Treat sedition suspects as guilty until proven innocent, Umno MP says

The Malay Mail Online reports as follows-

Individuals charged under the Sedition Act 1948 must be made to prove their own innocence, an Umno lawmaker said today when calling for the colonial-era law be made stricter. 

In making his suggestion to shift the burden of proof, Tanjong Karang MP Datuk Seri Noh Omar said the nation’s peace was of greater importance than an individual’s civil liberties and legal rights.

“The burden of proof should be on the person who’s charged,” Noh Omar said during the debate of Budget 2015 in Parliament here today.

I was planning to write that the report above, if accurate, really and seriously points to the dire need for legislators to be better schooled in the type of constitutional and legal framework that Malaysia has adopted.

Unfortunately, I have to negate that entire line of thought because online biodata shows that Noh Omar actually read law at Thames Valley University which is now known as the University of West London. He actually has a law degree, for goodness sake.

I'm now going to crawl into a cave to perform omphaloskepsis...

picture sourced here

A nugget

One of the great pleasures of reading is that ever so often you happen upon a well turned phrase, a piece of witticism or a curling remark that gives you a rush of delight. 

In this case it came about when I chanced upon a speech that the late great Malaysian jurist, Tun Mohamed Suffian had given in 1986 at the launch of a book, The Judgments of HRH Sultan Azlan Shah with Commentary. 

Here's Tun Suffian's passage that gave me so much delight. He was describing Sultan Azlan Shah's demeanour when he sat as a Judge on the Malaysian Bench-

"At work on the Bench he was a good and patient listener, seldom interrupted or asked questions and thereby gave the impression of agreeing to what was being said. It was a good way of curbing prolix counsel, for the experienced judge knows that with some counsel the more you try to steer them away from  tedious repetitions and irrelevancies the more persistent and garrulous they become; all the while you are thinking of the reserved judgments still to be pondered and written and the long list of trials and appeals to be disposed of. It was only after Raja Tun Azlan Shah had delivered judgment that counsel realised to his dismay that the Lord President's reticence meant he was only listening, but not necessarily agreeing."

Personality versus structure and process

If there is anything that the study of History teaches us, it should be that all the great feats of heroes come to naught if there was no structure in place that institutes fairness. I deliberately use the words "fairness" in place of the more commonplace word, "justice". I have found that when one uses the word "justice" everyone has a different understanding of what constitutes justice, whereas, when the word "fairness" is used there is an broader consensus.

So, what is this post all about?

Inasmuch as engineers and architects design physical structures that makes it as comfortable and sensible as possible for users to benefit from the process of using such structures for the longest possible time, laws created and enacted by political leaders must also undergo similar tests of relevance and robust relevance.

If you trouble yourself to read history books or biographies of significant personalities, look out for aspects of what these past personages did in putting in place values, rules or processes and, then, look at whether those values, rules and processes are still in place today.

In the course of my history readings I have come across, time and again, great events involving great leaders of the day where a good outcome involves a leader having the foresight and humility to institutes structures and processes that have a foundation in fairness. These outcomes have longevity and continued relevance.

In contrast, scenarios involving leaders who had great self-belief in their own sense of fairness and the impatience with the plodding pace of instituting structures and processes have often led to short-term gains with the attendant long-term legacy of pain and discomfort as a consequence.

Not many Malaysians remember the late Professor Hugh Hickling. In the course of his long career he had many roles in the nascent Malayan and Malaysian nation. One of his roles was that of the Commissioner for Law Revision for Malaya in the late 1950s and early 1960s. In that role, Hickling drafted the Internal Security Act 1960 primarily as a statutory tool to combat the threat of Communism that had so badly affected peace in Malaya.

In later years, Hickling always sought to expiate his role in the creation of the Internal Security Act 1960 that so haunted many poilitically active Malaysians and, Hickling himself. I had the opportunity to hear him explain, by way of expiation, that in the course of drafting that piece of legislation Hickling had expressed to the late Tun Abdul Razak, who was Deputy Prime Minister at the time, his concerns about the width, length and breadth of powers given by the Internal Security Act 1960 to the Executive Branch of Government. 

According to Hickling, Tun Razak's reply was that he, Tun Razak, knew how to utilise those statutory powers and, he knew where to draw the line, that is to say, what types of actions would constitute an abuse of those sweeping powers.

Needless to say, Tun Razak knew what he was doing, being an intelligent and legally trained leader. Tun Razak's sense of fairness is well-documented. This leadership trait was proven beyond doubt in the way he handled the May 13, 1969 riots when, as the Director of the National Operations Council he had dictatorial powers. Tun Razak's uncommon common sense and sense of fairplay shone through when constitutional and parliamentary processes were quickly reinstituted by 1972. 

The Internal Security Act 1960 was clearly in good hands under Tun Razak. Whether such powers were abused by subsequent leaders is a matter for historians and academicians. Suffice to say here that the Internal Security Act 1960 was an example of questionable structures and processes that worked only if the correct personality was holding the reins of power. In the wrong hands, such a piece of sweeping legislation was very much open to abuse.  

From the standpoint of my basic proposition about the importance of structure and process over personality, the Internal Security Act 1960 is one of the chief culprits for having engendered a legislative drafting culture where statutory powers are almost always drafted together with language that forbids or prevents an audit or review of the exercise of such powers. This makes the personage of the Minister or Government Officer very crucial. A cavalier personality will wield such powers freely and arbitrarily. A personage with a sense of fairmindedness will exercise more restraint. Such a structure cannot be good. 

Since we are on the matter of structure and process which has taken a legal twist, I now steer it back to a neutral position by leaving you with a piece of engineering wisdom-

An electrical, a mechanical and a civil engineer all sat down one day to try and decide of which of their faculties god must be to design the human body.

The electrical engineer says god must be an electrical engineer, for you only have to look at the complex nervous system powered be electrical impulses.

The mechanical engineer was sure that god must be a mechanical engineer, for the advanced mechanical systems, the heart a pump, the veins pipes and the tendons and muscles an advanced pulley system.

Finally after hearing the civil engineers arguments, both the mechanical and electrical engineer both agreed that god must be a civil engineer, for who else would run a sewer system through a recreational area!

Phantom voters in EC rolls

I have never really thought very deeply about the allegations about phantom voters in Malaysia's electoral rolls. But, as it turns out, I have recently been informed by good friends who have lived overseas for quite some time due to career and work commitments (so this is first-hand) that their names have mysteriously been shown as having been registered in the Election Commission's electoral rolls.

