Dr Te Whetu O Rongo

Law is reason free of passion.

– Aristotle, Greek philosopher

It is apparent that the Malaysian judicial system is passionate about the rule by law as pronounced, commandeered and commanded by the ever-encroaching executive. The doctrine of the separation of powers, which supposedly is a check and balance between the three organs of government has become a wail in the political wilderness since 1957 manifested as crocodile tears.

The pronounced stutter in Malaysia’s constitutional law and statutory law is, decidedly, a psychological Westminster defect within the ranks of lawmakers.

Some parliamentary-approved statutes stutter, stray, splutter and stumble when they have to be examined and eviscerated in a court of law. The lawyers may be rigorous and robust in their arguments, but pro-government-protect-my-pension-at-all-costs judges parading in their robes in our courts seem not adequately well versed in English common law principles imported into “Bolehland” supposedly to add gloss and polish to the rigidity of statutory law.

Hypothetically, if a Judicial Commissioner (JC) is petitioned  to recuse himself or herself, he or she must be guided by the common law Latin doctrine nemo judex in causa sua meaning, no one should be allowed to be a judge in his own case or cause, and therefore, not participate in that determination and adjudication of that recusal petition.

Experienced lawyers will have an appellate festival proving a fatal flaw in the failure to obey a basic tenet of natural justice. See R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, at p. 259, cited in Fahmi Zainol & Ors v Jawatankuasa Tatatertib Pelajar, Universiti Malaya & Ors [2017] 10 CLJ 304, para 81 (High Court).

Admittedly, the silly “Bolehland” mendacity and the Malaysia-boleh insanity persists. One loud and irritating, if not embarrassing, statutory stutter can be witnessed in section 59 of the Immigration Act 1959/1963 which removes the audi alterum partem (right to be heard) rule which is guaranteed in Article 5(1) (liberty of the person) of the cacophonous Federal Constitution which tells even the uninitiated that the “supreme law of the land” can be overruled by a partisan piece of legislation as generously interpreted by the pliant courts.

But there is a root cause for all these statutory and constitutional constipation when the rule of law does not exit the body of law. One needs to go into the mind of Sir Ivor Jennings, one of the masterminds of the Reid Commission that begat the Malaysian Federal Constitution.

Now, the records prove that these self-proclaimed constitutional experts, and we have a few running around in Malaysia, too, derived their wisdom and direction concerning colonies cry for independence from the 1931 Statute of Westminster which is only four and a half pages long!

Jennings himself admits, in a text of his 1958 speech in Nepal on “Constitutional Experiences in Asia,” that “The one common characteristic of all these Constitutions was that they were all based on the unwritten British Constitution. . .” So, where was the guide and instruction coming from if not from the non-Asian minds of our constitution-creators that provide continuing chaos, cacophony and confusion.

It is an accepted (Latin) legal term that ex nihilo nihit fit – nothing can come out of nothing – so what did come out of our Federal Constitution inspired by the unwritten British Constitution that is not otherwise fraught with constitutional constipation?

It is high time Sarawak’s State Legislative Assembly (DUN) promulgated its own Statute of Eastminster 2020 to clearly and unambiguously declare as law, without any statutory stutter or constitutional diarrhoea after prolonged periods of constipation, to rewrite, refresh, and realign the unruly Federal Constitution to include words and phrases like “Malaysia Agreement 1963 , the Inter-Governmental Report of 1962, the Malaysia Act, Cobbold Commission, the 18 Points, the 20 Points, and Chapter XI Article 73 of the United Nations Charter germane to decolonisation:  These seminal – and parental –documents gave birth to those portions of the Federal Constitution relevant to Sarawak.

Sarawak will be asserting its original Borneo Territory rights once the DUN passes this Constitution Amendment Bill protected by Articles 27, 39 and 41 of the Constitution of Sarawak. Besides, Article VIII of the Malaysia Agreement clearly, unambiguously, categorically and unequivocally states that Sarawak has the constitutional, political, legal and moral right to “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 February 27, 1963, in so far as they are not implemented by express provision of the Constitution of Malaysia.” (emphasis mine).

Sarawak’s future is unambiguously carved in stone if policymakers and lawmakers take these seminal/parental documents to its fullest implementation to check the unruly child affectionately called the Federal Constitution.

If the right thing happens to be the popular thing, then succeeding generations will hail the Sarawak government as the harbinger and progenitor of constitutional permanence under the rule of law guided by the course of justice, guarded by the cause of justice, and goaded by the role of justice.

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