Wednesday 11 February 2009

Perak's Constitutional Crisis: Learning from Australia-1975

Read here article in NutGraph



Quote:

The lesson is available free, there to be taken "ready off-the-shelf", from Canberra (Australia).

The same price need not be paid again. It was not a good deal. Not for anyone (in Australia).

In Australia it is now widely recognised that,

  1. if the government was not to have fallen on its own, it should NOT have been peremptorily dismissed.

  2. And if it was doomed to fall, it should have been allowed to do so in the natural course of democratic events, through democratic processes.

  3. The impatience to force the issue may have saved a few days or weeks of delay, but it plagued the nation with its consequences for thirty years until the matter began to be put decently to rest.
    - Emeritus Professor Clive S Kessler


Jeopardising the nation

by

Clive Kessler
(Clive S Kessler is Emeritus Professor of Sociology and Anthropology at the School of Social Science and International Studies at the University of New South Wales in Australia.)

Excerpts: Read here for more

(The following are) comments by an outsider who holds Malaysia close in his attachments on the present constitutional crisis in Perak and its national political implications may prove useful and instructive.

Tough legal questions have been raised already with no simple answers. They are questions that serious Malaysian citizens are worried, and have the right to be concerned, about. Those questions need not be repeated here.

If I were the Sultan, I would have allowed the fate of a democratically elected government, under a system of constitutional monarchy, to be decided by the people in one of two ways.

  1. Either on the floor of the people's house by their own recently elected representatives, or else,

  2. if for some reason that was not feasible or acceptable, at an election that might explicitly test public opinion on the question.
That way, the newly elected house, whether controlled by the Barisan Nasional or the Pakatan Rakyat, would authoritatively be that of the people's, with whom modern democratic sovereignty originates.

Either course would soon have seen mass public demonstrations of allegiance on both sides and, in their train, huge potential problems in maintaining civil peace and public order. That much is undeniable. Any conscientious ruler or head of state would have to be deeply concerned at such a prospect.

The Kelantan Experience, "Peristiwa 20 Ogos 1968"

In the so-called "20 Aug 1968" peristiwa in Kelantan, some half dozen or more PAS state assemblypersons were to have defected and sided with Umno at a sitting of the state assembly in the old Balai Besar in the palace precinct in Kota Baru.

It did not happen. The PAS government of Kelantan was not toppled. The frogs did not jump. They stayed under the sheltering tempurung of the party in whose name they had been elected.

But I still recall the very tense and at times frightening atmosphere as I travelled by motorcycle, through police and army roadblocks, the 25 miles from Bachok to Kota Baru and the roiling, ever-growing crowds that, along with me, were converging ominously there on that fateful morning.

These are not matters to be trifled with nor risks to be taken lightly — least of all by a constitutional head of state with a proper sense of public responsibility and duty.

Learning from Australia - 1975




In Australia in 1975, the Governor-General Sir John Kerr chose to act similarly in a similar situation.

He insisted on exercising his personal discretion that, as he understood the situation, his constitutional "reserve powers" entitled him to wield.


He dismissed a government that arguably still had a majority within the people's elected house of parliament.

The result was unfortunate, to say the least. It poisoned Australian politics, public culture, and (dare one say it?) the very soul of the nation for a generation. Its effects have not fully worn off away even now.

Malaysia could now be at risk of a similar outcome. I hope not but fear so.

For that reason, a test in the state assembly or snap polls would have been preferable whatever the costs and however messy the shorter-term practicalities of maintaining public order. As a matter of long-term public and national policy, that would have been better than a measure that substituted something else for the verdict of popular will.

In Australia it is now widely recognised that:

  • if the government was not to have fallen on its own, it should NOT have been peremptorily dismissed.

  • And if it was doomed to fall, as well it may have been, it should have been ALLOWED to do so in the natural course of democratic events, through democratic processes.
The impatience to force the issue may have saved a few days or weeks of delay but it plagued the nation with its consequences for thirty years until the matter began to be put decently to rest.

It was NOT a good deal. NOT for anyone.

  1. NOT for the ousted Prime Minister Gough Whitlam.

  2. NOT for his successor Malcolm Fraser who never overcame the "legitimacy deficit" that his manner of coming to power caused him.