Quite naturally, I was sceptical and I asked the one who has recently returned to Malaysia, a Malaysian of Indian descent, to give me his identity card number. I typed in the number at SPR's website.

Lo! And, behold! My friend's name popped up as a registered voter in Subang Jaya. What gives, EC?!!!

The other two, Malaysians with Chinese and Kayan genes, are registered as voters somewhere in Kuching, Sarawak and, they told me that, for all it's worth, they have lodged complaints to the Election Commission. 

I say, "for all it's worth" because Judge Vernon Ong has just thrown out Charles Santiago's complaint.

This is a serious concern.

I have not participated in any of the Bersih rallies... but, I am forced to acknowledge that Ambiga and the Bersih people weren't crying wolf. 

The electoral rolls need to be seriously reviewed and cleaned up. 

The shitty part is that I'm a voter in Charles Santiago's constituency in Klang. This means that if I vote for him, my vote would be negated by the phantoms that he has alleged, exists in the Klang voter rolls. 

If I vote against him phantoms would not negate my vote.

Hmmmm...... decisions, decisions.......

Federalism in Malaysia

Tomorrow, we celebrate the 47th Anniversary of the formation of Malaysia. All Malaysians know that Malaysia is a federation of 13 states and the Federal territories. But, what is a "federation"? What does it mean?

Daniel Elazar has described it as follows-

“The contractual sharing of public responsibilities by all governments in the system appears to be a central characteristic of federalism. Sharing, broadly conceived, includes common involvement in policymaking, financing, and administration of government activities. 

In contemporary federal systems, it is characterized by extensive intergovernmental collaboration. Sharing can be based on highly formal arrangements or informal agreements. 

In federal systems, it is usually contractual in nature. The contract – politically a limited expression of the compact principle – is used in formal arrangements as a legal device to enable governments responsible to separate polities to engage in joint action while remaining independent entities. 

Even where government agencies cooperate without formally contracting to do so, the spirit of federalism that pervades an ongoing federal system tends to infuse the participating parties with a sense of contractual obligation."

This view permeates the Cobbold Report (1962) and the Inter-Governmental Committee Report (1962) which formed the basis for the formalisation of the Federation of Malaysia in the Malaysia Agreement 1963, the Malaysia Act 1963 and the 1963 amendments to our Federal Constitution.

Going back to Elazar's description, we are reminded, from time to time, by various communities and groups in both Sarawak and Sabah that the central government has short-delivered its end of the contractual bargain.

Is this sentiment a fair appraisal of the federal experience of Sarawak and Sabah?

This question is a most difficult one.

In the past decades, there has been substantial vocalisation on federalism by the likes of the late Datuk Amar James Wong of Sarawak (one of the founders of the now defunct Sarawak National Party or SNAP) and  Datuk Jeffrey Kitingan of Sabah.

Fairness in allocation of economic resources

Many of my Sarawak and Sabah friends privately express cynicism about the fairness in allocation of economic resources by the central government to their states.

This sentiment is precisely the matter that dogs the federal centre. This sentiment is also a source of frustration for the federal centre.

There is a perception, rightly or wrongly, on the part of many Sarawakians and Sabahans that their state governments have been under, what Gordon P. Means called, "federal tutelage" from the inception of Malaysia.

Is this a true and fair view? The jury is still out.

What cannot be denied is that such a perception colours the sentiment of Sarawakians and Sabahans.

This is especially true when the topic of petroleum resources comes about.

The perception is that the petroleum largesse is transferred to the federal centre and trickles back to the states of Sarawak and Sabah in the form of capitation grants and road grants.

Is this a true and fair view? The jury is still out. But, the perception is strong.

Race and community relations

All my Sarawakian and Sabahan friends are aghast at how separate the communities are in Peninsular Malaysia. They are fearful that such a way of life will infect the happy inter-ethnic and inter-communal ambience that still exists in Sarawak and Sabah (though signs of invisible walls being built are growing).

This is not the federal influence they want.

The challenge for the federal centre

Apart from the acculturation issue (which all Sarawakians and Sabahans should rightly reject), the core issue must surely be whether Sarawak and Sabah can lay claim to a fair share of the economic resources generated from within their states.

I recall being told by a Sabahan friend some time ago that when they watch the tv and see the images of sparkling skyscrapers of glass and steel and well-lit multi-tiered highways in KL, they cannot feel any sense of excitement or share the pride that such images were intended to inspire. Such images actually engender an opposite emotion.

So, beyond the temporal politics of today, the federal centre must renew and redouble its efforts to win the hearts and minds of the people of Sarawak and Sabah that their forebears did the right thing when they signed on to the Malaysian adventure; not a nightmare.

The importance of consultation

I have written extensively (in an academic context) about the importance of consultation as a feature of federalism. Consultation is, in fact, the MAIN feature of federalism.

Our Federal Constitution has many references to the need for consultation. Some of it are formal on issues such as-

• Appointment of judges
• Land
• Local Government

Others are informal but, still, constitutionally necessary. These include the issue of natural resources such as water and minerals.

The importance of federalism for Malaysia's democracy

Malaysians have a narrow view of the democratic process as something that we eat kuaci and sip teh tarik over when any political elections loom.

We also should be aware and be constantly reminded that each of the thirteen states, particularly the states of Sarawak and Sabah, are sovereign in their own right and, they chose to form the Federation of Malaysia. In any way that we may wish to look at it, the undeniable fact is that we have a set of contractual relationships between the federal centre and its 13 partners.

This is as it should be.

For the states of Sarawak and Sabah, they signed onto the federation with stronger conditions than the other 11 states. It gives Sarawak and Sabah greater say over many aspects of the affairs of their states.

But all 13 states have residual sovereign rights. These sovereign rights may be limited by the Federal Constitution; but they still exist.

This is what Malaysia is. 

British Malaya: Balik ke pangkal jalan

Better hit the iron on the anvil while the metal is still hot. In this instance, the hot topic is our history involving the role of the British. As with all things historical, one must approach the matter with full objectivity and free oneself as far as reasonably possible from the taint of bias.

We are fortunate to have reprints of the source documents from which the British sought and obtained a legitimate legal presence in Peninsular Malaysia. 

