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-medias-role-in-legitimising-the-perak-power-grab&catid=82:2009-4&Itemid=10

Mainstream media's role in legitimising Perak power grab
Thursday, 02 July 2009 16:48

Anil Netto looks at something that has not been discussed much: the
mainstream media's role in legitimising the Perak power grab in the state
executive as well as the legislature.

One of the less discussed aspects of the Perak power grab has been the role
of the mainstream media in trying to legitimise the BN takeover of the
state.

A casual look at the media reporting may not reveal anything amiss apart
from the usual lack of critical questioning of the power grab in Perak. But
the more observant reader will notice the choice of terminology at critical
moments of the power grab.

A couple of examples will illustrate this. While the question of who the
real Menteri Besar was being disputed and lay before the courts, Bernama was
in no doubt in its reporting. Note especially the first para below:
http://www.bernama.com/bernama/v5/newsgeneral.php?id=394864

KUALA LUMPUR, March 8 (Bernama) - Datuk Seri Mohammad
Nizar Jamaluddin has no right to seek consent from the Perak Sultan,
Sultan Azlan Shah, to dissolve the Perak State Assembly, said Menteri
Besar Datuk Dr Zambry Abdul Kadir.

"Based on Article 16(6) of the Perak State Constitution, only the
Menteri Besar has the right to appear before the Sultan to seek His
Royal Highness' consent to dissolve the state assembly."

Zambry said this in a one-page statement faxed to Bernama here tonight
following Mohammad Nizar's statement today that he would seek to
meet Sultan Azlan Shah to present three resolutions, including calling for
the dissolution of the state assembly, passed during an emergency state
assembly sitting held by Pakatan Rakyat state assemblymen under a tree
in Ipoh last Tuesday.

Mohammad Nizar, who is also Pasir Panjang assemblyman and the
former Perak Menteri Besar, had said that he would submit a letter and
related documents to the Perak Sultan on Tuesday.

Notice how Zambry is referred to as Menteri Besar Datuk Dr Zambry Abdul
Kadir while Nizar is described as "the former Perak Menteri Besar".

Never mind that the emergency sitting of the Perak State Assembly under the
Democracy Tree five days earlier - with BN assembly members missing - had
called for the dissolution of the assembly and expressed support for Nizar
as the MB. Never mind that only a successful vote of no-confidence in the
State Assembly could remove Nizar as Mentri Besar.

This continued reference to Zambry as the Menteri Besar and Nizar as the
"former Mentri Besar" in the aftermath of the power grab and even before the
courts had decided the issue appeared to have one goal in mind: to subtly
legitimise Zambry as the MB while casting Nizar as a "has been".

Similarly, after Zambry had grabbed power, Nizar's state exco team were all
referred to as "former state exco members".

This continued right until the point the High Court declared Nizar the
rightful MB. By then the mainstream media had to make a 360 degree
somersault to change the titles and terminology of the main protagonists.

But the media gymnastics resumed after Zambry was granted a stay by the
Court of Appeal even though many wondered how a "stay" could affect the High
Court's declaration of Nizar as the rightful MB.

The media, however, had no doubts, once again labelling Zambry as the MB and
Nizar as the former MB.

A similar media endorsement came immediately after Speaker A Sivakumar was
outrageously dragged from his seat in the Dewan by plainclothes officers and
then bundled away and dumped in a changing room nearby for more than an
hour.

The Star, that self-styled "People's Paper", wasted no time in endorsing BN'
s claim that its candidate Ganesan was now the new Speaker.

http://thestar.com.my/news/story.asp?file=/2009/5/8/nation/3862171&sec=nation

Friday May 8, 2009
Showdown over Speaker's seat in Perak

Chaos at Perak Assembly sitting
Battleground Ipoh

IPOH: It was one of the ugliest scenes in Malaysian state assembly
history. There were shouting wars, furious shoving, assemblymen
standing on tables and even one grabbing the Speaker's microphone.
The dramatic showdown between Barisan Nasional and Pakatan
Rakyat assemblymen was to wrest control of the Speaker's Chair.

In the end, Barisan succeeded in its "fight" to elect former Sungkai
assemblyman Datuk R. Ganesan as the new Speaker, after Tronoh
assemblyman V. Sivakumar was forcibly removed from the Chair by
several plainclothes policemen at 2.45pm.

The House, by majority achieved through Barisan's 28 assemblymen
and three Independent assemblymen, sacked Sivakumar, replacing
him with Ganesan.

Never mind that the State Assembly had not yet been declared open; never
mind that the Speaker had ordered several state assembly members out, only
to find his microphone switched off. No questions asked about the
controversial circumstances in which Ganesan was sworn in and the
sergeant-at-arms' refusal to listen to Speaker Sivakumar's instructions.

All that appeared to matter to The Star was legitimising the BN's second
power grab, this time in the Perak State Assembly, through the paper
endorsing Ganesan's usurping of Speaker Sivakumar's position.

Ever since then, both Nizar and Sivakumar have been referred to as "former
MB" and "former Speaker" even though both have taken the matter to court and
those positions remain at best disputed.

The way the mainstream media reported the power grab - unquestioningly and
uncritically - came as no surprise to readers.

The trend worldwide is for the print media to lose readers to online media.
The mainstream media in Malaysia are only hastening their demise by their
lop-sided reporting and uncritical support of the BN. Is it any wonder then
that many of these media outfits continue to lose more and more readers to
the online media?
____

http://www.malaysianbar.org.my/general_opinions/comments/many_things_to
_many_people.html

Many things to many people
Thursday, 02 July 2009 07:56am

©The Star (Used by permission)
By SHAD SALEEM FARUQI

The doctrine of separation of powers has a mixed record, and a richness and
a complexity that defies easy description.

