Obscurity and competence: That is the life that is worth living.
– Mark Twain, American author
Slouching towards textbook obscurity is the pre-occupation of the host of guarantees offered by the State to benefit its citizens, but it is robustly rejuvenated temporarily during National Day or Independence Day celebrations. Meanwhile capitalist higher education institutions spare no effort to resuscitate the ideals of State and citizen co-existence in a democracy.
The first casualty is usually the concept of democracy supposedly designed to ensure sound economic policies and social justice under the rule of law. These lofty and supposedly noble principles seriously undermine national schemes, patriotic themes and cultural memes.
The “rule of law” is another willing victim in the scheme of things. European legal scholars like W. Friedmann (Legal Theory), Wolfgang Horn, Werner Birkenmaier and Roman Herzog went to great lengths to elucidate what the rule of law really suggests, means and represents.
The rule of law best describes a State which does not meddle with the individual and generally exists to benefit its citizens. Or, man does not exist to serve the State, but vice versa. This gains strength and prominence in textbook obscurity as a perfect rote item for written examinations.
Fundamental rights and human rights stand in line, too, ready to be rushed into textbook obscurity by the passing of unjust laws that threaten constitutional firewalls. State interference generally assumes geometric progression dimensions.
The great philosopher Immanuel Kant said that the constitutionality of a State depended on the existence of written laws that are just and impartial. Choking and strangling written constitutions and laws cause more than tremors and traumas that forces the moral man to resort to the law of the jungle – survival of the fittest.
The system of the separation of powers between the executive, the legislature and the judiciary has developed a natural attraction to textbook obscurity. There is not a single known written constitution anywhere in the world that categorically mandates the separation of powers for the proper functioning of the rule of law in a democracy.
One of the most effective means to avoid textbook obscurity of the rule of law is to include in a Penal Code the guarantees of punitive penalties in the event power separation is violated or breached. This is a must between, during after elections for citizens to clearly see how constitutional democracy ought to function.
Total resistance from the judiciary to thwart and stem any judiciary-controlling legislation will obviously evidence dedicated democracy in action. Time to pass a law in the Penal Code that prohibits judges and lawyers to discuss politics in and out of their robes. No compromises, or the independence of the judiciary is assured a permanent spot in textbook obscurity.
There are other ways and means to stop democratic principles jostling for a promise, a place and a position in textbook obscurity. The Penal Code, for example, must be amended to specify and dignify a deterrent punishment upon elected legislators who cross the line afflicted by the cancer of corruption.
When fairness, equality and equal distribution of wealth are discussed as an egalitarian measure for all citizens there is an adrenalin rush to relegate this thinking into textbook obscurity while referencing Marxist principles as a living threat to democracy. The Malaysian Federal Constitution dignifies equality which is unfortunately tortured by the opinions of non-judicial or quasi-judicial elements.
The sceptre of the Public Officials Accountability Act should not even see the shadow of textbook obscurity while accommodating and parading the trite and sickening clarion call that “nobody is above the law.” The strict scriptural and spiritual requirements for leaders to be able, accountable and responsible, if not response-able, is mandated in every major religious text. Yet, the roots of the law are seldom venerated like its shoots.
Democratic principles accommodating the separation of powers between the three organs of State is now being referred to as the “basic structure doctrine” where constitutional supremacy supersedes parliamentary supremacy. If this is to be taken as a licence to operate government, then it makes perfect sense for the Executive, the Legislature and the Judiciary to enforce the basic structure doctrine each with its own police force.
The first-tier Executive with the word “Royal” prefacing police power is a strong constitutional statement. The second-tier Executive must reflect on this constitutional firewall or be forced to enjoy textbook obscurity so that constitutional democracy could lead the tenets and strictures of parliamentary democracy.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
