New beginnings

A new Merdeka dawned upon our nation a few days ago when the judiciary stood firm, dug in their heels, took charge and rendered due reverence to their judicial oath. Indeed, the oath of office for judges in Malaysia may imply upholding the rule of law and the role of justice, but it specifically and expressly requires judges to preserve, protect and defend the Federal Constitution – the supreme law of the land.

It is trite to say that Malaysians witnessed uninhibited justice when in reality Lady Justice stayed firmly blindfolded and blinded itself to unholy influences from privilege, power, class, and elitism. The judiciary struck permanent roots into the terra firma of the separation of powers.

A former Chief Justice of the US Supreme Court, Charles Evans Hughes, reminded the legal fraternity and sorority that we are under a Constitution which is what it is because the judges say what it is. He added that the judiciary is the safeguard of our liberty and property under the Constitution. Notice, he didn’t say under the law!

Associate Justice Antonin Scalia of the US Supreme Court ruefully observed that “if one is going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach.” But, he added, “if you like them all the time, you’re probably doing something wrong.” The beginning of the end.

Harvard law professor Alan Dershowitz believes that judges are the weakest link in the American system of justice, and they are also the most protected. Federal judges in the US are appointed while state judges are directly elected by the citizens. Yet, the fault lines are visibly seismic when decisions like Citizens United are unleashed upon the public by a judicial culture swaying like reeds to the typhoons of politics, politicians and ‘ploticians’. “Judges have to be neutral, but they don’t have to be eunuchs,” said Jed S Rakoff, a senior American judge.

Malaysia weathered its judicial seismic tremors when Article 121 became a judicial prosthetic after amputating “judicial power” as originally mandated in the 1957 Constitution. Judicial independence went into a tailspin, but the crash was providentially averted. A correct, correct, correct, and corrupt lawyer unflinchingly began influencing the judiciary and the judges until the Conference of Rulers stepped in circa 2007.

A new beginning to celebrate constitutional supremacy is tucked away in the rare nugget of Article 74(3) Federal Constitution (FC) stipulating that “the power to make laws by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.” The correct posture is for Parliament to stand with hat in hand.

Former Lord President Suffian in Ah Thian v Government of Malaysia [1976] 2 MLJ 112 immortalised constitutional supremacy in Malaysia when he declared that “the doctrine of the supremacy of Parliament does not apply in Malaysia. He we have a written Constitution. The power of Parliament and of state legislatures in Malaysia is limited by the Constitution.” That was a new beginning. And a beginning of the end to Executive overreach.

A great new beginning for Malaysia is expected with a much overdue constitutional amendment: “The basic structure doctrine of the Federal Constitution shall not be legislatively interfered with, disrupted, or otherwise disturbed that has the tendency to affect the preservation of the doctrine of the separation of powers between the three organs of State.”

It is widely believed in some circles that crooked and corrupted politicians punished for stealing would rather go to prison for a few years, get a release, or a royal pardon, and fade away into the sunset to enjoy their ill-gotten gains. But, what if the death penalty was a new beginning to permanently wipe out this cancer? That will send seismic shivers into those proven guilty.

A new beginning must also see litterbugs and errant motorists go to jail on a strict liability basis. Heavy fines will not cut it. The surety of the sceptre and the sober sovereignty of jail should be enough to put the fear of God into these irresponsible elements of society. Neither should the civil servants be spared to usher in a new beginning when the end of the old ways is discarded like rotting malodorous rubbish.

Ralph Blum’s wise observation: “Nothing is predestined. The obstacles of the past can become the gateways that lead to new beginnings.”

The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.