by Robert Prechter
During recessions, many businesses make a fatal mistake: They lay off employees. Some businesses have no choice; if the product or service is related more to quantity than quality, then perhaps there is no alternative. But many businesses are far better served by keeping their employees and reducing compensation. That way, they can continue to serve customers with full quality and stand ready to lead the competition when the next economic expansion arrives.
Surely most employees would rather endure an across-the-board salary cut than risk being laid off. In the 1930s, General Electric polled its workers on this very question, and the majority agreed that they would rather endure salary reductions. A few years later, when the economy recovered, GE had all of its employees in place and did not have to spend years recruiting new people. It shot out of the gate in full operating mode.
Moreover, the company had made progress improving designs and making plans during the lull. When business picked up, so did salaries. In the end, it was win-win for everyone.
Take, for example, a news service that needs to reduce costs. Instead of cutting staff by 50 percent, thereby forcing a radical reduction in the scope of the news coverage, it would make more sense to cut salaries by 50 percent and retain full service. If lowering the price of the service would keep the subscriber, viewer or listener base steady, or if reducing the cost of advertising would keep the support base steady, it would be better to make one of those moves rather than cutting staff. Either program would maintain quality and serve to keep the service in the forefront among news providers. Inflexible competitors would go out of business, thereby helping the survivors.
If an airline is in trouble, it should not cut routes and service while holding prices and salaries up. It should cut salaries and prices and continue serving the highest possible number of customers. That way, it will be the carrier of choice for many fliers when the economy returns to expansion mode. Again, everyone wins, including the employees.
This idea would work well for any business that does not have long-term contracts – such as with labor unions or high-level employees – guaranteeing salaries. Even in such a case, negotiating reductions would be smarter than going bankrupt.
This approach could work for many kinds of businesses: airlines, manufacturers, newspapers, shippers and sports teams, to name a few. If you work for a business for which this plan would serve, mention it to those in management. Even they would probably prefer a reduction in income to none at all.
Reducing salaries has another benefit, which is that fewer people would go to the state for “unemployment benefits,” reducing the strain on state budgets and taxpayers. If your business would operate better with all its employees, consider a company-wide salary reduction as opposed to layoffs.
Friday, February 27, 2009
Friday, February 20, 2009
Calm Like A Bomb: The 2nd Great Depression
by Raju M Mathew
This is the Great Depression II - The crisis that we are now facing can rightly be called The Great Depression II of 2009 . And it is several times severe than the Great Depression I of 1929. It is not mere a financial meltdown; not mere a credit crisis. It is not a recession to disappear within two years. The dimensions and intensities of the Great Depression II are quite different from the early one.
Threat to Peace and Democracy
History teaches us that every major crisis or revolution is followed by dictatorship or war. Fascism was the offspring of the Great Depression I of 1929. Crisis in the Old France led to the French Revolution; October Revolution was the consequence of the socio-economic crisis in the Czarist Russia.
Unless the present crisis are dealt immediately, millions of hard hit and unemployed people, besides the angry debtors will march towards the streets and the capitals and capture the power that invariably leads to dictatorship and then the war. It will also lead to clashes between people of different regions or interest groups and ultimately civil wars. Mass burglary or looting will become the rule and billions will die out of hunger, epidemics and civil wars.
The Great Depression II shall be the greatest threat to peace, democracy and rule of law.
Time to Act
Now we are in the early stage of the Great Depression II and as such the people and the governments are in a riddle or puzzle to grasp the crisis. In the next stage they will be in an absolute shock to realize the losses and damages that they have to encounter; over 80 per cent of the jobs will be wiped out; a good majority of trade and business people will turn bankrupts. . At that stage, so many people will commit suicide or reach on the verge of mental brake down. This is the stage of total crisis of faith; people will loose faith in every thing and they will be ready to anything. This is the most dangerous situation that will lead to revolutions, mass crimes and lootings and even civil war.
In order to avoid all these situations, we have to act urgently; the governments, international agencies, governmental and non-governmental and world religions must work together to deal with it in order to avoid greater miseries.
This is the Great Depression II - The crisis that we are now facing can rightly be called The Great Depression II of 2009 . And it is several times severe than the Great Depression I of 1929. It is not mere a financial meltdown; not mere a credit crisis. It is not a recession to disappear within two years. The dimensions and intensities of the Great Depression II are quite different from the early one.
Threat to Peace and Democracy
History teaches us that every major crisis or revolution is followed by dictatorship or war. Fascism was the offspring of the Great Depression I of 1929. Crisis in the Old France led to the French Revolution; October Revolution was the consequence of the socio-economic crisis in the Czarist Russia.
Unless the present crisis are dealt immediately, millions of hard hit and unemployed people, besides the angry debtors will march towards the streets and the capitals and capture the power that invariably leads to dictatorship and then the war. It will also lead to clashes between people of different regions or interest groups and ultimately civil wars. Mass burglary or looting will become the rule and billions will die out of hunger, epidemics and civil wars.
The Great Depression II shall be the greatest threat to peace, democracy and rule of law.
