Malaysian case of PP v Mohd Amin Mohd Razali (2002) the court held that Article 40(1), which requires the monarch to act on advice, is not applicable if the advice is rendered by a caretaker government during the dissolution of Parliament.

Hung Parliament: If no single party or coalition emerges with an absolute (50% + 1) parliamentary majority, the new legislature will be referred to as a hung Parliament.

Such parliaments exist and function throughout the world but have never made an appearance in Malaysia at the federal level. Commentators are deeply divided about their demerits or merits.

Appointment of PM: Whatever one's views on hung parliaments may be, it has to be conceded that they create massive problems for the Head of State on a number of issues, among them the critical one of who is to be trusted with the mantle of leadership. Several competing considerations are available.

First is the incumbency rule. If no one secures an absolute majority, the caretaker PM must be given the first chance to form the government.

Second, in Nepal there is a constitutional rule that in a hung Parliament, the first bite of the cherry must be offered to the leader of the largest party.

Third, if a viable coalition or a unity government can be hammered out, it should get the chance to lead the nation.

Fourth, if no coalition can be cobbled together, the Head of State should appoint a "minority government" that is capable of obtaining ad hoc support to pass the budget and other critical measures.

If the defeated PM asks the King for an immediate "double dissolution", should His Majesty consent? It is submitted that Article 55(4) requires that after one dissolution the new parliament must be convened within 120 days.

The proper course of action would be for Parliament to meet, a vote of no-confidence to be taken and then only the House dissolved for a new election unless an alternative government can be put in place.

Caretaker's tenure: If the ruling party fails at the general election, must the caretaker PM who took the country to the poll resign immediately? In England Gordon Brown refused to step down till he had (unsuccessfully) exhausted efforts to form the government.

If the caretaker PM refuses to step down, can the King dismiss him?

If the formation of a unity or coalition government takes a long time, must the defeated Prime Minster re-main in office till a new PM is appointed? Most amazingly, Belgium went 535 days with a caretaker government because the new government took time to be pieced together.

The permutations of politics are many and more than any other aspect of a nation's political life, general elections throw up issues that test our wisdom to the fullest.

> Dr Shad Saleem Faruqi is Emeritus Professor of Law at UiTM

Freedom to be loyal

Posted: 06 Sep 2012 03:59 PM PDT

An anti-hopping law would give party leaders even more power over MPs, who already cannot muster the courage to disobey the party whip if they believe that a Bill is not in the interests of their constituents.

Tunku 'Abidin Muhriz, The Star

MANY commentators with whom I generally agree on measures to improve our country seem to have been hoodwinked into supporting a popular anti-democratic move, namely the banning of party hopping by members of parliament and state legislators.

I opposed this in a political philosophy essay I wrote at university in 2002, I opposed it in my column in 2008 and I oppose it now.

The whole campaign is based on two flawed assumptions.

The first is that Malaysians vote for political parties, not for individuals. This is legally untrue (our Federal Constitution refers to "individuals" elected to the Dewan Rakyat and the "individual" to be appointed Prime Minister, but never to "political parties"), but even those who understand this important distinction claim that "Malaysians vote for parties by default", which has not been scientifically verified (I suspect most Malaysians give consideration to both the party's manifesto and the candidate's background and record).

If it turns out that Malaysians do in fact vote for the party rather than the candidate, they should campaign for a law to be passed to make this a legal reality, but until then, it is dangerous to fix a perceived problem based on unverified claims.

The second assumption is that whenever an instance of party hopping occurs, it is the candidate who is at fault, rather than the party. Well, let us imagine that I vote for Puan Thavamani of the Feline Front because she campaigns (in accordance with the party manifesto) to ban dogs from public roads.

She wins the election, but months later there is an internal party struggle. The leader is replaced, and he reverses the party policy: dogs will now be allowed to roam free everywhere.

I am furious, because I supported the candidate based on this manifesto pledge. If YB Thavamani now supports canine freedom on public roads, she would be violating the trust I placed in her.

At the very least, I would expect her to defy her party whip in relevant parliamentary votes.

But let us imagine that party policy changes in other areas too, and it is clear that the manifesto is being disregarded to the extent that a different political party, the Cats Pact, better reflects the manifesto I supported. I would most definitely support YB Thavamani hopping from Feline Front to Cats Pact better fight for the causes that I supported.

Clearly, if a no party-hopping law was in force, she could not do that.

More flexible commentators agree that she should be able to hop, but must resign and re-contest.

However, apart from the costs involved, this would also be a breach of my trust – I voted expecting her to serve for a full term.

Furthermore, it is possible that the new result could be less democratically legitimate if the by-election has a lower turnout than at the general election (perhaps my critics will then support the undemocratic idea of compulsory voting).