Among the more significant treaties entered into between the British and the Malay Rulers was the Treaty of Pangkor that was signed in 1874. The preamble to the Treaty is an interesting read-

Whereas, a state of anarchy exists in the Kingdom of Perak owing to the want of settled government in the Country, and no efficient power exists for the protection of the people and for securing to them the fruits of their industry, and,

Whereas, large numbers of Chinese are employed and large sums of money invested in Tin mining in Perak by British subjects and others residing in Her Majesty's Possessions, and the said mines and property are not adequately protected, and piracy, murder and arson are rife in the said country, whereby British trade and interests greatly suffer, and the peace and good order of the neighbouring British Settlements are sometimes menaced, and,

Whereas, certain Chiefs for the time being of the said Kingdom of Perak have stated their inability to cope with the present difficulties, and together with those interested in the industry of the country have requested assistance, and,

Whereas, Her Majesty's Government is bound by Treaty Stipulations to protect the said Kingdom and to assist its rulers, now,

His Excellency Sir Andrew Clarke, Governor of the Colony of the Straits Settlements, in compliance with the said request, and with a view of assisting the said rulers and of affecting a permanent settlement of affairs in Perak, has proposed the following Articles of arrangements as mutually beneficial to the Independent Rulers of Perak, their subjects, the subjects of Her Majesty, and others residing in or trading with Perak, that is to say:-

(I have just selected the pertinent Article for you)

VI. Sixth. - That the Sultan receive and provided a suitable residence for a British Officer to be called Resident, who shall be accredited to the Court, and whose advice must be asked and acted upon on all questions (emphasis mine) other than those touching Malay Religion and Custom.

The next extract that I offer you is the Treaty of Federation that was signed in 1895. This treaty created the Federated Malay States comprising Perak, Selangor, Pahang and Negeri Sembilan.

I reproduce two pertinent paragraphs of the Treaty-

1. In confirmation of various previous Agreements, the Sultan of Perak, the Sultan of Selangor, the Sultan of Pahang, and the Chiefs of the States which form the territory known as the Negri Sembilan, hereby severally place themselves and their States under the protection (emphasis mine) of the British Government.

4. The above-named Rulers agree to accept a British Officer, to be styled Resident-General, as the agent and representative of the British Government under the Governor of the Straits Settlements. They undertake to provide him with suitable accommodation, with such salary as is determined by Her Majesty's Government, and to follow his advice on all matters of administration (emphasis mine) other than those touching the Muhammadan religion.

Everything needs a proper context. The Treaties mentioned above and the background to which each of the Treaties were arrived at has been studied and, is being studied by historians as they should rightly be.

Does the language of the Treaties effectively make the role of the British that of a colonial master?  

What is the difference between a "Protectorate" and a "Colony"?

I have my views. But, some times it is more fun to leave rhetorical questions.

UK Riots: Crowdcrime

The spark may have been an unfortunate shooting incident involving the Police in Tottenham. But nothing, nothing can excuse the outbreak of lawlessness in London and other cities in England.

It's not about poverty or lack of opportunities. I just heard on the BBC that the first culprit that was brought before a Magistrate was a teaching assistant!

No, the outbreak is about the phenomenon of what I will term, "safety in numbers". Aided by modern mobile communications and social media, hundreds of energetic youth have been executing the criminal equivalent of "flash mobs", or rather, flashmobs gone awry - I call it "Crowdcrime".

There must have been a realisation in the wake of the initial Tottenham riot that where the number of participants exceeded, say, 50 to 100, the law enforcement adopts a playbook stance that plays right into the hands of the hooligans.

I was flabbergasted when I watched a BBC clip showing 3 pairs of policemen in riot gear (carrying "Captain America" type round shields instead of the head-to-toe height shields that the Malaysian FRU carry) approaching the hooligans tentatively. Needless to say, the hooligans won that round.

I am amazed that in the wake of the London bus bombing some 6 years ago, the law enforcement strategies in the UK is still so inept.

As a matter of interest, I recall a remark made by a Queen's Counsel with whom I was having a beer. The QC was in KL to deliver a paper at a symposium. He marvelled at how much effort us Malaysians put into these symposiums - with the banging of the gong - music - fanfare - I digress.

The QC was musing about how soft the UK Government was about many matters.

This round of random riots throughout the length and breadth of England is confirmation that, not just in the UK, but also places like Norway and throughout the West - a serious review of where Western notions of law enforcement and the rights of criminal suspects need to be made.

There is a need for law enforcement to ensure that we can have quiet enjoyment of our lives.

Anyone that crosses the line drawn by the Law must be brought to book.

In an exigent event such as a riot or acts of hooliganism, law enforcement officials must be allowed to inflict pain - in the form of tear gas, water cannons and, yes, even rubber bullets.

And, I should also suggest that the police use paint guns - oil-based or permanent dye not water-soluble -  to mark the culprits so that after the event, the police can conduct house-to-house searches. Or, conscientious parents and friends can report these "stigmatised" persons.

Worried about innocent bystanders being shot with paint? Don't be. I would not want to be present where a riot was happening. Would you? So, if you're in the wrong place at the wrong time your instinct would have been to run or walk away. If you have stayed as a busybody and got shot with paint, then, you've got some explaining to do. That's all.

If anyone feels that this view is extreme, just ask that poor chap whose 100-year old furniture store in  Croydon was burnt to cinders.

The UK riots are not about any socio-economic or socio-political matters.

The UK riots are a terrible new phenomenon - Crowdcrime.

Al-Fatihah YM Raja Aziz Addruse

I read that Yang Mulia Raja Aziz Addruse, passed away peacefully earlier today at the age of 75.

The Malaysian Bar's website had this statement on Raja Aziz who was a Past President-

Allahyarham was called to the Malaysian Bar on 8 Jan 1966.  From Lincoln’s Inn, Allahyarham was the first President of the Malaysian Bar to serve three terms — 1976-1978, 1988-1989 and 1992-1993.  A leading advocate, Allahyarham continued to be active in Bar Council work, and appeared regularly in the Appellate Courts as a senior counsel.  He had led and argued many of the difficult and controversial cases for the Malaysian Bar.

I am wistfully reminded of this poem by Wordsworth which, in my humble view, does some justice to a life fully lived by one of Malaysia's great sons-

Character of the Happy Warrior

BY WILLIAM WORDSWORTH

Who is the happy Warrior? Who is he

That every man in arms should wish to be?

—It is the generous Spirit, who, when brought

Among the tasks of real life, hath wrought

Upon the plan that pleased his boyish thought:

Whose high endeavours are an inward light

That makes the path before him always bright;

Who, with a natural instinct to discern

What knowledge can perform, is diligent to learn;

Abides by this resolve, and stops not there,

But makes his moral being his prime care;

Who, doomed to go in company with Pain,

And Fear, and Bloodshed, miserable train!

