Monday, October 31, 2016

Pandikar seems ignorant of parliamentary democracy, says Art

FMT Reporters | October 31, 2016
Prominent activist lawyer refers to Standing Order protecting MPs, criticises Speaker for giving irrelevant legal opinions outside over Muhyiddin, Husni's speeches.
PETALING JAYA: Prominent activist lawyer Azhar Harun has called Pandikar Amin Mulia out for reprimanding former ministers over breaching the oath of secrecy in the Dewan Rakyat with respect to “Cabinet information”.
Writing in his Facebook account today, Azhar, who is more popularly known as Art, said that the Dewan Rakyat Speaker lacks understanding on “the law and inner workings of parliamentary democracy”.
“Pandikar Amin Mulia’s comment that Muhyiddin Yassin and Ahmad Husni Hanadzlah may have breached the law as well as their oath of secrecy while debating the budget in the Parliament brings into sharp focus the warp-ish understanding of the law and the inner workings of parliamentary democracy residing within some of the people who are actually entrusted to uphold the law and parliamentary democracy in our country,” Art said.
Pandikar had last week chided the former deputy prime minister and the former second finance minister over speeches that he (Pandikar) said needed caution as there “are certain acts like the OSA and Sedition Act”.
“It is all there, so I advise that although you know something, you need to be careful there is Standing Order 36(12) and so we need to keep certain things in confidence,” Pandikar had reportedly told Parti Pribumi Bersatu Malaysia pro-tem president Muhyiddin, and Husni, who quit his Barisan Nasional and Umno treasurer posts after being dropped from the Cabinet in June this year.
Art’s attack on Pandikar stemmed from the fact that Pandikar was not present on the day last week that Muhyiddin debated the Budget 2017 tabled by Prime Minister Najib Razak on Oct 21.
“The Deputy Speaker, in all his wisdom, did not at any time stop Muhyiddin from delivering his speech. Nor did the Deputy Speaker refer him to any standing order that had been breached or about to be breached by him during his speech,” Art said adding that Pandikar should protect the sanctity of the House and the rights of all MPs, instead of offering legal opinions outside the House.
Art also called on Pandikar to reacquaint himself with Article 63 (2) of the Federal Constitution, that states: “No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in any proceedings of either House of Parliament or any committee thereof.”
“That is the Constitutional protection accorded to every person who speaks or votes while participating in the proceedings of the House. That protection is almost absolute.
“The protection can only be displaced if the person is charged under certain laws, namely, the Sedition Act and laws that are passed in accordance with Article 10(4),” which Art reminded had not been touched on or breached during Muhyiddin’s speech.
Like many prominent legal observers before him, not to mention political activists, Art too called into question the validity of the OSA and its blanket prohibition on “Cabinet documents, records of decisions and deliberations including those of Cabinet committees”.

“Freedom of speech and expression is a right of every citizen. This right is guaranteed by Article 10 (1) of the Federal Constitution.
“This right however is not absolute. The Federal Constitution itself provides that laws may be passed to restrict this freedom of speech and expression. The question then is: what laws can be passed to restrict this freedom?”
The answer lies in Article 10(2)(a), according to Art.
Laws can be passed to restrict freedom of speech and expression only if such laws are deemed necessary or expedient:
a) in the interest of the security of Malaysia;
b) in the interest of friendly relations with other countries;
c) in the interest of public order or morality; and,
d) restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.
“The OSA is a piece of law that restricts freedom of speech and expression. Being so, the OSA must conform to Article 10(1) and (2). It cannot supersede those Articles.
“That is because the Federal Constitution is the supreme law of the land and thus all other laws must not be repugnant against any of its provisions.
“If laws are passed that exceeds the powers given by the Federal Constitution, those laws are ultra vires the Federal Constitution. Any law that is ultra vires the Constitution is therefore invalid and void to that extent,” Art said.
He added that the schedule under the OSA should have listed “Cabinet documents and records of decisions and deliberations in respect of the security of Malaysia”.
“The implications of a blanket ban on ‘Cabinet documents, records of decisions and deliberations including those of Cabinet committees” also means that even discussions on flood mitigation plans, the rate of toll or any other matters that has nothing to do with those matters in Article 10(2)(a), the OSA seeks to make them secret.
“Now, isn’t that beyond the provision of Article 10(2)(a). And if it was, wouldn’t the OSA be void and invalid for being ultra vires the Federal Constitution?”

~ Free Malaysia Today

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