Picture Credit: chai chai
Although Convention -- it's not law -- was about the working of the Constitution, the court of law in Malaysia cannot disregard and/or reject, with or without explanation, the Basic Features Doctrine (BFD) permeating the Constitution!
Commentary And Analysis . . .
The just concluded High Court ruling on the Duta Enclave was triumph of the rule of law, the basis of the Constitution. It was by no means novel development for Declaration in law. The High Court ruling reaffirms that the Basic Features Doctrine (BFD) permeates the Constitution in Malaysia as in other Commonwealth jurisdiction.
Patently, for want of better phrase, the proverbial "All hell will break loose" if there's just one judge somewhere who discovers that although Convention -- it's not law -- was about the working of the Constitution, the court cannot disregard and/or reject, with or without explanation, the BFD. The oft-cited and suspected judicial activism doesn't arise. In fact, no judge should be given pat on the back for upholding the rule of law.
https://www.cpiasia.org/ takes the cue on BFD, as well, from the above external link.
Prime Minister Anwar Ibrahim cannot evade the constitutional reality that "no one can lose property without compensation". Land remains in the State List in the Constitution and the state Constitution. The land in the three Federal Territories -- Kuala Lumpur, Labuan, and Putrajaya -- doesn't enter the Debate, if any.
Article 13 (property rights), Article 5 (right to life) and Article 8 (no discrimination), all about the BFD, refer.
NCR (native customary rights) land, ancestral and historical property, based on customary practices in Adat which has force of law, are protected by the Land Office, Native Court, High Court and the related BFD in the Constitution.
The rule of law must be upheld, as sworn on solemn Oath by lawmakers. The letter of the law, by itself, isn't law at all. It's dictatorship. There's no democracy.
Basic Features Doctrine . . .
Already, Anwar may be in trouble with the people for allegedly and arbitrarily taking RM100m government money after October 7 last year for Hamas.
The on the spot grant, the proverbial putting the hands in the cookie jar, shows that checks and balances in government, in line with the principles in law inherent in BFD, has not been restored.
There's no proof that there's due diligence and forensic accounting on the money trail from the public treasury including on inflated government contracts and being party for illegalities like money laundering activities and retention of "secret profits".
In law, the Principal in the form of government and/or Company own "secret profits".
Money laundering assets can be frozen by civil action, and seized and forfeited as state revenue. In law, by the Definition, no proof beyond the money laundering assets may be deemed necessary.
International law, read compliant by national law, Defines money laundering as the accumulation of capital beyond what was possible within the lifetime.
Criminal suit, if instituted, comes after the civil action stands challenged.
The civil action, nevertheless, will not be stayed by challenge or the criminal case.
Islam, perennial preoccupation with Anwar but not when he's in Opposition, has been explored in the following link.
The Quran indeed calls for Tafsir (interpretation) of Islam from time after time, throughout the ages, so that the religion remains progressive and for all time.
Malaysia, Turkey, Iran, Afghanistan and Pakistan can be cited as five examples where there's no Tafsir.
So, what has emerged may be rotten form of politics under the guise of political Islam as euphemism which impresses no one.
Professor Murray Hunter has further take on Political Islam in separate link not available in Malaysia.
Hunter's take was carried separately at https://www.cpiasia.org/index.php/268-e-media/2667-trojan-horse-anwar-ibrahim-hijacks-malaysia-s-unity-government
Malaysia . . .
In exploring BFD, the rule of law, and the Constitution, we take walk down memory lane via Chief Justice (CJ) Richard Malanjum's Farewell Address in 2019.
Malanjum implied, before walking into the sunset, that Malaysia was not always about the rule of law.
There may be lack of skills for law practice, under LLB as academic programme for teaching, and hence lack of courtroom skills.
Malanjum, in true confessions, revealed that he had tough time convincing the legal fraternity, and even the court, that the letter of the law cannot be passed off by itself as the basis of the Constitution.
The errant approach remains violation of the rule of law.
Patently, in taking the cue from Malanjum, there's 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 greater emphasis on the spirit of the law trumps the letter of the law when read together.
Again, BFD permeates the Constitution.
If laws are not upheld, it's different matter.
The argument has been made in Malaysia, India and America, in citing some examples from Commonwealth jurisdiction and elsewhere, that the BFD does not exist in the Constitution.
The recent US Supreme Court Declaration on presidential immunity proves that the BFD exists in the US Constitution.
Likewise, the Supreme Court of India has case law in series on the existence of the BFD in the Indian Constitution. In Malaysia, there's lacuna (gap) on BFD.
Great Principles . . .
BFD falls back on two great principles in law viz. certain Articles in the Constitution cannot be amended lest it risks the Constitution going against itself and falling apart, and hence collapsing and imploding.
It would virtually be Revolution with the Constitution being torn up if BFD was disregarded by the court of law.
The Malaysia Parliament, it can be argued, disregarded the BFD when Article 10 was amended for facilitating the anti hop law. The anti hop law, based on media reports, has since fallen apart. There has been much disorientation, confusion and chaos, again for want of better terms, on the anti hop phenomenon.