Turns his necessity to glorious gain;

In face of these doth exercise a power

Which is our human nature's highest dower:

Controls them and subdues, transmutes, bereaves

Of their bad influence, and their good receives:

By objects, which might force the soul to abate

Her feeling, rendered more compassionate;

Is placable—because occasions rise

So often that demand such sacrifice;

More skilful in self-knowledge, even more pure,

As tempted more; more able to endure,

As more exposed to suffering and distress;

Thence, also, more alive to tenderness.

—'Tis he whose law is reason; who depends

Upon that law as on the best of friends;

Whence, in a state where men are tempted still

To evil for a guard against worse ill,

And what in quality or act is best

Doth seldom on a right foundation rest,

He labours good on good to fix, and owes

To virtue every triumph that he knows:

—Who, if he rise to station of command,

Rises by open means; and there will stand

On honourable terms, or else retire,

And in himself possess his own desire;

Who comprehends his trust, and to the same

Keeps faithful with a singleness of aim;

And therefore does not stoop, nor lie in wait

For wealth, or honours, or for worldly state;

Whom they must follow; on whose head must fall,

Like showers of manna, if they come at all:

Whose powers shed round him in the common strife,

Or mild concerns of ordinary life,

A constant influence, a peculiar grace;

But who, if he be called upon to face

Some awful moment to which Heaven has joined

Great issues, good or bad for human kind,

Is happy as a Lover; and attired

With sudden brightness, like a Man inspired;

And, through the heat of conflict, keeps the law

In calmness made, and sees what he foresaw;

Or if an unexpected call succeed,

Come when it will, is equal to the need:

—He who, though thus endued as with a sense

And faculty for storm and turbulence,

Is yet a Soul whose master-bias leans

To homefelt pleasures and to gentle scenes;

Sweet images! which, wheresoe'er he be,

Are at his heart; and such fidelity

It is his darling passion to approve;

More brave for this, that he hath much to love:—

'Tis, finally, the Man, who, lifted high,

Conspicuous object in a Nation's eye,

Or left unthought-of in obscurity,—

Who, with a toward or untoward lot,

Prosperous or adverse, to his wish or not—

Plays, in the many games of life, that one

Where what he most doth value must be won:

Whom neither shape or danger can dismay,

Nor thought of tender happiness betray;

Who, not content that former worth stand fast,

Looks forward, persevering to the last,

From well to better, daily self-surpast:

Who, whether praise of him must walk the earth

For ever, and to noble deeds give birth,

Or he must fall, to sleep without his fame,

And leave a dead unprofitable name—

Finds comfort in himself and in his cause;

And, while the mortal mist is gathering, draws

His breath in confidence of Heaven's applause:

This is the happy Warrior; this is he

That every man in arms should wish to be.

Constitution of the State of Selangor

The Constitution of the State of Selangor.

I have attached above the url link to the Constitution of the State of Selangor.

pix from here.

This time is a good opportunity to understand the importance of constitutions.

There are many explicit provisions and procedures in constitutions.

At the same time, there are many practices or conventions that have been taken for granted or overlooked.

pix from here.

This is as good a time as any to flick the dust of the Constitution of the State of Selangor and look at it with an objective and unbiased mind.

Nor should politics and partisanship dilute the executive powers vested in the Menteri Besar of Selangor.

What is the proper procedure for the appointment of the State Secretary of Selangor?

Who initiates the process of appointment of the State Secretary of Selangor?

Does the Menteri Besar of Selangor have any constitutional role to play in the appointment of the State Secretary of Selangor?

In these inquiries, let the Rule of Law be our guiding principle.

And, let not politics and partisanship affect the dignity and standing of DYMM Sultan Selangor.

Allah lanjutkan usia Tuanku.

-extracted from the State Anthem of Selangor-

GST bill: Where can the public give comments?

A bill relating to the proposed introduction of the goods and services tax (GST) will be tabled for first reading at the end of the current Dewan Rakyat sitting.

Najib is quoted as saying that, "This will allow the public to give their comments, engage them, and if we find it necessary to fine tune it, we'll do so".

He stressed that if the government decided to introduce the GST in Malaysia, it would do so "very gently".

"It's not going to be an abrupt introduction," Najib said, adding that if the GST materialised, the rate would not burden the poor or middle-class Malaysians.

"And, it would not lead to inflation," he added.

Firstly, by tabling a Bill, the legislative process has commenced. There's a First Reading, then, there's a Second Reading and, then, a formal Third Reading whereupon the Bill becomes an Act of Parliament. The speed of the legislative process is at the discretion of the coalition in power.

A sincere effort at allowing public input should involve putting up the draft Bill in a suitable website, perhaps by the Treasury where comments can be received in an orderly fashion.

Tabling a Bill is a fait accompli which is, by definition, "an accomplished, presumably irreversible deed or fact".

Secondly, all consumption taxes has an inflationary effect even if it is a once-off effect.

Thirdly, "not be(ing) abrupt" is a relative view of the Prime Minister. If by "not be(ing) abrupt" he means that there will be lots of publicity about the Bill (and, therefore, following the reasoning, there should not be any psychological shock), then, he may be correct. But, the moment the Bill becomes an Act of Parliament and, it is given the Royal Assent and, is given a Commencement Date, then the implementation will still inevitably be felt by the public and the Malaysian economy as an "abrupt" phenomenon.

The question, therefore, is why the draft Bill should be tabled in Parliament when it can easily be posted at Treasury's website where public opinion can be sought for a period of, say, 6 months?

MACC clears Eusoff and Lingam of wrongdoing in NZ trip

Here's what the media report says:

Datuk Seri Nazri Aziz revealed today that Malaysian Anti-Corruption Commission (MACC) investigations had found no elements of corruption when Tun Eusoff Chin and lawyer V. K. Lingam went for a holiday to New Zealand together.

The MACC decision is another reminder to Malaysians that there is something very seriously wrong with the way in which Malaysia is being governed. It is as if nothing has changed since March 8, 2008. It's really "business as usual".

Something's got to give...

The sultan's role in Perak

This item is from the Edge Daily. It is written by an eminent constitutional scholar. His analysis is very sound and instructive. It is worth reading several times.

