If the machinery of government is of such nature that it requires you to be the agent of injustice to another, then I say, break the law.
– Henry David Thoreau, American philosopher and essayist
Malaysians from all walks of life have started taking stock of the conditional movement control order (CMCO) in varying degrees of acquiescence and doubt compounded by some unnecessarily inflicted policies of uncertainty by the present government.
State rights versus federal rights seem to be assuming the proportions of the Ninth and Tenth Amendments to the United States Constitution wherein resides the growling silence of un-enumerated rights relating to State rights.
The situation in Malaysia is almost similar when you consider the Federal List, the State List and the Concurrent List of the Schedules contained in our Federal Constitution (FC) each jostling for contextual priority and primacy.
As an example, Article 70 to Article 82 FC outlines the constitutional formula for “The States” and “Relations Between the Federation and the States” although I suspect this constitutional arrangement is wholly susceptible to various interpretations depending on who is calling the constitutional shots (read: political shots).
“Federal guarantee of State Constitutions” explained in Article 71 dissipates within its seven sub-sections into veiled threats of parliamentary supremacy. So, some constitutional scholars and apologetics opine that a written constitution, being that it is the supreme law of the land, can mandate the supremacy of parliament.
Can a supreme law make another entity more supreme to it? I leave it to others to figure that one out. So, if this is the case, does Article 72 become fortuitous in that it prohibits the questioning of the validity of proceedings in a State Legislative Assembly in any court of law?
Put plainly, no court of law in Malaysia will entertain a claim by the federal government if a state legislature passes a law that infuriates or irritates its bastion of federalism. Article 72 reminds me of the Ninth and Tenth Amendments to the US Constitution upholding state rights. For the moment, at least, until an overreaching executive branch of government decides to settle the score with police power at its beck and call.
There is also much debate about the appointment of the present prime minister by the Yang di-Pertuan Agong which can be answered from the Reid Commission Report, at paragraph 68, which refers to the Yang di-Pertuan Agong as Yang di-Pertuan Besar:
“We recommend (Article 35) that it should be the responsibility of the Yang di-Pertuan Besar to appoint the Prime Minister of the Federation. The Prime Minister must be a member of the House of the Representatives. The Yang di-Pertuan Besar would normally appoint the leader of the majority party in the House of Representatives because no one else would be likely to command the confidence of the House, but there may be occasions when it is doubtful as to who should be appointed, and we see no practicable alternative to leaving the Yang di-Pertuan Besar to choose the person who he thinks most likely to command the confidence of the House.”
This is a clear indication of a constitutional green light to the power and authority of the Yang di-Pertuan Agong whose advisors were certainly aware of the absence of any extra-constitutional bravado. The advice was correct and appropriate. Case closed until of course another parliamentary manoeuvre is occasioned.
Ultimately, how much of constitutional hernia can the rule of law withstand and tolerate with excessive interference by the executive branch of government.
Courageously, the presiding judge in the Tun Datu Mustapha case — [1986] 2 MLJ 724 — upheld the rule of law and the constitutionality of the Sabah State Constitution in declaring the storming of the Istana to force a chief ministerial appointment upon the Yang di-Pertua as a “great shame to responsible government”.
Tragically, in the Stephen Kalong Ningkan case — [1968] 2 MLJ 238, the Privy Council observed that a “different purpose” proclamation of Emergency by the Yang di-Pertuan Agong was uncertain and debatable under the circumstances without affirming the judgment of the first trial at the High Court which raised the predominant, pivotal and primary issue of “different purpose”.
The highest court of appeal at that material time engaged its neutral gear. Justice disturbed, denied, derogated, or delayed?
Political observers probably enjoy a parody (read: government) portraying tragedy, comedy and remedy as the difference between right, wrong and popular.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
