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For Justice, Freedom & Solidarity PP3739/12/2009(022904) ISSN 0127 - 5127 RM4.00 2009:Vol.29No.4 Aliran Monthly : Vol.29(4) Page 1 COVER STORY From constitutional monarchy to constitutional anarchy On 22 May at 3.30pm, the three judges of the Court of Appeal came to a decision that had far-reaching implications by Mohamed Hanipa Maidin t is 2.30 am in January II 2010. Najib and Rosmah III have just reached their official residence in Putrajaya. Their arrival is met with a letter by the King declaring that Najib has to vacate the resi- dence simply because the King has appointed a new Prime Min- ister replacing him. The letter sets out this reason namely that Members of Parlia- ment from Pakatan Rakyat (PR) together with a few MPs from Barisan Nasional (BN) have ex- pressed their undivided support ends with the following ultima- King to remove him as Prime Min- for Anwar Ibrahim to become the tum: Mr Najib you are hereby or- ister. new Prime Minister. The letter dered to tender your resignation failing which your premiership The King smiles and softly re- will be terminated forthwith. minds him with this timely ad- vice: The bewildered Najib immedi- ately seeks an audience with the “Mr Najib, don’t you remember King. The audience is duly that on 22 May 2009 at 3.30pm in granted. Najib expresses his dis- the case of Dato Zambry v Dato satisfaction. He laments that it is Nizar, the three judges of the unfair for him to be swiftly re- Court of Appeal unanimously moved as Prime Minister in the ab- held that sence of a motion of no confidence against him in Parliament. He • A Chief Minister (at state level) confidently cites Article 44 (4) of or a Prime Minister (at the fed- the Federal Constitution and in eral level) can be dismissed if turn contends that nowhere in the the King unilaterally decides said Article does it empower the that the CM or PM respectively Aliran Monthly : Vol.29(4) Page 2 EDITOR'S NOTE In our cover story, Mohamed Hanipa looks at the constitutional impasse in Perak and the impact of CONTENTS the Court of Appeal’s decision favouring Zambry. We reproduce a series of statements reflecting COVER STORY Aliran’s stand on the Perak power grab, the consti- ••• From Constitutional Monarchy To tutional crisis and the judicial maneuvering. This is Constitutional Anarchy 222 followed by a series of public statements from promi- ••• Aliran Demands Justice And Return nent personalities, mostly urging the BN team to go To The People's Mandate 666 back to the Perak people and let them resolve the issue at the ballot box once and for all. ••• Dissolve Perak State Assembly 121212 ••• Mainstream Media's Role In Anil Netto looks at something that has not been dis- Legitimising The Perak Power Grab 191919 cussed much: the mainstream media’s role in legitimising the power grab in the state executive as ••• One Perak! 212121 well as the legislature. ••• Who Smuggled Ganesan Into The Perak Assembly? 404040 What we now have here is OnePerak! One state with two chief ministers, two Speakers and lots of other ‘unique achievements’, making it truly a one-of-a- FEATURES kind state. One colossal failure. ••• Let The Poor Walk With Dignity 242424 The political problems come at a time of increasing ••• A Raw, Not-So-New Deal 262626 economic difficulties, leaving the lower-income ••• Showdown At The High Chaparral 292929 group most vulnerable. John Inbaraj writes an open plea to the prime minister, urging him to ensure that ••• Was The Indian Election A Debacle the poor can walk with dignity. For The Left? 323232 Another marginalised group is the Orang Asli. OTHERSOTHERSOTHERS Yogeswaran Subramaniam observes that principles ••• Book Review 303030 such as equality and social justice seem to be miss- ing from a proposed federal land policy for this ••• Subscription Form 373737 group. Meanwhile, Dalbinder Singh Gill takes a look at the High Chaparral residents in Penang who are facing eviction following a controversial land swap. Published by Finally, Prof Bhanoji Rao reviews a new book look- Persatuan Aliran Kesedaran Negara ing at the emergence of India and the Indian com- (ALIRAN)(ALIRAN)(ALIRAN) munities in East Asia. 103, Medan Penaga, 11600 Jelutong, Penang, Malaysia. Tel: (04) 658 5251 Fax: (04) 658 5197 Email (Letters to Editor): ALIRANALIRANALIRAN is a Reform Movement dedicated to Justice, Freedom & Solidarity and listed on the [email protected] roster of the Economic and Social Council of the Email (General): [email protected] United Nations. Founded in 1977, Aliran welcomes Homepage : http://www.aliran.com all Malaysians above 21 to be members. Contact the Hon. Secretary or visit our