Is the PN government an ‘Appointed government’ or an ‘Elected’ one? 

A lawyer, Jahaberdeen M. Yunoos has argued that the Perikatan Nasional Government (or ‘National Alliance Government’) (‘PN’) was a ‘Front-Door government’ and not a ‘backdoor’ one (see here).

He says lawyers who call the current government a ‘backdoor’ one, exhibit ‘honest ignorance’, or ‘intellectual dishonesty, prodded on by partisan prejudice’.

Leave the King out of this

One cannot drag the King and his constitutional role into these issues: it is a political morass over events that have transpired since the Night of the Long Knives: (see here).

‘Front-Door’ Government

His argument is that the King had correctly exercised his constitutional powers over the formation of the PN Government.

When His Majesty had appointed Prime Minister Muhyiddin that was because Muhyiddin ‘had enjoyed the support of the majority of the members of Parliament’.

Did he? How do we know?

Subsequent events do not bear out this hypothesis

And there is a quick answer to Jahaberdeen’s argument.

To this day, that List of Names that Muhyiddin Yassin disclosed to the King has not been made public. Importantly, the People have not forgotten this.

Was the PN Government formed ‘in the same way as the PH Government?’

Jahaberdeen’s argument that the PN Government was formed ‘in the same way as the PH Government’, does not bear the light of close examination.

The PH Government was a direct choice of a majority of 12.299 million voters, out of 14.94 million registered voters; a turnout of 82.32%: see here.

The PN Government is arithmetic – purely mechanical – construct of just over 112 MPs.

Two hands, a pair of legs, a torso and a head do not make a person.

These need to be conjoined from birth, and animated by a living soul: that makes a whole person.

That represents the spirit of the Constitution.

To have a group of MPs numbering just more than 112 MPs, but without the electoral mandate behind it, does not cause a ‘moral activation’ Article 43(2)(a) of the Constitution – although it complies with the letter of the law. ¹ Article 43(1)(a) of the Federal Constitution reads: “ (1) The [King] shall appoint a [Cabinet of Ministers] to advise him in the exercise of his functions. (2) The Cabinet shall be appointed as follows, that is to say: (a) the [King] shall first appoint as [Prime Minister] to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House; …”

The mere application of the letter of the law by ignoring the spirit (of the Rule of Law) that animates it, does not lead to true justice.

To quote Boswell, who extolled the speeches of Thomas Erskine – one of the greatest trial lawyers of all time – ‘it is a dangerous engine of arbitrary power’. ² Boswell, ‘Life of Johnson’ op. cit, referred to in  ‘Thomas Erskine and Trial by Jury’, Hostettler, John, (1996) Barry Rose Publishers Ltd, Chichester, England

Thus, we now have a government without a (moral) Compass – the People did not authorise these MPs in PN to lead them: that is the answer.

What did the electorate ask for at G.E. 14?

Most voters rejected most of the BN candidates.

Most voters elected most of the PH candidates.

This answers the question whether the BN government is an ‘Appointed’ government or an ‘Elected’ one.

But PN  MPs may argue that they too are ‘elected MPs of the people’

Quite so.

But they forget this – after the GE 14 election – they were in the minority.

They had no electoral mandate.

An Electoral mandate – the power given by the people – differs from the power held by a group of just more than 112 MPs who now say,  ‘We act on behalf of the People’.

Do they?

An Easy Answer

There is an easy answer to Jahaberdeen’s hypothesis, and also an answer to the question posed in this essay:

“Shortly after the GE 14 elections, had this entire PN Cabinet been paraded before the nation – would the majority of the Voters have accepted it?

What do you think?

Bad Leaders often abuse Democratic ideologies and Legal structures

Those who spew propaganda, that they are elected ‘legitimately’, forget that one of the greatest weaknesses of democracy is that legal structures can be – and often are  – abused.

Getting the law right is not important: getting the intent behind the law right –now that is essential to democracy.

The current situation is a case in point.

We now turn to a foreign example.

There is a distinction between ‘Rule of law’ and ‘Rule by law’

These two phrases mean different things: (see here).

The first is a legitimate form of Government.

The second is but a mockery of the first.

Observe the example of a leader of a country (which is often mistakenly touted) as the foremost democracy in the world.

He runs his government not by the Rule of Law but by the Rule by Law.

Elizabeth Goitein,³a journalist  writing in The Atlantic in February 2019 issue (see here) says this:

‘In the weeks leading up to the 2018 midterm elections, President Donald Trump reached deep into his arsenal to try to deliver votes to Republicans.

