The main challenge is what to do in the face of double standards.
— Richard A Falk, American international law professor
De facto applies to that which exists naturally, and will continue to be so because of its intrinsic characteristics as a being; de jure refers to that which is in existence because a right, a privilege, a duty or an obligation was imposed and impelled by man-made laws.
A perfect illustration is the gold standard (de facto), and the creation of paper money by government law (de jure). Both co-exist in a global cryptocurrency context with equal emphasis on each other’s efficiency as long as nobody’s inalienable rights are eroded.
The clash between these two legal constructs can be gauged upon examining the difference between anthropology and history. One represents the actual proof and evidence of being as confirmed by scientific data, while the other represents subjective opinions of scholars motivated by a desire to obtain their doctorates so that they can be quoted and referred to as experts.
The final analysis of a de jure experience ready for social experimentation is through a court of law with heavy reliance on written law, previous decisions and judgments. Equity, stemming from de facto realities, has been afforded salad dressing status to give spice to the stale, restrictive, and subjective man-made law.
Notice the term “court of law with de jure jurisdiction. We don’t as yet have a “court of conscience with de facto jurisdiction.” The former is what besieges trade, commerce and human relations in public and private domains. The latter is a much-expected experience to lay aside technical niceties to get into the marrow of the matter.
Dr Stefan Talmon in his ‘Recognition of Governments in International Law, with Particular Reference to Governments in Exile’ makes an excellent point when he refers to the two legal constructs as standing “like a bank of fog on a still day, between the observer and the contours of the bank which calls for investigation.” One is the actual existence, while the other is the observer’s opinion of a natural phenomenon.
De jure realities create social and political conflicts because race and religion are raised as challenges among the citizenry preventing the resolution of legitimate disagreements about public issues. Another ugly spur is racial polarisation which encourages separateness and further exacerbates the ongoing dilemma, well documented in Richard Rothstein’s ‘The Colour of Law: The Forgotten History of Segregation in America’.
In the local context, the Borneo states (Sabah and Sarawak) are de facto sovereigns although once regulated by a foreign corporation and a self-styled ruler, respectively. The people were reportedly content, not complacent. Nationalism and patriotism were poetic and philosophical pursuits, as was democracy.
In 1963, the de jure Malaysia proposal became memorialised in an international treaty dubbed MA63 that did not, and could not, under colour of law and equity, replace the de facto sovereignty of the Borneo states if Article VIII of MA63 is strictly complied with by the federal government and the prevailing governments of Sabah and Sarawak.
Article VIII of MA63 was designed as an equitable distribution of inherent (de facto) powers of Malaya, Singapore, Sabah and Sarawak with referee and umpire UK as a signatory, making them vicariously liable in the event de facto and de jure persuasions find themselves in a political cul-de-sac to the detriment of Sabah and Sarawak.
De facto and de jure lock horns when comparing and contrasting de jure citizens and de facto denizens in reference to indigenous communities that inhabited a particular locality for over 40,000 years, according to genealogists and anthropologists. Citizens happened in the grand scheme of things when man-made laws took precedence over natural law.
The dilemma of de facto and de jure will continue as long as law, politics and government jostle for pre-eminence. The redemption comes from the reality that de jure is unable to dismiss, destabilise, debilitate or destroy de facto. Written law finds itself in an awkward position to derail the spirit, pith and substance of de facto.
Malaysia’s Federal Constitution (FC) is another enclave of de facto and de jure jurisdictions that require no navigational skills between the niceties and complexities of hermeneutics. The rule of law and the rule by law are weak arguments when de facto realities reign and rule.
This decadent duelling dilemma that leaves no winners or losers is perceived as a political quagmire where there is a costly collision between fact and fiction.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