  3. NOT for (Governor-General Sir John) Kerr who went into exile and died amidst widespread ignominy and contempt.

  4. NOT for Australia, which was made to live for a generation under the shadow of what was widely seen as a quasi- or pseudo-constitutionalist coup against constitutionalism.

  5. And NOT, therefore, for constitutional principle and process itself.

The Lesson for Malaysia

That is an outcome and fate that Malaysia, I hope, will avoid. The lesson is there already to be learnt from others. The same price need not be paid again.

Malaysia these days has other urgent needs and priorities. It does not need, now to be paid exorbitantly on its own account, this distraction or these afflictions.

The lesson is available free, there to be taken "ready off-the-shelf", from Canberra.

Former Lord President Tun Mohamed Suffian Hashim repeatedly insisted in his foundational written texts that in Malaysia, the constitution and nothing but the constitution is "the supreme law of the land".

Malaysia cannot afford to see constitutional principles imperilled, and constitutional processes jeopardised — not even out of an understandable impatience, or a conscientious determination, to see the urgent political and practical problems of the day speedily resolved.

1 comment:

Yap Chong Yee said...

Clive Kessler
(Clive S Kessler is Emeritus Professor of Sociology and Anthropology at the School of Social Science and International Studies at the University of New South Wales in Australia.)

Greetings Prof. Clive Kessler, I live in Perth Australia and my daughter graduated from University of New Sough Wales, an excellent university. I know what went on in that constitutional crisis, but I was not then an Australian and I was not there at that time, however the history of that crisis still resonates in Australia and it crops up ever so often. I believe the then Governor General, Sir John Kerr, was so dispised by all Australians that he migrated to live in Englan; anyway God bless his soul,

However, Prof. Kessler there is no such crisis in Malaysia because Malaysians do not feel shame and abuse of the law by judges and all law enforcement institutions are taken as a matter of course. Let me cite concrete examples :

(1) A Royal commission had found that 2 former Chief Justices had pro-actively contrived the appointment of judges at the behest of local business TYCOON and some lawyer by the name of V.K Lingam and yet NO ACTION TO PROSECUTE THEM was ever comtamplated; this matter has been going on for the past 3 years.
(2) My own case, which is a glaring exhibition of the utter incompetence and truly a case of a Judge at the highest level of the Malaysian Judiciary NOT KNOWING THE LAW.. This is a case that my wife sued for the dissolution of her company, we will not discuss the case because it will be irrelevant, and being Australian we have no quarrel that SECURITY FOR COSTS was imposed on my wife (Rm.60,000 and the sum by the judges order of court, was paid into the hands of the respondents AND NOT AS NORMAL PAID INTO COURT).; and after the respondents had received my wife’s Rm.60,000 (now at 5% interest accruing the sum has become Rm.80,000).and as said after respondents had received the Rm.60,000; they went on to apply for a 2nd order for striking out, and the Judge APPROVED THIS 2ND ORDER FOR STRIKING OUT EVEN WITHOUT ANY APPLIACATION TO REMOVE THE ORDER TO PROVIDE SECURITY FOR COSTS. That being the case, what is more ludicrous IS THE FACT THAT HAVING HAD OUR PETITION STRUCK OUT, RESPONDENTS, JUDGE DATO ZAINON BINTI MOHD. ALI AND LAWYERS FOR RESPONDENTS M/S ANNAD & NORAINI ARE STILL RETAINING OUR RM.80,000.
(3) Now of course we have this constitutional crisis on our hands because ONLY I MALAYSIA CAN THERE EXIST SIDE BY SIDE TWO LEGITIMATE GOVERNMENTS FOR THE SAME STATE. In a modern nation that claims to be a democracy, such an anomaly is shameful because it shows the powers that be are LAW ILLITERATES AND UNSOPHISCATED THIRD WORLD WALLAHS. Not so in Malaysia because Malaysians do not know shame and they do know have even the least minimum of EHTICS, MORALITY NOR RESPCT FOR THE LAW. Malaysia is Lawless.
(4) Don’t worry that the Sultan of Perak was the highest judicial officer of the nation (LORD PRESIDENT OF MALAYSIA) and he knows that what he had done is not LAW, but don’t worry he will live normal and feel happy with his decision. THIS IS MALAYSIA !