A nation of sheep will beget a government of wolves.
– Edward R. Murrow, American broadcaster
American lawyer Alexander Bickel postulated, a few decades ago, that courts and legislatures must interact on a regular basis because they serve the public interest (commune bonum) – individually and collectively. So, if public interest is the primary reason these two branches of government exist, shouldn’t the people be invited to get involved in these deliberations? After all, the judiciary represents unelected, unaccountable and unrepresentative judges.
People interact with government only during elections to decide who is qualified for the legislature, but do not qualify to elect judges. This poses discomfort and awkwardness in parliamentary democratic regimes.
A rare triune trialogue opportunity presents itself when a hotly-debated controversial constitutional issue surfaces. The judiciary alone should not declare what the law is because parliament did not birth the written constitution, and therefore the intent of constitutional provisions should not fall within the purview of this branch of government. There ought to be a consensus between parliament, the people and the judiciary as a single voice for and in the public interest.
It’s almost trite to say that Malaysia enjoys constitutional supremacy, not parliamentary supremacy, according to Article 4. It also says that any post-Merdeka Act of Parliament which is inconsistent with the Federal Constitution (FC) shall, to the extent of the inconsistency, be void. The interpreters of the written constitution are the judges, not parliamentarians. This is the primary purpose and reason for a regular trialogue without judicial supremacy and parliamentary supremacy upsetting the delicate balance.
Taking public interest as a raison d’etre, Madam Justice Rosalie Silberman Abella of Canada compellingly pointed out that “democracy was never about the wishes of the majority, but the protection of rights through the courts notwithstanding the wishes of the majority.” Now, that is an extreme statement coming from a judge because Madam Justice is probably insinuating that a charter of rights in a written constitution is unanimous in its declaration and proclamation, and thus should not be subjected to a 5-4, 6-3, 8- 1, or 7-2 majority decision that jostles for supremacy as settled law, at least until it is overruled by the judiciary itself, or through legislation.
The public interest is best served with voters’ participation when constitutional amendments become necessary. The right to associate in these deliberations is entrenched in Article 10(1) (c) FC. Must the voters wait for the next general elections for their voices to be heard again? Do parliamentarians genuinely voice the voters’ expectations in their chambers?
Malaysia has come a long way since it was granted “independence” in 1957. The dialogue between the judiciary and the legislature does not happen in most western regimes where the rule of law and due process are preached and lamented over and over again when some constitutional mishap occurs. Malaysia is well posited as a trailblazer to open the eyes of the west when a trialogue between the people, the judiciary and the legislature becomes a routine affair.
The lawmaker, the law interpreter and the law beneficiary huddling together to discuss the public interest ought to be an intellectual feast where all stakeholders have a say in what’s best for the nation-state and the country. Such a trialogue – an exchange of ideas and information – does not necessarily mean that the government’s authority is weakened, lessened or otherwise negatively affected.
Article 127 FC (Restriction on Parliamentary discussion of conduct of judge) should not be seen as a platform for dialogue between the judiciary and parliament. It takes one quarter of parliamentarians assembled to file and present a substantive motion to discuss the conduct of a judge. This constitutional provision is patently not healthy for an unelected, unaccountable and unrepresentative independent judiciary. There has to be another fair and just tribunal to discuss the conduct of a judge. How about a Peoples’ Tribunal?
Article 162(6) FC is a great passage and passport to our independent judiciary to modify, tweak, adjust, tighten, and even amend the FC “as may be necessary to bring it into accord with the provisions of this Constitution”. Article 162(7) goes all the way to define “modification” to include “amendment”, “adaptation” and “repeal”!
The trialogue referred to here is necessary for Malaysia’s multi-cultural heritage with all its policies, fallacies and prophecies of integration are to be manifested as national unity. It’s the only proven way to prevent the expansion of government matched by a contraction of fundamental liberties when sheeple are led and fed by wolverine attitudes and appetites.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
