Constitutional therapy

Te whetu Orongo

We are not final because we are infallible, but we are infallible because we are final.


With unsurpassed judicial finality, a great victory was thrust and visited upon the sovereignty of Sarawak recently when the Federal Court upheld, established and entrenched the jurisdiction, authority and power of the Constitution of Sarawak in the appeal case of the Pujut assemblyman whose disqualification as a member of Sarawak’s Dewan Undangan Negeri (DUN) was ultimately settled by the apex court.

It was a crowning moment for the sanctity of the Constitution of Sarawak which should be seen as a watershed incident in the constitutional constellation of Sarawak.

After a long time, Malaysian judges saw fit to separate the wheat from the chaff when issues surrounding the Legislative Assembly of Sarawak came to the forefront of law, politics and government. 

I strongly believe the coram of nine Federal Court judges outdid themselves with a dynamic and far-sighted decision which is a constitutional paradigm shift when the perception of the Malaysian judiciary was hitting new lows especially after the 1988 judicial putsch which reverberated all over the world.

Like planets being aligned in a straight line to usher in the seasons and reasons for a great era, the Federal Court gave pre-eminence to Article 17 and Article 19 of the Constitution of Sarawak when they juxtaposed them with Article 48, Article 72(1) Article and Article 118 of the Federal Constitution.

From my perspective, it was wholly refreshing and heartening to see that Sarawak’s constitutional provisions turned on their headlights to show the Federal Constitution the right path to take in the constitutional darkness that assails Sarawak ever so often in the tumult of Malaysian politics.

Article 72(1) of the Federal Constitution frowns upon anyone or anything questioning the validity of the proceedings in a Legislative Assembly of a State although I am yet to come to terms with Sarawak being a “State” in the grand constitutional and political scheme of things given the scope, scale, effect, and impact of the Inter-Governmental Committee Report of 1962, the findings and reports of the Cobbold Commission, and the Malaysia Agreement of 1963 (MA63).

Article 72(1) of the Federal Constitution is probably a quiet siren hailing Article 27 of the Constitution of Sarawak which establishes its supremacy in Sarawak in no uncertain terms as a milestone in matters of sovereignty.

I have always believed that the admonition and caution offered in Article 72(1) creates a strong need to station and position able and reliable sergeants-at-arms in a Legislative Assembly to refuse entry to any member deemed disqualified.

That would be a legitimate exercise of a proceeding in the DUN.  Should that member who was refused entry into the Legislative Assembly decide to go to a court of law, the presiding judge should throw the book, in this case the Federal Constitution, at the litigant who has no standing to come to court given the language of Article 72(1): The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

I believe the language in this Article is simple enough bereft of any uncertainty or ambiguity requiring statutory construction. I see absolutely no reason why every drop of a pin requires some constitutional or statutory interpretation when the second fastest gun in the area decides to seek judicial relief.

The “tak mahu kalah” syndrome is alive and well for those who have an insatiable desire to split hairs over the meaning of the words and phrases of a constitutional provision especially the terminology employed in Article 17(1)(g) of the Constitution of Sarawak which requires no further esoteric or other translation, interpretation or explanation concerning a disqualification from election when one has acquired citizenship in another country.

The switch from this Article turns on the searchlights of Article 48(1) of the Federal Constitution which echoes the same caveat.

Reading other things into these two Articles is in breach of the common law maxim “expressio unius est exclusio alterius meaning that the expression of one thing is the exclusion of the other.

When certain persons or things are specified in a law, contract or will, an intention to exclude all others from its operation may be inferred. This is what the Federal Court determined and decided. Bravo!

Let us hope and pray that a new dawn has begun in the wake of this momentous decision which can only become untenable if a constitutional amendment is brought to bear to overturn and overrule this landmark decision by an unruly and uncaring Parliament.The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.