The following link has "tortured" intellectual take on the anti hop law . . . https://www.gkg.legal/how-does-the-anti-hopping-law-work-can-it-be-manipulated/
"The law on anti-hopping is still not complete. It requires greater precision. All the 'loopholes' must be closed."
Acts In Office . . .
The other great BFD principle, as evident from case law, reads that "government and Parliament stand indemnified, has immunity, implicit Pardon", for "acts in office".
Interestingly, it's telling that the court of law in Malaysia never visited the jurisdictional and constitutional issues involving the BFD on the Najib cases.
If the High Court had not rushed into judgment on the RM42m SRC International case, there are no prizes for guessing. The other cases, against former Prime Minister Najib Tun Razak, would also not have seen the light of day.
The threshhold on BFD could not be crossed. It therefore follows that the various issues raised by the Najib cases, as ventilated below, do not exist.
Agong's Decree dated 29 January 2024, placing Najib under house arrest, may be another issue rendered redundant by the BFD.
The court of appeal will convene soon, based on Najib's 2nd Affidavit for judicial review, on whether the government was virtually hiding the Decree on house arrest.
The 2nd Affidavit, reportedly, was based on Anwar's own words in public on the house arrest. He was allegedly pontificating sanctimoniously and literally conceded that the government had the Decree on house arrest in its possession.
Anwar mumbled something about advising the Agong, if asked, presumably on the Decree. Agong, based on Protocol, will never ask the Prime Minister for Advice.
Najib Cases . . .
The merits in the Najib cases cannot be fought all over again.
The court can only be about closure.
Elsewhere, the court of law wouldn't be about closure if litigation doesn't end.
The prognosis isn't good since Najib, though out of public office and even in jail, remains more isolated than ever.
It was the isolation, when Najib was in office, that put him in trouble.
Intelligence remains the ability for learning from mistakes.
If there's learning, the intelligence level increases.
There can be new mistakes for continued learning.
Old mistakes, if repeated, shows that no learning has taken place, and therefore there has been no increase in intelligence.
Let's not go into incorrigibility and/or belabouring in delusions or otherwise, whether driven by demon or otherwise, and whether plagued by imbalances in brain chemistry or otherwise.
There might be no cure for degenerative conditions brought about by the aging process.
The former Prime Minister, based on the rule of law and BFD, hasn't explored whether the much debated house arrest has been rendered redundant.
He should seek further and better particulars on the one third remission that comes with jail sentence.
He can forget house arrest and go home on 23 August or 22 August this year, if he merits remission.
Then, there's time for teh tarik at the upmarket Pavilion Condo in Kuala Lumpur.
We can all join him as well in celebrating the triumph of the rule of law.
If shove comes after push, Najib should sue the defence team for legal incompetence.
They are lucky this hasn't happened.
There are great doubts that the Defence Team acted, as required by law, on Client's written instructions.
It appears, based on comments by local lawyers, lawyer in Singapore and two lawyers in India -- all consulted by Najib -- that the Defence team may have gone off at a tangent.
It explains why Najib had no lawyer during the crucial Federal Court Appeal stage of the RM42m SRC International case.
Najib was jailed, unrepresented, on 23 August 2022. It was the proverbial adding insult after injury.
Conviction . . .
In the rule of law, the manner in which person was convicted comes first.
Conviction only follows if it was perfected in law for perfection in law.
Najib was denied on procedures, due process, and on the rule of law.
Again, Malanjum's Farewell Address in 2019 was reminder, no doubt exercise in futility, that Malaysia wasn't always about the rule of law.
The Federal Court Appeal Panel on the RM42m SRC International case risks being dragged before the Judicial Ethics Committee (JEC), albeit belatedly, for any number of reasons which needn't be specified here.
The jury may no longer be out on whether Chief Justice (CJ) Tun Maimun Tuan Mat should be sacked by Agong on national TV.
SRC High Court Judge Datuk Mohd Nazlan Mohd Ghazali likewise, it has been alleged, was the forum shopping judge who virtually went into hiding behind the CJ's ample sarung when matters became controversial in the court of public opinion.
Other Issues . . .
Since the threshhold on the BFD could not be met and crossed, many other issues which may or may not have arisen on the Najib cases, do not exist.
Najib, in hindsight, allegedly did not reverse predecessor Mahathir Mohamad doing away with other checks and balances in government and degenerating into prime ministerial dictatorship. Mahathir, during the period 1981 until 2003, reduced the Cabinet System, the BN (Barisan Nasional) Supreme Council, Umno Supreme Council, and Parliament into rubber stamps.
These institutions -- colour blind but only on paper -- disregarded many great principles, besides checks and balances in government, viz. decision making by consensus -- i.e. no voice against -- power sharing via seat sharing, BN taking no more than half the seats in the legislature, sharing government positions, the affirmative action programmes being observed not in the breach; the 15 year sunset clause in the Reid Commission Report, propping up Article 153 under temporary discrimination allowed under Article 8, expired in 1972; Article 4 must be amended for automatic dropping of redundant clauses without the intervention of Parliament and/or the court of law, the pre-meeting Council of Rulers and the Conference of Rulers.
