There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance.BENJAMIN B. FERENCZ, AMERICAN LAWYER AND CHIEF PROSECUTOR IN ONE OF THE 12 TRIALS AT THE NUREMBERG WAR TRIBUNAL
Every legal matter affecting Sarawak’s sovereignty is automatically taken out of its native courts’ jurisdiction and thrust into Anglo-Malaysian common law traditions that generally find clarity, certainty, continuity, consistency, specificity and enlightenment through Latin doctrines and aphorisms applied to any given issue, matter, situation or circumstance.
So, let’s embark on this semantics journey and see how local adat got sidelined, and how English common law traditions continue to explode and implode into its very soul as a self-destruct mechanism. Latin maxims are seldom used today following the 1988 judicial putsch. The late great Justice Eusoffe Abdoolcader was a lion of Latin usage, sadly, there are none like him anymore to illuminate the cloudy issues in law mired in politics.
Consuetudo pro lege servatur — custom is held as law — becomes a sole reliable guide to the proposition that where there are no specific laws, the issue should be decided by custom. The adat of Sarawak should play a deciding role to determine the lawlessness perpetrated by Malaya under the guise of Malaysia because there are literally no written laws to identify and name the transgressions inherent in MA63 and the Federal Constitution that affects Sarawak’s rights.
Magistrates Courts, Sessions’ Courts, High Courts, Court of Appeals and the Federal Court do not have the authority or the jurisdiction to hear and adjudicate cases — coram non judice — that have adat clearly written all over. Adat must necessarily be heard before its peers — coram paribus — represented by Sarawakians for Sarawakians.
MA63 squarely fits the dictum ab inconvenenienti — an inconvenience caused usually by designating a law which should not be passed due to certain hardships or inconveniences it would create. That is putting it lightly given the broad sweep of the brush on the constitutional canvas that necessitated Malaysia by Malaya.
You cannot do a tango on a constitutional pinhead. MA63 ultimately became an argument which appeals to personal prejudice or emotions rather than reason — ad hominem. Be that as it may, had Sarawak’s leaders really understood what Malaysia was all about, and what it would mean for Sarawak’s immediate and distant future they would have realised that MA63 is an argument which demonstrates the absurdity of an opponent’s proposition — ad absurdum.
When and if the soul and spirit of Sarawak were consulted, MA63 would have been written off as an affront to ad judicium — an argument which appeals to common sense. At best, MA63 satisfied the strictures of ad populum — an argument which appeals to people’s prejudices or passions — that of Malayan leaders with ulterior motives and hidden agendas.
To decide and vote today on MA63, adat would require nothing less than ad unum omnes — a unanimous — decision. Lest, the adversary forgets, adat emanates from ancient principles of morals, ethics and common sense, and not from vested political interests engineered by a minority to tyrannise and terrorise a majority using police power as a weapon of fear.
MA63 is still in the court of public opinion where it should be — adhuc sub judice list est — and the jury is still out. Sarawakians are ready in this generation to use adat as the sole vehicle to hear the case within the stipulations of the treaty (MA63) — casus foederis.
When adat awakens the giant within, English common law will be dwarfed as this is purely a local matter which does not require European applications and aids. The fun will begin as Sarawak’s Constitutional Native Court defeats any and all arguments concerning MA63 using European concepts, aphorisms, doctrines and maxims expressed in Latin since Malaysia has had this lasting love affair with English common law.
Adat can stand tall in the Constitutional Native Court as cursus curiae est lex curiae — the practice of the court is the law of the court. Properly litigated MA63 might frightening, and laughingly, become a worthless thing — de lana caprina — as it has done three-fifths of nothing for Sarawak’s well-being, betterment or advancement.
Once Sarawak’s adat occupies its rightful place in the pantheon of law and justice, then and only then will the feds appreciate John F Kennedy’s caution that “those who make peaceful revolution impossible will make violent revolution inevitable”.
Heeding such nuggets of advice has become an unaffordable luxury with the feds who believe in drawing incorrect conclusions from seemingly related facts — lucus a non lucendo.
Ultimately, liberty without learning is always in peril; learning without liberty is always in vain. In this regard, Sarawak’s Constitutional Native Court is eligible for the protections of the Vienna Convention of 1961 which will be explained fully in my next rendition.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.