Saturday, January 06, 2018

Threat to Democracy? Anwar's suit to restore need for royal assent before Bill's become law? A step backwards?

When Malaysians decide on the law or amendments to the law, including amendments to the Federal Constitution, should the King(or the Sultan or ruler of the State be given the power to block the law that have been passed by the Dewan Rakyat (House of Representatives) and the Senate? 

So, when our Constitution was amended to remove the power of the King to block the passing of a law, I would say it was positive and good thing...But now, Anwar Ibrahim is in court trying to restore the power of the King to block the passing of laws - the return of the discretionary power of the King to approve or not approve laws in Malaysia that have already been passed by the Dewan Rakyat and the Senate...Is this what Malaysians want? 

 66  Exercise of legislative power.(Federal Constitution)
(3) When a Bill has been passed by the House in which it originated it shall be sent to the other House; and it shall be presented to the Yang di-Pertuan Agong for his assent when it has been passed by the other House and agreement has been reached between the two Houses on any amendments made in it or when it is required to be so presented under Article 68.
(4) The Yang di-Pertuan Agong shall within thirty days after a Bill is presented to him assent to the Bill by causing the Public Seal to be affixed thereto.
(4A) If a Bill is not assented to by the Yang di-Pertuan Agong within the time specified in Clause (4), it shall become law at the expiration of the time specified in that Clause in the like manner as if he had assented thereto.

Anwar Ibrahim's (or is a PKR and Pakatan Harapan's) initiative in court ...will end up making the King all powerful in determining which laws are passed and which are not. The earlier amendment of the Constitution, effectively removes this power - now the King is given 30 days, and after that, if the royal assent is provided or not, it is deemed that the royal assent is given. 

Anwar may be concerned with the National Security Council Act 2016 - which now gives the Prime Minister, the power to declare areas in Malaysia as security areas - which brings into effect powers to curb freedoms, human rights, etc ...even arrest and detention. The Prime Minister will be acting on the advice of the National Security Council (chaired by the PM, and made up of the DPM, the Minister charged with the responsibility for defence; the Minister charged with the responsibility for home affairs; the Minister charged with the responsibility for communication and multimedia; the Chief Secretary to the Government; the Chief of Defence Forces; and the Inspector General of Police.). Given that members of the Cabinet are really selected by the PM, and the Prime Minister also decided on who is IGP, etc...There is a SERIOUS RISK that there is simply too much power on the PM. Maybe, the National Security Council should be more independent - maybe a Parliamentary Select Committee - made up of UMNO-BN backbenchers (persons not in the Cabinet and independent) and Opposition MPs and possibly even the Speakers and others...

But returning the requirement of the mandatory royal OK is certainly not the solution in a democratic nation, and if successful in his bid, it will impact all laws...not just selected laws...
18  Declaration of security area (National Security Council Act 2016)
 (1) Where the Council advises the Prime Minister that the security in any area in Malaysia is seriously disturbed or threatened by any person, matter or thing which causes or is likely to cause serious harm to the people, or serious harm to the territories, economy, national key infrastructure of Malaysia or any other interest of Malaysia, and requires immediate national response, the Prime Minister may, if he considers it to be necessary in the interest of national security, declare in writing the area as a security area.

The fundamental problem in Malaysian today is the  Members of Parliament and Senators - they are not truly independent to act in accordance to their own conscience, values and principles - and there is nothing stopping them from doing so save for a 'bad culture' - of doing what they are told by their respective political party leaders. So, they do not listen, consider and supporting good points and opinions from the MPs not in their own coalition/party - and as such it makes a mockery of 'parliamentary debate' - as the other side is simply not going to even accept good arguements or change their position. When it comes to voting, when it comes to a proposed government Bill, all MPs from the political parties in the government tend to support, and all in the Opposition opposes...This behavior has resulted in the people having little or no hope on their MPs - people just do not waste any time lobbying the individual MPs or Senators...Remember that MPs are most powerful - they decide on who is PM or whether an existing PM ought to be removed...

It is sad that this culture of unquestioning 'blind loyalty' to the party leadership is present in most political parties including the Opposition parties... Expression of criticism of the leadership of the party or the leader or even the expression of a different opinion or asking questions  results disappointingly in the expulsion or discrimination against the individual member...It happens in UMNO-BN - see how many have been expelled or sidelined including persons holding the number 2 position in the party. Look at the number of people that PKR has got rid of over the years

The intolerance to criticisms, different opinions and questions is certainly not a democratic attitude. In any society, there will always be people with different viewpoints ...and, this is also reflected in the fact, that most decisions are never unanimous - and are usually majority decisions. Does a defeat in a vote means the end of such opinions/viewpoints - in a democracy, it does not and members can freely still promote and lobby for their position - and maybe, at the next vote, they may be successful. Bersatu and PAS have also 'kicked out' members who questioned...
Hence, I would ask Anwar, PKR and maybe even Pakatan Harapan, to not continue to try to remove the advancement in being more democratic we achieved - when we removed the ability of the King to block the passing of laws that the people wants...