Time to Act
Now we are in the early stage of the Great Depression II and as such the people and the governments are in a riddle or puzzle to grasp the crisis. In the next stage they will be in an absolute shock to realize the losses and damages that they have to encounter; over 80 per cent of the jobs will be wiped out; a good majority of trade and business people will turn bankrupts. . At that stage, so many people will commit suicide or reach on the verge of mental brake down. This is the stage of total crisis of faith; people will loose faith in every thing and they will be ready to anything. This is the most dangerous situation that will lead to revolutions, mass crimes and lootings and even civil war.
In order to avoid all these situations, we have to act urgently; the governments, international agencies, governmental and non-governmental and world religions must work together to deal with it in order to avoid greater miseries.
Sunday, February 8, 2009
Pakatan's Own Medicine?
by Hannah Yeoh
To those who argue that the political crisis in Perak now is a taste of Pakatan’s own medicine (referring to the Sept 16 takeover plan), they have failed to see the key differences between the two.
If you remember what happened when Dato’ Seri Anwar Ibrahim claimed to have the numbers to form the new federal government, he wrote to PM Datuk Seri Abdullah Ahmad Badawi requesting him to convene an emergency sitting of Parliament. This was rejected by the PM.
The next constitutional option is to press for the dissolution of Parliament to make way for fresh new elections. That was also not entertained. Anwar Ibrahim exhausted the constitutional means that were available to him. So you can’t say that Najib’s coup and Pakatan’s plan were one and the same.
Some may also say, well what about the earlier defection of Bota assemblyman, Datuk Nasarudin Hashim? Why did Pakatan Rakyat accept him? Why not force his seat to be vacated for a by-election?
Let’s keep things in perspective here. His defection was that of an opposition lawmaker to a governing lawmaker. His defection did not alter the balance of power in the State Assembly. Pakatan Rakyat remained as government, and BN as opposition. Status quo. Logically and intelligently, anyone can safely assume that Pakatan Rakyat didn’t need a defection from BN. Thus, he defected on his own accord and on his own will. There was no need for Pakatan Rakyat to force him to vacate his seat as he did not win the seat on a Pakatan ticket. The Pakatan government really has no standing in forcing him to vacate a seat which wasn’t earned by Pakatan in the first place!
I must say that I had great respect for Sultan Azlan Shah, until recently. I wonder how he could possibly consent to the formation of a new BN state government when constitutionally, a government is still in place. And to even approve to a new Menteri Besar when the existing one is still in office? How can any state have 2 heads of government at any one time? There can only be one Menteri Besar of Perak. This is a mockery.
The Menteri Besar can only be removed by the State Assembly via a vote of no-confidence or via the dissolution of the assembly. And none of these two constitutional means has been requested by BN. How can anyone claim that Najib and Anwar are one and the same?
Next, the Sultan called for a “unity” government to be formed by BN and the Independents. Let’s be clear about this. The Independents are in no way legally bound to represent BN.
All that the Sultan and Najib has from them is a verbal assurance that “we will be friendly to BN”. And just by appearing in a press conference with Najib, it justifies the change of government? What if next week these Independents were to be seen in a press conference with Pakatan?
A real “unity” government envisioned by the Sultan should have been an all-inclusive government of Pakatan, BN, and the Independents. Pakatan and BN each have 28 seats, and the Independents 3. Thus, no single party or coalition has a commanding majority.
If there is to be a “unity” government, it calls for a new coalition of PR-BN-Ind which is impossible. Thus, what the Sultan has called for is simply a name without substance. What “unity” if it’s going to consist of only single-minded representatives - all “friendly to BN”? That’s not a “unity” government, it’s a BN government. This is a mockery of the intelligence of Malaysians. A beginning of what is to come with this PM-to-be.
To those who argue that the political crisis in Perak now is a taste of Pakatan’s own medicine (referring to the Sept 16 takeover plan), they have failed to see the key differences between the two.
If you remember what happened when Dato’ Seri Anwar Ibrahim claimed to have the numbers to form the new federal government, he wrote to PM Datuk Seri Abdullah Ahmad Badawi requesting him to convene an emergency sitting of Parliament. This was rejected by the PM.
The next constitutional option is to press for the dissolution of Parliament to make way for fresh new elections. That was also not entertained. Anwar Ibrahim exhausted the constitutional means that were available to him. So you can’t say that Najib’s coup and Pakatan’s plan were one and the same.
Some may also say, well what about the earlier defection of Bota assemblyman, Datuk Nasarudin Hashim? Why did Pakatan Rakyat accept him? Why not force his seat to be vacated for a by-election?
Let’s keep things in perspective here. His defection was that of an opposition lawmaker to a governing lawmaker. His defection did not alter the balance of power in the State Assembly. Pakatan Rakyat remained as government, and BN as opposition. Status quo. Logically and intelligently, anyone can safely assume that Pakatan Rakyat didn’t need a defection from BN. Thus, he defected on his own accord and on his own will. There was no need for Pakatan Rakyat to force him to vacate his seat as he did not win the seat on a Pakatan ticket. The Pakatan government really has no standing in forcing him to vacate a seat which wasn’t earned by Pakatan in the first place!
