Although Convention — it’s not law — was about the working of the Constitution, the court of law in Malaysia cannot disregard and/or reject, with or without explanation, the Basic Features Doctrine (BFD) permeating the Constitution!
Commentary And Analysis . . . The just concluded High Court ruling on the Duta Enclave was triumph of the rule of law, the basis of the Constitution. It was by no means novel development for Declaration in law. The High Court ruling reaffirms that the Basic Features Doctrine (BFD) permeates the Constitution in Malaysia as in other Commonwealth jurisdiction.
Patently, for want of better phrase, the proverbial “All hell will break loose” if there’s just one judge somewhere who discovers that although Convention — it’s not law — was about the working of the Constitution, the court cannot disregard and/or reject, with or without explanation, the BFD. The oft-cited and suspected judicial activism doesn’t arise. In fact, no judge should be given pat on the back for upholding the rule of law.
We take the cue on BFD, as well, from this external link.
Prime Minister Anwar Ibrahim remains duty-bound by the constitutional reality that “no one can lose property without compensation”. Land remains in the State List in the Constitution and the state Constitution. The land in the three Federal Territories — Kuala Lumpur, Labuan, and Putrajaya — doesn’t enter the Debate, if any.
Article 13 (property rights), Article 5 (right to life) and Article 8 (no discrimination), all about the BFD, refer. NCR (native customary rights) land, ancestral and historical property, based on customary practices in Adat which has force of law, are protected by the Land Office, Native Court, High Court and the related BFD in the Constitution.
The rule of law must be upheld, as sworn on solemn Oath by lawmakers. The letter of the law, by itself, isn’t law at all. It’s dictatorship. There’s no democracy.
Basic Features Doctrine
Already, the jury may no longer be out on Anwar taking RM100m government money after 07 October last year for the Gaza Strip.
It’s not clear whether the on the spot grant was about checks and balances in government, in line with the principles in law inherent in BFD, being restored.
There’s probably proof that there’s due diligence and forensic accounting on the money trail from the public treasury including on inflated government contracts and being party for illegalities like money laundering activities and retention of “secret profits”. In law, the Principal in the form of government and/or Company own “secret profits”.
Money laundering assets can be frozen by civil action, and seized and forfeited as state revenue. In law, by the Definition, no proof beyond the money laundering assets may be deemed necessary. International law, read compliant by national law, Defines money laundering as the accumulation of capital beyond what was possible within the lifetime. Criminal suit, if instituted, comes after the civil action stands challenged. The civil action, nevertheless, will not be stayed by challenge or the criminal case.
Islam and Anwar has been explored in the link.
The Quran indeed calls for Tafsir (interpretation) of Islam from time after time, throughout the ages, so that the religion remains progressive and for all time. We stand corrected based on what Ayatollah Khomeini thundered in Iran, “Islam, not word more, not word less”.
Malaysia, Turkey, Iran, Afghanistan and Pakistan may be cited as five examples where there’s allegedly no Tafsir.
So, in taking the cue from PAS, what may have emerged may be form of politics under the guise of Islam as euphemism.
Malaysia
In exploring BFD, the rule of law, and the Constitution, we take walk down memory lane via Chief Justice (CJ) Richard Malanjum’s Farewell Address in 2019.
Malanjum implied, before walking into the sunset, that Malaysia was not always about the rule of law. There may be lack of skills for law practice, under LLB as academic programme for teaching, and hence lack of courtroom skills. Malanjum, in true confessions, revealed that he had tough time convincing the legal fraternity, and even the court, that the letter of the law cannot be passed off by itself as the basis of the Constitution. The errant approach remains violation of the rule of law.
Patently, in taking the cue from Malanjum, there’s greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law. The greater emphasis on the spirit of the law trumps the letter of the law when read together. Again, BFD permeates the Constitution. If laws are not upheld, it’s different matter.