MPs are 'people's representatives' - so, when they decide on a new law, it is ultimately the decision of the people...a King in a democracy should not have the power to block laws...

Remember laws can be made ...and it also can be unmade or amended...and the power rest with the people, vide the Members of Parliament and/or the Senators. We need not simply wait for the government to table Bills to amend/create laws - any MP and/or Senator can also do so...table a Bill or a Private Members Bill like Hadi Awang?

It would be good if MPs be peoples' representatives and vote according to their own conscience and what the people wants...It would be good is the party WHIP not be used save for maybe Money Bills and certain exceptional Bills. It would be good, if voting in Parliament is known - with so many MPs(irrespective of Party) supports, opposes and abstains.. Now, the Opposition also uses the 'WHIP' at Local Councils..

SENATORS - well, it is time for Senators to be directly voted by the people in Senatorial Elections...then, we will have a democratic Senate composed of democratically elected Senators - not just Senators appointed by UMNO-BN at Federal level, and State Senators by respective State governments...Only a people elected Senate will be an effective Senate ...a necessary check and balance.

The idea of giving back to the King and rulers more power in controlling the government of our nation...seems to be a PKR (or PR or PH) thing. Did the Sultan object to a Muslim Malay Woman being the Menteri Besar of Selangor, when Wan Azizah had the confidence of the majority of the ADUNs in Selangor? Or was it the sexist ADUNs of the Opposition that did not want a Woman to be Menteri Besar? 

Are the Opposition just anti-UMNO-BN, or are they more than that in terms of having better values, better principles, better concern for justice and human rights, better...?  

There is nothing stopping the King and/or Rulers of States from speaking out, expressing their objections to laws and/or policies - but alas, we have not heard them do so much as of late....Why is that? 

In any event, is the Pakatan Harapan's pro-royalty and/or the idea of giving back the King(and Rulers) more power to block laws, etc simply an Election strategy ...or are they really 'royalist' intending to make Malaysia more feudalisatic rather than democratic? 

UMNO-BN was more 'undemocratic' - in the sense they did not want democratically elected Senators, Local Councils, Kampung/Kampung Orang Asli/Kampung Baru/ Taman leaders - preferring rather the more 'feudalistic' option of just APPOINTING...? 

What do Malaysians want? Democracy...more of it, or a regression into a more 'feudalistic' form of government whereby democracy is shunned in favour of 'Appointment' of leaders/reps at different levels? If Pakatan Rakyat wants to give power to BLOCK laws at State/Federal level - will the Opposition State/Federal government also give themselves the power to block(and control) decisions at Local Council and other levels?

Is people's participation important? Did Anwar and/or PH even conduct a referendum whether people wanted to restore the King's ability to block laws, or they just filed the suit on their own - without any prior consultation?    

Anwar challenges amendments in 1994 removing royal assent


PUTRAJAYA: Former opposition leader Anwar Ibrahim wants the Federal Court to declare null and void the Federal Constitution provision that allows bills to be automatically passed as law in 30 days, without the King’s assent.

PKR president Dr Wan Azizah Wan Ismail who represented her husband, Anwar, in filing his case at the Federal Court registry today, said that this is Anwar’s bid to restore constitutional democracy and fundamental rights.

He is seeking leave under Article 4(4) of the Federal Constitution from the Federal Court to question the validity of a few amendments made in 1983, 1984, and 1994 that removes the Yang Di-Pertuan Agong’s powers to give the final approval for bills passed by the Dewan Rakyat.

Anwar alleged that the Parliament has no power to pass such amendments as they took away the mandatory requirement of royal assent. He said that the royal assent forms the basic structure of the Federal Constitution.

By that token, Anwar also wants the courts to declare that the National Security Council (NSC) Act, which became law in June 2016 without a royal assent, is invalid.

He named the government as the sole respondent in this direct challenge.

Previously, he had filed a lawsuit to strike down the National Security Council (NSC) Act.

He had claimed that Article 66(4A) which allows a parliamentary bill to automatically become law 30 days after it is presented to the Yang di-Pertuan Agong regardless of whether he assents to it or not, was unconstitutional.

