BY PROF. (DR.) NAVIN C NAIDU
Rules are mostly made to be broken and are too often for the lazy to hide behind.
– General Douglas MacArthur
The House of Lords decided in Pepper v Hart [1993] AC 593 that if primary legislation is ambiguous or obscure the courts may in certain circumstances take account of statements made in Parliament by Ministers or other promoters of a Bill in construing that legislation. Previously, using Hansard in this way would have been considered a breach of Parliamentary privilege.
For reasons and purposes best known to their political persuasions, the British decided not to have a written constitution. Instead, they decided to make Parliament supreme. There is thus no supreme law of the land for Great Britain except for the Delphic oracle – the House of Commons.
In Malaysia, constitutional supremacy takes priority over parliamentary supremacy. Sadly, the Federal Constitution, as the supreme law of the Malaysia, does not enumerate penalties, sanctions or punishments for breaching it. Oversight by the Reid Commission, or was it deliberate?
Breaching, breaking or violating laws has its fair share of penalties, sanctions and punishments, but not the supreme law of the land. This is a serious anomaly considering constitutional supremacy vis-a-vis parliamentary supremacy.
Recently, Parliament decided to amend Article 49 of the Federal Constitution to prevent party hopping that can seriously jeopardise a political party’s standing in the game of numerical supremacy that translates to parliamentary majority. This scheme is becoming archaic.
Let’s analyse the case of the six Bersatu MPs who decided to quit and join PMX’s political party. Under Bersatu’s constitution, as recently amended and approved by the Registrar of Societies, once an elected MP quits his political party, or resigns, or is expelled, he must vacate his seat in Parliament. The Election Commission has to be informed for scheduling by-elections.
Instead, the Speaker of the Dewan Rakyat jumped into the fray and decided that the six MPs can remain as MPs in direct violation of the recently amended Article 49A Federal Constitution. The Speaker’s unconstitutional and unparliamentary decision, in essence, replaced the supreme law of the land absent the whip, ballot, bullet, or the pen.
But is the Speaker the deciding factor as Head of the legislature? He decided to pit national unity above and beyond constitutional supremacy. Incidentally, “national unity”, or even “coalition parties agreeing to form a government” are silent in the Federal Constitution. Perhaps some contingencies must remain unmentioned.
PMX will not disagree or overrule the Speaker, or refer the matter to a Federal Court’s original jurisdiction analysis of Article 49A because his party stands to gain with an extra six MPs abandoning their oaths of allegiance to their electors and their political parties.
“Derhaka,” or disobedience to DYMM YDPA is supposedly silent in the Federal Constitution and Malaysian laws. And so is the concept of the basic structure doctrine or the separation of powers to immunize the supreme law of the land from mindless manipulation through constitutional amendments.
Several legal lightweights and a former prime minister weighed in and reportedly opined that lese majeste, if it’s a breach of any law, can be fully investigated, and he is open to the suggestion that he could be questioned. This is the man who claimed to have clipped the wings of Malaysian royalty.
The Malaysian public has become fully aware that the supreme law of the land is that which is controlled by the deep state, the elite and the politically powerful. Democracy, the will of the people, public welfare, accountability, judicial independence, an independent and fearless Bar, etc, are pathetic platitudes.
One politician expressed her probably scripted opinion that the six Bersatu party quitters were not to be put on the same pedestal as those who led the “Sheraton Move”. She cleverly compared both. The quitters, she said, were advancing national unity while the “Sheraton movers” had disrupted and derailed government.
Where does one go to find solutions and remedies when the supreme law of the land is unceremoniously disregarded? The apologists invoke the right to freely associate under Article 10(1)(c) Federal Constitution for butterflies and frogs in Parliament who decide that changing and exchanging allegiances and alliances can be spoken of as a constitutional right.
The Malay Mail wrote: “The Federal Constitution now has an added Article 10(3A), which allows the right to form associations to be restricted by Article 49A for MPs and by the new Section 7A of the Eighth Schedule for state lawmakers. So what this means is that the new anti-hopping provisions are allowed under the Federal Constitution and do not breach the Article 10 constitutional right.”
And this begs a burning question: Can a law be written in such a way that there are no loopholes or exclusionary clauses? Laws must secure strict liability for its breach. Malaysia lacks this crucial fortitude in its statutes. Reformers focus on legislation but never protecting, defending or upholding the supreme law of the land.
Public officials are required to affirm or swear an Oath to defend, uphold and protect the Federal Constitution being the supreme law of the land. That is not a platitude. But disobeying the supreme law of the land requires utmost attention and strict scrutiny.
Bersatu’s six MPs seem to have secured permanent refuge concerning party allegiance and justified hopping. This must be subjected to judicial review of their actions based strictly and primarily on their motives. The voters certainly did not select and elect a potential frog!
Among other things, “Article 4(1) Federal Constitution is there to safeguard the supremacy of the Federal Constitution by preventing Parliament from enacting any law it pleases and the provision only comes into play where there is inconsistency between any post-Merdeka law and the Federal Constitution,” declared the 2019 Federal Court in Marina Chin v Ketua Pengarah Imigresen and Menteri Dalam Negeri.
This Federal Court should have added the word “prohibiting” with the word “preventing”. The judiciary must stand jealously firm and zealously strong in matters involving separation of powers and the independence of the judiciary. Judicial power should not be assumed to have diminished despite the 1988 judicial putsch.
A responsible and accountable government adhering to and complying with the rule of law ought to consider the consequences of MPs quitting the existing ruling coalition and joining the Opposition. How would it handle this emergency?
If elected officials representing political parties believe they can topple governments with a dramatic shift in allegiances, then it’s time DYMM YDPA and the Conference of Rulers summon a Council of Experts to replace this form of unstable democracy.
Disobedience by elected public officials must be met with severe sanctions and penalties. Perhaps it’s high time those standing for elections undergo psychiatric and psychological evaluation in an effort to obey Article 48(1)(a) Federal Constitution.
What’s the point of having half-baked laws that causes constitutional chaos and convulsions when disobedience is an accepted national malaise? Elected government is losing face and faith. There are alternatives to alter native thinking of democracy.
The views expressed here are those of the writer and do not necessarily represent the views of New Sarawak Tribune.