‘Most of his weapons were rhetorical, featuring a mix of lies and false inducements—claims that:-

…every congressional Democrat had signed on to an ‘open borders’ Bill (none had);

…that liberals were fomenting violent ‘mobs’ (they weren’t),

…that a 10 per cent tax cut for the middle class would somehow pass while Congress was out of session (it didn’t).

…But a few involved the aggressive use—and threatened misuse—of presidential authority:

‘…He sent thousands of active-duty soldiers to the southern border to terrorize a distant caravan of desperate Central American migrants; announced plans to end the constitutional guarantee of birthright citizenship by executive order, and tweeted that law enforcement had been ‘strongly notified’ to be on the lookout for ‘Illegal Voting.’

Goitein continues:

‘More is at stake here than the outcome of one or even two elections. Trump has long signalled his disdain for the concepts of limited presidential power and democratic rule.’

‘As democracies around the world slide into autocracy, and nationalism and antidemocratic sentiment are on vivid display among segments of the American populace, Trump’s evident hostility to key elements of liberal democracy cannot be dismissed as mere bluster.’

‘… It would be nice to think that America is protected from the worst excesses of Trump’s impulses by its democratic laws and institutions.’

Goitein concludes that Trump has,

‘[By] the institutions of democracy, almost absolute power’, which she described as,

‘a loaded weapon’.

This simple example shows how even leaders of modern democracies subvert the Rule of Law itself.

The phrase ‘Rule of Law’ has only one meaning

The leaders of the nation must obey a higher law.

They must comply with the spirit of the Rule of Law: that spirit is always about righteousness.

As opposed to this, those who propose to run the country on the basis of ‘Rule by Law’ legitimise their actions by pointing to the letter of the law.

That kind of rule completely suppresses the spirit behind the Rule of Law.

A Fundamental Defect in the Hypothesis

Much of the force in the arguments of the PN coalition suffers from a deep legal defect.

We started with Jahaberdeen’s erroneous argument that those who referred to the PN Government as ‘a backdoor government’ were ‘intellectually dishonest’.

The real answer to that statement is simple:

A government cannot exploit the principles of the Rule of Law in such a way as to ‘tear at the very fabric’ of the foundational principle of democracy.

“The power to rule comes directly from the voters, the rakyat.

If the rakyat have not given that power to these MPs; or had – at the last election– rejected this group of MPs or their coalition – then these MPs have no business running the government.

If you need a legal authority, one is ready at hand.

Tearing at the very fabric of the Constitution

The mercurial Indian lawyer Palkhivala, gave tongue to words that echo this kind of behaviour.  He said that it was conduct:

‘[… which] tears at the very fabric of the Constitution’.

In Kesavananda Bharati v. The State of Kerala,⁴AIR 1973 S.C. 1461, (1973) 4 SCC 225 the Indian Supreme Court, by a majority of 7 to 6 held that,

‘Any part of the Constitution may be amended by following entrenched procedure⁵In India prescribed in Article 368 but that ‘no part of the Constitution may be so amended as to ‘alter the basic structure’ of the Constitution. It is unamendable.’

Prime Minister Indira Gandhi challenged this ruling in 1975.

She desired to amend the Indian Constitution.

Her proposed amendment gave her, as PM, immunity against all criminal proceedings.

It was successfully challenged.

The Supreme Court struck it down for violating the principle of free elections and the rule of law, because of the 1973 Kesavananda ruling.⁶Indira Nehru Gandhi vs. Raj Narain 1975 (Supp.) SCC 1)

Gandhi’s government eventually dropped the bill.

The Supreme Court of India has since continuously affirmed ‘the basic structure’ doctrine. ⁷Indian constitutional law, it is said, owes its principle to a German scholar, Professor Dietrich Conrad, formerly Head of the Law Department, South Asia Institute of the University of Heidelberg, Germany. In February 1965, while on a visit to India, Conrad delivered a lecture on ‘Implied Limitations of the Amending Power’ to the Law Faculty of the Banaras Hindu University. The Conrad paper was sent to Prof. T. S. Rama Rao in Madras for his comments. Counsel Nambyar’s attention was drawn to the paper which he read before the Supreme Court, though with little result. He also delivered a paper entitled, ‘Basic Structure of the Constitution and Constitutional Principles,’ delivered at the Indian Law Institute in New Delhi on April 2, 1996. It was published in Law and Justice, a journal of the United Lawyers Association, New Delhi (Vol. 3, Nos. 1-4; pages 99-114). A. G. Noorani, recalling the paper, writes: ‘It was no mere coincidence that a German jurist had thought of implied limitations on the amending power. Article 79(3) of the Basic Law of the Federal Republic of Germany, adopted on May 8, 1949, six months before the drafting of India’s Constitution ended, bars explicitly amendments to provisions concerning the federal structure and to ‘the basic principles laid down in Articles 1 and 20 (on human rights and the ‘democratic and social’ set-up). The Germans learnt from the bitter experience of the Nazi era. The framers of the Constitution of India refused to look beyond the Commonwealth countries and the United States….’. (See here).  She remarks that ‘Prof. Conrad aptly remarked that ‘in this free trade of constitutional ideas the Indian Supreme Court has come to play the role of an exporter. This holds true with respect to at least two major innovations introduced by the court’; namely, public interest litigation and ‘the basic structure doctrine’: (see here and here). Noorani’s ending is laced with academic yearning: ‘There is a sad void in our academia. There is no institution which informs us of legal developments in neighbouring countries. There is, however, one institution in London which does just that and on a far wider scale, too. It is Interights, at Lancaster House, 33 Islington High Street, London, NI 9LHO.’  We can say the same thing in Malaysia, without loss of meaning.