However, his lawsuit was dismissed by the High Court on October 2016 and the Court of Appeal upheld the decision last year.

In dismissing Anwar’s appeal, the appeals court had said he should have gone straight to the Federal Court as he was challenging the competency of Parliament to pass the law.

The controversial Act was passed by the Dewan Rakyat on Dec 3 and the Dewan Negara on Dec 22.

The law, gazetted in June 2016, allows the prime minister to chair the National Security Council to declare a state of emergency without having to go through the Yang diPertuan Agong.

The NSC Act became a law under Article 66 (4A) which stated a bill becomes a law 30 days after it was presented to the Agong, even without his assent.

Anwar is currently serving a five-year jail sentence for sodomy, and is expected to be out from prison by June, having served two-thirds of his sentence, which commenced in February 2015.

Anwar was deputy prime minister in the government, led by then prime minister Dr Mahathir Mohamad, which amended the Federal Constitution in 1994, without referring to the Conference of Rulers as required, making it such that any Bill approved by Parliament would automatically become law even without royal assent after 30 days.

Before 1994, the Agong had the power to return a Bill to Parliament for reconsideration and to state his reasons for objecting to the Bill. - FMT News, 2/1/2018

Thursday January 4, 2018
10:29 AM GMT+8
Anwar said his lawsuit to undo the constitutional amendments from the Mahathir administration would restore the Malay Rulers' role of being a control mechanism to the government's authority. — Picture by KE OoiAnwar said his lawsuit to undo the constitutional amendments from the Mahathir administration would restore the Malay Rulers' role of being a control mechanism to the government's authority. — Picture by KE Ooi

KUALA LUMPUR, Jan 4 — Powers for the Yang diPertuan Agong to approve laws passed by Parliament are necessary to preserve Malaysia's constitutional monarchy, said Datuk Seri Anwar Ibrahim.

The Pakatan Harapan and PKR de facto leader said his lawsuit to undo the constitutional amendments from the Mahathir administration would restore the Malay Rulers' role of being a control mechanism to the government's authority.

“The restoration of the mandatory requirement of the Royal Assent is imperative to maintain the constitutional balance between the elected government and our hereditary monarchy,” he said in a statement.

The former deputy prime minister reminded the ruling Barisan Nasional that it regularly asserts to be defenders of the Malay Rulers, and urged the coalition to demonstrate this by not challenging his legal action.

The Agong's approval had once been necessary for the passage of new laws and amendments, but this was removed by Tun Dr Mahathir Mohamad's administration following a constitutional crisis in the 80s.

After the amendments, laws are now automatically deemed to be approved by the Agong 30 days after they are provided for his consideration, regardless of whether royal assent is expressly given.

Coincidentally, Dr Mahathir yesterday claimed the PH pact would support Anwar's lawsuit to undo the changes introduced when the former had been in power.

On Tuesday, PKR president Datuk Seri Dr Wan Azizah Wan Ismail filed the suit on her husband’s behalf.

Anwar sought leave under Article 4(4) of the Federal Constitution from the Federal Court to challenge the validity of a amendments made in 1983, 1984, and 1994 that removed the Agong’s powers to give the final approval for Bills passed by the Dewan Rakyat.- Malay Mail, 4/1/2018

1 comment:

Hakimi Abdul Jabar said...

The learned and honourable Judicial Commissioner Vazeer Alam Mydin Meera (as he then was) in the High Court had ruled that Malaysia is a progressive democratic society.

Is such reversion not anathema to the modern concept of democracy?

My assertion would be that the independence of the Malaysian judiciary in striving to protect our civil liberties, fundamental freedoms, human rights, and all rights entrenched under Part II of the Federal Constitution which form part of the basic structure, is the only guarantee of fairness and in the State, and is the main building block of justice. Further, the effectiveness of judiciary is an important indicator of the advancement and civilization of a Nation.

In essence, judicial review of administrative and executive decision and policy-making enhances the checks and balances of democratic and bureaucratic institutions by restraining the behaviour of politicians and officials and royal personages.

Furthermore, the existence of our constitutional right to information further enhances openness, accountability and transparency in government etc. This guaranteed right strengthens individual and community participation and our progressive democracy.

The right to receive information, i.e. the Right To Information has already been ruled to be an equally guaranteed right by the Federal Court in its decision in Sivarasa Rasiah v Badan Peguam Malaysia & Anor. (2010) 3 CLJ 507 at 519 para 13.

The right to be derived from the express protection is the right to receive information, which is equally guaranteed.

In short, the right to information, the right to be derived from the express protection is the right to receive information, which is equally guaranteed, are the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution.