Murray Hunter
CPI: A note from Borneo
Article 4, 153, and the supreme leader of the nation
JUN 21, 2024
Article 4: No law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed without the consent of the Conference of Rulers.
If Article 4 was amended on redundant clauses, the Conference of Rulers doesn't enter the picture.
In any case, the Conference of Rulers, as institution of tribal and feudal Chiefs, stands redundant.
The Agong should be elected by the people as head of state i.e. wielding sole executive authority which cannot be kept. It can only be delegated, by Administration, for Prime Minister and Council of Ministers appointed by Agong. Ministers, but not Prime Minister, can be sacked by Agong.
No court can go against Agong if he decrees minority Prime Minister and/or unity government. Parliament enters the picture.
The Great Council of Chiefs in Fiji, for example, was abolished not so long ago. The Maharajah in India was history after 1947.
Malaysia, having written/codified Constitution unlike for example unitary state UK, was governed by Constitutional supremacy, not parliamentary sovereignty.
No Constitution can go against itself. There cannot be permanent discrimination. Sunset clause means there's expiry date. Sunset clauses cannot be extended or substituted by new forms of abuse of power under prerogative and discretionary powers as euphemism.
Article 153: (1)It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.
(2)Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.
(3)The Yang di-Pertuan Agong may, in order to ensure in accordance with Clause (2) the reservation to Malays and natives of any of the States of Sabah and Sarawak of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to any Commission to which Part X applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities; and the Commission or authority shall duly comply with the directions.
(4)In exercising his functions under this Constitution and federal law in accordance with Clauses (1) to (3) the Yang di-Pertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.
Anwar Ibrahim said that the government would defend the Special Position, by way of reasonable proportion, in Article 153. It must be stated that Article 153 has allegedly always been observed in the breach i.e. it degenerated into "sapu bersih" (clean sweep) as a form of internal colonisation viz. the criminal accumulation of capital by transferring wealth, income, revenue, reserves and resources from those who have no power to those who have power.
Colonialism, among others, was outlawed by international law after World War II. Nazism, fascism and apartheid -- read ketuanan -- was also outlawed.
Article 153, being redundant, cannot be defended. The facilitating clauses have also been rendered redundant viz. the Definition of Malay in Article 160(2) as "form of identity", Article 3 (Islam) implied in the "form of identity", Article 152 (national language) implied in "form of identity"; Order 92, Rule 1, Rules of the High Court 2012 (national language) implied in Article 152; NEP taking the cue from Article 153, and Quota System taking the cue from Article 153.
The Parliament
The sovereignty of Parliament lasts five years.
No Parliament can bind future Parliament or be bound by previous Parliament.
Law, ultimately, remains the power of language. In jurisprudence and constitutional law, it isn't possible that anyone knows law.
Law exists, and has always existed, based on common sense, universal values, and the principles of natural justice.
The judicial power of the Federation cannot be taken away from the judiciary, even if taken away by Parliament, via ouster clauses. No law can state that this and that and that and this cannot be challenged. There's case law on this by the Federal Court sitting as the Constitutional Court.
The court of law remains about law, based on the rule of law, the basis of the Constitution.
In the rule of law, the basis of the Constitution, the manner in which person was convicted comes first. There must be compliance with procedures, due process and compliance with the greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law.
The spirit of the law trumps reading within the letter of the law.
The letter of the law, by itself, isn't law.
The rule of law isn't legal term, it's political.
The rule of law isn't imposed from outside, but arises from within, from the Constitution, based on the ultimate political documents which set forth the governing institutions of state.
The ultimate political documents in Malaysia are the Federation of Malaya Agreement 1948, the Federation of Malaya Independence Act 1957 and the Malaysia Agreement 1963 (MA'63), the last inserted in the Federal Constitution recently by de facto Law Minister Wan Junaidi Tuanku Jaafar. Wan Junaidi briefly became Senate President. He's now Sarawak Governor.
Wan Junaidi's predecessor as de facto Law Minister, V. K. Liew in Sabah, told the media that AG Tommy Thomas cautioned him that "inserting MA'63 in the Federal Constitution risks creating legal complications".
The Federal government has allegedly been non-compliant on MA'63. This remains form of internal colonisation i.e. the criminal accumulation of capital by transferring wealth, income, revenue, reserves and resources from those who have no power to those with power.
Malaysia isn't Federation but "Equal Partnership of North Borneo (now Greater Sabah including the Sabah claim of the nine Sulu sultanate heirs recognised by the High Court of Borneo in Sandakan in 1939 for compensation and no territorial claims), Sarawak and Malaya (with Singapore merged after Yes/No vote in 1962/1963).
Singapore exited Malaysia in 1965 after the last straw viz. being denied access to the Malaysian Common Market. Otherwise, Singapore was willing to live with the Administration in Kuala Lumpur.
Malaya is Federation under the Definition in Article 160(2).
There are two High Court in Borneo viz. High Court of Malaya, and High Court of Borneo (Sabah and Sarawak).
There are three AG in Malaysia i.e. in Putrajaya, Sabah and Sarawak.
The Prime Minister and the Home Minister has delegated, by Administration to the Chief Minister and State Secretary, certain immigration powers which cannot be exercised by the Federal government in Sabah and Sarawak.
Otherwise, immigration remains Federal power.
No state in Malaysia can have immigration powers.
Prerogative and discretionary powers do not exist if abuse of power can be proven. There's no lacuna (gap) in local law on abuse of power. Refer Raja Azlan Shah and, most recently, Asian Arbitration vs AG Tommy Thomas.
