Wednesday, March 18, 2009

Echoes from the Past : Someone Wrote This At the Tailend of September aka Even Constitutional Experts Can Flip Flop (Part 3)

Appetiser : Warrior 231 is on the warpath. His comments had been barred from a certain blog that claims to espouse freedom of expression. I argued with him that such claims are in effect fallacious as the individuals who helm such blogs have a certain agenda to pursue. Moreover, the blog owners themselves are ignorant imbeciles and despite their affectations of being erudite and intellectual, they are no better than charlatans who are adept at rabble rousing through their perverted logic and biased reasoning. We agreed that the best way forward was to expose these characters for who they are but that can wait for the time being.

Back to the Perak episode, i had the good fortune of coming across this view expressed by a local lawyer who is touted to be the next best thing after Allahyarham Eusoffe A.l Cader. I thought you might want to partake some of the delicious grub he dished up especially the 'sambal muncha' highlighted in red.....sounds familiar doesn't it? read the whole article at the link below.

Main Course
Saturday, September 20, 2008
Navigating The Constitutional Impasse

The YDPA however has an absolute discretion to withhold consent and as such, could legitimately refuse. This would leave the Prime Minister with no option other than to tender his resignation and that of his Cabinet and pave the way to the appointment of a new Prime Minister, one who in the judgment of the YDPA commands the confidence of the majority.Thirdly, the Federal Constitution does not say how to establish that the Prime Minister has “ceased to command the confidence of the majority”. A vote of no confidence is an obvious method but not necessarily the only one. To read the constitutional provision otherwise would not only be unwarranted (an unnecessary implication of meaning) but would also allow for unconstitutional action, such as the use of the provision to impede the expression of the majority of the Dewan Rakyat. It is possible that circumstances could arise where an incumbent government seeks to prevent the meeting of members in Parliament to undermine any attempt by the majority to form a new government. To read provisions of the Constitution to lend to such an outcome would be wholly repugnant to the scheme the Constitution puts in place.As such, it is open to the YDPA to form a view through other means, such as direct meetings with the majority of the Dewan Rakyat, so as to satisfy himself that the incumbent Prime Minister has in fact ceased to command its confidence. Events in Perlis and Trengganu earlier this year are illustrative of this course.

...............Sixthly, in the event the YDPA forms the view that the incumbent Prime Minister has ceased to command the confidence of the majority, the YDPA could then appoint a new Prime Minister. A further question arises as to whether the incumbent Prime Minster must firstly tender his resignation and that of his Cabinet. Though this would be ideal, I have my doubts as to whether it is a necessary prerequisite, especially if the incumbent government intends to undermine the forming of a new government. Though the Federal Constitution does not provide for the dismissal of a Prime Minister, the appointment of a new Prime Minister would merely be giving effect to the wishes of the majority of the Dewan and system of governance put in place by the Constitution.But then, what if the incumbent government refuses to vacate office? If the new Prime Minister is sworn in and given the necessary instruments of power, the incumbent government would in effect no longer be the government of the day and would no longer in law be lawfully possessed of power. Those individuals who lend themselves to this situation could be viewed as trespassing and, worse still, be seen as attempting to usurp the legitimate power of a lawful government. This has grave consequences.

The analysis set out above is based on my understanding of the Federal Constitution and it goes without saying that others may take a different view of the issues............

Revert: Why do I have this feeling that the whole affair of contesting the Perak appointments in the courts is just a cover. You see if the courts decide that the new Perak government was constitutionally appointed, that would serve as grist for a takeover via frog hopping at the federal level since a precedent had already been set in Perak..get the drift?

I am off to kill some frogs in my paddy field..... they have been a tad too loud in their croaking lately. Aiyo...buffalo!

Buffalo: mooooooooooooooo .........happy reading and happy forming conclusions ; )

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