Dr Kevin YL Tan has taught constitutional law for over 20 years. He currently holds Adjunct Professorships at the Faculty of Law, National University of Singapore and the S Rajaratnam School of International Studies at the Nanyang Technological University. He holds a doctorate in law from Yale University. He is the author of Constitutional Law in Malaysia & Singapore (with Thio Li-ann); Introduction to Singapore’s Constitution and numerous articles on constitutional law in Singapore, Malaysia and the region.
__________________________________

Sultan Azlan Shah's appointment of Datuk Dr Zambry bin Abdul Kadir as Perak’s Menteri Besar on 17 March precipitated a constitutional crisis that culminated in the case now before the courts. The facts of the case are by now, fairly well-known and merit only a brief recount.

Following nation-wide general elections in March 2008, the Pakatan Rakyat (PR) won 31 seats in the 59-member Legislative Assembly and Datuk Seri Mohammad Nizar bin Jamaludin was appointed Menteri Besar of Perak. The Barisan Nasional (BN) held the remaining 28 seats. In February 2009, three PR members -- DAP’s Hee Yit Foong, and PKR’s Jamaluddin Mohd Radzi and Mohd Osman Mohd Jailu -- announced their resignations from the legislative assembly, leaving each party in control of 28 seats each.

On 4 February, Nizar approached Sultan Azlan Shah to dissolve the assembly to "resolve the deadlock". The next day, the sultan met with 31 members of the assembly, and was satisfied that they supported Zambry as MB, and then informed Nizar that his request for dissolution of the state legislative assembly had been rejected. Among the 31 members present at this meeting were the three PR members who had earlier resigned. They had apparently withdrawn their resignations and transferred their support to Zambry. The sultan then informed Nizar that he no longer commanded the confidence of the state assembly and asked him to resign as MB. Zambry did not comply, and the sultan’s office issued a press statement declaring the office of MB vacant and that Zambry had been appointed the new MB since he commanded the confidence of the majority of state assembly members.

On 11 May 2009, the Kuala Lumpur High Court ruled that as there had been no vote of confidence on the floor of the state legislative assembly, Nizar remained the rightful MB of Perak. Zambry appealed against this decision and on 22 May, the Court of Appeal overturned the High Court decision and declared that Zambry had been rightfully appointed as MB.

At the time of writing, the Court of Appeal has yet to deliver the grounds for that decision. Even so, Nizar’s lawyers filed an application for leave to appeal against the Court of Appeal decision on 19 June 2009. This application is scheduled for hearing on 9 to 10 July.

Issues raised by the High Court's decision

As the High Court’s decision is the only one available, this commentary relates to this judgment. The key issues in this case are whether Sultan Azlan Shah:

a. could dismiss the Executive Council when Nizar refused to tender the Council’s resignation after the Sultan refused to his request to dissolve the Legislative Assembly;

b. was constitutionally empowered to appoint Zambry the new MB when Nizar refused to tender the resignation of the Executive Council; and

c. had a discretion to determine if Nizar had lost the confidence of the majority of members of the Legislative Assembly in any other way than by a vote on the floor of the Assembly.

Ambit of Article XXVI(6)

The key to answering these questions is Article XXVI(6) of the Perak Constitution which provides:

If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.

The High Court Judge, Datuk Abdul Aziz J, adopted the "golden rule of interpretation" requiring a court to give the words of the Constitution a plain and ordinary reading if the words are unambiguous. Finding that Article XVI(6) of the Perak Constitution ‘contains no ambiguity whatsoever’, Abdul Aziz J held that the sultan had no power to dismiss Nizar; neither was he allowed to deem the office of Menteri Besar vacant when Nizar refused to resign. To do so, he added, would be to do ‘violence to the language’ of Article XVI(6).

The judge held that when Nizar requested the sultan to dissolve the state legislative assembly, he had not done so with "any reference to any provision in the Perak’s State Constitution" and in the absence of reference to any specific provision in the Constitution, Nizar was thus requesting the sultan to exercise his royal prerogative under Article XXXVI(2), which gave the sultan a general power to "prorogue or dissolve the Legislative Assembly."

The textual argument

A textual reading of Article XVI(6) supports the High Court’s interpretation of this key provision. Article XVI comes under the heading "The Executive Council" and the relevant provision is the sixth of its eight sub-clauses. Though headings, sub-headings and marginal notes do not technically form part of the constitutional text, they help us understand the structure and organisation of the Constitution. On the face of it, Article XVI is clearly intended to deal specifically with matters relating to the Executive Council and not generalities.

A general request for the dissolution of the state legislative assembly and the sultan’s discretion thereof is governed by Article XXXVI(2) read with Article XVIII(2)(b). That means that the sultan has a general power to dissolve the state legislative assembly and may act in his discretion in withholding a request for dissolution. It is clear that such a general request for dissolution does not fall under Article XVI(6), which is to be deployed in a very specific instance.

This is immediately discernible when we read it sequentially: A MB who has already ceased to command the confidence of the majority of the members of the Legislative Assembly must tender the resignation of the Executive Council, but only if the sultan exercises his discretion to refuse to dissolve the Legislative Assembly upon that MB’s request for dissolution.

Following from this reading, it is clear that the determination as to whether and when the MB has lost the confidence of the majority of the members of the state legislative assembly – as opposed to whether the MB was likely to command the confidence of the majority of LA members under Article XVI(2 – is a matter for the state legislative assembly itself. It is not an executive decision.

The argument from history

Does history support the High Court’s reading of Article XVI(6)? Back in 1956, various representations were made to the Reid Commission on the status and powers of the sultan and on his power to act. Back then, debates still raged over what necessary constitutional amendments needed to be made to make the Sultans "constitutional rulers" and whether the MB should hold office at the sultan’s pleasure.

What is clear from the resulting deliberations is that the Commission was determined to ensure that (a) the organisation of government in the states mirrored that of the Federation; and (b) the Malay Rulers should no longer preside over their state executive councils and involve themselves in executive decision-making save in very limited instances. These concerns led the Commission to set out the meaning of ‘constitutional ruler’ in paragraph 177 of their Report:

… a constitu­tional Ruler is a Ruler with limited powers, and the essential limitations are that the Ruler should be bound to accept and act on the advice of the Menteri Besar or Executive Council, and that the Menteri Besar or Executive Council should not hold office at the pleasure of the Ruler or be ulti­mately responsible to him but should be responsi­ble to a parliamentary assembly and should cease to hold office on ceasing to have the confidence of that assembly. (emphasis added)

By the Commission’s reckoning, there was no intention to give the constitutional ruler a power to dismiss the MB or the Executive Council at will. Further support can be gleaned from a memorandum on ‘The State Constitutions’ prepared by Sir Ivor Jennings (CO 889/2 p. 156 dated 31 Aug 1956) – certainly the most important and influential member of the Commission – when he noted:

The Rulers will become constitutional monarchs and executive government must be placed under the control, direct or indirect, of the State Councils. It is assumed that the Ruler … would appoint a Menteri Besar … who would have, or hope to obtain, a majority in the State Council. … It is assumed that the Ruler would have power, on the advice of the Menteri Besar, to dissolve the State Council, but that, like the Queen, he need not accept the advice. The Ruler would not be empowered to dissolve without advice, though, of course, he could always appoint a new Menteri Besar who was likely so to advise because he had no majority.