Joe Fernandez Editor in Chief
https://www.cpiasia.org/index.php/about-cpi
Article 4: No law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed without the consent of the Conference of Rulers.
If Article 4 was amended on redundant clauses, the Conference of Rulers doesn't enter the picture.
In any case, the Conference of Rulers, as institution of tribal and feudal Chiefs, stands redundant.
The Agong should be elected by the people as head of state i.e. wielding sole executive authority which cannot be kept. It can only be delegated, by Administration, for Prime Minister and Council of Ministers appointed by Agong. Ministers, but not Prime Minister, can be sacked by Agong.
No court can go against Agong if he decrees minority Prime Minister and/or unity government. Parliament enters the picture.
The Great Council of Chiefs in Fiji, for example, was abolished not so long ago. The Maharajah in India was history after 1947.
Malaysia, having written/codified Constitution unlike for example unitary state UK, was governed by Constitutional supremacy, not parliamentary sovereignty.
No Constitution can go against itself. There cannot be permanent discrimination. Sunset clause means there's expiry date. Sunset clauses cannot be extended or substituted by new forms of abuse of power under prerogative and discretionary powers as euphemism.
Article 153: (1)It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.
(2)Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.
(3)The Yang di-Pertuan Agong may, in order to ensure in accordance with Clause (2) the reservation to Malays and natives of any of the States of Sabah and Sarawak of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to any Commission to which Part X applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities; and the Commission or authority shall duly comply with the directions.
(4)In exercising his functions under this Constitution and federal law in accordance with Clauses (1) to (3) the Yang di-Pertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.
Anwar Ibrahim said that the government would defend the Special Position, by way of reasonable proportion, in Article 153. It must be stated that Article 153 has allegedly always been observed in the breach i.e. it degenerated into "sapu bersih" (clean sweep) as a form of internal colonisation viz. the criminal accumulation of capital by transferring wealth, income, revenue, reserves and resources from those who have no power to those who have power.
Colonialism, among others, was outlawed by international law after World War II. Nazism, fascism and apartheid -- read ketuanan -- was also outlawed.
Article 153, being redundant, cannot be defended. The facilitating clauses have also been rendered redundant viz. the Definition of Malay in Article 160(2) as "form of identity", Article 3 (Islam) implied in the "form of identity", Article 152 (national language) implied in "form of identity"; Order 92, Rule 1, Rules of the High Court 2012 (national language) implied in Article 152; NEP taking the cue from Article 153, and Quota System taking the cue from Article 153.
The Parliament
The sovereignty of Parliament lasts five years.
No Parliament can bind future Parliament or be bound by previous Parliament.
Law, ultimately, remains the power of language. In jurisprudence and constitutional law, it isn't possible that anyone knows law.
Law exists, and has always existed, based on common sense, universal values, and the principles of natural justice.
The judicial power of the Federation cannot be taken away from the judiciary, even if taken away by Parliament, via ouster clauses. No law can state that this and that and that and this cannot be challenged. There's case law on this by the Federal Court sitting as the Constitutional Court.
The court of law remains about law, based on the rule of law, the basis of the Constitution.
In the rule of law, the basis of the Constitution, the manner in which person was convicted comes first. There must be compliance with procedures, due process and compliance with the greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law.
The spirit of the law trumps reading within the letter of the law.
The letter of the law, by itself, isn't law.
The rule of law isn't legal term, it's political.
The rule of law isn't imposed from outside, but arises from within, from the Constitution, based on the ultimate political documents which set forth the governing institutions of state.
The ultimate political documents in Malaysia are the Federation of Malaya Agreement 1948, the Federation of Malaya Independence Act 1957 and the Malaysia Agreement 1963 (MA'63), the last inserted in the Federal Constitution recently by de facto Law Minister Wan Junaidi Tuanku Jaafar. Wan Junaidi briefly became Senate President. He's now Sarawak Governor.
Wan Junaidi's predecessor as de facto Law Minister, V. K. Liew in Sabah, told the media that AG Tommy Thomas cautioned him that "inserting MA'63 in the Federal Constitution risks creating legal complications".
The Federal government has allegedly been non-compliant on MA'63. This remains form of internal colonisation i.e. the criminal accumulation of capital by transferring wealth, income, revenue, reserves and resources from those who have no power to those with power.
Malaysia isn't Federation but "Equal Partnership of North Borneo (now Greater Sabah including the Sabah claim of the nine Sulu sultanate heirs recognised by the High Court of Borneo in Sandakan in 1939 for compensation and no territorial claims), Sarawak and Malaya (with Singapore merged after Yes/No vote in 1962/1963).
Singapore exited Malaysia in 1965 after the last straw viz. being denied access to the Malaysian Common Market. Otherwise, Singapore was willing to live with the Administration in Kuala Lumpur.
Malaya is Federation under the Definition in Article 160(2).
There are two High Court in Borneo viz. High Court of Malaya, and High Court of Borneo (Sabah and Sarawak).
There are three AG in Malaysia i.e. in Putrajaya, Sabah and Sarawak.
The Prime Minister and the Home Minister has delegated, by Administration to the Chief Minister and State Secretary, certain immigration powers which cannot be exercised by the Federal government in Sabah and Sarawak.
Otherwise, immigration remains Federal power.
No state in Malaysia can have immigration powers.
Prerogative and discretionary powers do not exist if abuse of power can be proven. There's no lacuna (gap) in local law on abuse of power. Refer Raja Azlan Shah and, most recently, Asian Arbitration vs AG Tommy Thomas.
Joe Fernandez Editor in Chief
https://www.cpiasia.org/index.php/about-cpi
No comments:
Post a Comment