I must say that I had great respect for Sultan Azlan Shah, until recently. I wonder how he could possibly consent to the formation of a new BN state government when constitutionally, a government is still in place. And to even approve to a new Menteri Besar when the existing one is still in office? How can any state have 2 heads of government at any one time? There can only be one Menteri Besar of Perak. This is a mockery.
The Menteri Besar can only be removed by the State Assembly via a vote of no-confidence or via the dissolution of the assembly. And none of these two constitutional means has been requested by BN. How can anyone claim that Najib and Anwar are one and the same?
Next, the Sultan called for a “unity” government to be formed by BN and the Independents. Let’s be clear about this. The Independents are in no way legally bound to represent BN.
All that the Sultan and Najib has from them is a verbal assurance that “we will be friendly to BN”. And just by appearing in a press conference with Najib, it justifies the change of government? What if next week these Independents were to be seen in a press conference with Pakatan?
A real “unity” government envisioned by the Sultan should have been an all-inclusive government of Pakatan, BN, and the Independents. Pakatan and BN each have 28 seats, and the Independents 3. Thus, no single party or coalition has a commanding majority.
If there is to be a “unity” government, it calls for a new coalition of PR-BN-Ind which is impossible. Thus, what the Sultan has called for is simply a name without substance. What “unity” if it’s going to consist of only single-minded representatives - all “friendly to BN”? That’s not a “unity” government, it’s a BN government. This is a mockery of the intelligence of Malaysians. A beginning of what is to come with this PM-to-be.
Saturday, February 7, 2009
What happened, Tuanku?
by Wong Choon Mei
What hurt the nation was not Najib, for Malaysians know his limitations and do not expect better from him.
But they did from Sultan Azlan Shah, a very popular top judge in the late 1970s and 80s, almost revered for standing up for the people against the oppressive regime of former premier Mahathir Mohamad.
Sultan Azlan’s controversial decision - which also included a further unprecedented one of sacking Nizar as Menteri Besar - has sparked a slew of consipracy theories among the masses.
The favourite topics at the ubiquitous coffee shops across the nation include ones about Umno’s planted Trojan horse, and alleged plots between Najib and certain members of the royal family.
Nevertheless, experts and civil groups have been just as hard on the Perak Ruler and the BN.
Said Abdul Aziz Bari, law professor at the International Islamic University: “The problem in Malaysia is that the law is not allowed to take its course. I think the Sultan has made a mistake.”
Said Malaysia’s human rights body: “Suhakam noted that the Sultan of Perak has not consented to the dissolution of the state legislative assembly.”
Said KeADILan information chief Tian Chua: “Given that the Sultan previously wrote in his own book that a Ruler’s role is purely formal and that he should follow the recommendations of his Menteri Besar, that His Majesty himself could now chose to reject Nizar’s request for a snap election is surprising.
“If this was because the people of Perak were against Nizar, if this was to protect Perak against oppression, then there is cause for argument. But here, very clearly, the people of Perak want a snap election. They are not against Nizar either. So obviously, the question ‘why’ arises.
Now the way forward for Perak and its Ruler may have to be through a morass of legal battles and land mines.
It is tough for the Pakatan to back down, for it is no longer a question of losing the Perak state government, but at stake now is its entire national agenda of bringing justice and social reform to all Malaysians.
From Najib and Umno, most Malaysians believe there is nothing much to expect other than more mis-information, manipulation, plotting and intrigue that cannot be seen by the light of day.
“Najib has only confirmed what everyone thinks of him, but has not said out loud,” said a veteran party observer.
“He is not a fit leader for the country, and he knows this is the public feeling. This is why as far as possible, he will suppress any election anywhere in the country. Because he knows it is almost a certainty that he will lose, and he cannot afford anymore losses after Kuala Terengganu and Permatang Pauh.”
As for the Perak Ruler, it remains to be seen if his Majesty will heed the call of his subjects, his critics and his peers.
Said the political analyst: “Right now, the perception is that Najib and Umno are hiding behind the royal house. There are 13 states in this country and the Perak Ruler is considered to be the most enlightened because of his qualification as a federal court judge.
“If the Pakatan doesn’t chase up, the feelings of boldness in Najib and Umno to further encroach on the other royal houses will increase. Instead of growing transparency and better governance, Malaysians might end with greater oppression.”
Said a royal counterpart from the Kelantan house Tengku Razaleigh Hamzah: “Only the answer of the assembly counts, regardless of how many sworn statements, defections, press conferences and declarations, or what forms of advertisement, display, inducement or force you bring to bear on the question.
“The question must either be put to the people through state election, or to assemblymen through a formal vote in the state assembly.”
COMMENTS
Ironically, Sultan Azlan Shah, author of ‘Constitutional Monarchy, Rule of Law and Good Governance’, wrote this in his book:
“Under normal circumstances, it is taken for granted that the Yang di Pertuan Agong would not withhold his consent to a request for the dissolution of Parliament.
