BY NAVIN C NAIDU
Voters voice in the affairs of state is heard when they select and elect candidates for public office. This is a non-mandatory entitlement contained in Article 119 (1)(c) in the Federal Constitution (FC) where patriotism supposedly begins and ends.
Article 119 FC should have enumerated an anti-frogging clause aimed at loyalists and opportunists to watch out for the capitalists hacking away at the roots of government.
The hereafter following selection and election is usually out of the voters’ hands because distractions, desertions, defections and subsequent appointments take centre stage. Contained between the constitutional intersections of Article 10(1)(c) and the appointment powers in Article 43 FC, are certain aberrations that need to be resolved.
The appointment authority of the Yang di-Pertuan Agong is incontestable and indisputable as His Majesty, under Article 44 FC, is an integral part of the Constitution of Parliament. It is not merely a ceremonial or symbolic role as is sometimes opined by self-styled constitutional experts.
His Majesty’s strong voice in affairs of state is further buttressed by Article 39 which vests his office with executive authority. It does not imply an automatic acceptance of the advice of the Cabinet whenever it impinges on His Majesty’s better judgment.
The distractions, desertions, and defections, usually attributed to “frogging,” should not find comfort and solace in Article 10(1)(c) FC where the “all citizens have the right to form associations” gambit has stretched the limits of human inventiveness and arrogance under the pretext of the rule of law and statutory construction.
The grundnorm (a concept in the Pure Theory of Law) for integrity, fairness, character and conduct has to be contained in a written compact with the rakyat and not be subjected to a toss of the dice event for the governed and the government to be on a level playing field.
The Sabah State constitution today is subject to a host of interpretations when confronting its Article 6(3) and Article 6(7) where the former gives the TYT authority to appoint as chief minister an assemblyman who, in his judgment, is likely to command the majority of the assembly members, while the latter lacks the phrase “in his judgment.”
Thus, Article 6(3) and Article 6(7) defy each other given the fact that one coalition which won 29 seats is a registered political party while the other is an unregistered coalition of four political parties. The first-past-the-post gambit seems to be in dire straits threatening to occasion a toss of the dice incident.
After 92 constitutional amendments to the Federal Constitution the powers-that-be should have amended Article 119 to reflect a clear, cogent and concise clause concerning the strict formula for state and federal elections bereft of dubious interpretation imperatives by self-appointed constitutional experts.
To add insult to injury, we have the invidious statutory declarations issue that forces the Agong or TYT’s hand. Is this allowed breathing space in Article 119 FC when it comes to elections? Statutory declarations have their special time and space in a different context, but when it comes to elections, it is the voters voice. Period.
Why create, escalate and exacerbate a constitutional conundrum when a state assembly’s proceedings following a snap or general election should not be open to any contest in a court of law according to Article 72(1) FC? The judiciary ought to create a Practice Direction for itself.
Article 43(4) and Article 55(2) FC can effortlessly be invoked by the Yang di-Pertuan Agong in the event an election issue usually fuelled by party-hopping in the Dewan Rakyat confronts His Majesty’s constitutional duties.
The judiciary should not get involved in any dispute concerning the proceedings in the state assemblies or in Parliament under constitutional fiat. Other statutory provisions have no place in the constitutional matrix of Malaysia.
The decisions of the Yang-di-Pertua Negeri should not be subject to proceedings initiated in a court of law just because some politician has hired a hotshot expert lawyer who is willing to argue the “in his judgment” provision in a state constitution.
Adequate constitutional amendment should not emanate from a court judgment based on the logic of persuasion tainted by faulty logic, analogy, precedent or rule of application unconstrained by judicial activism.
Caveat: The only way to get money out of politics is to get politics out of money-making.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