Historical precedent is consonant with the High Court’s reading of Article XVI(6). The sultan was entitled to refuse a request to dissolve the state legislative assembly, be it a general request – for example when early elections are to be called or where the state legislative assembly is sharply divided over a key policy or the budget – or a specific request under Article XVI(6) after the MB has already lost the confidence of the majority of the state legislative assembly.

Dismissal of the Executive Council

Both the textual and historical arguments support the High Court’s reading of Article XVI(6). However, this does not resolve the question as to whether the sultan was empowered to (a) declare the office of the MB and Executive Council vacant; and (b) following from that declaration, proceed to appoint a new MB.

The Perak Constitution is not explicit on this point. What is clear is that the Executive Council is appointed by the sultan on the advice of the MB. Although Article XVI(7) states that members of the Executive Council hold their office at the sultan's pleasure, Article XVIII makes it clear that the sultan may not dismiss them at a whim, but only upon the advice of the MB. This reading is borne out by the Reid Commission Report that stated (at paragraph 181):

As the Executive Council is to be collectively responsible to the Legislative Assembly the appointment of its members must lie in the hands of the Mentri Besar and a new Mentri Besar must be free to appoint a new Exec­utive Council in the same way as the Prime Min­ister appoints his Ministers. This result follows from our recommendation that members of the Executive Council should hold office at the plea­sure of the Ruler because in appointing or termi­nating the appointment of a member of the Exec­utive Council the Ruler must act on the advice of the Mentri Besar.

What happens if an MB, who has lost the confidence of the majority of the state legislative assembly, refuses to resign his position and that of the Executive Council after the sultan rejects that MB’s request for a dissolution of the state legislative assembly? This happened in Kelantan in 1977 when its MB, Datuk Mohamed Nasir refused to resign even though he had lost a vote of confidence motion in the Kelantan state legislative assembly, been sacked by his own party, and had his request for dissolution of the assembly refused by the Sultan of Kelantan. The impasse led to the declaration of a state of emergency by the Federal Government that lasted three months, after which the state legislative assembly was dissolved for fresh elections.

Alas, this single precedent is not particularly instructive. No legal solution was possible and the situation was resolved politically by the sultan dissolving the assembly and allowing fresh elections to be called. Perhaps, all rulers and governors should, as a matter of course, accede to requests by their respective MBs to dissolve the legislative assembly for fresh elections to be called unless the ruler has a premonition that a calamity might befall the state if he so acceded.

That way, new mandates are quickly determined and the business of government can proceed once a new leadership is established. Indeed, the Sultan of Perak supported this view of a ruler’s powers when he was Lord President. In his 1982 essay, ‘The Role of Constitutional Rulers’, he opined:

… under normal circumstances, it is taken for granted that the Yang di-Pertuan Agong would not withhold his consent to a request for dissolution of Parliament. His role under such a situation is purely formal.

This point was picked up by counsel for Nizar and cited with approval by the High Court.

The sultan has no explicit power to dismiss an MB under the Perak Constitution. Indeed, neither is the Yang di-Pertuan Agong empowered to dismiss a Prime Minister under the Federal Constitution. Originally, the Reid Commission had prepared a draft Article 36(2) which, among other things, gave the Yang di-Pertuan Besar power to remove the Prime Minister from office. However, as the High Court duly noted, the words were changed when the present Article 43(4) was promulgated. This provision is almost word-for-word the same as Article XVI(6) of the Perak Constitution save for the nomenclature used.


Conclusion

We return to the three questions posed at the start of this article. If, as the High Court rightly held, Nizar’s request for to dissolve the state legislative assembly was made under general provisions rather than under Article XVI(6), then the sultan had no power either to declare the office of MB vacant nor to dismiss the members of the Executive Council. And since the sultan had no power to declare the office of MB vacant, he was correspondingly prevented from exercising his discretion under Article XVI(2) to appoint Zambry as MB and to act on Zambry’s advice to appoint members to the Executive Council.

The third question posed – whether the sultan had a discretion to determine if Nizar had lost the confidence of the majority of state legislative assembly members – does not arise for consideration on the facts of this case. The question as to whether or not a show of confidence or support can be demonstrated in any way other than by a formal vote on the floor of the House is moot since the sultan is not being asked to exercise his discretion under Article XVI(2) to determine support or confidence for the purposes of appointing a new MB.

Even if the sultan was called upon to exercise his discretion on this matter, I would argue that the best way to determine confidence (or otherwise) in any individual as MB is to have a formal vote on the floor of the state legislative assembly. This is especially crucial in a political system that is not constrained by anti-hopping laws, and which allows assemblymen and assemblywomen to transfer loyalties at a drop of a hat. A formal vote will require formalities to be met, membership of political parties to be ascertained, and resignations or change of affiliations registered. Most importantly, it will provide for certainty.

One possible way to avoid future confusion over the sultan’s discretionary powers with respect to requests for a dissolution, might be to require the MB to state clearly in his request for dissolution, whether his doing so under the general provisions to which Article XXXVI(2) applied or because he has lost the confidence of the majority of the state assembly members under Article XVI(6). That way, there can be no issue of how the sultan is to deploy his discretion. This can be done as a matter of constitutional practice and will not require a constitutional amendment.

In the meantime, the problem remains. Two men claim to be the rightful MB of Perak and two groups claim to be members of the Executive Council. As scholars of constitutional law and keen observers of Malaysian politics, we anxiously await the Court of Appeal’s written judgment as we eagerly await the wisdom of the Federal Court to find a legal solution to an essentially political issue.

Telling your wife she's not pretty may soon be an offence

I quite agree with this proposed amendment to the Domestic Violence Act 1994. Physical violence is only part of the problem. The psychological scars of verbal abuse is a material issue.

