The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalised version of the first.Thomas Jefferson, third President of the United States
Like an airplane with faulty and defective navigational aids, our Federal Constitution (FC) has been flying a curious route since its inception in 1957 constantly buffeted by executive turbulence.
A new mantra that is sweeping the shores of Sarawak is “ultra vires the Constitution,” meaning beyond one’s legal power and authority. It can also mean illegal or extra-constitutional flexing of muscles when some government policy is implemented without constitutional mooring amounting to assaulting the Constitution.
It’s anybody’s guess why our FC was commissioned in the first place when it is just a parchment guarantee. In its present form, shape, structure, spirit and substance the FC is a tasteless and bitter rojak of hopes, expectations, aspirations, violations, breaches, conditions, promises, disobedience and threats.
The Federalist Papers of the United States, authored by Alexander Hamilton, James Madison and John Jay, gave substance, form and structure to the United States Constitution as an enduring bastion of practical law allowing the American public to challenge the government when necessary in order to bind it.
In Malaysia, we should read the Hansard to understand why certain constitutional additions, deletions, repeals and amendments were forced into existence.
The pen dipped in vitriol is undoubtedly Article 1(2) of the FC which as a constitutional frontal attack, relegated, if anything, Sarawak to the status of one of the States of the Federation when the international treaty MA63 made no such provision for this self-inflicted constitutional wound.
Conventions, procedures and processes, not statutory laws and constitutional provisions, ruled the undesirable and unexpected contingencies especially with the departure of Singapore, and constitutional course corrections became politically bearable, painless and acceptable.
This does not mean the people agreed and accepted the unexpected. Needless to guess, the reasons are plentiful ranging from the 1970’s politicians’ insensitivities, ignorance, arrogance, connivance, conspiratorial promises, and cavalier attitudes to the extreme position that Malaya was allowed to bring Sarawak to its bended constitutional knees in blatant violation of an international treaty.
How can constitutional validity be wrought by breaching an international treaty?
This is sheer constitutional terrorism where numerical superiority garnered through a two-thirds majority in the legislature calls the shots. Is people power a parliamentary sacrilege when a unanimous vote is preferred to give licence to constitutional repeal, addition or amendment?
Is two-thirds majority more democratic than a unanimous vote of affirmation? Who wrote the rules? Surely Sarawak qualifies to rewrite the existing constitutional abracadabra.
The supremacy of the Constitution of Sarawak at Article 27 is powerfully revealing: “Any Ordinance passed on or after Malaysia Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
The obvious question becomes whether or not Article 1(2) FC qualifies as an Ordinance designed to be inconsistent, and therefore voidable initially until legislatively declared void.
This would be a most interesting cause to be heard in Sarawak’s Constitutional Court with the unleashing of the full power and authority of the Constitution of Sarawak.
The FC has been abused, misused, refused, and misinterpreted from Day One when Malaysians were forced to accept the extra-constitutional fact and “ultra vires the Constitution” reality that the president and deputy president of a dominant political party become prime minister and deputy prime minister despite the qualifications enunciated in Article 43 FC giving that power to the Yang di-Pertuan Agong whose judgment becomes pivotal in determining who qualifies to likely command the confidence of the majority of the members of the Dewan Rakyat.
His judgment and decision alone not based on the yet-to-be appointed prime minister’s advice. So, today, if the current prime minister steps aside, resigns, abrogates, is incapacitated, or dies in office, the Yang di-Pertuan Agong steps in as the Article 39 FC executive authority to once again exercise his judgment as to the appointment of the prime minister.
Constitutional obedience is the preferred coin of the realm.
Sarawak’s Constitution should be counted as “all or nothing,” even “unlimited or nonexistent.” Jean Bodin (1576, Six livres de la Republique), Thomas Hobbes (1651, Leviathan), and Samuel von Pufendorf (1672, De jure naturae et gentium) wrote extensively on this subject of authoritative power of the sovereign which slowly replaced divine law in 17th century Europe.
Sarawak must set its political stance, stratagem, status, and standing as an undisputed sovereign territorial entity with one final and unlimited decision-centre that cannot be questioned, neither from inside nor the outside.
This is the hallmark of genuine, meaningful and measureable independence.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.