The argument has been made in Malaysia, India and America, in citing some examples from Commonwealth jurisdiction and elsewhere, that the BFD does not exist in the Constitution. The recent US Supreme Court Declaration on presidential immunity proves that the BFD exists in the US Constitution. Likewise, the Supreme Court of India has case law in series on the existence of the BFD in the Indian Constitution. In Malaysia, there’s lacuna (gap) on BFD.
Great Principles
BFD falls back on two great principles in law viz. certain Articles in the Constitution cannot be amended lest it risks the Constitution going against itself and falling apart, and hence collapsing and imploding. It would virtually be Revolution with the Constitution being torn up if BFD was disregarded by the court of law.
The Malaysia Parliament, it can be argued, disregarded the BFD when Article 10 was amended for facilitating the anti hop law. The anti hop law, based on media reports, has since fallen apart. There has been much disorientation, confusion and chaos, again for want of better terms, on the anti hop phenomenon.
The following external link has “tortured” intellectual take on the anti hop law . . . https://www.gkg.legal/how-does-the-anti-hopping-law-work-can-it-be-manipulated/
“The law on anti-hopping is still not complete. It requires greater precision. All the ‘loopholes’ must be closed.”
Acts In Office
The other great BFD principle, as evident from case law, reads that “government and Parliament stand indemnified, has immunity, implicit Pardon”, for “acts in office”.
Interestingly, it’s telling that the court of law in Malaysia never visited the jurisdictional and constitutional issues involving the BFD on the Najib cases. If the High Court had not rushed into judgment on the RM42m SRC International case, there are no prizes for guessing. The other cases, against former Prime Minister Najib Tun Razak, would not have seen the light of day.
The threshhold on BFD could not be crossed. It therefore follows that the various issues raised by the Najib cases, as ventilated in the court of public opinion, do not exist.
Najib, in hindsight, may have reversed predecessor Mahathir Mohamad doing away with other checks and balances in government and degenerating into prime ministerial dictatorship. Mahathir, during the period 1981 until 2003, reduced the Cabinet System, the BN (Barisan Nasional) Supreme Council, Umno Supreme Council, and Parliament into rubber stamps.
These institutions — colour blind but only on paper — disregarded many great principles, besides checks and balances in government, viz. decision making by consensus — i.e. no voice against — power sharing via seat sharing, BN taking no more than half the seats in the legislature, sharing government positions, the affirmative action programmes being observed not in the breach; the 15 year sunset clause in the Reid Commission Report, propping up Article 153 under temporary discrimination allowed under Article 8, expired in 1972; Article 4 must be amended for automatic dropping of redundant clauses without the intervention of Parliament and/or the court of law, the pre-meeting Council of Rulers and the Conference of Rulers.
Najib would not be sitting in jail if the court of law had not disregarded the BFD which permeates the Constitution. Instead, the fallback position taken by Attorney General Tommy Thomas after GE14 was that Discretion does not exist since abuse of power could be proven.
Islam And BFD
Islam, under Article 3 being religion of the Federation i.e. Malaya, remains aberration in law, i.e. not in line with the BFD. The rule of law remains the basis of the Constitution.
There are many things in the Constitution which are being disregarded and/or being rejected without explanation.
For example, Article 8.
40 per cent isn’t part of the Basic Features Doctrine (BFD) which permeates the Constitution. It’s part of being bogged down by the situation and/or being plagued by this and that and that and this.
The issue isn’t 40 per cent but internal colonisation which can be proven.
There’s more than one way for skinning the cat.
Misconception
There are other BFD issues.
There’s widespread misconception, for example, that the number in the population means something. In law and the BFD, it means nothing.
In law, majority means the number of seats on the government side in Parliament.
The minority, in law, remains the losing votes in a seat.
Such voters should be represented in Parliament, on non-constituency basis, by political parties which won no seats.
In Malaysia, under the 1st past the post system, winners are declared even if they get less than 51 per cent of the votes counted. There’s no consent of the governed for legitimacy. There’s loss of sovereignty.
There should be runoff between the top two contenders if no one in a seat gets at least 51 per cent of the votes counted.
The 1st past the post system only remains democratic if there are two candidates in the fray. — NMH
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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