THE doctrine of separation of powers has been in the news repeatedly in the
last few months.

Perak: In the Perak constitutional crisis it was alleged by opposition
sympathisers that judicial review of the actions of the then Perak Speaker
was a trespass by our judiciary into the privileges of the Perak Assembly.

The adverse judicial verdicts against the Perak Speaker were alleged to be a
violation of Article 72 of the Federal Constitution which states that "the
validity of any proceedings in the Legislative Assembly of any State shall
not be questioned in any court".

Case law from Malaysia, the UK, India and Australia does not present a
consistent and coherent picture of how immune Assembly proceedings are from
judicial scrutiny.

Generally, courts refuse to examine matters that are purely internal to an
Assembly proceeding.

However, if constitutional issues are raised or personal liberty is deprived
or there is gross abuse of democratic norms by Mr Speaker or by the House,
courts have not abdicated their duty to interpret the Constitution.

In many cases in India, habeas corpus has been issued to order release of
people wrongfully detained on the orders of the House.

Lower courts: About 10 days ago in the Dewan Rakyat, MP Nurul Izzah Anwar
asked why magistrates and sessions courts came under the jurisdiction of the
Attorney-General's Chambers.

Minister in the Prime Minister's Department Datuk Seri Nazri Abdul Aziz
cleverly replied that they were actually placed under the Federal Court
Chief Registrar's office.

He adroitly avoided, and evaded, the central issue that in Malaysia lower
court judges can be part of the AG's Chambers one day and be transferred to
the hallowed halls of the judiciary the next morning.

Federal Court rejection of doctrine: MP Karpal Singh wanted a government
response to the Federal Court ruling in PP v Kok Wah Kuan (2008) that "the
doctrine (of separation of powers) is not a provision of the Malaysian
Constitution even though it influenced the framers of the Malaysian
Constitution".

Nazri affirmed that the doctrine of separation of powers that divides the
institutions of government into three branches is effective in the country.
He also said that separation of powers ensured that cases before the court
were not intervened by any quarter.

Judge as executioner: The Chief Justice and the Bar Council President have
questioned the plans of a Sessions Court judge to execute the punishment of
caning he had earlier imposed on a young offender.

Indeed, the order of the Sessions Court President trespasses into the
function of the executive and converts the judge into an adjudicator as well
as an executioner.

All of the above four examples indicate different views of the doctrine of
separation of powers.

Indeed this fundamental constitutional ideal has a richness and a complexity
that defies easy description. There is no one concept; there are many
conceptions.

In France, the doctrine is applied very differently from Malaysia. As part
of a strict separation among the organs of the state, the judiciary is not
allowed to interfere with the executive and legislative branches.

Disputes between the citizens and the state go to special administrative
courts that apply a special body of administrative law. Any questions about
the constitutionality of legislation are determined by a special committee
of the French Parliament.

In the US, India and Malaysia, on the other hand, the effectiveness of
judicial review of executive and legislative actions is the litmus test of
the working of separation of powers.

Executive-legislative relationships: In the US, the President and his
Cabinet are not, and cannot be, members of their legislature (the Congress).
The President and his Cabinet are not answerable to Congress and cannot be
dismissed on a vote of no confidence.

In Malaysia, the UK and India, on the other hand, the motive force of the
Constitution is a conjunction between the "parliamentary executive" and
Parliament.

The PM and his Cabinet are integral parts of the legislature; they are
answerable, accountable and responsible to the lower House and can be voted
out on a vote of no confidence.

If one were to examine the relationship between the executive and the
legislature in Malaysia, there is neither separation nor a check and
balance. The executive dominates Parliament politically and has also
captured the legislative process.

Parliament legitimates; it does not legislate.

As in France, the Yang di-Pertuan Agong has an important and independent law
making power of his own under Article 150 of the Constitution.

In addition, the executive makes a great deal of subsidiary legislation
which in amount exceeds parliamentary legislation by about 15 times.

Clearly, the centre of gravity of the legislative process lies in Putrajaya
not in Parliament.

Executive-judiciary relationship: In the relationship between the judiciary
and the executive, the Constitution sought to ensure that the higher
echelons of the judiciary are separate from, and independent of, the
executive.

The Constitution provides for the existence of the superior courts, the
judicial hierarchy, the jurisdiction and composition of the courts,
constitutional procedures for appointment of superior court judges,
protection for security of tenure, favourable terms of service, insulation
from politics, judicial power to punish for contempt and judicial
immunities.

The principle of constitutionality and the administrative law principles of
ultra vires and principles of natural justice enable the courts, if they are
minded to, to ensure that no matter how high and mighty the functionary of
the state may be, the law is always above him.

The gilt-edged provisions of the law on judicial independence have, sadly,
not worked well because of poor appointments, lack of integrity at the top
at various periods in the past, factionalism within the judiciary and a
general unwillingness on the part of many judges to uphold the check and
balance provisions of the Constitution.

There are other problems as well. Many executive actions like preventive
detention are expressed by the law to be non-reviewable in the courts. Most
judges interpret these provisions literally even though legal luminaries
around the world have suggested many ways to denude "ouster clauses" of
their effect.

The 1988 amendment to Article 121(1) does indeed weaken the inherent powers
of the courts to prevent transgressions of the law. The position of
Subordinate Court judges as part of the Judicial and Legal Service is quite
unsatisfactory.

The absolute powers of the Attorney-General over prosecutions, his right to
pick and choose which law to apply, and his power to transfer cases
laterally or horizontally have hitherto remained impervious to judicial
review.

All in all, the doctrine of separation of powers has a mixed record. One's
view of its working depends partly on how one views its salient features.
-------------------------------------------------------------
Emeritus Professor Datuk Dr Shad Saleem Faruqi is Professor of Law at UiTM
and Visiting Professor at USM