Friday, November 16, 2012

JPA Acted Ultra Vires

Previously I had mentioned the importance on equipping ourselves with some basic knowledge and understanding of the Federal Constitution (Perlembagaan Persekutuan). Undeniably Mr. Zainal Abidin A'ala, the former Selayang Municipal Council (Majlis Perbandaran Selayang-MPS) President (Yang Di-Pertua) which has been transferred by Putrajaya within 24 hours to INTAN the cold storage, could be the next desperate person that shaking his heads while flipping through his newly bought Federal Constitution.

The question is simple but yet difficult to define and interpret:

"Does Public Services Department (JPA) has the jurisdiction to transfer a local authority officials?"

First we must refer to the supreme law of the land - the Federal Constitution.

(A) The Federal Constitution

--> (i) Article 132(1) of Federal Constitution spells:-

"132. (1) For the purposes of this Constitution, the public services are:

(a) the armed forces;
(b) the judicial and legal service;
(c) the general public service of the Federation;
(d) the police force;
(e) (Repealed);
(f) the joint public services mentioned in Article 133;
(g) the public service of each State; and
(h) the education service."

--> (ii) Article 132(2) continues:-

"(2) Except as otherwise expressly provided by this Constitution, the qualifications for appointment and conditions of service of persons in the public services other than those mentioned in paragraph (g) of Clause (1) may be regulated by federal law and, subject to the provisions of any such law, by the Yang di-Pertuan Agong; and the qualifications for appointment and conditions of service of persons in the public service of any State may be regulated by State law and, subject to the provisions of any such law, by the Ruler or Yang di- Pertua Negeri of that State."

The Constitution has literally interprets the management of state public services are within the jurisdiction and power of respective State Government, meaning the State may exercise its power to appoint, promote, transfer or retrench any local council officials as provided by Article 132(2), subject to State Law and law enacted by State Ruler (Raja) or Yang Di-Pertua Negeri.

Thus, if according to the Constitution, the removal of Zainal Abidin from MPS to INTAN by JPA was ultra vires (beyond the powers). Hence, the jurisdiction of JPA should be examined.

(B) Jabatan Perkhidmatan Awam v Suruhanjaya Perkhidmatan Awam

--> (i) JPA - Public Services Department

JPA formally was known as Establishment Office of Malaysia. It carried the name of Federal Establishment Office resulted from the merging of Malayan Establishment Office, Service Branch of the Chief Secretary's Office and Establishment Division, Federal Treasury before Merdeka.

Thus, JPA is a government agency / department under the Prime Minister's Department which merely assists the Federal Government pertaining to the public service human resource management. In short, JPA has the authority to manage the federal public servants but not the states. In this context I am referring to the public servants that service in the federal department. One of the example could be the Jabatan Belia dan Sukan Gombak, which it is a federal department but allocated locally.

The argument can be extended by saying JPA is actually not incorporated under any law. You may notice all the rulings issued by the JPA is "Pekeliling Awam" (substantially). Thus, any policy (or even law) enacted by the relevant department / ministry could not contravene to the Federal Constitution otherwise it would be null and void.

--> (ii) SPA - Suruhanjaya Perkhidmatan Awam

SPA is a Constitution creature created under Article 139 of the Constitution. Other than the Auditor-General, the SPA's jurisdiction covers all bodies of public services and also public servants. No doubt that SPA has power to manage the public services, which including public servants provided under Article 144 of Constitution. Going further, we should examine whether Constitution provides any power to the SPA for state public servants.

Article 139(2) and (3) state the jurisdiction of SPA including the power of managing public services in states, other than Melaka and Penang. (It is too lengthy anyway)

In short, I don't see any articles in Constitution or federal laws granting authority to the JPA regarding to this matter.

It is getting lengthy and I try to keep it short and simple.

(C) Employment Contract

From my point of view, the validity of transferring Zainal Abidin must also be considered from agreement framework, if any. I have limited access to the appointment of Zainal Abidin as YDP MPS at 2011, thus I have to make a hypothetical assumption here.

--> (i) Zainal Abidin was "loaned" from the Federal Government to MPS

If this were the scenario, unfortunately this former YDP unable to protest much on it but to accept the cold atmosphere at INTAN.

--> (ii) Zainal Abidin's contract was with the State Government

Clearly and undeniably, JPA has acted ultra vires.

We have had noticed and aware of the risk for letting political interference drive the administration of public services in this circumstance, regardless of federal or states. Therefore, it is crucial and vital for the voters to know how the federal and state government should act, and nevertheless voice out the concerns and exercise the right through a ballot box (and maybe a protest) - (power of democracy could be exercised through ballot box and street protest).