My detractors will say that my analogy does not apply in Malaysia, where the reality is that inducements are made to successful candidates to switch loyalties for pure political power play rather than ideological differences.

Even then, there is a better way to deal with unprincipled party hopping than to attempt to ban it: namely, to democratise the political parties.

At the moment, it is easy for Party Leader A to buy a candidate's support from Party Leader B because in both parties it is the party leader who decides who gets to be a candidate and where: the loyalty goes upwards.

But if Party B were to instead have candidates elected by local party grassroots or even all voters in a constituency (like in US primaries), it would be much more difficult for Party Leader A to buy any support: the candidate would feel loyalty downwards, to a much larger base of people.

Naturally, none of our party leaders from both sides of the divide are supporting such a scheme because they all want to hold on to the enormous powers of patronage they currently enjoy.

Indeed, an anti-hopping law would give party leaders even more power over MPs, who already cannot muster the courage to disobey the party whip if they believe that a Bill is not in the interests of their constituents!

So, while I certainly sympathise with those who are disgusted by unprincipled politicians, I believe that banning party hopping will not deal with the root causes.

Rather, we should seek more democracy within political parties, more transparency on political party funding and more media freedom. These will help ensure that in future, any candidate who wishes to switch allegiance will better have a damn good reason to do so.

> Tunku 'Abidin Muhriz is president of IDEAS

Judiciary has failed the rakyat

Posted: 06 Sep 2012 01:42 PM PDT

Will the judiciary take all the blame if both Nor Afizal and Chuah were to commit more rapes?

Jeswan Kaur, FMT

It's confirmed that the two judicial experts who found statutory rape of two minors a non-issue need help in understanding what rape is – or else they will go on delivering reproachful judgments in favour of rapists.

On Aug 28, Sessions Court judge Nisa Abdul Aziz released a 22-year-old electrician Chuah Guan Jiu on "good behaviour" after he was convicted of raping his then 12-year-old girlfriend twice last year.

Chuah was instead bound over for three years on a RM25,000 good behaviour bond. He had committed the crime at his flat in Jalan Ru 1, Air Itam on July 18 and 19.

The offence under Section 376(1) of the Penal Code carries a jail sentence of up to 20 years' jail and whipping.

But Nisa decided that since the sexual act was consensual between Chuah and the victim and that he had not tricked her into the act, no "rape" had taken place.

Nisa made the perpetrator's future her priority, not the fact that he had tricked his minor partner into having sex with him; the facts of the case stated that Chuah had persuaded the victim to skip school and follow him to his home, which then led to the offence being committed.

So the judge thought best that Chuah be bound over for three years on a RM25,000 good behaviour bond.

A shame that the judge failed to understand the psyche of a rapist who not once but twice raped his schoolgoing girlfriend. Worse still, Nisa made the probation report her "bible" in stating that Chuah did not have a prior criminal record and was a Form Two school drop-out.

What is even more shocking is that Nisa, like her predecessor, Court of Appeal president Raus Shariff, displayed her ignorance on what constitutes statutory rape and that Malaysia is a signatory to the United Nations Convention on the Rights of the Child (CRC) 2009.

According to the Committee on the Rights of the Child – Implementation Handbook for the CRC, a girl under the age of 18 is a minor and is not in a position to give informed consent.

The second-highest ranking judge in the country, Raus had opted to show concern for perpetrator Noor Afizal Azizan's "bright future" in setting aside the five-year jail term imposed on the national bowler by the Malacca High Court, and instead binding him over for good behaviour.

Nor Afizal, then 19, was charged with raping his 13-year-old girlfriend at a hotel in 2010.

A tragedy that Nisa and Raus have not only failed to uphold justice but they have also downplayed the crime of statutory rape, claiming, on the contrary, that consensual sex between a minor and an adult is "permissible" under the law.

Nightmare for the parents

By siding with the rapists, both Nisa and Raus have decided that the welfare of the rape survivors is none of their business and that irrespective of their ages, rape survivors are "party" to rape.

When Raus's judgment created a public uproar, all he did in trying to clarify his decision was to say that despite being let off on a personal bond of RM25,000 for good behaviour, public interest had been served as Nor Afizal had been convicted and the offence recorded.

Raus' clarification comes as a nightmare to the parents of the young girls. What do we make of such senarios – a rapist is allowed to roam about freely simply because the judge was impressed with his "credentials" or because the rapist is too young to do jail time?

Are Raus and Nisa willing to take all the blame if both Nor Afizal and Chuah were to commit more rapes?

READ MORE HERE

Kredit: www.malaysia-today.net

Jumaat, 7 September 2012

Malaysia Today - Your Source of Independent News

Malaysia Today - Your Source of Independent News

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