“His role is purely formal.”
COMMENTS FROM VARIOUS EXPERTS:
Abdul Aziz Bari, law professor at the International Islamic University
“The problem in Malaysia is that the law is not allowed to take its course. I think the Sultan has made a mistake.”
Bari said while it is the Sultan’s prerogative whether or not to dissolve the state assembly and allow fresh elections, the Sultan should not insist on the resignation of his appointed Menteri Besar, until it was clear he no longer held the majority support of the state’s lawmakers.
Malik Imtiaz Sarwar, human rights lawyer
“It could be said there is no situation of no-confidence here because of the dispute over the two seats (Behrang and Changkat Jering). A vote of no-confidence can only be taken by people who are legitimately entitled to vote, meaning people who are still assemblymen.
“As such, the legal basis of the Sultan’s directive may not be found.”
P Ramakrishnan, Aliran
“Legally there exist no doubts as to the vacancies of these two seats but there are clearly doubts as to why the Election Commission chose to take this decision which is without doubt ultra vires.”
“Aliran would also like to appeal to His Royal Highness, the Sultan of Perak, in all humility, to kindly consent to the dissolution of the state assembly as a way to overcome this deadlock.”
James Chin, political analyst from Monash University, KL wing
“According to the old British system, a monarch should always follow the advice of the Prime Minister, regardless of personal preference.
“The Sultan should know the law better than any of us, as he was formerly the Lord President of the Supreme Court
Tengku Razaleigh Hamzah, Gua Musang MP
“The Constitution makes no provision for his removal by any other means, including by petitions or instructions from any other authority,” said Razaleigh in a statement, adding that Nizar is lawfully the 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.
“Defections are not the basis for the formation of a government. Elections are. Governments are formed after citizens have expressed their choice through free and fair elections. Our constitution specifies a formal process for the formation of a government.”
”The two assemblymen (Behrang and Changkat Jering) whose allegiance we have suddenly gained are under investigation for corruption, while the Bota assemblyman’s justification for his record-breaking 10-day double-hop is an insult to the public’s intelligence and nauseating in its insincerity.”
Mahathir Mohammad, former prime minister
“Is Umno so desperate that it cannot wait for the criminal court decision against them before accepting them,” Mahathir wrote in his blog, referring to the Feb 10 corruption trial awaiting the Behrang and Changkat Jering assemblymen.
“If they are accepted now and then found not guilty, the so-called Umno-led government will be accused of influencing the court. True or not does not matter as the public’s perception is such. It will have an effect in the 13th general election.”
Khoo Kay Peng, political analyst
“Umno should prove to Malaysians that it is willing to change its ways. Accepting the two assemblymen, who are facing corruption charges, into its fold only shows it is digging in keep its old habits.”
Lim Si Pin, Gerakan Youth chief
“You are cheating the people as you think the voters are stupid. You are the representative of the people, how can you defect so easily.
“This is an abuse of the democratic process. Gerakan is against the party hopping culture and we do not support BN’s method of taking control of the Perak government by dubious means.
Lim Si Boon, Malaysian International Chamber of Commerce and Industry, Perak
“Elections are the prerogative of the (state) government.”
What hurt the nation was not Najib, for Malaysians know his limitations and do not expect better from him.
But they did from Sultan Azlan Shah, a very popular top judge in the late 1970s and 80s, almost revered for standing up for the people against the oppressive regime of former premier Mahathir Mohamad.
Sultan Azlan’s controversial decision - which also included a further unprecedented one of sacking Nizar as Menteri Besar - has sparked a slew of consipracy theories among the masses.
The favourite topics at the ubiquitous coffee shops across the nation include ones about Umno’s planted Trojan horse, and alleged plots between Najib and certain members of the royal family.
Nevertheless, experts and civil groups have been just as hard on the Perak Ruler and the BN.
Said Abdul Aziz Bari, law professor at the International Islamic University: “The problem in Malaysia is that the law is not allowed to take its course. I think the Sultan has made a mistake.”
Said Malaysia’s human rights body: “Suhakam noted that the Sultan of Perak has not consented to the dissolution of the state legislative assembly.”
Said KeADILan information chief Tian Chua: “Given that the Sultan previously wrote in his own book that a Ruler’s role is purely formal and that he should follow the recommendations of his Menteri Besar, that His Majesty himself could now chose to reject Nizar’s request for a snap election is surprising.
“If this was because the people of Perak were against Nizar, if this was to protect Perak against oppression, then there is cause for argument. But here, very clearly, the people of Perak want a snap election. They are not against Nizar either. So obviously, the question ‘why’ arises.
Now the way forward for Perak and its Ruler may have to be through a morass of legal battles and land mines.
It is tough for the Pakatan to back down, for it is no longer a question of losing the Perak state government, but at stake now is its entire national agenda of bringing justice and social reform to all Malaysians.
From Najib and Umno, most Malaysians believe there is nothing much to expect other than more mis-information, manipulation, plotting and intrigue that cannot be seen by the light of day.
