I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.– Letters of Thomas Jefferson (3rd US President)
One of the litigating parties in a hypothetical lawsuit throws a monkey wrench into the proceedings by declaring that the presiding judge must recuse himself or herself because his or her “Judicial Commissioner” (JC) status is a disqualification vis-à-vis that of a High Court judge.
Under Article 122B(1) Federal Constitution (FC), the JC is appointed by the Yang di-Pertuan Agong with the advice of the prime minister. So, hypothetically, when one litigating party petitions the court for a judge’s recusal, isn’t that akin to telling the court that the advice offered by the prime minister to the Yang di-Pertuan Agong was defective, bad or wrong that led to that appointment now being challenged?
Constitutional amnesia always thrives in a jurisprudence of doubt.
In another hypothetical case, one “state” insists that its sales tax is due, owed and payable by the defendant central government. The lawyers for the defendants cavalierly plead that such imposition of the state sales tax is “ultra vires the Constitution”.
A quick check of the relevant Article in the FC evidences that the imposition of the state sales tax is constitutionally provided for in the Ninth Schedule, List II – State List – guaranteeing native reservations; native law, custom and Native courts; and state sales taxes as “Additional Sources of Revenue Assigned to Sabah and Sarawak”.
So why do the Feds welcome and accept this obvious state of amnesia when the claimant says he has amnesia and he took the trouble to remember it! Our courts have become institutions for the dutiful, executive-pliant and the fearful no thanks to our dreadful record of judicial temperament.
Our judges sit and take copious notes, and seldom ask questions, as referees and umpires, for some clarification or verification of any issue raised by some half-baked lawyer dedicated to misleading the court when expert witnesses are absent.
The dynamics are destined for change for the better upon the establishment of a Constitutional Native Court in Sarawak where constitutional amnesia and dementia are robustly exorcised.
“Garbage in and garbage out” as the late US Supreme Court Associate Justice Antonin Scalia used to quip when law pretends to be lofty and noble as a “brooding omnipresence in the sky looming over mankind”.
This special Court can help the Sarawak legislature and the executive branches of government clear the plethora of doubts and uncertainties concerning any MA63 Agreement’s issues that require constitutional certainty, consistency, continuity and clarity.
The welfare of the People of Sarawak must become a pivotal priority so long as the Sarawak government pays obeisance to the Constitution of Sarawak which is unambiguous as to its territorial supremacy and permanent sovereignty (Article 27).
Note that the FC is the consequence, not the source, of the aspirations, expectations and desires of the People of Sarawak, based on the seminal documents like the Nine Cardinal Principles of the Rajah of Sarawak and the Inter-Governmental Committee Report of 1962.
The so-called 18 Points and 20 Points are merely akin to minutes of the deliberations, hearings, and meetings of the Cobbold Commission headed by a retired British banker.
I often wonder whether a retired appellate judge, barrister, political scientist, academic legal scholar, or legal advisor to the British government would have determined Sabah and Sarawak’s future with more socioeconomic, geopolitical and socio-legal care, caution, clarity, consistency, certainty, conscience and consciousness.
If the FC is serious about the rights, privileges, obligations and duties of the People of Sarawak, then this proposed special Court, as the intellectual conscience of Sarawak, will certainly have the governmental authority to say so under Article 27 of the Constitution of Sarawak (supremacy of the Constitution).
This proposed special court will be the first of its kind in the region once it is amalgamated with the current Native court system. Its primary function will be to employ and deploy constitutional course direction, correction and instruction to prevent constitutional dementia and amnesia which has plagued us from day one.
The executive ordained pre-programmed Artificial Intelligence (AI) for “judicial guidelines and analyses to improve efficiency” will most certainly encourage judicial sloth because relying on external aids will dictate terms that could be hazardous to constitutional health in that it can morph into robotic jurisprudence.
Our judges desperately need to sharpen their reasoning skills, and the use of inductive and deductive logic to available, applicable and relevant facts as presented by litigants to determine the course of justice under the rule of law.
When you have AI thinking for you, the argument can be made that judges and lawyers will gradually be replaced with AI doing all the primary, secondary and tertiary work. Surreal jurisprudence in the mould of Judge Dredd is not welcome.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.