There is nothing humorous about this although, admittedly, I had many sly and curling remarks swimming in my mind. It's better to leave such thoughts in the privacy of the mind...until some scientist idiot invents the dreaded mind-reading device, that is....

By the way, I am obliged to point out that the legislation applies to both husband and wife and others as defined. An abusive wife saying that the husband is not handsome can get into trouble too!

The current definition of "domestic violence" is:

"domestic violence" means the commission of any of the following acts:

(a) wilfully or knowingly placing, or attempting to place, the victim in fear of physical injury;

(b) causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury;

(c) compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has a right to abstain;

(d) confining or detaining the victim against the victim's will; or

(e) causing mischief or destruction or damage to property with intent to cause or knowing that it is likely to cause distress or annoyance to the victim,

by a person against-

(i) his or her spouse;

(ii) his or her former spouse;

(iii) a child;

(iv) an incapacitated adult; or

(v) any other member of the family: .

Star Online reported:

A husband tells his wife that she is no longer pretty in an attempt to humiliate her can be classified as an emotional violence offence if amendments are made to the Domestic Violence Act (DVA)1994.

The plan is to amend the DVA for the inclusion of a clause on emotional violence against women.

Currently, they are only protected only against physical abuse, Women's Development Department director-general Datuk Dr Noorul Ainur Mohd Nur said.

She said on Wednesday that the aim for proposing the amendment was to safeguard women both physically and emotionally.

Dr Noorul said emotional violence was a form of abuse that would deeply scar a woman and lower their self-esteem, dignity and self-confidence.

“It could be a case where her husband tells his wife she is ugly or humiliates her until she feels emotionally pressured,” she told reporters at the end of a seminar on how to curb violence against women at Wisma Wanita here.

Arrest of 5 lawyers

Malaysiakini has reported on the strong condemnation of the actions of the Royal Malaysian Police in arresting Fadiah Nadwa Fikri, Syuhaini Safwan, Puspawati Rosman, Ravinder Singh and Murnie Hidayah Anuar by the Malaysian Bar at its Extraordinary General Meeting held at 3 p.m. this afternoon at the Dewan Sivik, Petaling Jaya.

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These 5 lawyers were arrested while they were attempting to provide legal assistance to certain Malaysians who were arrested earlier for having participated in a candle-light vigil outside the Brickfields Police Station in Kuala Lumpur.

The right to legal representation is one of the fundamental rights enshrined in the Federal Constitution of Malaysia.

Their arrest, their 24-hour detention and the humiliation they received while in Police custody was the result of over-zealous action.

The 5 lawyers were not part of the candle-light vigil.

They went to the Brickfields Police Station because they received calls for help by the Malaysians who were arrested.

They were there to provide legal representation. That's all.

The principle of the Rule of Law requires that any person arrested by any lawful authority have a constititional right to legal representation.

Grabbing the 5 lawyers or, any lawyer for that matter, who are merely attempting to provide legal advice to persons arrested is just plain wrong, wrong, wrong.

Policing crowds: The power of 3

Malaysia's law enforcement bodies have an aversion to crowds. Crowds are equated with mobs. Is that a fair stereotyping?

Section 27(5) of the Police Act 1967 (Act 344) states that:

Any assembly, meeting or procession-

(a) which takes place without a licence issued under subsection(2); or

(b) in which three or more persons taking part neglect or refuse to obey any order given under subsection (1) or subsection (3),

shall be deemed to be an unlawful assembly, and all persons attending, found at or taking part in such assembly, meeting or procession and, in the case of an assembly, meeting or procession for which no licence has been issued, all persons attending, found at or taking part or concerned in convening, collecting or directing such assembly, meeting or procession, shall be guilty of an offence.

That is an interesting threshold.

In Malaysia, THREE is not merely a crowd but, potentially, an unlawful assembly, meeting or (if the THREE is in motion i.e. walking, strolling, jogging, or running) procession.

Be that as it may, there is an article in the Economist that reports about psychological studies of crowd behaviour that points to a finding that crowds are not necessarily negative or prone to violence as is feared by many law enforcement authorities not the least of which is the Royal Malaysian Police:

Crowds have a bad press. They have been blamed for antisocial behaviour through mechanisms that include peer pressure, mass hysteria and the diffusion of responsibility—the idea that “someone else will do something, so I don’t have to”. But Dr Levine thinks that crowds can also diffuse potentially violent situations and that crime would be much higher if it were not for crowds. As he told a symposium called “Understanding Violence”, which was organised by the Ecole Polytechnique Fédérale de Lausanne in Switzerland earlier this month, he has been using CCTV data to examine the bystander effect, an alleged phenomenon whereby people who would help a stranger in distress if they were alone, fail to do so in the presence of others. His conclusion is that it ain’t so. In fact, he thinks, having a crowd around often makes things better.
......

His first observation was that bystanders frequently intervene in incipient fights. The number of escalating gestures did not rise significantly as the size of the group increased, contrary to what the bystander effect would predict. Instead, it was the number of de-escalating gestures that grew. A bigger crowd, in other words, was more likely to suppress a fight.

Some incidents did end in violence, of course. To try to work out why, Dr Levine and his colleagues constructed probability trees to help them calculate the likelihood that a violent incident such as a punch being thrown would occur with each successive intervention by a bystander. Using these trees, they were generally able to identify a flashpoint at which the crowd determined which way the fight would go.

Judging the fight to begin with the aggressor’s first pointing gesture towards his target, the researchers found that the first intervention usually involved a bystander trying to calm the protagonist down. Next, another would advise the target not to respond. If a third intervention reinforced crowd solidarity, sending the same peaceful message, then a violent outcome became unlikely. But if it did not—if the third bystander vocally took sides, say—then violence was much more likely.

I hope that our law enforcement bodies apply some resources to better understand these studies so that the perception of crowds is deeper and more holistic.

Crowds do not necessarily become mobs. There is a difference.

All things said and, done, I'm still interested in getting to the bottom of the number "3". Is it, intriguingly, the legislative draftsman's sly, dark humour to give the idiom "Three's a crowd" statutory effect in Malaysia?

Wouldn't that be a deliciously perverse use of an English idiom?