“Najib has only confirmed what everyone thinks of him, but has not said out loud,” said a veteran party observer.
“He is not a fit leader for the country, and he knows this is the public feeling. This is why as far as possible, he will suppress any election anywhere in the country. Because he knows it is almost a certainty that he will lose, and he cannot afford anymore losses after Kuala Terengganu and Permatang Pauh.”
As for the Perak Ruler, it remains to be seen if his Majesty will heed the call of his subjects, his critics and his peers.
Said the political analyst: “Right now, the perception is that Najib and Umno are hiding behind the royal house. There are 13 states in this country and the Perak Ruler is considered to be the most enlightened because of his qualification as a federal court judge.
“If the Pakatan doesn’t chase up, the feelings of boldness in Najib and Umno to further encroach on the other royal houses will increase. Instead of growing transparency and better governance, Malaysians might end with greater oppression.”
Said a royal counterpart from the Kelantan house Tengku Razaleigh Hamzah: “Only the answer of the assembly counts, regardless of how many sworn statements, defections, press conferences and declarations, or what forms of advertisement, display, inducement or force you bring to bear on the question.
“The question must either be put to the people through state election, or to assemblymen through a formal vote in the state assembly.”
COMMENTS
Ironically, Sultan Azlan Shah, author of ‘Constitutional Monarchy, Rule of Law and Good Governance’, wrote this in his book:
“Under normal circumstances, it is taken for granted that the Yang di Pertuan Agong would not withhold his consent to a request for the dissolution of Parliament.
“His role is purely formal.”
COMMENTS FROM VARIOUS EXPERTS:
Abdul Aziz Bari, law professor at the International Islamic University
“The problem in Malaysia is that the law is not allowed to take its course. I think the Sultan has made a mistake.”
Bari said while it is the Sultan’s prerogative whether or not to dissolve the state assembly and allow fresh elections, the Sultan should not insist on the resignation of his appointed Menteri Besar, until it was clear he no longer held the majority support of the state’s lawmakers.
Malik Imtiaz Sarwar, human rights lawyer
“It could be said there is no situation of no-confidence here because of the dispute over the two seats (Behrang and Changkat Jering). A vote of no-confidence can only be taken by people who are legitimately entitled to vote, meaning people who are still assemblymen.
“As such, the legal basis of the Sultan’s directive may not be found.”
P Ramakrishnan, Aliran
“Legally there exist no doubts as to the vacancies of these two seats but there are clearly doubts as to why the Election Commission chose to take this decision which is without doubt ultra vires.”
“Aliran would also like to appeal to His Royal Highness, the Sultan of Perak, in all humility, to kindly consent to the dissolution of the state assembly as a way to overcome this deadlock.”
James Chin, political analyst from Monash University, KL wing
“According to the old British system, a monarch should always follow the advice of the Prime Minister, regardless of personal preference.
“The Sultan should know the law better than any of us, as he was formerly the Lord President of the Supreme Court
Tengku Razaleigh Hamzah, Gua Musang MP
“The Constitution makes no provision for his removal by any other means, including by petitions or instructions from any other authority,” said Razaleigh in a statement, adding that Nizar is lawfully the 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.
“Defections are not the basis for the formation of a government. Elections are. Governments are formed after citizens have expressed their choice through free and fair elections. Our constitution specifies a formal process for the formation of a government.”
”The two assemblymen (Behrang and Changkat Jering) whose allegiance we have suddenly gained are under investigation for corruption, while the Bota assemblyman’s justification for his record-breaking 10-day double-hop is an insult to the public’s intelligence and nauseating in its insincerity.”
Mahathir Mohammad, former prime minister
“Is Umno so desperate that it cannot wait for the criminal court decision against them before accepting them,” Mahathir wrote in his blog, referring to the Feb 10 corruption trial awaiting the Behrang and Changkat Jering assemblymen.
“If they are accepted now and then found not guilty, the so-called Umno-led government will be accused of influencing the court. True or not does not matter as the public’s perception is such. It will have an effect in the 13th general election.”
Khoo Kay Peng, political analyst
“Umno should prove to Malaysians that it is willing to change its ways. Accepting the two assemblymen, who are facing corruption charges, into its fold only shows it is digging in keep its old habits.”
Lim Si Pin, Gerakan Youth chief
“You are cheating the people as you think the voters are stupid. You are the representative of the people, how can you defect so easily.
“This is an abuse of the democratic process. Gerakan is against the party hopping culture and we do not support BN’s method of taking control of the Perak government by dubious means.
Lim Si Boon, Malaysian International Chamber of Commerce and Industry, Perak
“Elections are the prerogative of the (state) government.”
The Perak Crisis - an unsolicited legal opinion
by Art Harun
On last year's disagreement between the Terengganu palace and the BN's leadership over the choice of the Menteri Besar, I wrote:
"The notion that the Rulers are a part of check and balance mechanism to the wide powers of the executives is to me, wishful at best. The reality is the Rulers are not part of the administration of the country.
