Separation of Powers, Checks And Balances And The Lawful Roles Of The Rulers

Disclaimer : This is a sensitive subject. One wrong word and it can be deemed to be in breach of the Sedition Act and other laws as well. So please observe proper decorum and etiquette in your comments.  I will not entertain any suggestions that question the lawful existence of the Malay Rulers. The discussion here is purely on the "legal roles" of the Rulers, under the laws of Malaysia.

Firstly if I may do so, I would advise the Rulers or whichever arm of government is tasked with keeping the Rulers informed to read the Alternative Media (FB, Twitter, the blogs etc) to keep the Rulers abreast of what the public is discussing in matters that do relate to them. Because there is some discussion,  discourse and of course 'chatter' about the Rulers and their legal roles. 

One example is the following :

which is written  by Ganesh Sahathevan

In the present circumstances where the country has been deemed a 'kleptocracy' by the legal apparatus of another country ie,

• referring to the United States Department of Justice's case under the US Kleptocracy Assets Recovery Initiative laws, against certain individuals including one 'MO1' ; and
• where a sitting Cabinet Minister of Malaysia  has voluntarily proclaimed to the world media (the BBC) that the "MO1" in question is none other than our Prime Minister

the basic system of 'checks and balances' and 'separation of powers' in a democracy like Malaysia comes into scrutiny and question. 

The people are wondering "Are there checks and balances in our system of government?"  

The answer to this question will determine the quantum of satisfaction which the people will derive from the present system of government.  

Their quantum of satisfaction in turn will determine what the people would eventually like to see evolve and devolve  (please do click on the link) in the system of government of this country. 

This is not a fixed position. It is not written in stone. 

As an example, twice before, the Federal Constitution has been lawfully and legally amended by the will of the people (through Parliament which is a conduit for the peoples' will) specifically over the powers of the Rulers.  These amendments impinged severely upon the powers of the Rulers.

Without a doubt presently there is a huge amount of dissatisfaction in Malaysia with the Prime Minister in relation to his entanglement with the entire 1MDB and related scandals which among other things has resulted in the "kleptocracy" initiative by the US Department of Justice.

There is an strong undercurrent now which seeks to appeal to the Malay Rulers to "intervene" to "save the situation". 

The public discourse (according to its degree of sophistication) has put forward various 'appeals' and 'suggestions' to the DYMM the YDP Agong and the Malay Rulers in general.

• The Realpolitik blog heading above is one example.  
• The collection of 1.3 million signatures by Tun Dr Mahathir which have been presented to the DYMM the YDP Agong is another example. 

As an example I reproduce herewith Ganesh Sahathevan's comment from Realpolitik :

The 14th and current Yang di-Pertuan Agong , Sultan Abdul Halim of Kedah, faces a situation where the exercise of his Constitutional and reserve powers are under intense scrutiny given the 1MDB scandal that implicates his prime minister Najib Razak in theft, money laundering and various other criminal matters that are being investigated in a number of jurisdictions. At stake is the proper governance of his country, and he faces ongoing calls from his people to dismiss his prime minister who has entrenched himself using both political machinery and legislation.

I will try to be brief. 

We the people, expressing our will through Parliament, have already curtailed the legal powers of the Malay Rulers.  In two amendments to the Federal Constitution, specific to the powers of the Malay Rulers, we have "devolved" their roles in the government of the Federation.  

This is why the most recent NSC Bill was lawfully passed by a majority vote in Parliament and then constitutionally enacted as Law WITHOUT the consent of the Rulers.  And also "in-spite" of some objections raised by the Rulers.  

The lawful passing and the constitutional enactment of the NSC  Bill is proof enough that the previous two amendments to the Federal Constitution  to reduce the powers of the Malay Rulers has practically removed all their 'legislative' authority.    

Practically, the Rulers' role is now one of public ceremony.

The passing of the NSC Bill shows that we have evolved from a 'constitutional monarchy' to perhaps a 'republican monarchy'.  Here we must note that Malaysia has moved a few steps ahead of Britain - our former colonial master whose system of constitutional monarchy we have copied. Until today, the Queen of England must sign any bill passed by the British Parliament before it becomes law.  That is no more the case in Malaysia.

In the scheme of 'separation of powers' and 'checks and balances' those constitutional amendments of the 1980s that were led by Tun Dr Mahathir who was Prime Minister at that time were seen as a 'check' by the people, through their elected representatives against the Royals who were of course not elected.

The thrust of Dr Mahathir's argument (which many people cannot even recall), and which is highly valid until today, was that so much power should only be held by an elected official  who will be subject to an electoral process.  In other words you can have power only as long as you  have the majority vote of  the people.  Also an electoral process should not grant or vest power in an individual who himself is not subject to a periodic electoral process. 

The bottom line is - to ask the Royals to intervene in a process to remove the Prime Minister or to initiate some kind of legal process against him may be way beyond the scope of the Rulers' legal powers.  I suspect this is the position taken by DYMM the YDP Agong in his recent meeting with Tun Dr Mahathir. 

However Dr Mahathir is not ignorant of all this. 

Dr Mahathir's point is that this is not an unconstitutional request to summarily remove a sitting Prime Minister.  That would or should be illegal.  

