Ahad, 8 Februari 2009

the rule of law


A shameful scene is unfolding in Perak.

Let me follow up on what I said earlier about the status of the Chief Minister.

The Constitution is the highest law of the land. It is the foundation and source of legal authority, and the Rulers are sworn to protect and uphold it.

According to the Constitution, Dato’ Seri Nizar Jamaluddin is Menteri Besar until he resigns of his own accord, or is removed by a vote of no-confidence in a formal sitting of the assembly. The Constitution makes no provision for his removal by any other means, including by petitions or instructions from any other authority.

Two principles need clarifying in the light of today’s events:

First, the government of the day is established according to rules and principles codified in the Constitution. This is the difference between legitimately formed government and tyranny, which is rule by the law of the jungle.

Second, legitimate constitutional government draws all its authority from the consent of the people and only from that consent. The people consent because it is their government formed according to their constitution, whose leaders they have chosen through free and fair elections.

We need to test that consent periodically. At key points such as when governments are to be formed or to be dissolved, the Constitution provides for formal, definitive tests to find out how much of the people’s ‘consent’, or support, a government really has.

So we conduct elections to test how much support a candidate for leadership has among the people. The question is posed in elections governed by rules and oversight agreed ahead of time. If those elections are not held, or if there is some doubt that they are free and fair, then the question of legitimate leadership is not determined. It doesn’t matter how many men with flaming torches march chanting your name in the middle of the night. You need to prove you have the support of voters in a free and fair election.

Similarly, the Constitution provides for a definitive way to test if the Chief Minister or the Prime Minister commands a majority in the dewan or in Parliament, as the case may be. We put the question to a vote of confidence on the floor of the Dewan. Only the answer of the assembly counts. It doesn’t matter how many sworn statements, defections, press conferences, and declarations you have, nor what forms of advertisement, display, inducement or force you bring to bear on the question.

To formally test the mandate of the current government, whether in Perak, Sabah or the Federal government, the question must either be put to the people through state elections, or to the assemblymen through a formal vote in the dewan. These are the only tests that count in our constitutional democracy.

This is what it means to be a parliamentary democracy. To remove and install governments in any other way is to violate the Constitution, erode the rule of law, and to run the risk of forming an illegal government.

Legitimate authority can only be established through the democratic means spelled out in our constitution. Rightful authority is an entirely different thing from the brute power that can be bought, sold or seized by force.
The invisible laws make our government, nation and society possible. I won’t begin to describe the harm we would do these things if we began to ratify power achieved without regard for the rule of law in this country.

Written by razaleighhamzah

February 5, 2009 at 7:37 pm

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