The check and balance mechanism embedded into our system (and every democracy with a constitutional monarch) only consists of the executive, legislative and of course, the judiciary .
To adopt a literal approach would vest a certain level of absolute power in the Ruler where such power does not exist in the first place. Can we imagine a situation where the Ruler may decide mid-term to change an MB because he thinks that MB does not command the confidence of the majority anymore?
We are now riding the populist wave of a political reform yet unseen before. It is a result of deep rooted anger against the BN government. But lets not allow our emotion to colour our judgement by creating, or allowing to create, a dangerous precedent, a precedent which we all may live to regret later."
The looming constitutional crisis in Perak now underscores my sentiment exactly.
Article 16 of the Perak Constitution says that the Sultan shall appoint the Executive Council ("EC"). He must first appoint as Menteri Besar from the members of the Legislative Assembly who "in his judgment is likely to command the confidence of the majority of the members of the Assembly." Then on the advice of the MB, the Sultan shall appoint other members of the EC.
We stop at this juncture to consider this provision. The Sultan did not have to ensure that the potential MB does command the confidence of the majority. The word "likely" in the above provision gives a certain level of subjectivity to the whole process. And quite how the Sultan was to perform that function is not spelt out.
Article 16 (6) is very important. It says:
"If the MB ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council."
If we could now look at this provision closely. There is no subjectivity here. It does not say, for example, "if the Sultan is of the opinion that the MB ceases to command the confidence of the Assembly", or "if it is likely that the MB has ceased to command the confidence of the Assembly". It says clearly that "if the MB ceases to command". That means this provision kicks in only and only if, it could be factually proven that the MB has ceased to command the confidence of the Legislative Assembly. In other word, the Sultan is not imbued with the power to make his own subjective judgment over this fact and matter . For this provision to operate, it must be established as a fact that the MB has ceased to command the confidence of the Assembly.
How is that fact established then? In countries practising the Westminster typed democracy, this fact is established with a vote of no confidence on the floor of the Assembly.
Next to be examined is Article 16 (7). It says:
"Subject to Clause (6) a member of the Executive Council other than the MB shall hold office at His Royal Highness' pleasure, but any member of the Council may at any time resign his office."
It is of paramount importance to note that only the MB does not hold office at the pleasure of the Sultan. From a literal reading of this article, it is clear that the Sultan may therefore sack any member of the Executive Council BUT NOT THE MB.
Can the Sultan Ask the MB to Resign?
With all due respect to HRH the Sultan of Perak, I don't think the Sultan has the power to ask for the resignation of the MB. It has been argued elsewhere that the provision of the Interpretation Act 1948 would give the power to the Sultan to dismiss the MB. While I concede that section 94 of that Act gives the power to dismiss in every instant where a power to appoint exists, it must be remembered that the Interpretation Act does not apply "where there is something in the subject or context inconsistent with or repugnant to the application" of the Interpretation Act.
Where is the context inconsistent with the application of the Interpretation Act here? The answer lies with Article 16 (7) above. It is clear that the MB does not hold office at the pleasure of the Sultan as opposed to the other members of the Assembly. Had it been intended that the Sultan should have the power to dismiss the MB as well as the other members of the Executive Council, Article 16 (7) would not have made such a glaring and clear exception so as to expressly preclude the MB from the operation of that Article.
Excersise of the Sultan's Powers
There are 2 broad categories of powers which the Sultan is vested with. The first type are powers which the Sultan shall act in accordance with the advice of the Executive Council. There is no discretionary power here. Whenever the Sultan is advised to exercise these powers, the Sultan has no choice but to exercise that power in accordance with the advice given.
Secondly there are powers which the Sultan may exercise in his discretion. These powers include:
power to appoint the MB
power to withhold his consent to a request for the dissolution of the Assembly.
Here lies the problem. The MB has requested the Sultan to dissolve the Assembly but the Sultan has refused to do so and had asked the MB to resign instead.
Was the Sultan Right?
A case law, decided by our Court in 1966 bears important resemblance to the crisis in Perak now. In Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187, the Governor of Sarawak received a letter signed by 21 members of the Council Negri (equivalent to the Legislative Assembly) expressing no confidence in Stephen Kalong Ningkan as the Chief Minister. The Governor then asked Stephen to resign. Stephen refused to resign. The Governor then declared that Stephen and all the members of the Supreme Council (equivalent to the Executive Council) as having ceased to hold office. A new Chief Minister was then appointed by the Governor. The case ended up in the High Court where among others, a declaration that the purported dismissal of Stephen as the Chief Minister was ultra vires the Constitution and was therefore null and void.
The Sarawak Constitution contain provisions which are almost identical to the provisions of the Perak Constitution.
On last year's disagreement between the Terengganu palace and the BN's leadership over the choice of the Menteri Besar, I wrote:
"The notion that the Rulers are a part of check and balance mechanism to the wide powers of the executives is to me, wishful at best. The reality is the Rulers are not part of the administration of the country.
