Te whetu Orongo

If men we angels, no government would be necessary. – James Madison, 4th US President

The executive, legislative and judicial branches of government should not intrude, intervene or interfere in each other’s domain if indeed the “separation of powers” doctrine is what the Westminster model of parliamentary democracy meant it to be enjoying freedom from hidden meanings or agendas.

How should a judiciary function and operate as an independent entity when it is regularly summoned to play umpire and referee at some litigant’s beck and call, or whim and fancy? Is this the face, or the fate of an independent judiciary?

There are countries with judiciaries that commence a lawsuit sua sponte or suo motu — on their own accord — when a criminal act or a civil wrong is evidenced without waiting for someone or some entity to commence litigation proceedings. Nigeria, India, Pakistan and the United States have entrenched legislation to make this wholesome.

Article III, Section 2, clause 1 of the US Constitution grants the courts that right provided there is a “case or controversy” that is not unripe, advisory, theoretical or moot. But, it is seldom used because written constitutions are an inconvenience to subjective mental tremors occasioned now and then by upstart politicians.

In Malaysia, the right to sue the executive, and vice versa, through the judiciary, still seems to be in the thickets and brambles of the right to freedom of speech and expression (Article 10 FC), equality of all persons under the law (Article 8 FC), the Government Proceedings Act of 1956, and if you throw in the Derbyshire principle for good measure, we get a veritable scholastic and constitutional rojak that does little to whet lawyers’ appetites.

The executive sued through the judiciary when judicial appointments are made by the prime minister does not augur well for the separation or balance of powers, or an “independent” judiciary. It’s a contradiction in terms and a moral hazard.

An “independent judiciary” in the United States means the court can take no action but only issue judgments because being the “least dangerous of the three branches of government” it does not have the “power of the sword or the purse” — Alexander Hamilton, Federalist Papers No.78 — a conundrum wrapped in a mystery packaged as a contradiction, yet adulated and emulated by the misled.

The Independent Judiciary Act 2020 (IJA 2020) is indispensable at this stage of our political maturity with emphasis by an ever-vigilant judiciary to right wrongs without awaiting litigants; and the independent power to encourage parties to engage suitably qualified lawyers to tackle the many areas of the law.

IJA 2020 should make provision for an independent police force answerable solely and wholly to the independent judiciary to conduct searches and seizures, make arrests, remand suspects in clean and independent court prisons without the unnecessary need for travel between court and prison for hearings.

IJA 2020 should be funded outside legislative controls and constraints. The Federal Constitution at Article182 (7) has a very interesting and enlightening provision for such an arrangement containing precious nuggets and rare gems of constitutional wisdom although it is a section under “The Special Court”.

“The Yang di-Pertuan Agong may, on the advice of the Chief Justice make such rules as he may deem necessary or expedient to provide for the removal of any difficulty or anomaly whatsoever in any written law or in the carrying out of any function, the exercise of any power, the discharge of any duty, or the doing of any act, under any written law, that may be occasioned by this Article; and for that purpose such rules may make any modification, adaptation, alteration, change or amendment, whatsoever in any written law.”

Reading Article 182(7) over and over again reveals the power and authority of the Article 39, Article 41, and Article 42 Executive (Yang di-Pertuan Agong), with the Judiciary and without the intercession of Parliament, and dubious advice — Article 43(2)(b).

The potential to effectuate meaningful far-reaching rakyat-oriented change is to be lauded and recognised as a supremely unparalleled apolitical breakthrough that spurred the timely constitutional decision to say “no” to a recent Cabinet request for the declaration of an Emergency saving our nation, again, from international ridicule, scrutiny and scandal.

That is the real balance and separation of powers that we yearn for as a maturing nation. Sarawak is making concrete steps in that direction, brick by brick.

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