Why is the Kesavananda Bharathi case important for our discussion?

Because it tells us, that you cannot use the processes and procedures of the law to do the wrong thing – in this case ushering in a backdoor government; and then claiming it has been ‘established in accordance with the law’ – this is the strategy Indira Gandhi used, and failed.

“Viewed against that case, the formation of the PN Government is, in my view, against the spirit of the Constitution and the Rule of Law.

The Kesavananda Bharathi principle has been accepted by the highest courts in Malaysia

The ‘Basic Fabric’  principle met some initial reluctance.⁸ Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 (FC) After a thaw in the resistance,⁹ Phang Chin Hock v PP [1980] 1 MLJ 70 (FC) the Kesavanda Bharathi principle has been accepted by the highest courts here.¹⁰ Sivarasa Rasiah v The Malaysian Bar [2010] 2 MLJ 333, and later on in an exceedingly strong judgement in Semenyih Jaya Sdn Bhd v Land Administrator of the District of Hulu Langat [2017] 3 MLJ 561 (FC)

Does the PN government have the Moral Authority to form the government?

The political rulers of this country need to ask themselves two questions:

Did the people give them the mandate to rule, immediately after the last election?

Are these leaders doing what the majority of the voters at the last election wanted?

If the answer is a ‘No’ to either, then any government loses its legitimacy.

When a government’s moral legitimacy is gone, the voters will look at it and say: ‘We have been betrayed’.

A good leader, therefore, should implement the spirit of the Rule of Law.

A leader must respect the wishes of the majority of the people.

The Answer …

The answer to these questions will come in the next election – whether the election is held in two months, six months, or three years.

That is – if this government does not, by then, implode.

Each passing day, we hear the dissonant rumblings of PN’s various component parties.

For those who have betrayed once, a second or third time is not a problem.

The kleptocrats have so much money, they can purchase a person’s conscience at any price – they think everyone has a price.

“For people of this nature, morality is never an issue – being in power is.

A ‘Government Of the People, By the People, For the People’

This is a legendary phrase, attributed to Abraham Lincoln.

How did Abraham Lincoln come to create this expression?

It turns out that the evangelist John Wycliffe had authored it in 1384.

William H. Herndon, a partner in Lincoln’s legal firm, procured some sermons which referred to Wycliffe’s phraseology.

He showed them to Lincoln.

Lincoln adopted Wycliffe’s words, changing his own speech to say:

‘Democracy is direct self-government, over all the people, by all the people, for all the people.’

At Gettysburg, Lincoln uttered that very same – and fervent – pledge, adding that,

‘[Under] God,… this democracy shall not perish from the earth’: (see here)

One wonders whether ours has.

Why is John Wycliff’s statement important?

If we test Wycliffe’s principle against the PN Government, will it survive it?

If we applied it to the way PN MPs took power, it shows that the PM MPs did not follow the spirit of the – ‘of’, ‘by’, and ‘for’, principles –  in Wycliff’s statement.

And thus they are merely an appointed body, not an elected one.

A body bereft of its spirit

The Rule of Law,  and a Rule by law are two different things.

A human person is composed of both spirit and flesh.

Remove the spirit, and what remains is nothing but a corpse.

All these clever political arguments, all these ‘legal’ explanations: all that will not work if a body lacks a spirit.

It reminds one of what a Great Being once said …

‘It ill beseemeth the station of man to commit tyranny; rather it behoveth him to observe equity and be attired with the raiment of justice under all conditions.’ ¹¹His Holiness, Bahá’u’lláh, Tablets of Bahá’u’lláh revealed after the Kitab’i Aqdas (p.170)