Wednesday, November 14, 2012

Kick Start With Youth Parliament

I believe there are number of you are unaware of the existence of Youth Parliament in United Kingdom, a parliamentary democracy system which our country should look forward and nevertheless to take a lead in enhancing the democracy education policy among the youth.

UK Youth Parliament is just like a real Parliamentary system, a system which involving a campaigning and voting process. In order to become an eligible Member of Youth Parliament (MYP), he must be a resident of UK and aged between 11 and 18 years old. The voters are also the same category of youth as specified herein.

The MYPs have the opportunity to sit in the House of Commons (in our context it is refer to the "Dewan Rakyat") to debate issues that relate to the youth society across the UK, including Scotland, Northern Ireland and Wales. The constituency is divided according to the number of Local Education Authority (LEA). Each LEA represents a Youth Parliament Constituency.

There are over 250 MYPs in UK presently.

Since the Youth Parliament is given mandate by the UK government in terms of legality and legitimacy, the MYPs do enjoyed certain privileges as the "real MPs". During the term of office the MYP which represent his own constituency will have opportunities to meet the MP and discuss any issues or campaigns in relation to the constituency.

The most powerful feature of the Youth Parliament is the House of Commons Debate. The MYPs will sit in the House of Commons and debate 4 issues which will be voted by the youth through ballot box and additional 1 issue which is reserved for the Youth Parliament to decide on. Such broad system could ensure the participation of the youth within the country.

Further to that, there are numerous advantages arise from such system and nevertheless could crystallize the demands of the youth society into a focused atmosphere, if our country taking into consideration in implementing it:-

a) Enhancing Participatory Democracy

In Malaysia we have to be at least 21 years old and/or above to exercise our right through the ballot box, as provided under Article 119 Federal Constitution. In short, a Youth Parliament system would enable and empower the "underage" youth to enjoy a voting right. Going further, the youth will be getting a vital participation within the country's democracy system.

b) Sharpening Sensitivity on National Issues

A reflection from the UK Youth Parliament system has shown us the youth would need to identify and vote for the issues to be carried right to the House of Commons by the MYPs. Voters are one of the sources of democracy power and certainly they will vote for those issues in which are relate to them personally and even to the country. Thus, the youth will be "trained" in an indirect method under such system to identify those important issues and possibly takes further step to undertake personal research.

c) Creating Greater Constitutionalism

Despite the fact that the UK does not has a codified Constitution, we should be glad and proud to have a set of codified supreme law of the land to govern our country, instead of keep pointing all conflicts to the parliamentary supremacy. A well developed Youth Parliament system will create better awareness of  Constitutionalism among the youth, regardless of the secular-islamic issue that has been politicized by the politicians, as an example. The youth will get to know further on how the separation of powers function governed under the Constitution, including the legislator (parliament) role and its power when they participate within this context.

It is worth to note the Ministry of Youth and Sports has actually initiated the implementation of youth parliament this year (2012) and the first sitting trial has took place in Palace of Golden Horses, Seri Kembangan. Although the members were selected based on self-registration or recommendation by political parties or NGOs, I wouldn't comment much on it due to its fresh starting but the government would need to give more mandate to the youth parliament but not use it as a tool for own propaganda.

A healthy nation democracy system could kick start with a youth parliament, where all the participants are the prospective voters and country leaders sooner or later. Let the youth learn how to in charge of their own country's democracy and I hope we could transform from representative democracy into direct participatory democracy someday!

Monday, November 12, 2012

Nuclear Nude Our Future

Again, several thousands of Japanese nuclear protesters have gathered at several locations in Japan to denounce the restart of nuclear reactors recently. 

Strength of a natural disaster is unpredictable, and never can be underestimated. 11 March 2011's earthquake which has caused a series of big waves to hit Fukushima, and this has inflicted the most serious nuclear plant crisis after the Chernobyl disaster in 1986, Russia.

Brief explanation on how the nuclear reactor was melting down:

The tsunami following the earthquake flooded the nuclear plant's generator and caused failure thereafter, it has cut off the electricity supply circulated in the plant. Thus, the water pumps in the plant ceased to operate and failed to circulate coolant water through a nuclear reactor to prevent it from melting down. 

As the pumps stopped, the reactors overheated and to keep it simple, the rod was melted. A chemical reaction responded in the process and produced explosive hydrogen gas. As far as the explosions concerned, the atmospheric venting of radioactive gasses.

