Poetic Justice

Introduction

Khairy Jamaluddin is a man with an immense belief in himself, best reflected perhaps by the opening lines of his response to the recent Malaysian Insider editorial titled “Najib and Khairy’s unconvincing Perak script“. Nevertheless, the problem with self-belief is that, at times – at times mind you – it can also be an Achilles heel as self-belief over-estimates the value of subjectivity, at the expense of objectivity.

Crossovers are a Legal Right But …

No doubt crossovers are a legal right guaranteed by Article 10(1)(c) of the Federal Constitution. That much is elementary. However, the mere fact that crossovers are a right does not mean that whenever an individual elects to crossover, a ‘moral waiver’ automatically attaches to the exercise of that ‘right’ and no questions need to be asked. There are proper questions to be asked and depending on the answers to those question, only then can the right be said to exist in an unabated form.

A fair question to ask, for example, would be whether there were any undesirable elements involved in the crossover. Clearly, where the individual in question crosses over because of some form inducement or duress (both being criminal in nature), crossovers are not a right and should not be taken to be a right.

Such concerns are not merely rooted in some theoretical idea far removed from the real world. The reality, as noted by the Supreme Court of Jammu in the case of Mian Bashir Ahmad And Etc. vs State Of J. & K. And Ors, is that crossovers “generally take place not because of genuine proddings of conscience but because of personal aggrandisement and rank opportunism. They have become a pernicious form of political corruption threatening the functioning of the parliamentary democracy contemplated by the Constitution”.

The problem about the Perak crossovers is not so much that it went Barisan Nasional’s way but more in terms of the fact when the crossovers took place, two of the three Assemblymen who crossed over, i.e. Mohd Osman Jailu (Changkat Jering) and Jamaluddin Mohd Radzi (Behrang), were still facing charges for corruption.

Seen in that light, the fair question to ask would be whether the Assemblymen could exercise their right to crossover in a free and meaningful manner, given the “Sword of Damocles” hanging over their heads?

Granted, the Member of Parliament did take issue with the propriety of the 2 Assemblymen having seats on the Perak Executive Committee. However, that question is irrelevant and certainly trivial when compared to the former.

The Case of Arlen Spector, Quentin Davies Etc.

The final thing to be pointed out regarding the Member of Parliament’s reply is that the present issue cannot be resolved by arguing that ”because crossovers are acceptable in other countries, crossovers should be acceptable in Malaysia“. The Malaysian experience, thus far, have been to test the propriety of crossovers against Article 10(1)(c) of the Federal Constitution. This would be the fair and appropriate manner to test the issue of crossovers.

Of course, the Member of Parliament quite cleverly pointed out that when anti-hopping laws were being proposed “not a single political party in Malaysia vigorously pursued the introduction of such a legislation”. It was clever because, broadly speaking, Article 10(1)(c) could only be qualified by laws passed by Parliament and that too only on grounds of security, public order or morality. The impression given was thus two-fold: firstly, because there was no concerted effort by Parliamentarians to promulgate legislation against the right to crossover, the right exists in an unabated form – seemingly without any restrictions – and secondly, it is Parliament and Parliament alone which determines the legality of a crossover.

The reality, however, is that the Courts still retains a supervisory function over all matters. Explicit recognition of this principle of “not folding their arms and sitting back free from responsibility” can be found within the Reid Commission report where the Commission stated:

“The guarantee afforded by the Constitution is the supremacy of the law and the power and duty of the Courts to enforce these rights and to annul any attempt to subvert any of (the rights) whether by legislative or administration or otherwise.”

Consequently, the question of whether crossovers are acceptable within the Perak context, can certainly be a live matter for the Courts to resolve and not one for Parliament alone – subject of course to the caveat that there is a fit and proper case being brought before it and such issues are duly ventilated before it.

No related posts.

Related posts brought to you by Yet Another Related Posts Plugin.