A GRAVE DISTORTION OF THE MALAYSIAN CONSTITUTION

In a written judgment by Justice Nik Hashim Nik Rahman, the Federal Court empowers the Election Commission (EC) to over-rule the Speaker over the resignations of the three ‘independents’ in Perak and declares these assemblymen continue to stay as assemblymen.

This judgment, released on June 15 - 67 days after the oral judgment was given by the panel of five judges on April 9 - is flawed on two scores.

First, the court has misinterpreted the Constitution to wrongly declare the EC – instead of the Speaker – as the authority to decide whether a resignation in the legislature should be accepted.

Second, even if the court is correct in giving the EC the role of the final arbiter in respect of resignations in a legislature (which is decidedly wrong in law), the court has no business to declare the three 'independents' remain as assemblymen.

The kingpin of the court’s argument is Article 36(5) of the Perak Constitution, which reads: "A casual vacancy shall be filled within 60 days from the date on which it is established by the Election Commission that there is a vacancy.

"Pouncing on the word "established" as conferring an executive power to deliberate on the legality of the resignation of a legislator, Nik Hashim asserts that "the Election Commission has the right to enquire into any matter relating to the purported resignation."

He further states that "Under Article 35 of the Perak Constitution, the Speaker’s role is limited to receiving the written resignation letter of the assemblyman and forwarding the same to the Election Commission, which will then by its own procedure determine whether a casual vacancy has arisen or not". (Article 35 reads: "A member of the Legislative Assembly may resign his membership by writing under his hand, addressed to the Speaker.").

If Nik Hashim's interpretation of the Constitution is correct, hasn't our poor Speaker been reduced to a mere messenger boy for the EC whenever a resignation in the Assembly or dispute arising wherefrom crops up?

Founding fathers not dim-witted

Surely our founding fathers and the crafters of our Constitution, which is built on the principle of separation of power, could not be so dim-witted as to allow such piece of nonsensical legislation to slip through their fingers?

Actually there is nothing wrong with the legislation. The problem is with the interpreter of the constitution. Nik Hashim has obviously misconceived the real function of the word "established".

Interpreting it out of context, he conjures up powers to the EC that are not intended and non-existent in the Constitution.

Any experienced reader of the constitution should be able to discern that Clause 5 of Article 36 of the Perak Constitution was intended to stipulate that a casual vacancy must be filled when it arises, and that it must be filled within a certain period.

The word “established” is used in the context of defining the 60-day period within each the vacancy must be filled, and not to be used as implying the granting of executive power to the EC to micromanage the mechanism of an act of resignation in a legislature.

If it is intended that the EC be given such an important function as manager and final arbiter of resignations in a legislature, is it conceivable that the crafters of the our constitution had camouflaged it in such cavaliar fashion, and not expressly spelling out the details under a separate clause?

In fact, it is equally inconceivable that our founding fathers could have agreed to such provision due to its fundamental contradiction with the doctrine of separation of power.

In Malaysia, and in fact in legislatures all over the democratic world, it is always the Speaker who scrutinises and acts upon the resignation of a legislator, and should there be any dispute which the Speaker could not resolve, the Assembly will act as the final authority to settle the outstanding issues.

In the worst scenario where criminality is alleged, such as forged signature or undue coercion, the aggrieved party can always seek redress through the courts. But under no circumstances should the EC involve itself in any such matter which is deemed the exclusive domain of the assembly, outside the jurisdiction of not only the EC but also the courts. The latter could only come in, if there is incidence of criminal elements.

EC’s hollow authority

Nik Hashim may be technically correct when he rules that “the Election Commission is the rightful entity which establishes if there is casual vacancy of the State Legislative Assembly seat”, but such function to “establish” vacancy is a hollow authority – a mere formality to announce a vacancy upon notification from the Speaker of a resignation, as the bulk of action in a resignation takes place at the Speaker’s end, not at the EC.

When the Speaker receives a letter of resignation, he scrutinises its authenticity, and satisfies himself that the resignation is genuine before accepting it. And upon his notification to the EC to this effect, the legal act of resignation is deemed complete. And since the EC has no legal power under the Constitution or any law to undo this resignation, it should treat the Speaker’s notification as legal command to fulfill his constitutional obligation to declare a vacancy and a by-election date.

In the Perak case, the EC had clearly acted ultra vires the constitution when it rejected the Speaker’s decision and refused to conduct by-elections.

The current Federal Court judgment endorsing such unconstitutional act has caused a grave distortion to our Constitution and opened the floodgate for potential interference by EC into issues of resignations in our legislatures including parliament.

This judgment must therefore be promptly reversed through a judicial review to avert permanent damage to our system of government under the principle of separation of power.

I have said at the beginning of this article that the Federal Court has no business to declare that the status of the three ‘independents’ be maintained as assemblymen. This is due to the fact that this court hearing is just to interpret the meaning of the Constitution pertaining to the EC’s power in respect of the resignation of a legislator, and not to look into the legality of the specific act that the EC had taken in respect of the resignations of the three ‘independents’ in the Perak Assembly. As such, the Federal Court has no legal basis to make declarations that the assemblymen status of the three ‘independents’ be maintained. That decision is up to the High Court in Ipoh, where such litigation is still on going.

