Friday, January 31, 2014


Many law and constitutional experts are giving us their opinions regarding how the Selangor State Constitution should be read and what the law allows and disallows. The issue of anaj jati Selangor is being debated plus under what circumstances His Highness the Sultan can and cannot use his discretion, in particular regarding the appointment of the Menteri Besar.
I remember when my lawyers were arguing in court against my detention under the Internal Security Act (ISA) and were attempting to get my detention declared as illegal, they went into a lengthy debate regarding the spirit of the law versus the letter of the law.
According to the letter of the law, anyone deemed a threat to national security can, and most likely will, be detained without trial. That person can be detained not only after that threat has been carried out but even before that.

In other words, even while you are still just thinking about doing something and there is no certainty that you would actually follow through with your thoughts that is ground enough to detain you. How the government knows what you are thinking is not important because as long as the Minister is of the opinion that you may one day become a threat to national security that is good enough.
And opinions, as we all know, are subjective. Hence the Minister’s opinion is valid as long as he believes this.
My lawyers brought the debate into the realm of not what the letter of the law says — because if we follow the letter of the law then my detention is justified and valid because I need to prove I am not a threat to national security and not the government that needs to prove that I am — but into the realm of the spirit of the law.
Never mind what the law says (the letter of the law). What was the purpose of passing the ISA into law in the first place (the spirit of the law)?
My lawyers then showed the court the Parliament Hansard of 1960 where the Deputy Prime Minister then, Tun Abdul Razak Hussein, debated with Opposition Leader D.R. Seenivasagam of PPP about the purpose of having such a draconian law that allows for detention without trial.
Tun Razak told Parliament that the ISA would only be used against the 1,000 or so Communist Terrorists in the Pahang jungles and along the Malaysian-Thai border and specifically to combat Communist terrorism and for no other purposes other than that.
Hence, to detain me under this law would tantamount to an illegal detention since I am not a Communist Terrorist.
Based on the letter of the law I would have to remain behind bars. Based on the spirit of the law, according to what the Parliament Hansard reveals, my detention would certainly be considered illegal. So the court freed me.
Against the backdrop of the current Selangor crisis, the law and constitutional experts are quoting the letter of the law and are telling us what can and cannot be done and what powers His Highness the Sultan does and does not have. However, in reality, this may not always apply. Convention and tradition play a very big role in how you deal with the Palace.
Take one word, shall, as an example. This is what the dictionary has to say about the word shall.
The traditional rules for using shall and will prescribe a highly complicated pattern of use in which the meanings of the forms change according to the person of the subject. In the first person, shall is used to indicate simple futurity. The use of will in the first person and of shall in the second and third may express determination, promise, obligation, or permission, depending on the context.
The English and some traditionalists about usage are probably the only people who follow these rules, and then not with perfect consistency. In America, people who try to adhere to them run the risk of sounding pretentious or haughty. Americans normally use will to express most of the senses reserved for shall in English usage.
Hence when the constitution says His Highness shall take advice does it mean must?
This is what the jury is still undecided on and some say shall does not mean must while others say it is a must (such as I shall call you when I am free but that does not mean I must call you or that I shall call you only if I am free because I might even call you when I am not free).
So the question here would be, while His Highness the Sultan shall (by law) take the advice of the Menteri Besar, does this mean he must listen to this advice? I mean, taking advice is one thing but the Constitution does not say His Highness must follow that advice to the letter.
When dealing with the Palace one cannot always throw the law book into the Sultan’s face and order the Sultan around. There are also conventions and traditions to follow. To tell the Sultan that ‘shall take advice’ means ‘must follow what I say’ is asking for trouble. Do you really want to, metaphorically speaking, slap the Sultan on his face?
For example, there is no law that says you must wear a songkok on your head when having an audience with the Sultan. So, if you do not wear one, and if the secretary in charge of protocol refuses to let you in to the palace, can you throw a tantrum outside the palace gates and demand to be allowed in on grounds you have not found a law that makes it compulsory for you to wear a songkok in an audience with the Sultan?
Conventions and traditions sometimes rank higher than the law in certain situations, especially when it comes to dealing with the Palace.
His Highness the Sultan of Selangor is no ignoramus. He reads what is on the Internet. And, what he misses, his people download and print and hand to His Highness in hard copy form. Hence His Highness is following the debates and the insults that you hurl at him.
Anwar Ibrahim has already said he does not want to become the Menteri Besar of Selangor. So why are the law and constitutional experts from PKR, people like Aziz Bari, arguing that the Sultan cannot prevent Anwar from becoming Menteri Besar if the intention for Anwar contesting the Kajang state seat is not to replace Khalid Ibrahim as the Menteri Besar?
So, yes, if I were to debate people like Aziz Bari I would lose hands down because I do not have that piece of paper hanging on my wall that gives me the credentials to engage in such a debate. But there are many other issues to take into consideration other than just the letter of the law. And if just the letter of the law were what matters, then the court would not have freed me in 2001 based on a debate between Tun Razak and Seenivasagam 41 years earlier in 1960.
If people like Aziz Bari want to ignore adat istiadat they do so at their own peril. You can take the Malay out of the kampung but it is extremely difficult to take the kampung out of the Malay. And the more the Chinese and Indians vilify the Sultan the more they will be playing into the hands of those who want Malaysian politics to be the politics of the 3Rs.
I just hope some time in the near future I would not need to write another ‘I told you so’ article.

No comments: