The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government. – Patrick Henry, lawyer and a founder of the United States of America
Come in optimistically, but don’t leave misty optically. That was the sublime message of the 1872 Licensing Act of Great Britain: “It is Illegal to be drunk in the pub. Every person found drunk… on any licensed premises, shall be liable to a penalty!”
This was the country, by invitation and insistence, that gave us our original Malayan Constitution. Other bizarre legislation that remains on their statute books includes the 1313 law that it is illegal to wear armour in Parliament; that it is an offence to be drunk and in charge of cattle in England and Wales; and also a 1986 poaching law that it is illegal “to handle a salmon in suspicious circumstances”.
Napoleon Bonaparte had a point when he declared that it is acceptable in politics to be absurd. After all, laws and constitutions are politically motivated mechanisms.
Great Britain has no written constitution per se, yet the Reid Commission was charged with preparing one for Malaya. No Malayan was appointed to the Commission. We may have had people with unknown and/or unconfirmed constitutional law experience to write our Constitution.
Great Britain’s constitutional greatness can be evaluated in a 1990 British case when the struggle between law and morals took centre-stage to decide who lives and who dies. Lord Justice Ward reportedly declared that “this is a court of law, not a court of morals.” But all law emanated from morals. Or did I get that wrong?
Most laws made in Malaysia orbit around politics, politicians and vested interests “under the Constitution.” The rakyat appears as collateral damage under the oft-repeated mantra dubbed the “rule of law.”
There is a widening and growing disconnect between the rakyat, the government, the law and the Federal Constitution — the supreme law of the land.
Article 8 (equality) and Article 13 (impartial treatment of federal employees) becomes very expressive in practice although impressive on paper. Article 40 requires the Yang di-Pertuan Agong to “act on the advice of the Cabinet.”
It says nothing about wrong or bad advice. But Article 42 grants the Agong and the Yang di-Pertua Negeri the power of pardon without the Article 40 “advice”. Article 39 vests the executive authority in the Agong but quickly assures the rakyat that Parliament may make such laws as may be required to vest this right in other persons.
Constitutional flip-flop? Article 41 assures the rakyat that the Agong is the Supreme Commander of the Armed Forces. Does this mean total obedience to the Agong’s edict or command when it comes to a national emergency, rebellion or war? But, the Agong’s power to proclaim a state of emergency, or Parliament’s power to make certain laws thankfully stop at the gate of “adat” at Article 150(6A) and Article 76(2).
Article 146 (Reports of Commissions) requires the Agong and the Yang di-Pertua Negeri to receive annual reports on its activities while copies are sent to Parliament and the state legislatures. Does this constitutionally strengthen the executive authority of the Agong pursuant to Article 39?
The judiciary is said to be independent of the executive and the legislature but there are no clear demarcation lines in the Federal Constitution for the separation of powers until the Federal Court, in April 2017, declared its independence in the celebrated landmark decision styled Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat.
It is left to independent and courageous judges to tell the other two organs to stay out of its business. Curiously, our non-native courts are called “offices of profit” in Article 160. The constitutional picture is disturbingly odd and awkward.
The uncertainty, inconsistency and awkwardness of the Federal Constitution is guaranteed in Article 4 as the supreme law of the land.
Sarawak has the right, authority and power to amend its Constitution under Article 72 and Article 74(2) of the Federal Constitution to amend or make laws in consonance with native law, custom and usage (adat) for specific purposes within the reach of Article 76(2). Adat is thus cast in stone.
In another constitutional aberration, it struck me that the powers of the prime minister are wholly suspect if not uncertain when you contemplate Article 43(4) of the Federal Constitution. Incapacitation, death of resignation of the prime minister legally means he ceases to command the confidence of the majority of the members of the House of Representatives, followed by dissolution of Parliament to facilitate fresh elections.
Article 43(4) does not offer any consolation prizes for the deputy prime minister to take over, or for an Umno president to be prime minister.
Sarawak must decide whether the Federal Constitution is flawless, flawed or lawless in light of Article 48(1) of the Constitution of Sarawak — “all rights, liabilities and obligations of Her Majesty in respect of the Government of the Colony of Sarawak shall on the commencement of this Constitution become rights, liabilities and obligations of the State.”
Constitutions have to be written on hearts, not just paper, said Margaret Thatcher, for all times. Point made.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