webpage. Printed by Konway Industries Sdn. Bhd. Plot 78, Lebuhraya Kampung Jawa, 11900 Bayan Lepas, Penang Aliran Monthly : Vol.29(4) Page 3 has lost the confidence of a failed to hear the public outcry tail all the points canvassed by all majority of the state assembly demanding the dissolution of the parties in their respective submis- members or MPs. Perak State Assembly in order to sions. Armed with such a rea- • Article 16(6) of the Perak Con- solve the constitutional impasse soned decision, the people are not stitution, which is equivalent in Perak? Was it not you who re- kept in the dark as to the reasons to Article 43(4) of the Federal fused to solve the Perak crisis via why Nizar won the suit. Constitution, makes no refer- democratic means namely by go- ence to the mode of determin- ing back to the voters to decide On the other hand, when the ing whether the CM or PM has which party they want to repre- Court of Appeal allowed lost the confidence of the mem- sent them in governing Perak. Zambry’s appeal, only cursory bers. Be that as it may, consti- Sorry, Mr Najib, the problem you grounds were given. Despite a tutionally speaking, there is no are facing now is of your own very profound submission made explicit requirement for a vote making. You are to blame your- by the respective parties and given of no confidence to be passed self. You are hereby ordered to the fact that the appeal dealt with before the CM or PM can be re- vacate your residence with imme- very crucial constitutional points, moved from his office. diate effect.” the unholy haste in making the • The case of Stephen Kalong ruling makes one wonder Ningkan (1966) is no longer a The above scenario is, in my view, whether the judges really read or good law. In Ningkan, the an appropriate illustration to de- appreciated the arguments put Sarawak High Court laid pict the brunt of the Court of forward by the respective parties. down the universally accepted Appeal’s decision, overturning constitutional convention the landmark decision of the We, the lawyers in Nizar’s legal namely the Governor or the learned High Court Judge Dato’ team, have no other choice but to King has no power to dismiss Abdul Aziz Abdul Rahim on 11 accept the court’s decision. But the CM unless a motion of no May 2009. frankly speaking, we wonder if the confidence has been passed by people on the street also share the a state legislature. Legitimacy lost same sentiment – accepting and respecting the court’s decision To add salt to the injury, the King When Dato Abdul Aziz made a without any trepidation. may add: decision allowing all the prayers sought by Nizar in his judicial Whilst the people’s tantrums on “Was it not you who badly review application, the learned our dented judiciary continue wanted such a perverse ruling in High Court judge, to his credit, unabated, the latest perverse de- order to gain a short-term politi- gave a reasoned judgment. cision of the Court of Appeal ag- cal victory? Was it not you who Therein, he discussed in great de- gravates the state of affairs. This “““ Every legal power must have legal limits; otherwise there is dictatorship .. Power tends to corrupt and absolute power corrupts absolutely.” Aliran Monthly : Vol.29(4) Page 4 is what happens when our ma- The same happened to the BN tion. Legally speaking, the deci- chinery of justice has lost its le- in Perak. Intoxicated with sion of the Speaker is gitimacy. power, the BN committed a se- unjusticiable. ries of unlawful acts, the glar- When the BN overstays in the po- ing one being the “sodomising” But to keep such a well en- litical arena, the people start ques- of the Perak constitution. Using trenched doctrine would defi- tioning its legitimacy to rule the (read abusing) the court to hide nitely frustrate the BN’s illegal country. Unfortunately, govern- its unlawful acts, the former plan to remain in power in Perak ment agencies in particular those was then asked to kill the con- illegally. Thus, the doctrine involved in the administration of stitutional doctrines and con- needed to be buried once and for justice such as the judiciary, the ventions. The court willingly all. police force and the Attorney submitted to the BN’s nefarious General’s office have also been scheme. Thus for the first time, Being a “serial constitutional duly affected when the BN lost its the apex court demolished the killer”, the BN craves to “kill” legitimacy to rule. In other words doctrine of trias politica (the another constitutional tenet en- these agencies unnecessarily French term of separation of shrined in our constitution, carry the BN’s burden of legiti- powers) when it, without any namely the doctrine of constitu- macy.