Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies. – Groucho Marx, American comedian, writer, film and television star
Sarawakians’ discomfort coupled with growing uneasiness with the Pakatan Rakyat’s concept of Malaysia can be summed in two premises since everyone these days is caught up with talk of the “rule of law”.
The first is what the law “is” while the second is what the law “ought” to be. The uneasiness and discomfort can be gleaned from media reports citing and quoting politicians from across the divide concerning the affairs of Sarawak as contemplated in the founding documents, especially the Inter-Governmental Committee Report (IGCR) of 1962 which supposedly complied with and adhered to the mandates and strictures of the Nine Cardinal Principles of the Rajah (Brooke) of Sarawak — the bedrock of Sarawak’s Constitution.
The first premise (is) deals with that which vested interests want established and ordained as the law of the land based on the rule of law.
In reality, it is the rule by law. It may be subtle, surreptitious, furtive and cunning, but the thing speaks for itself. What “is” the law is usually fortified by written statutory law and a written constitution normally referred to as the “supreme law of the land”.
So, whenever a written law is challenged in a court of law, its constitutionality is questioned. In other words, your pleadings in court must pivot upon whether the challenged written law comports with the supreme law of the land.
The second premise deals with what the voting public — the citizenry (rakyat) wish and want as the law that is fit to govern them since they have the right to select, elect and vote for the right people of their choice in the hope that the elected politician delivers all that the rule of law describes, prescribes and proscribes.
Somewhere between the what “is” the law and what “ought” to be the law is the conundrum that the people of Sarawak are experiencing since 1963 when Malaysia was thrust upon them.
Complaints, conflicts, controversies and disputes are aplenty with everyone having a valid point as to what the genuine law ought to be when attacked by what the law is.
The wanton confusion regarding native customary land rights is another sad example before the common law courts of Malaysia in determining and deciding customary native rights to land in Sarawak now dubbed “Native Territorial Domain” by the state following a recent amendment to the Sarawak Land Code.
This is a starling illustration of what the law “ought” to be in the wider spectrum of the “special position” status guaranteed in the Article 153 of the Federal Constitution usually and affectionately called the “supreme law of the land”.
Besides, this a ripe and ready dispute that ought to be brought before a Native Court since adat (custom and usage) is considered law according to Article 160 of the Federal Constitution.
Native Court proceedings cannot be discontinued by the Attorney General according to Article 145(3) of the Federal Constitution. It gets better when you consider the power behind the supreme law of the land when it declares in Article 150(6A) that native law and custom are immune from a Proclamation of Emergency.
The thing speaks for itself.
The people have certain pivotal roles to play to execute and exercise their “special position” standing as enshrined in Article 153, Federal Constitution. What the law is in the context of “special position” grants the people the right to police power undisturbed by the state or federal governments.
They have the right to determine and decide how they are to be compensated. They have the right to implement and enforce the decisions of the Native Court whose foundation, function, purpose, character, and, power, authority, and strength are enshrined in the Federal Constitution.
It is always wise to sharpen your constitutional knife, and keep it sharp and sharpened all the time in case you are urged to obey and abide by the supreme law of the land.
The thing speaks for itself.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
• The writer has 50 years cumulative experience as a lawyer, Native American tribal judge and a professor of law. Having lived in the US for 37 years, he is back in Malaysia to savour the local food again.