The check and balance mechanism embedded into our system (and every democracy with a constitutional monarch) only consists of the executive, legislative and of course, the judiciary .
To adopt a literal approach would vest a certain level of absolute power in the Ruler where such power does not exist in the first place. Can we imagine a situation where the Ruler may decide mid-term to change an MB because he thinks that MB does not command the confidence of the majority anymore?
We are now riding the populist wave of a political reform yet unseen before. It is a result of deep rooted anger against the BN government. But lets not allow our emotion to colour our judgement by creating, or allowing to create, a dangerous precedent, a precedent which we all may live to regret later."
The looming constitutional crisis in Perak now underscores my sentiment exactly.
Article 16 of the Perak Constitution says that the Sultan shall appoint the Executive Council ("EC"). He must first appoint as Menteri Besar from the members of the Legislative Assembly who "in his judgment is likely to command the confidence of the majority of the members of the Assembly." Then on the advice of the MB, the Sultan shall appoint other members of the EC.
We stop at this juncture to consider this provision. The Sultan did not have to ensure that the potential MB does command the confidence of the majority. The word "likely" in the above provision gives a certain level of subjectivity to the whole process. And quite how the Sultan was to perform that function is not spelt out.
Article 16 (6) is very important. It says:
"If the MB ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council."
If we could now look at this provision closely. There is no subjectivity here. It does not say, for example, "if the Sultan is of the opinion that the MB ceases to command the confidence of the Assembly", or "if it is likely that the MB has ceased to command the confidence of the Assembly". It says clearly that "if the MB ceases to command". That means this provision kicks in only and only if, it could be factually proven that the MB has ceased to command the confidence of the Legislative Assembly. In other word, the Sultan is not imbued with the power to make his own subjective judgment over this fact and matter . For this provision to operate, it must be established as a fact that the MB has ceased to command the confidence of the Assembly.
How is that fact established then? In countries practising the Westminster typed democracy, this fact is established with a vote of no confidence on the floor of the Assembly.
Next to be examined is Article 16 (7). It says:
"Subject to Clause (6) a member of the Executive Council other than the MB shall hold office at His Royal Highness' pleasure, but any member of the Council may at any time resign his office."
It is of paramount importance to note that only the MB does not hold office at the pleasure of the Sultan. From a literal reading of this article, it is clear that the Sultan may therefore sack any member of the Executive Council BUT NOT THE MB.
Can the Sultan Ask the MB to Resign?
With all due respect to HRH the Sultan of Perak, I don't think the Sultan has the power to ask for the resignation of the MB. It has been argued elsewhere that the provision of the Interpretation Act 1948 would give the power to the Sultan to dismiss the MB. While I concede that section 94 of that Act gives the power to dismiss in every instant where a power to appoint exists, it must be remembered that the Interpretation Act does not apply "where there is something in the subject or context inconsistent with or repugnant to the application" of the Interpretation Act.
Where is the context inconsistent with the application of the Interpretation Act here? The answer lies with Article 16 (7) above. It is clear that the MB does not hold office at the pleasure of the Sultan as opposed to the other members of the Assembly. Had it been intended that the Sultan should have the power to dismiss the MB as well as the other members of the Executive Council, Article 16 (7) would not have made such a glaring and clear exception so as to expressly preclude the MB from the operation of that Article.
Excersise of the Sultan's Powers
There are 2 broad categories of powers which the Sultan is vested with. The first type are powers which the Sultan shall act in accordance with the advice of the Executive Council. There is no discretionary power here. Whenever the Sultan is advised to exercise these powers, the Sultan has no choice but to exercise that power in accordance with the advice given.
Secondly there are powers which the Sultan may exercise in his discretion. These powers include:
power to appoint the MB
power to withhold his consent to a request for the dissolution of the Assembly.
Here lies the problem. The MB has requested the Sultan to dissolve the Assembly but the Sultan has refused to do so and had asked the MB to resign instead.
Was the Sultan Right?
A case law, decided by our Court in 1966 bears important resemblance to the crisis in Perak now. In Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187, the Governor of Sarawak received a letter signed by 21 members of the Council Negri (equivalent to the Legislative Assembly) expressing no confidence in Stephen Kalong Ningkan as the Chief Minister. The Governor then asked Stephen to resign. Stephen refused to resign. The Governor then declared that Stephen and all the members of the Supreme Council (equivalent to the Executive Council) as having ceased to hold office. A new Chief Minister was then appointed by the Governor. The case ended up in the High Court where among others, a declaration that the purported dismissal of Stephen as the Chief Minister was ultra vires the Constitution and was therefore null and void.
The Sarawak Constitution contain provisions which are almost identical to the provisions of the Perak Constitution.
Friday, February 6, 2009
Misinterpretation of Words in Perak Constitution
by Kim Quek
Is it possible that a slight difference in wordings between the state constitution of Perak and the federal constitution pertaining to the loss of confidence of Mentri Besar/prime minister has misled the Sultan of Perak into thinking that the constitutional requirement necessitating the Mentri Besar to resign has been fulfilled?
