My Anthem

Monday, September 01, 2014

MUST READ TODAY: Of constitution and conventions by PHILIP KOH

Desi usually buys the NST because I need to see what is the latest propaganda spewed out by the People's Public Enemy Number One in Media (Media) so that this scribe can counter the eveil one, IMHO OK! If you beg to disagree, hey, stop here/hear and get the here out of hell!
Today when I woke up late after watching a midnight show to lift my down spirits brought on by Mderdeka 57th anni -- I told my friends "I don't feel it" when they wished me ap Merdeka -- I headed for my news vendor, and the NST was sold out. It was a blessing in disguise for this thick in pages English second choice dail gave me one "bonus" article well worth the RM1.20 --The art of page 22 VIEWS. I hope the PA to the Selangor Sultan -- very much in the news lately by dint of Khalid Ibrahim's effors --will bring it to the HRH's attention before Wednesday.
Let's share this rumination:~~~~ YL, Desi


Of constitution and conventions

The Ruler must be allowed to make his judgment quietly, independently and in a dignified manner, as intended by the Constitution.

ONE of public law’s most interesting questions is that of the distinction between law and conventions.
Of late the issue has arisen in our country as to the role of conventions in a constitutional democracy.
In the aftermath of Sabah’s 1985 elections, the Yang Di-Pertua (YDP) swore in a minority leader, Tun Mustapha Harun, at 5.30am.
Later in the day, Datuk (now Tan Sri) Joseph Pairin Kitingan was sworn in.
Tun Mustapha made claim that an appointed Chief Minister cannot be dismissed by the YDP and so he should be declared the rightful Chief Minister.
The contestation as to whether the Sabah Constitution is clear in laying down the norms and the criteria in which a Head of State may exercise his discretion was vigorously pursued.
Article 6 of the State Constitution provides that the Head of State shall appoint as Chief Minister a member of the Legislative Assembly who in his judgment is likely to command the confidence of a majority of the members of the assembly. There is also provision for the appointment of six nominated members.
The ambiguity which was exploited by the political actors representing Mustapha was that the YDP is entitled to take into consideration the nominated members in reckoning whether the Chief Minister to be appointed is a person likely to command the confidence of the majority.
From the evidence given in Court, this issue was the one that had thus preoccupied the various protagonists at the residence of the Head of State.
One part of the questioning of the YDP was as follows:

Q: Did not Nicholas Fung (the State Attorney General) tell you that Parti Bersatu Sabah (PBS) had 25 seats and you should not appoint Tun Mustapha, but Datuk Pairin?
A: I was not advised as such. He only told me that if I appoint Tun Mustapha, it would be unconstitutional.

Another memorable exchange was in the cross examination of Fung by Raymond Kidwell QC:

Q: Datuk Nicholas, would you not agree that the state constitution provides for the six so we need to approach the appointment of Chief Minister differently?
A: Mr Kidwell, the British did not teach us that. We were taught and I agree that in terms of elections and reckoning of who commands confidence it is, “first past the post wins”.

The Court was asked to recognise that this convention exists in Sabah. Mustapha lost his case on grounds that the YDP’s appointment of Mustapha was unconstitutional, being procured by duress.
The Court also held that the YDP could not take into consideration the six nominated assembly members to augment the minority.
High Court Judge Datuk Tan Chiaw Tong also accepted Ivor Jennings’s test for the existence of conventions: “We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; thirdly, is there a reason for the rule?”
Tan took judicial notice that the majoritarian principle holds sway as a convention: “… the reason here for the rule is the democratic parliamentary principle under a party system of government that ‘it is a government of the people, for the people, and by the people’, where the choice of the majority as to the representatives to represent and govern them, prevails”.
Three persons holding high office in the Sabah crisis stood out: the State Attorney General who rose to the occasion and valiantly urged against swearing in of a minority leader, Datuk Charles Ho, the High Court Judge who was called out that morning to witness the swearing-in ceremony but left the scene being unwilling to be pressed into witnessing an “unconstitutional oath-taking ceremony”, and the acting Prime Minister, Datuk (now Tun) Musa Hitam who refused support to the palace coup.
And by their acting impartially, they provided guidance that averted a perversion of democratic rule.
A contemporary observer, Dr Khong Kim Hong, captured the actions of the Federal government admirably: “The Acting Prime Minister took three actions which brought the political coup in Sabah to an end. Firstly, he disassociated the Barisan Nasional from the events that have occurred in Sabah. Secondly, he threatened to take action against any group that was disturbing the security of the State.
“And thirdly, he stated clearly that the wishes of the people should be respected based on parliamentary democracy – implying that PBS, with the majority in the Assembly, should be allowed to form the government.”
The Federal Government action through Musa’s democratic statesmanship may be characterised as restoring order against the counter–conventional conduct of Berjaya and Usno.
Musa’s action is an exercise of critical political morality in his insistence in adhering to democratic normative behaviour.
It is the collective prayers of all reasonable citizenry that the Sultan of Selangor should as commensurate with his appointed constitutional duty deal with the matter of appointment of the Mentri Besar this coming week in a dispassionate and impartial manner exercising his judgement with wisdom, fairness and critical morality, above the noise of political partisanship.
All right-minded citizenry also call on political leaders from both sides, be it Pakatan or BN to act responsibly. We should avoid a situation where the belief in parliamentary democracy is reduced to a travesty.
A. V. Dicey, a leading jurist, puts it this way: “conventions of the constitution, (are) intended to secure the ultimate supremacy of the electorate as the true political sovereign of the State; that, in short, the validity of constitutional maxims is subordinate and subservient to the fundamental principle of popular sovereignty”.

> Philip Koh Tong Ngee is co-editor of Sheridan & Groves’ ‘The Constitution of Malaysia’ (5th edition). He was co–counsel in the Sabah case discussed above. The views expressed here are entirely the writer’s own.

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