Still, it must be reiterated that Najib would not be sitting in jail if the court of law had not disregarded the BFD which permeates the Constitution.
Instead, the fallback position taken by Attorney General Tommy Thomas after GE14 was that Discretion does not exist since abuse of power could be proven.
BFD Issues . . .
There are other BFD issues in Malaysia.
The Orang Asal (original people) and Orang Asli (aboriginal people) cannot for example be listed in the Constitution, MyKad (Malaysian identity card) and government forms, whether as Orang Asal/Orang Asli, or as Native or Momogun (Sabah).
https://www.cpiasia.org/index.php/268-e-media/2663-no-reason-for-declaring-orang-asal-as-native
The above internal link has further and better particulars on related issues viz. English and Other "forms of identity", JPN (Jabatan Pendaftaran Negara or National Registration Dept), DNA, and redundant Articles, among others.
Dayak, as nation in Borneo, can be included in MyKad and government forms, just as Malay, Indian and Chinese have been included, presumably as nations in the diaspora. Indian and Chinese, at the same time, are nationalities.
Language can be mentioned as well in brackets or separately.
The Constitution, Parliament, and the court of law -- colour blind institutions -- cannot get into "divisive" elements like "Native", colour, looks, "race", "form of identity", religion, theology, DNA and geographical origin, among others.
Again in law, Article 8 in Malaysia, there can be no discrimination.
Islam And BFD . . .
Islam, under Article 3 being religion of the Federation i.e. Malaya, remains aberration in law, i.e. it's redundant, and not in line with the BFD.
The rule of law remains the basis of the Constitution.
Malaysia, in not digressing too much, isn't Federation. The Federation remains but in Malaya -- not in Malaysia -- under the Federation of Malaya Agreement 1948 and the Federation of Malaya Independence Act 1957 viz. the ultimate political documents in the Constitution, setting forth the governing institutions of state under the rule of law.
The Malaysia Agreement 1963 (MA'63) envisaged Equal Partnership of North Borneo (i.e. greater Sabah taking the cue from the defunct Sulu Sultanate claim re southeast Sabah), Sarawak, Brunei, and Malaya (with Singapore merged after Yes/No Vote in 1962) in Malaysia.
Singapore left on 9 August 1965, by the Separation Act passed by Malaysia Parliament, after the island was denied access by the Malaysian Common Market.
Brunei stayed out at the 11th hour, on 16 September 1963, over issues on oil and gas resources and the position of the Brunei Sultan in the pre-meeting Council, and Conference of Rulers.
Putrajaya . . .
Between local tyrants who run proxy government in Sabah and Sarawak with the RM sign in the eyes and the Federal government, the people trust Putrajaya.
The Federal government remains the only form of protection the people have against local tyrants running proxy government, imposed ironically by the former i.e. Putrajaya, since 1994 in Sabah and 1966 in Sarawak. The people lost sovereignty.
The people, especially the local ummah in Sarawak if not in Sabah as well, will never support Referendum for Independence unless both Territories are divided into states and the former British colonies have their own and separate Federal government. Local government elections, suspended in 1965 and then abolished, must be returned for double protection i.e. Federal and local.
Independence for Sabah and Sarawak, without Federal government, will force the local ummah into fleeing their homeland in Borneo for Tanah Orang Asli i.e. Malaya.
https://www.dailyexpress.com.my/news/239498/40pc-involves-the-constitution-hajiji/
There are many things in the Constitution which are being disregarded and/or being rejected without explanation.
For example, Article 8.
40 per cent isn't part of the Basic Features Doctrine (BFD) which permeates the Constitution.
It's part of being bogged down by the situation and/or being plagued by this and that and that and this.
The issue isn't 40 per cent but internal colonisation which can be proven.
There's more than one way for skinning the cat.
Misconception . . .
There are other BFD issues.
There's widespread misconception, for example, that the number in the population means something.
In law and the BFD, it means nothing.
In law, majority means the number of seats on the government side in Parliament.
The minority, in law, remains the losing votes in a seat.
Such voters should be represented in Parliament, on non-constituency basis, by political parties which won no seats.
In Malaysia, under the 1st past the post system, winners are declared even if they get less than 51 per cent of the votes counted.
There's no consent of the governed for legitimacy. There's loss of sovereignty.
There should be runoff between the top two contenders if no one in a seat gets at least 51 per cent of the votes counted.
The 1st past the post system only remains democratic if there are two candidates in the fray.
Joe Fernandez, Editor in Chief CPI website, Council Member of the newly-revived Center for Policy Initiatives (CPI) as Borneo-centric Think Tank.
DISCLAIMER: The views expressed by the author/contributor do not necessarily represent those of the Center for Policy Initiatives (CPI).
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