The newspapers and blogsphere are abuzz with the actions of the executive and the members of the state assembly in Perak on 7 May 2009, a day all people in this once luminary state will remember. Grabbing power (i.e. controlling the state via its executive arm) is one thing, but when the house is brought down to gutter politics - that is another.
What is going on in Perak is ultimately gutter politics, and for the BN government there - no matter how much good is done for the people there, no matter how much they speak of unity and harmony, no matter how much they put into practise what they speak, the people's trust of the BN is damaged, and I would hazard a guess to say irreparably so.
This now has a spill over effect to the federal BN Government. The question is how far and wide is this spill over.
Trust is a fragile thing, difficult to obtain and easily lost. The BN state government in agreeing to take power forgot this. Power for the sake of power or at all costs does not build trust.
The point of this article is simply the following:
If the constitutional monarch had acted (as by convention he should) on the advice of his Menteri Besar who called for a dissolution of the house and a general election be held in the State, the gutter politics that is witnessed in Perak would be absent. Instead by arguing that the constitutional monarch has the absolute power to reject the advice of the MB has led to this situation that now exist in Perak.
Secondly the courts have also been dragged into this frontier, and has as Justice NH Chan said, did not interpret the constitutional provisions according to the simple and plain words that even a child would interpret. Instead some legal and interpretative gymnastics were used to justify their decision. Yet the decisions of the judges whether legal or otherwise, cannot substitute for the decision of the people because they the judges are unelected. How can the unelected dictate what the elected wishes. So when Nizar the MB asked for dissolution it is the elected who is asking and the unelected (the monarch, the judges etc) have to abide by the decision of the elected which is superior to that of the unelected.
Only by adhering to the convention that normality and the avoidance of gutter politics can emerge. Zambry should on being invited to form the state government, declined so that the general election could have been held, but he did not do so. This refusal to decline is evidenced of the need for power at all costs, no matter what the consequence to the state. Just like the action to sell off the Toyota Camrys that were purchased less than a year ago. Why? Because it was purchased by a Pakatan Rakyat Government and not by BN. Talk about childish.
This adherence to the convention has been omitted for whatever reason.
Today Perak can be said to be the effect of the very reason why the convention exist and that honest and prudent men would abide by it. To do otherwise is to court with the very foundation of a parliamentary democracy and the rights of the people.
It is a dangerous and slippery slope that the political party in power in Perak is now on.
18 April 2009
Blogger protection - using the law as a shield
Just thought I'd share some legal pointers in case blogging gets the big stick from the new Minister.
The law book that is thrown is the Communications and Multimedia Act 1998 (besides being sued for tarnishing people's reputation without good cause/evidence/facts/comment).
Two sections that bloggers should be aware are s211 and s233.
Now for the prosecution to prove a criminal offence they must satisfy the court beyond reasonable doubt, that means that the defence need only show reasonable doubt and the case is won.
Second, any offence has two elements that must be satisfied - the act of the wrong-doing and the mental element - I intended to kill him (as e.g.).
So if you read s211 carefully the prosecution must prove the following:
a) That the accused is an "other person using a content applications service". So using a free blog application (e.g. Blogger) may not be using a content applications service; but may be using an applications service. Subtle but critical difference.
b) that the content provided is indecent, obscene, false, menacing, or offensive in character;
This means that the nature of the content has to be assessed. problem is that there is no one size/standard. So what is obscene to me may not be obscene to you. So-how? Law will in such circumstances apply a subjective test. Did the accused consider the content obscene etc.
c) the content provided was "with intent to annoy, abuse, threaten or harass any person".
This is the kicker. For the prosecution to succeed, they must show that the person posting the content had the intention to annoy, abuse, threaten or harass any person. If the intention is to post but not to annoy then this element of the offence has not been proven.
So bloggers, all you need say is that the posting below is not intended by you to harass, abuse or threaten any person.
S233 is similar; except that if you use Blogger etc you can be caught by s233, since you are using an applications service to make, create or solicit any comment etc.
Now s233 also requires that the prosecution prove that the comment is obscene, false etc, and was made by the blogger with the intention to annoy etc. So (like s211) if there is no intent to annoy, by the maker then there is no offence.
So to show intent to annoy they must show that:-
(i) blog is read by that person which is known by the blogger (otherwise how to annoy, coz its like writing a diary about something and no one knows about it). A person cannot get annoyed if he does not know what is written about him.
(ii) the blogger knew this - which means ask the blogger this question "Did you know that the person reads your blog?" Answer: No
end question.
(iii)the purpose of writing this is to annoy etc that person (say a politician). If the purpose is something else than they cannot succeed.
So two things that bloggers should do based on the rights provided by the Law:
(i) Always state that the content expressed is not intended to annoy, abuse, threaten or harass another person;
(2) State that the content is an expression of your frustration with the MSM in only publishing BN's point of view and not contrarian views.
Many a time people are ignorant of the law and think that they the authorities are always right. Remember that they are human beings too, and dont know enough of the law to be sure. As human beings they can make mistakes too.
So fellow bloggers this way we can use the Law against the BN itself.
The law book that is thrown is the Communications and Multimedia Act 1998 (besides being sued for tarnishing people's reputation without good cause/evidence/facts/comment).
Two sections that bloggers should be aware are s211 and s233.
Now for the prosecution to prove a criminal offence they must satisfy the court beyond reasonable doubt, that means that the defence need only show reasonable doubt and the case is won.
Second, any offence has two elements that must be satisfied - the act of the wrong-doing and the mental element - I intended to kill him (as e.g.).
So if you read s211 carefully the prosecution must prove the following:
a) That the accused is an "other person using a content applications service". So using a free blog application (e.g. Blogger) may not be using a content applications service; but may be using an applications service. Subtle but critical difference.
b) that the content provided is indecent, obscene, false, menacing, or offensive in character;
This means that the nature of the content has to be assessed. problem is that there is no one size/standard. So what is obscene to me may not be obscene to you. So-how? Law will in such circumstances apply a subjective test. Did the accused consider the content obscene etc.
c) the content provided was "with intent to annoy, abuse, threaten or harass any person".
This is the kicker. For the prosecution to succeed, they must show that the person posting the content had the intention to annoy, abuse, threaten or harass any person. If the intention is to post but not to annoy then this element of the offence has not been proven.
So bloggers, all you need say is that the posting below is not intended by you to harass, abuse or threaten any person.
S233 is similar; except that if you use Blogger etc you can be caught by s233, since you are using an applications service to make, create or solicit any comment etc.
Now s233 also requires that the prosecution prove that the comment is obscene, false etc, and was made by the blogger with the intention to annoy etc. So (like s211) if there is no intent to annoy, by the maker then there is no offence.
So to show intent to annoy they must show that:-
(i) blog is read by that person which is known by the blogger (otherwise how to annoy, coz its like writing a diary about something and no one knows about it). A person cannot get annoyed if he does not know what is written about him.
(ii) the blogger knew this - which means ask the blogger this question "Did you know that the person reads your blog?" Answer: No
end question.
(iii)the purpose of writing this is to annoy etc that person (say a politician). If the purpose is something else than they cannot succeed.
So two things that bloggers should do based on the rights provided by the Law:
(i) Always state that the content expressed is not intended to annoy, abuse, threaten or harass another person;
(2) State that the content is an expression of your frustration with the MSM in only publishing BN's point of view and not contrarian views.
Many a time people are ignorant of the law and think that they the authorities are always right. Remember that they are human beings too, and dont know enough of the law to be sure. As human beings they can make mistakes too.
So fellow bloggers this way we can use the Law against the BN itself.
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