Constitutional rupture, repair & rapture

The Constitution cannot protect us unless we protect the Constitution.

Thomas Sowell, American economist

While the Americans are said to be champions of civil liberties and fundamental rights, lawyers familiar with the “constitutional avoidance” doctrine know how their judges take shelter behind it if not motivated to lock horns with a constitutional issue. Baker v. Carr, 369 U.S. 186.

Malaysian courts have ably navigated this issue deftly distinguishing political cases from political questionsDato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29, and Tun Datuk Haji Mohamed Adnan Robert v Tun Datu Haji Mustapha bin Datu Harun [1987] 1 MLJ 471.

Written constitutions supposedly promote limited government where checks and balances between the legislature, executive and judiciary, in the spirit of the separation of powers, prevent encroachment into each other’s jurisdiction while entrenching adequate safeguards to discourage Executive overreach available, visible and unavoidable in the constitution’s crevices.

The infamous violence to the language resulting in the removal of “judicial power” from the original Article 121 Federal Constitution (FC), caused severe constitutional rupture, but the government remained unfazed while the Oaths enumerated in the Sixth Schedule became uncomfortably awkward and visibly shaken.

The moribund Parliamentary Services Act is reportedly being resurrected granting Parliament the autonomy as an independent but separate branch of government. This may give credibility to the Oaths of Office of the collegium of decision-makers in the three branches of government. Such constitutional resurrections, repairs and raptures are long overdue.

Parliamentary democracy is peculiarly structured. Parliament confronts pressure to amend a law when the judiciary’s interpretation and application of any law is overruled because it causes the Executive great discomfort. This happens to be a convention used successfully to encourage the maintenance of unstable governments.

In Phang Chin Hock @ Ah Tee v. Public Prosecutor [1980] 1 MLJ 70, and Mark Koding v Public Prosecutor [1982] 2 MLJ 120, the Federal Court ominously declared that it is “unnecessary to decide whether or not Parliament’s power of constitutional amendment extends to destroying the basic structure of the Constitution,” thus rupturing the fragile doctrine of the separation of powers as implied in the FC.

Cases like Phang and Koding need vigilance and review by a Constitutional Court in a new regime with police powers to prevent constitutional mockery occasioned since June 10 1988 when rupture tactics justified constitutional amendments with a two-third majority.

Fortunately, seasoned judges mounted a collective assault upon those who assailed the basic structure doctrine of the FC in cases like Semenyih Jaya, Indira Gandhi, Sivarasa and Muhammad Hilman which ushered in constitutional repair, resurrection and rapture.

Legal experts embarrass the FC by mischievously misconstruing the appointing power of the Agong in Article 43(2)(a), and the corollary confirmation power of a parliamentary vote of confidence reposing in Article 43(4) when a prime minister resigns without dissolution of Parliament.

The police force and the armed forces are constitutionally bound by Article 41 FC to the Agong in the event wrong or misleading advice is offered by the prime minister pursuant to Article 40(1) and 43(2)(b) FC that has the potential to disrupt public order.

The Agong wields more power and authority than Queen Elizabeth II, and therefore needs no further explanation except to overstate that Westminster traditions cannot survive in Eastminster’s political frontiers. There is a strong presumption that the Reid Commissioners ensured the FC assumes the pith and substance of a working and workable social contract.

Malaysian judges are constitutionally bound to employ Article 162(6) FC as it unambiguously grants them the power to modify laws in order to make them conform to the FC although this is a legislative function.

Unhesitatingly, Article 162(7) declares that “modification includes amendment, adaptation and repeal! This a powerful mandate that our judges must boldly invoke and enforce to avoid political discourse in Parliament with hidden agendas and ulterior motives aimed at constitutional amendment.

As a living and evolving covenant of governance the FC has no business being thrust into a complacent rut while awaiting GE-15. It’s now the business of an awakened citizenry to keep the snarling predators away by exposing the mischief through a free press.

“However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However, bad a Constitution may be, if those implementing it are good, it will prove to be good” observed B. R. Ambedkar, the Indian jurist and constitutional lawyer.

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