Saturday, April 26, 2008

Who will blink first? (Federal versus State)

Federal versus State.

Always an interesting issue that sparked debates among us, the students when I was studying Constitutional Law in University Malaya. Sadly nowadays I am more occupied to other civil matters pertaining to credit and loan recovery, land and chattel disputes, corporate litigation and personal tortuous claims. But let's make an exception tonight. Let's talk about Constitutional Law, about "Federalism", about the state versus federal, shall we?

Here goes. Unlike the U.S. where establishment of its government is based on pure "federalism," (ideal power sharing between federal government and the state governments), under the westminster system and the common law, which we in Malaysia adopted, is the opposite of federalism but more towards centralized governments. Simply put, federal government maintains total power over the state. Despite moving towards decentralization, doctrine of centralized government is fully adopted in countries such as England and France. Having said that, unfortunately so for Malaysia, it is not such a clear cut case and some adjustment needed for total adaptation, of the common law and applicable doctrines, despite the Federal Constitution has provided specific powers and controls to both, federal and state governments. To an extent, although Malaysia is a federal state, political scientists have suggested that its "federalism is highly centralized". Isn't that confusing?

This is because when it comes to man made law as oppose to God's law, there are lacunas and overlaps in which detail judicial interpretation are needed to determine the situation and further addressed the conflicting instances.

Oh! Yes, there are saving clauses in Federal Constitution for Federal Government to overrule the States but such saving clause are not that effective when it comes to our unique nation as what we have seen in recent constitutional dilemma such as that in Terengganu recently pertaining to an issue with regard to appointment of its Chief Minister. If that is the case, can't we just go to court and resolved all this issue once and for all? Easier said than done. Yes, I am a lawyer and I shouldn't say all that but as we all know to go through all that proper channels just to determine the grey arrears with regard to what are yours and what’s mine would mean precious time and money. That luxury, we as a developing nation, does not have.

You said it! I am taking into consideration the element of common sense here as opposed to law purely. That's why I am calling this blog as the place "where law meets common sense"! Now, what about Malaysian and its current situation, in particular, somewhat closer to home, most recent impasse facing the delivery of several development projects here in Penang. A point on issue is as what reported in The Malaysian Insider below:

Federal government threatens to scrap Penang monorail project
PENANG, April 26 ─ All pretence was dropped today when the federal government signaled that it would scrap the monorail project and other infrastructure projects in Penang if the state government does not play ball. Also in the frame to be cancelled is the expansion of the Penang airport, the Insider has learnt.
Delivering the government’s hardline message was Second Finance Minister Tan Sri Nor Mohamed Yakcop. This approach could spook foreign investors who have adopted a wait-and-see attitude after Election 2008 put the Barisan Nasional back into control but placed five states in the hands of Pakatan Rakyat.Investors wondered whether there would be mature cooperation between the Federal government and the five states or whether political posturing would be the order of the day.
Speaking to reporters in Penang, Nor Mohamed noted that the federal government had not received any approvals from the state government on the monorail project. “If the state government has other plans with regard to the monorail, we are not doing it. The project is scrapped."

Ultimately in this show of power, the people of Penang will be at the losing end, not the "non 2/3 majority" elected Federal government nor the newly formed State government. Projects can be scrapped and projects can be put on hold. 5 years is a very short period for politician and they can afford to halt certain development just to make some political points. After all, 5 years is just about coming from one General Election to the other for them.

But for the people, they cannot afford to wait 5 years. Without progress and development their present livelihood could not longer be sustained. Having to wait for 5 years would mean hell for some. It is an interesting time we are living now and a more mature approach and a higher level of tolerance must be sought with regard to the workings between both, the federal and state government to ensure that the people will not suffer in the process.

Politics must be put aside. To adjourned or worst scrapped development earmarked for the state would be more like punishing the people and not the state government. Simultaneously, to make past state government pays to the extend of launching vigorous witch hunt and halting all prior planning made by them is also tantamount to punishing the people. The same people that have put you in your place as the ruling state government. Now is not the time for vengeance. Now is the time to show your worth and sensibleness.

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