First, Fire All the Lawyers

Eric Etheridge's opinion column in the New York Times describes a gloomy pall surrounding big U.S. law firms in the wake of the economic turmoil. It's an interesting read. There are interesting embedded links in the column to articles that are even more interesting albeit for people in the legal services sector or, people with an interest in sectoral analysis:

Writing in the American Lawyer, Aric Press surveys the economic landscape for big law firms, and finds no good news to report:

If present trends continue in the big firm market, we are heading toward–you pick the cliché–a paradigm-shifting, blood-in-the-suites, terror-on-the-campus hiring and retention crisis. The “economic reset” that General Electric’s Jeffrey Immelt has tagged seems likely to force changes in the way firms recruit, pay, and/or retain their lawyers. The market for labor has changed and, for now at least, there’s no normal to which it can return.

Press details a number of current market facts, then goes on to list five changes to watch for in the coming months:

Lower starting salaries: Bumping starting salaries up to $160,000 in major money centers arguably made sense when profits were booming and firms feared that they were losing their best talent to the hedge funds of Greenwich. Those days are over and yet the 160K bogie remains as inviolate as though it were handed down at Sinai. If the market–and not weird lemming-style management–drove the salaries up, then presumably the market should drive them down. How far? Back to $130,000, where they lodged at the peak of the tech boom? Back to $100,000, which one managing partner refers to as a “life-boat offer”–if you take it, we guarantee not to throw you over the side for several years?

Wage cuts: Several firms have announced wage freezes: no automatic raises for serving another year. This is not particularly novel among clients but it has caused a stir in law firms. It saves some money, but law firm managers admit perhaps not as much as they will need to weather the downtown.

Delayed and staggered starts: [L]ook for firms to behave as their clients do, delaying starts of new employees until there is some demand for their services. And look for them to behave unlike their clients-offering stipends for extended vacations, pro bono service and advanced course work, anything to build loyalty-and keep them out of the office.

Sharply reduced summer classes: It’s just your mother’s rule applied to hiring: don’t put more on your plate than you need. A class of ten, say, handpicked from Stanford, NYU, Harvard, Georgetown, UCLA, Emory, Northwestern, Columbia, Michigan and Fordham, is likely to maintain the partners self-esteem without jeopardizing the firm’s economics in September 2011.

More layoffs: Next time it will be partners.

etheorist: The zeroth point of economics

I have been following a Malaysian blogger, etheorist's blog, Economic Policy, for some time now. He approaches the thicket of economics with a humanistic, philosophical and first-principles paradigm. Initially, his writings give you a strange sensation of deja vu because there are many things that he writes about that is familiar to us.

But, we then have a nervous creeping sensation of intellectual vertigo when we realise that he tends to avoid quoting famous economists, thinkers or philosophers to underpin his propositions. Many readers will find it difficult to grasp the context of his propositions and curling observations of Life, the Universe and, Everything Else pearls of wisdom contained in his writings. But I urge you to press on.

His writings offer a familiar, yet, new perspective on many matters around us. His writings have a sagely tone. But peel away the simple phrases and words and you will be rewarded with insight.

I consider etheorist's posts the zeroth point of a holistic study of economics. It is a good starting point. Not that it is introductory by any means. But, that, it lends us a context in which to read economics.

My level of appreciation of the reading of economics has improved as a direct result of reading etheorist's take on things. Through his blog, I have also embarked on an interesting journey that has taken me to the following blogs:

Greg Mankiw, Professor of Economics at Harvard University, whose blog entries are always concise and succinct.

Through Mankiw, I have discovered Eugene Fama's collaborative blog, the Fama/French Forum, which he shares with Kenneth French, Professor of Finance at Dartmouth College. Eugene Fama is best-known for his seminal work, the Efficient Market Hypothesis and the random walk model.

Through the Fama/French Forum, I have discovered Richard Posner's collaborative blog, The Becker-Posner Blog, which he shares with Gary Becker. Posner is one of the founders of the so-called Law and Economics Movement that is still very-much driven by the University of Chicago Law School. This Movement advocates an application of economic principles to the evaluation of legal principles and, more importantly, proposed legislation, to test whether certain laws are economically feasible.

As an aside, the Law and Economics Movement, which is very much an American approach, has found a very excellent translator in Professor Brian Cheffins of the Cambridge University Faculty of Law. Cheffins has done extensive work to apply the Law and Economics matrix of analysis to English legal principles, particularly, in the area of Corporate Law.

The Universe of Knowledge is infinite so long as one remains inquisitive, I guess.

A-G's omission to act questioned

This NST Online op-ed piece jointly written by Raja Aziz Addruse and Ding Jo-Ann needs to be read in full. Raja Aziz, as many will know, is a former President of the Malaysian Bar and he remains one of the most respected lawyers in Malaysia and an authority on Malaysian constitutional law. In this piece the duties and responsibilities of the Attorney-General in relation to certain police actions are examined and questioned in relation to the A-G's apparent omission to act on recent police actions.
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THE recent arrests of Teresa Kok, Sin Chew journalist Tan Hoon Cheng and well-known blogger Raja Petra Kamaruddin under the Internal Security Act 1960 (ISA) caused concern that the government could so readily use the draconian law of preventive detention without trial to silence criticisms made against it. According to the Home Minister, the journalist had been arrested because her life had been threatened and the police wanted to conduct a comprehensive investigation. She was, it would seem, arrested under the act for her own safety.

On that basis, the arrest of the journalist was clearly an abuse by the police of their power under the ISA.

Since he is the Minister responsible for the police, the Home Minister is answerable for the wrongdoing of the police.

Kok, too, was released a few days after being detained without any plausible reason being given for her arrest. Raja Petra was ordered to be released by the court on Nov 7.

After the initial arrest under section 73(1) of the ISA, the Minister had subsequently made an order under section 8 of the act for him to be detained for two years. This order has now been declared unconstitutional and ultra vires by the court.

The question that needs to be asked is how it is that such powers are now being exercised with what appears to be scant regard for the fundamental rights, liberties and freedoms guaranteed under the Federal Constitution.

Should those conferred with such drastic powers not be advised as to the limits of their power and of their responsibility in the exercise of such powers? The person who is constitutionally entrusted with the function of advising the government and ministers of government on such matters is the Attorney-General. It is his constitutional duty to uphold the Federal Constitution and citizens’ fundamental liberties as guaranteed under Part II of the Federal Constitution.

It would have been the Attorney-General’s duty to advise the police and the Home Minister that the reasons they gave for arresting Tan and Kok under the ISA did not warrant the exercise of power under section 73(1) of the ISA.

He should also have advised the police and the Minister that there are specific prerequisites which need to be satisfied before the power of arrest and detention under the act can be lawfully invoked.

Read more here.