Idris Jusoh's deal in purging allegedly pro-opposition civil servants and contract officers in the state of Terengganu appeared as 'of right.' There was no outburst of indignation from civil society and human rights groups much less from pro-Umno establishments and the government-controlled mainstream press.

Idris is the newly minted menteri besar of Terengganu. He is one of the cemerlang, gemilang and terbilang crew of Abdullah Ahmad Badawi, Malaysia's fifth prime minister. There was no demur from Pak Lah of these measures, indicating perhaps a tacit approval.

Speaking to reporters after his appointment on March 25, Idris was reported to have said that a special committee would be set up to study the matter and decide on the status of state government officers and staff who had outwardly supported PAS. Contract positions fared worse, for the contracts were terminated.

His assurance that the BN government will not discriminate against any officer unless they "undermined the state government's administration and planning" is commendable.

Still, given the hostilities between Umno and PAS, the exercise appears a witch-hunt as the sacking began without recourse to the so-called special committee.

The public has yet to receive word of who sits on this special committee and the manner in which decisions are to be made. The first act of the state is less than transparent, it reeks of malevolence. A rule by purge is highly reminiscent of Mao's China.

Sacking of Syariah judge

Judges in the state Syariah Court have not been spared. Dr Abdullah Abu Bakar, the chief judge of the Syariah Court was sacked, together with the state mufti, Zainal Abidin Ahmad. Are Syarii judges in actual fact, Umno political appointments?

Does this mean that Syarii judges in all Umno-controlled state governments are not independent, that their continued stay in office depends very much upon their obedience and affiliation to Umno politics? That they can be sacked at will by any chief minister or lesser minion every election year?

It does seek to confirm that BN's Islam Hadhari is a version that does not pretend to have any understanding or respect for the rule of law; due process and principles of administrative law and constitutionalism.

The last two decades or so of Islam Hadhari, has produced a plethora of Muslim bureaucracy at the federal and state level dealing with policymaking, dakwah (propagation), Muslim welfare, consultative council for Islamic law, advisory boards for Islamic education and curricula, fatwa (religious ruling) council and numerous others for overseeing the state Syariah courts.

Observers note that these institutions also sought to bring Islamism under the complete dominance of one party and that is Umno.

Fundamentalist regime

Islam Hadhari is propagated as 'moderate Islam' that would keep radical or fundamentalist Islam at bay. But so far, it does not seem to hold much promise as a democratic model if it allows unlimited power in the hands of the government. It is just another kind of fundamentalist regime.

A regime is the name usually given to a government or sequence of governments in which power remains essentially in the same hands of the same social group. Some political commentators say that a regime change is not 'properly regarded' as political succession or change (see P Calvert, 'Political Succession and Political Change in P Calvert ed, The Process of Political Succession . 1987).

Our current electoral system allows the party with the majority of votes (first-past-the-post or 'winner-take-all') to form the government. A majority government does not mean that it rules or only represents the majority which voted it into power.

If the prime minister is bandied as the man for all Malaysians, it does mean that he represents all those who actually voted for him and his party and the minority which did not.

A representative government in other words, guarantees a variety of voices and no domination by the majority. As Madison puts it in The Federalist 51 , "If a majority be united by a common interest, the rights of the minority would be insecure." (B Wright ed. 1961).

The traditional way of controlling majority oppression is by "creating a will independent of the majority." Madison envisages a bill of rights for this purpose.

John Hart Ely (1938-2003) develops the protection further. Ely is the fourth most-often cited legal scholar in history, whose book Democracy and Distrust: A Theory of Judicial Review (1980), has been the most widely cited legal book in the last century.

Open, fair democracy

Ely opines that a winner-take-all system must ensure the effective protection of minorities whose interests differ from the interests of the majority. "No infinite list of entitlements can possibly cover all the ways in which majorities can tyrannise minorities."

A frontal attack on the problem of majority tyranny is needed. The existing theory of representation had to be extended to ensure that while the government serves the interest of the majority of its constituency, the government does not cut the majority's interests from those of the various minorities.

He wrote that the court, instead of serving as an independent source of moral and political values, should primarily concern itself with guaranteeing that democracy remains open and fair.

