(Part I)
The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.
James Madison, a founder of the United States, and fourth President of the United States
When power is given by consent to an elected government following the vote, people as a rule surrender some rights in order to be governed under the rule of law. That is the formula as schemed by John Locke in his Second Treatise of Government.
The caution voiced by James Madison rings true today in all parts of the world. The branch of government I have always been wary and unsure of is the judiciary no matter which country practices parliamentary democracy under written constitutions.
The American law professor Jonathan Turley remarked that government should not make the Constitution look into its open grave and hope it would jump in.
The judiciary usually comes alive only through the courts when a plaintiff files a complaint and a defendant is required to respond. The Supreme Court of India does not wait for a plaintiff if it finds some government agency violated or is violating a law. It takes action sua sponte (on its own motion).
In Europe, the judges usually consult law professors to untangle some knotty legal issue to help arrive at a just decision. In the United States, the judiciary is considered the “least dangerous branch of government” because it’s only function is to interpret the written law until Marbury v, Madison (1803) decided it is the province of the Supreme Court to declare as void, and voidable, any law passed by Congress that is repugnant to the Constitution.
In Malaysia, we have witnessed some awkward, strange and unusual decisions when it comes to federal versus state powers maybe because of fossilised politicians and judges.
The first case that comes to mind is that of Stephen Kalong Ningkan when the Kuching High Court courageously declared that his dismissal as chief minister was void when the State Constitution was consulted as to the power of the Governor (Yang di-Pertua Negeri) to dismiss a sitting chief minister when some 21 members of the Legislative Council wrote a letter of no-confidence to the Governor instead of calling for a vote in a sitting legislature.
To overrule the (first) High Court decision, Parliament amended the Federal Constitution empowering the Yang di-Pertuan Agong to declare a state of emergency in Sarawak.
The point I am making is that in Malaysia, the judiciary is sadly subservient to the law enforcer and the law maker-cum-constitution amender.
In 1988, the judicial putsch complete with the muzzling of the judiciary had begun. Has the muzzle come off today? The jury is still out on this issue.
I was reviewing the Constitution of Sarawak when the term “constitutional victim” reared its dormant head in my mind. The Constitution of the State of Sarawak makes no mention at all about the judiciary of Sarawak.
That would make anyone entertain the thought that all judicial power is vested elsewhere outside Sarawak. That cannot be right when the Federal Constitution makes several specific provisions for native law, custom, usage and Native Courts for Sarawak, and Sabah.
The supremacy of the Constitution of Sarawak rings loud, clear and true at Article 27. This offers a strong anchor to the sovereignty of Sarawak.
This is a perfect opportunity, reason, purpose and time for the Council Negeri to pass a law authorising a Constitutional Native Court in the spirit of Article 145(3), Article 150 (6A), Article 153, Article 160, and the Ninth Schedule List II (State List) of the Federal Constitution.
The Council Negeri is also empowered to give this Court a constitutional mooring in the affairs of Sarawak. This can go a long way to secure the “independence” of Sarawak which seems to have gained a large following of interested persons.
There is a method to the madness of everything noble and ignoble, and this recurring talk of Sarawak’s independence is one of them.
Sarawak’s political maturity as a local, regional, national and international authority can only be plausible when the supremacy of Sarawak’s Constitution is made known with the entrenchment of the Constitutional Native Court under the power and authority of Article 27.
It must be remembered that Sarawak is already geographically independent. It can and must become economically and politically independent only through the rule of law and not with the rule by law.
The people matter, always. Government is instituted for the purpose of looking after the People. Salus populi est suprema lex — the welfare of the people shall be the supreme law.
Cicero’s caution has not survived the tests, trials and tribulations of time with fear, fault, and favour. People power, albeit limited, is given utterance at Section 27(1) of the Malaysian Criminal Procedure Code which empowers a citizen’s arrest. This is significant.
The Constitutional Native Court will complete the Constitution of Sarawak with its own homegrown court system free from influence, threat, intimidation, coercion or intrusion.
The independence of Sarawak means it follows, abides by and complies with its own laws and customs in the grand scheme of things.
No power can disturb this arrangement. The people will not allow it. The power in people is greater than people in power.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