BY: KIM QUEK FOR MALAYSIAKINI, 17TH JUNE 2009

Racist Ahmad Ismail Of UMNO Penang

The name Ahmad Ismail has printed an inerasable image in every Malaysian especially in the hearts of non-Malays for his irresponsible remarks that implicate Malaysian Chinese as an " immigrants". This statement will not go well with Malaysia after 51 tears of independence. He is not only racist and arrogant but very dangerous creature that living in Malaysia. He is not fit be in Malaysia as all of us are peace loving Rakyat. He in his press conference on 8th Sept 2008 had blow the racial heat that could destroy the unity of Malaysia. As he is a treat to National Security, ISA should be used immediately to arrest him unconditionally. On top of that Pak Lah and "big mouth" Syed Hamid Albar should consider revoking his citizenship. He is not fit to be a Malaysian. In addition, all those he supported him in the press conference and the guy who tore down Dr.Koh Tsu Koon's potret should be sacked from UNMO immediately.

These measures should be taken as Ahmad Ismail is trying to hide his mistake by pulling in all the innocent Malays and Muslims throughout the country to his defence. This is his mistake and he should defend himself. Don't bring other Malays and Islam into his personal issue. He clearly shows that he is stupid, racist, unreasonable, failed to respect his own BN leader and he potrayed himself as a traitor of Malaysian unity. He should be punished !!!

Different Terminology

School:A place where Papa Pays and Son Plays.

Life Insurance:A contract that keeps you poor all your life so that you can die Rich.

Nurse:A person who wakes you up to give you sleeping pills.

Marriage:
It's an agreement in which a man loses his bachelor degree and a woman gains her masters.

Tears:The hydraulic force by which masculine willpower is defeated by feminine waterpower.

Compromise:The art of dividing a cake in such a way that everybody believes he got the biggest piece.

Conference Room:A place where everybody talks, nobody listens and everybody disagrees later on.

Office:A place where you can relax after your strenuous home life.

Yawn:The only time some married men ever get to open their mouth.

Etc.! :A sign to make others believe that you know more than you actually do.

Committee:Individuals who can do nothing individually and sit to decide that nothing can be done together.

Diplomat:A person who tells you to go to hell in such a way that you actually look forward to the trip.

Miser:A person who lives poor so that he can die rich.

Boss:Someone who is early when you are late and late when you are early.

Doctor:A person who kills your ills by pills, and kills you by bills.

By: Jokes of Malaysia

A small piece of History for our future Generation

Hitler's public relations manager, Goebbels, once said, 'If you repeat a lie often enough, it becomes the truth.' Looks like that is what Umno has been doing ever since Mahathir a/l Mohamed came into power. This has spawned a new generation of Malaysians who do not know their own history

Once again our government had to wipe out any references to a famous Melaka prince as being Hindu and belonging to the powerful Hindu empire Sri Vijaya. So all of a sudden our museums, school text-books etc. all refer to Parameswara as a Malay prince.

What race ruled or did not rule is besides the point. What is important is not butchering history to create your own truths. You cannot change your race even if you convert - Parameswara could have been responsible for Umno's stupid and false sense of heritage through 'Ketuanan Melayu'. If this is what it is based on, there is no 'Ketuanan Melayu' because the lineage of Melaka Sultans are Indians, not Malays. It is no secret that Parameswara was an Indian and a Hindu prince. It is clear from records that Parameswara never converted to Islam. He was an Indian Hindu who fled Palembang in Sumatra to eventually found Melaka circa 1400 AD and start the entire Malaysian royalty. Malaysia's royalty was and is of Hindu/India origin. On the other hand it was Sri Maharaja who converted himself and the court of Melaka to Islam, and as a result took on the name of Sultan Muhammad Shah sometime after 1435.

The most famous of Indian Hindu Kings were Rajaraja Chola and his son Rajendra Chola who invaded Southern Thailand, Kedah, Perak, Johor and Sumatra about 1000 AD. This is Raja-raja Chola - the Indian/Hindu kings and not Raja Chulan - a Malay king.

But what is really sad is that our children are taught as though Malaysian history suddenly began in 1400 with an Islamic Melaka. Even the Malays themselves are being cheated by UMNO into believing that everything started around 1400. We are also led to believe that the Indians and Chinese first arrived on the shores of Malaysia only in around 1850 as desperate indentured labourers, farmers and miners. Nothing could be further from the truth.

The cultural influences of India in particular, and China, in South East Asia span over 2,000 years, starting perhaps with the arrival from India of the Brahmanical prince/scholar - Aji Saka in Java in AD78, through to Vietnam, Cambodia (Indo China), Thailand, Burma, Indonesia, Bali, Borneo, Brunei and beyond. Malay culture is Indian culture. In fact the whole of South East Asian culture is Indian culture.

The findings at Bujang Valley speak of an ancient Indian/Hindu presence in Kedah. There were Chinese settlements in Pahang and Kelantan around the 13th -14th century and in 12th century in Singapore. The early Brunei Sultanate had a Chinese Queen. One need not ponder at length the implications of Angkor Wat and Borobudur or that 40%-50% of Bahasa Malaysia comprises Sanskrit/Tamil words. But ALL of these are hidden away from the rakyat inc the Malays themselves so the Malays in particular grow up with limited knowledge of their own country and heritage

To illustrate, some of these words are:bumi = boomi

putra = putran

raja = rajah

desa = thesam

syakti = sakthi

kolam = kulam

bahaya = abahya

jaya = jeya

maha = maha

aneka = aneha

nadi = naadi

kedai = kadai

mahligai = maaligai

mantra = manthrum

menteri = manteri

(This list can go on and it is true because Tamil and Sanskrit are about 5, 000 years old)

An extremely important archeological find that pointed to one of the greatest empires in history - the Raja Cholan empire that ruled from the Maldives through India, Sri Lanka and right down to South East Asia found deep in the jungles of Johor a few years ago and made headlines in the mainstream newspapers in 2005, suddenly disappeared from the news…..

The time has arrived for us to record our history as the facts tell us and not as we would like to wish it for. The truth will never hurt anyone. Lies, always will.

Contibuted by: True Malaysian