Judging from the Sultan’s statement explaining his decision to appoint a new mentri besar that seems to be the case. Let me quote the relevant paragraph of the Sultan’s statement explaining why Mentri Besar Nizar Jamaluddin must step down:
After meeting all the 31 assemblymen, DYMM Paduka Seri Sultan of Perak was convinced that YAB Datuk Seri Mohammad Nizar Jamaluddin had ceased to command the confidence of the majority of the State Assembly members.
This statement would have been a correct interpretation of the constitution if applied to the Prime Minister, but an incorrect interpretation, if applied to the Mentri Besar. This is because the loss of confidence of the majority is prescribed differently in the two constitutions (relevant parts of the constitutions are shown at the end of this article).
Under the federal constitution, the loss of confidence refers to members of the House of Representatives whereas under the state constitution, it refers to the Legislative Assembly. This means that while the ascertainment of loss confidence can conducted outside Parliament (such as collective appearance before the Agung) in the federal case, it cannot be repeated in state case.
In the Perak state constitution, the loss of confidence must be ascertained within the state assembly, meaning through a vote of no confidence in the state assembly.
The reason why I said the Sultan could have been misled is that in his official statement, he mentioned the confidence of the majority of the State Assembly members. Notice the statement refers to State Assembly members, and not to State Assembly.
Under the circumstances, the Mentri Besar was right when he said that he was legally obliged to step down only when a motion of no confidence on him has been passed in the state assembly, but not otherwise.
And since the Mentri Besar has not resigned, any appointment of another Mentri Besar will be ultra vires the state constitution.
Perhaps His Royal Highness should have spared more than a few minutes to take another look at the two constitutions, so as to avert a major constitutional crisis?
The relevant extracts from the two constitutions are as follows:
Federal constitution: Article 43 (4): If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.
Perak state constitution: Artikel XVI(6): If the Mentri Besar ceases to command the confidence of the majority of the Legislative Assembly, then unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.
Remark by Sakmongkol:
Reading these two clauses, we would come to the assertions like Tengku Razaleigh did. That this whole business of political coup d’état is inherently wrong. I shall be writing on this at another time. Reading the Perak state constitution, being an ex ADUN myself, I would have thought the term Legislative Assembly would mean, the Dewan must called to order and then decide the MB’s fate.
Hence like Tengku Razaleigh said, "Defections are not the basis for the formation of a government. Elections are." And further in his article:
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.
Is it possible that a slight difference in wordings between the state constitution of Perak and the federal constitution pertaining to the loss of confidence of Mentri Besar/prime minister has misled the Sultan of Perak into thinking that the constitutional requirement necessitating the Mentri Besar to resign has been fulfilled?
Judging from the Sultan’s statement explaining his decision to appoint a new mentri besar that seems to be the case. Let me quote the relevant paragraph of the Sultan’s statement explaining why Mentri Besar Nizar Jamaluddin must step down:
After meeting all the 31 assemblymen, DYMM Paduka Seri Sultan of Perak was convinced that YAB Datuk Seri Mohammad Nizar Jamaluddin had ceased to command the confidence of the majority of the State Assembly members.
This statement would have been a correct interpretation of the constitution if applied to the Prime Minister, but an incorrect interpretation, if applied to the Mentri Besar. This is because the loss of confidence of the majority is prescribed differently in the two constitutions (relevant parts of the constitutions are shown at the end of this article).
Under the federal constitution, the loss of confidence refers to members of the House of Representatives whereas under the state constitution, it refers to the Legislative Assembly. This means that while the ascertainment of loss confidence can conducted outside Parliament (such as collective appearance before the Agung) in the federal case, it cannot be repeated in state case.
In the Perak state constitution, the loss of confidence must be ascertained within the state assembly, meaning through a vote of no confidence in the state assembly.
The reason why I said the Sultan could have been misled is that in his official statement, he mentioned the confidence of the majority of the State Assembly members. Notice the statement refers to State Assembly members, and not to State Assembly.
Under the circumstances, the Mentri Besar was right when he said that he was legally obliged to step down only when a motion of no confidence on him has been passed in the state assembly, but not otherwise.
And since the Mentri Besar has not resigned, any appointment of another Mentri Besar will be ultra vires the state constitution.
Perhaps His Royal Highness should have spared more than a few minutes to take another look at the two constitutions, so as to avert a major constitutional crisis?
The relevant extracts from the two constitutions are as follows:
Federal constitution: Article 43 (4): If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.
Perak state constitution: Artikel XVI(6): If the Mentri Besar ceases to command the confidence of the majority of the Legislative Assembly, then unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.
Remark by Sakmongkol:
Reading these two clauses, we would come to the assertions like Tengku Razaleigh did. That this whole business of political coup d’état is inherently wrong. I shall be writing on this at another time. Reading the Perak state constitution, being an ex ADUN myself, I would have thought the term Legislative Assembly would mean, the Dewan must called to order and then decide the MB’s fate.
Hence like Tengku Razaleigh said, "Defections are not the basis for the formation of a government. Elections are." And further in his article:
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.
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