Te whetu Orongo

The executive branch has grown too strong, the judicial branch too arrogant, and the legislative branch too stupid.  

Lyn Nofziger, American journalist and political consultant

Psychiatry is the study and treatment of mental illness, emotional disturbance, and abnormal behaviour. Almost all written constitutions, admittedly, exhibit abnormal behaviour.

As a sitting Indigenous Affairs Judge in the United States, one non-Tribal judge asked me exactly what I did as a “Tribal Judge”. I told him I was a constitutional psychiatrist doing my utmost to study and treat constitutional abhorrence through written judgments. He looked puzzled.

The United States Constitution is a total puzzle when its language, syntax, context, construction and vocabulary clash like cymbals in an unruly orchestra. One Article offers while another takes it away, thus requiring constant psychiatric evaluation.

The Australian Constitution does not protect fundamental rights and freedoms such as the right to life, freedom from torture, the right to equality before the law, or the right to liberty and security of the person.

The United Kingdom is not known to have a written constitution but their colonial civil servants wrote constitutions for almost all of their former colonies. An ongoing experiment.

Saudi Arabia, Israel and New Zealand have no written constitutions. Canada is supposed to have an “un-codified constitution” — this requires extensive psychiatric investigation.

The Constitution of India is widely quoted in Malaysian courts as it supposedly encompasses every discernible human conduct, behaviour and constitutional conundrum.

The Federal Constitution (FC) of Malaysia has had its share of psychiatric evaluation by judges, lawyers, academics and laypersons. Some of its interpretations were abnormal, and some noble.

One such abnormality in the FC is the phrase “existing law” in Article 160(2) referring to any law in operation in the Federation or any part thereof before Merdeka.

When Article 63 of the Perak Constitution was declared to be a federal law (existing law) by the Federal Court in Jamaluddin bin Mohd Radzi & Ors v Sivakumar: Election Commission Intervening [2009] 4 MLJ 593, constitutional psychiatry became necessary and relevant.

On this point, the phrase “Constitution of a State” is nowhere to be found in List 1 (the Federal List) and List III (the Concurrent List) which means a State Constitution is not federal law.

Constitutional psychiatry was evidenced in the Teh Cheng Poh case [1980] AC 458, [1979] 2 WLR 623 (cited to AC) when the Privy Council decision to check the Malaysian executive’s law-making powers in an emergency met with swift legislative response to overrule the judgment decision.

Three planets are in constant orbit in the Malaysian constitutional constellation — the executive, the legislature and the judiciary — playing out a cosmic musical chairs comedy, parody and tragedy. The FC lacks enumeration and mooring for the “separation of powers” doctrine.

During the 1988 Malaysian judiciary putsch the word “power” was eliminated from the adjective “judicial” in Article 121. The executive ran amok, many academics and the media observed.

Psychiatric assessment of the FC began with the Constitution (Amendment) Bill 1983 which curtailed the Agong’s power to refuse assent to legislation, the Sultan’s power to refuse assent to State legislation, and the removal of the Agong’s power to issue a proclamation of Emergency by investing that power in the prime minister.

This is where our FC suffers from constant care and treatment by an overreaching executive which does not endorse, condone, acknowledge or tolerate the doctrine of the separation of powers.

Article 8(5)(c) of the FC is another provision that seems to make a beeline to a psychiatric ward. As the supreme law of the land, it offers untrammelled and unbridled power to the Aborigines of the Malay peninsula for their well-being betterment and advancement.

Unfortunately, the Malayan Aborigines are confined to the restrictions, regulations, and policies of the Jabatan Kemajuan Orang Asli Malaysia thus relegating the supreme law of the land as an expression of government policy.

Will a school to teach, tweak, retrain, and upgrade the professional skills of law practitioners become necessary? Bit, Michel Foucault acutely observed that “schools serve the same social functions as prisons and mental institutions to define, classify, control and regulate people”.

The voters should demand the establishment of an institution where professionals from various disciplines could direct government to render good governance. No voters, no government, right? As George Will observed, “voters don’t decide issues, they decide who will decide the issues”.

Looks like constitutional psychiatrists will never be out of work.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.