Constitutional adjudication, including the protection of fundamental liberties, has to adopt what Ely calls, a 'representation-reinforcing' approach. This approach intervenes when the "political market is systemically malfunctioning."

"Malfunction occurs when the process is undeserving of trust, when (1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2)

though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognise commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system."

The right to vote

The right to vote in our law is constructed from the right to elect representatives to the Dewan Rakyat.

The right to vote is (1) central to a right of participation in the democratic process, and (2) it cannot be left to elected representatives, who have "an obvious vested interest in the status quo."

What interests me at this point in time is how the representation-reinforcing approach may be used in the right to vote and 'mal-apportionment' cases, and in voter qualification. I believe, there is no record in these past 46 years of any constitutional challenge on re-delineation of constituencies.

As to the human rights of sacked officials, there is adequate development in human rights law and judicial review of administrative action in our system for lawyers to chew on.

There are cases in our short legal history where judges often readily rubber-stamp any Act of Parliament which amends the constitution, including the chapter on fundamental liberties. One is hardly surprised although very much disappointed when law professors here, can conclude that our fundamental liberties are 'residual' in nature.

There has been some hope that in some rare situations, our superior court judges have reclaimed our fundamental liberties in the wake of executive and legislative anarchy. Some of these rare gems actually came about after the upheaval of reformasi, although we still have to scrutinise judicial appointments to the bench.

When a judge upholds a restriction by Parliament on our fundamental liberties, it may construed as having been done on a 'presumption of constitutionality' and that by itself provides the 'rational classification' which legalises the restriction in the eyes of the court.

In 1969, Chief Justice Warren (whose leadership of the US Supreme Court is admired by John Hart Ely), said that this presumption and rational classification is based on an assumption that the institutions of government are structured so as to represent all the people fairly.

"However, when the challenge to the (law) is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality." (Kramer v Union Free School District No. 15).

"We cannot trust the ins to decide who stays out, and it is therefore incumbent on the courts to ensure not only that no one is denied the vote for no reason, but also that where there is a reason (as there will be) it had better be a very convincing one." (Ely, 1980).

Rural-urban weightage

Ely is of the view that "unjustified discriminations in the distribution of the franchise" for example, should be capable of challenge under an equal protection clause. We have such a clause in Article. 8.

'Mal-apportionment' is where one person's vote counts only a fraction of another, like our rural urban weightage .

"Half a vote is only half a vote, a sixth of a vote is scarcely better than no vote at all, and here again those in power have a vested interest in keeping things the way they are." (citing Baker v Carr 1962)

Ely warns of critics declaring that mal-apportionment cases will involve the courts in a political thicket, calculated to get the courts in trouble. He says this is not a proper constitutional argument to raise in the first place.

This is so because, the equal weightage of everyone's vote is a notion that most people can understand and sympathise with. Ely believes that the legislature would in time appreciate the court's efforts in this area.

"What the critics missed is that the incentive of the elected representatives is not necessarily toward mal-apportionment but rather towards maintaining whatever apportionment, good or bad, it is that got, and keeps them, where they are."

The 'one person, one vote' standard is therefore 'certainly administrable' by the courts.

Our Election Commission (EC) has defended its re-delineation exercise before 2004 general election. It may be 'rational' to give rural areas more legislative representation per unit of population.

However, Ely's argument is more than just 'rationality'. "The problem ... is that such defenses work too well, that they can readily be pushed to the point of justifying governmental systems that we all recognise as inconsistent with the plan of our constitution."

Thus in his view, it is 'irrational' if. for instance, we were to give rural voters 90 percent of the effective voting power when they make up only 10 percent of the population. Distinctions in voting strength must be rationally defensible such that any plan "must be such as not to permit the systematic frustration of the will of a majority of the electorate of the state." (citing Reynolds v Sims, 1964).

Minus the legalese (as my faithful readers have recently complained), what this means is that it is possible to take a court challenge to the recent delineation amendment on these premises.

The meaning of democracy in all its variations would invariably include political equality. According to Ely, political equality or the principle that everyone's vote is to count for the same is quintessentially democratic.