Dr Mahathir's point is that a serious crime of embezzlement of vast amounts of public funds has been committed. And it also happens that the Prime Minister is entangled in this scandal.  Because this involves so much public funds (an unprecedented level) and it involves the Office of the Prime Minister, it is the crime that should be disentangled.  The focus is on the crime, the embezzlement of vast amounts of public funds.

Hence a Commission of Inquiry into the 1MDB, including the commissions and ommissions of the AG's Chambers, the Police, Bank Negara Malaysia and the MACC with regards to this huge embezzlement should be instituted.  This is where the Rulers Council can still have a legal and lawful role to play.  Because a "Royal Commission of Inquiry" still bears the "Royal" seal.  This is where Dr Mahathir seeks to draw the Rulers' attention.  It is not a silly and crude attempt to "overthrow the Prime Minister". 

My view is that the emperor has already suffered severe public embarrassment. The emperor is walking the streets completely, buck naked.  So is Rolly Polly.  It is the parasites,  the amoral and the scum, who will be cursed by generations of Malaysians, who surround him and keep him afloat.  Their end will come and it will not be pretty.

SO WHERE SHALL WE GO FOR HELP?

My suggestion is that we as Malaysians should appeal to a much higher power whose ability and help is more certain. I am referring to ourselves. An old school mate smsed me :"Who will save us?" I said, 'We'. We will have to save ourselves. 

There is no power on the surface of this earth that is more powerful than the will of the people.  And that is us.

This 1MDB scandal is exposing the fact that in many ways we are still a Third World country.  

One corrupt fellow needs to have just TWO or THREE public officials in his pocket and he is legally untouchable for any wrongs that he might commit.   It is so easy. 

Folks, there are absolutely NO MORE checks and balances. Zero. Zilch.

We must change the laws and the rules.  That is how we are going to save ourselves. 

First we must limit the Prime Minister to a maximum two terms (of five years each) in office. 

(I would prefer just one term of seven years.)

The same term limits should apply to the Chief Ministers, Menteri Besars, Governors and Wakil Rakyat. 

(We really dont need an ADUN or MP who has been there for 20 years and 40 years. As though there are no other people in the country. We must have constant change and new blood.)

We can also adopt a system where the Prime Minister is directly elected.  Just like the American or Philippine system (a republican system but we can maintain the "PM").

The Speakers of the Dewans (Parliament, State Assemblies) must have their discretionary powers clipped  in that there must be clear rules on how they should dispense their authority.

Two Speakers simply said they will not entertain any motion for a No Confidence vote against a Menteri Besar and the Prime Minister.

What was their basis? The answer : There are no provisions for No Confidence motions. 

We have no choice, we will have to tighten and specify the rules of engagement so that clever beggars do not find loopholes to abuse the system.

There is no need to reinvent the wheel. The American Congress recently passed an anti-Saudi Arabia law (the JASTA) which was "vetoed" by their president Obama. Then the Senate and the Congress voted again to overrule the president's veto. They have procedures to allow the "will of the people" to prevail. We can copy that. That is a check and balance. 

 

We must make the appointment of very critical and extremely important office holders like the IGP, the Attorney General, the Chief Justices, president of the Federal Court, the DG of Immigration, the DG of Customs, the Chairman of the Elections Commission subject to confirmation by Parliament (in other words confirmation by the peoples' elected representatives).

(The DG of Postal Services and the Guru Besar of the Sekolah Kebangsaan Fakir Terbang need not be subject to the same level of scrutiny - or at least not yet.)

While in office they must also periodically (at least once a year) present extended reports of their  performance for the scrutiny of  Parliament or a bipartisan Parliamentary committee - at public hearings.  Parliament must be given the power to instruct for investigations to correct for lapses, with appropriate consequences for the office bearers.

In this way we do not have to bite our finger nails for a full FIVE YEARS to effect change.  Plus they can redelineate the constituencies before the next general elections.  

 

Finally we must do away with the "excessive legal protection"  (via the State Legislatures or Parliament) accorded to the  fatwas of the Muftis.  

What I mean is the proviso that to even question a gazetted fatwa is a crime. This is quite insane.  That is clearly backward and totally regressive.  

We must obey the law.  That is a fact.  It is a crime if we do not obey the law. This includes the NSC Act.  You must obey the Law. 

But since when is it a crime to say that you do not like or that you disagree with the NSC Act? 

I have to accept and obey the Sedition Act. So does everyone else. But why should it be a crime to say that you dislike or do not agree with the Sedition Act? Why should it be a crime to criticise or make fun of the NSC Act or the Sedition Act?

The NSC Act, Sedition Act etc are passed by Parliament which is a collective. Over 220 MPs discuss and debate in public. And even after the Law is passed, Parliament can still abrogate the Law at some time in future.

So what is the big deal with a fatwa thought up by just one person, a mufti, who is NOT an elected person. A mufti is an appointed official.

We must also abolish the Syariah Penal Code particularly the 3,5,6 Laws.  Three years jail, RM5000 fine and six strokes of the rotan for breach of the Syariah Penal Code.

Why? Because these are sectarian laws that are NOT universal among all Muslims around the world. There is NO SUCH THING as a universal code of Syariah Laws. Never was, never will be.

So you see folks, this is how you become Third World. When you tie yourselves into knots.

This is what I mean when I say that it is we, the people, who have the power to save ourselves. 

We are also definitely more powerful than any bunch of thieves.  Just wait and see.