Landmarks and landmines of the law

If we desire respect for the law, we must first make the law respectable.

Louis D Brandeis, former Justice of the United States Supreme Court

The Federal Constitution (FC), the supreme law of the land, at Article 160, defines “Aborigine” but omits “Native” which can only be gleaned at Article 161A (7) for the purposes of Sabah and Sarawak. But, “denizen” and “autochthon” are missing — referring to pre-colonial indigenous peoples’ inalienable right of pemakai menua.

“Definitions and meanings change all the time. Truth and reality are very volatile, indefinite, multi-layered and sometimes very paradoxical,” observed Erik Pevernagie, the Belgian writer, a powerful reminder when we grapple with understanding words and phrases in the law.

Is there a hint for dual citizenship when “foreign country,” “commonwealth country,” “commonwealth citizenship” (Article 29) and “commonwealth reciprocity” (Article 155) jostle for explanation in the supreme law of the land?

The Eighth Schedule (Article 71), Part I, section 9(3) is unequivocal that a legislative assembly after five years shall then “stand dissolved” ipso facto without any mention of the Agong’s Emergency powers in this matter unless an ordinance is promulgated for such powers under Article 150(2B) to extend the lifespan of an automatically dissolved legislative assembly.

Elections to fill legislative vacancies during an Emergency caused by Covid-19 is no health hazard if large gatherings at polling stations are cautiously avoided using carefully planned drive-through voting procedures with sufficient checkpoints to confirm identities of registered voters and drive-through booths to drop their votes. Isn’t law-making an essential service anymore?

Suspending voting rights and elections are not contemplated in the FC. Any “casual vacancy” in a legislature, including expiration of legislative term limits, has to be obeyed under the supreme law of the land. The need for law-making is sprinkled all over Article 150 (Proclamation of Emergency).

Article 150(6A) suggests that elections in Sabah or Sarawak during an Emergency may not be suspended or held in abeyance with the invocation of “any matter of native law or custom,” qualified under Article 160 FC as “Law.” Therefore, native courts in Sabah and Sarawak have the inherent power and inalienable right to invoke and apply the “Law” as stipulated in the supreme law of the land. This is a landmark grant of power to native law and custom read together with Article 153 (special position of Natives of Sabah and Sarawak), and Article 145(3) ousting the Malaysian attorney general’s jurisdiction.

Article 160, alarmingly, defines the judiciary as “an office of profit,” universally understood as holding an office of financial gain, benefit or advantage which is at variance with Article 48(1)(c) barring MPs from holding an “office of profit.” A hazardous landmine in the supreme law of the land with all its strange suggestions, subtle nuances, and shades of interpretation!

Mindful of the rule of law, Article VIII of the Malaysia Agreement (MA63): “The Governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to, the Report of the Inter-Governmental Committee signed on 27th February 1963, in so far as they are not implemented by express provision of the Constitution of Malaysia. In so far as they are not implemented by express provision of the Constitution of Malaysia” is a landmark provision in that the FC does not prohibit, inhibit, or otherwise prevent Sarawak from holding elections under native law and custom despite the Proclamation of Emergency – domestic law must comply with international law. See Salomon v Commissioners of Customs and Excise [1966] 3 All ER 871 at pages 875-876.

Sarawak, as a separate but equal partner, is affirmed by the phrase Government of the Federation of “Malaya,” another separate but equal partner, not Government of the Federation of “Malaysia” in the unambiguous language of Article VIII of MA63.

The electors have a huge responsibility to uphold the law, and an unequivocal right to get rid of the landmines in the supreme law of the land. “If a law is unjust, it’s a man’s right not only to disobey it, but is obligated to do so,” cautioned Thomas Jefferson.

Democracy and the rule of law are incidents that teach electors a lesson (ibrat) to keep our constitutional credentials impeccable should the elected be remiss and elect to exhibit disrespect for the supreme law of the land.

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