Government to initiate nuclear power plant:

Before the ruling government expressed their intention in implementing nuclear power plant in Malaysia as a substitution energy source in the future, it was known that government has pushed for the implementation secretly. According to some media sources, the government has preliminary identified several locations to build the nuclear power plant.

Although the government has announced they are still undertaking a depth study and research into the implementation, however the people must be cautious and be alerted into any further considerations. We should urge the government to make all information public and be accessed to the people. Transparency and freedom of information must takes place in this context.

Lessons to learn from Fukushima incident and the US's Sandy Hurricane:

It is well known that Japan and US are well equipped with nuclear expertise and knowledge on how to manage, operate and maintain the nuclear reactors, which have contributed greatly in generating electricity to the cities. The main cause was the natural disaster in which has inflicted a chain of incidents - that could not be prevented and react immediately.

The freakstorm Sandy has affected numerous nuclear plants in US, leaving incomparable destruction. The flood water has flooded Oyster Creek nuclear facilities and the meltdown was imminent at that point of time. Residents were forcefully to be evacuated to rescue camps to prevent unnecessary life damages. 

Yes or No:

Malaysia does not have any severe natural disaster such as earthquake, hurricane or volcano. It can be predicted that less chances the nuclear plants could be damaged due to natural disasters in Malaysia, with a comparison to other countries. The possibility and probability are much more lower.

Despite proper and serious depth researches to be carried out to study the possibility of implementing nuclear plants, the government should actually treat the ground's objection with a serious manner. The Fukushima incident shown us severe damages could be done to the nuclear plants and critical consequences can occurred although there is a team of expertise which has developed the infrastructure prior to the disaster. 

Possibility of natural disaster:

We could not deny any possibility of any natural disasters which has yet or possible to hit Malaysia in the future, in view of serious global warming and ridiculous climate changes happened all over the world. We have yet to know Tsunami prior to the Indonesia's incident, and we have forgotten the consequences of having nuclear plant until Fukushima took the lead.

The Japan cabinet has told the public that they will study any possibility to explore substitute energy sources other than nuclear generators. The objection from the grounds is taken in this preliminary stage despite the government still has strong intention to re-operate the nuclear reactors.

A piece of thought to our government:

Realistically, I am strongly against the implementation of nuclear plants. We may recruit excellent and brilliant expertise and skilled workers, but we unable to defend it from any natural disasters based on previous and current lessons. 

After all, the managing of the nuclear plants is strongly questionable and this would be the main concerns of all people if it were be implemented. 

Thursday, November 8, 2012

A Happy "Family Law" Case

A happy "family law" case marked another milestone for the Chiam's family as the mother and son both called to the bar on the same day.

More details can be found here: Family Trio Who Are All About Law

What an impressive family. Both the mother and son helped each other throughout the chambering process, which it is rarely can happen.

However, the mother, Phoon has commented on the legal profession. She mentioned that the legal profession is a Noble profession, which has the capacity and opportunity to help the poor and underprivileged.

In fact, I am in opinion that a lawyer must has the passion and further undertakes to help the needy in this society. Rewards, or the earning is relatively important but the hand would need to be lend to those in need.

Since a lawyer can be the guardian of justice, nevertheless a lawyer would have to take up the social responsibility in any means, or in any capacity which he/she affords to.

(Photo taken from The Star)

There is always a question of justice.

A normal citizen without law knowledge would say justice could be reached in the judiciary system.

How about lawyers? Is damages or money compensation a kind of justice?

I met numerous lawyers, and certainly they can't affirm on that.

When there is injustice occurs then there will only justice available to be achieved.

Sincerely, congratulations to the Chiam's family, and hope the newly admitted advocates & solicitors, the mother, Phoon (56 years old) and the son, Chiam (25 years old) could hold tight to their pledge.

Wednesday, November 7, 2012















Tuesday, November 6, 2012

Story of a Joker

This is an update following my last article on how the Developer tried to exploit and deprive the rights of strata building purchasers.

Link: Know Your Right As A Strata Building Purchaser

Further to that, my condominium has finally formed the ever first Joint Management Body ("JMB") last Saturday after numerous obstacles and difficulties. Instead of hoping the twelve men committee to lead the managing office, all residents should be united and co-operate with them for the sake of community.

There is something I wish to highlight after the formation of JMB, which I think it is a common phenomena, but I have encounter it with a very offensive manner, and I counter it with a very polite and serious way. I shall elaborate the story further.

Prior to the formation of JMB, we (the residents) is in a heat with the developer due to the developer tried to defer the first Annual General Meeting despite vacant possession has been delivered to the purchasers near to one year. There was a resident, I would name him Mr. A here (to prevent unnecessary libel or defamation, lol), who has shown brilliant and courageous comments right to the developer.

The first impression to him - a hero that enlighten us, fearless when scolding the developer's representative. He did not participated in the election and thus he is not part of the JMB's team.

However, right after the formation of JMB, he proposed a rewarding scheme to the JMB Committee via our common e-group. Basically, he laid down how many months maintenance fees to be waived according to respective position ie 4 months for President, 3 months for Secretary, etc.

Hence, your very first logical thinking will dominate your ignorant mind and told you that it is inappropriate to make such suggestion after the AGM. Since I am not part of the JMB thus I took a silent stand. As expected, many residents and committees expressed different views, to justify their views on accepting or rejecting the proposed plan.

This is a nonsensical proposal due to its legitimacy. What I meant is the so called "proposal" should not take place in any discussion in any means because such proposal or resolution could only can be passed in the AGM and/or EGM.

The story extended:-

I received email this morning from Mr. A about his superb and distinctive views. He challenged those who rejected the proposal to be part of the committee (so we would know the tiring job and efforts contributed by the committee).

Further, he mentioned in a questionable manner that "what kind of followers we want to be if we believe in god?", "does our god poor?". I couldn't express his opinion entirely but I managed to catch his gist roughly.

I felt so insulted to read the "god" part and I immediately directed an email in the e-group to justify my rejection on his brilliant proposal. I am glad that other residents and committees backing me up. In the end, Mr. A changed his "rewarding" to "token appreciation". Regardless of any wording he uses it would be illegitimate and inflicting sensitivity among the residents. In short, it is a threat to the newly formed JMB and would affect their reputation and duties.

Sometimes life is fill with colors and obstacles. My instinct told me, chill and be relaxed with this kind of joker. Life is so short and we must be glad that they made our life become interesting and worth to be treasured.

What a joker!

Monday, November 5, 2012

Your Responsibility To Know The Constitution

Ironically, I discovered Malaysians don't know what is Constitution, even though our Supreme Law of the land can be found in a printed form, unlike the UK's uncodified version.

I attended many Constitution / Human Rights workshop, seminars and sharing sessions, and I met many interesting people in which they are from different social category in this society. When they were asked about the understanding of Constitution, funny but sad enough to acknowledge that, the education of the Constitution is a failure.

"Apa ni? Boleh makan kah?"

"Constitution? Is it something like Bersih?"

"Oh Perlembagaan tu maksudnya Raja kan?"

"Oh this is Rukun Negara!" (obviously he is referring to Keluhuran Perlembagaan)

A short article could not express a detailed explanation on the Constitution as it is the most basic but supreme law of the land. Basically, Constitution confers and divided the powers from top to toe, from Yang Di-Pertuan Agung to the people. It created many creatures such as the Government (Executive), the Court (Judiciary), the Parliament (Legislator), Attorney-General, and etc. It governs the operations of this federation and distinguish the powers between the federal and states.

Thus, why it is important to know the Constitution?

The answer is short and simple, your rights are governed under the Constitution! Your rights to life, sleep, movement, speech and even rights to eat chicken rice, are housed under every articles laid down in the Constitution.

I am not going to write lengthy and boring essay but I would use some questions to lead your mind to the supreme Constitution:-

a) Do you actually know that your Malaysian nationality is not granted by issuing an IC to you? It is actually the Constitution says so! - Article 14

b) As a Peninsular citizen, do you know Sabah & Sarawak state government have the power (discretionary) from blocking your access into the states?

c) Do you know you can't be detained for more than 24 hours unless you are remanded?

d) Do you know that your fundamental liberties (including right to eat chicken rice) can be taken away if the Constitution be amended with 2/3 majority in the House? (Parliament)

e) Is Malaysia an Islamic or secular state? (to me it is not important to know)

Anyhow, the Bar Council Constitutional Law Committee is active in promoting Constitution to everyone and anyone. Do not think the Constitution is only for lawyers and law students.

Start from today. Equipping yourself with some knowledge on the Constitution. Well if the book is maybe too thick for you, alternatively you may choose to download the Rakyat Guide prepared by the Constitutional Law Committee in an understandable and simple manner, for the benefits of all.

There will be more workshops coming on for the MyConsti campaign run by the Committee. It is absolutely free and conducted by some humor and interesting (young & handsome/pretty) practicing lawyers. Something you wish not to miss out.

I will be sharing more info from time to time!

A video on the Constitutional Peasant (watch the citizen and the King, funny enough!)
Credit to Bar Council Constitutional Law Committee for sharing this video.