A TOOTHACHE WAITING FOR A TOOTH

Y.A.B. Rakyat fighting tooth and nail for social justice are meaningless pre-and post-election postures and gestures because the ruling class of politicians and the ruled electorate seldom meet to talk, discuss, and exchange views – sad, sickening and sorry situation in Malaysia today. Laws are nothing but toothaches until a tooth emerges fighting for its right to be free from pain and suffering. Lawmakers provide crude tools for the courts to act as dentists with both focused on inflicting lasting discomfort. The anesthetics are controlled by the Attorney General with his Article145(3) Federal Constitution “powerexercisable at his discretionto institute or discontinue criminal proceedings.” That’s a lot of power in the hands of one unelected individual. The supreme law of the land is said to have an extreme flaw in its application. Concerned citizens must challenge that power under the Government Proceedings Act 1956 (Revised 1988) to discover and prove collusion, conspiracy, corruption.

The Industrial Relations Act 1967 (Act 177) is another toothache that has found willing teeth with trade unions, employees and employers. Mind you, land, labour, capital and entrepreneurship are the four main pillars of the economy. The entire edifice falls on the economy’s head if you mess or fool with one of the pillars. Its oracular Section 33A(7) which must be repealed proclaims thus: “A decision of the High Court under subsection (5) shall be final and conclusive, and no such decision shall be challenged, appealed against, reviewed, quashed or called in question in any other court or before any other authority, judicial or otherwise, whatsoever.” That is a lot of power given to the High Court which has the power to act as an apex court. That mocks the Federal Court’s original jurisdiction standing as mandated in the Federal Constitution under Article 4(4) and Article 128.

But a challenge for the right to be employed in a profession, in a calling or an occupation is a constitutional right under Article 5(1) Federal Constitution where it is judicially inferred as the right to a livelihood closely akin to the fundamental right to life. So, if an employee or an employer wishes to invoke Article 4(4) and Article 128 Federal Constitution and decides to petition the Federal Court as an original jurisdiction tribunal, can the Industrial Relations Act 1967 be overlooked or silenced under jurisdictional grounds?

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan (1996) established that "life" includes livelihood; while Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek (1997) linked livelihood to a clean environment, showing how environmental deprivation impacts life. These two cases clearly suggest that extracting the Industrial Relations Act 1967 tooth is necessary as constitutional supremacy is the grundnorm of Malaysian politics, not parliamentary supremacy. Five similar seminal cases reduced parliamentary supremacy to a toothless tiger - Surinder Singh Kanda v The Govt of the Federation of Malaya [1962] MLJ 169, PC; Ah Thian v Government of Malaysia [1976] 2 MLJ 112; Marathaei Sangulullai v Syarikat JGContainers [2003] 2 AMR 660; Danaharta Urus Sdn Bhd v Kekatong [2004] 2 AMR 317; Mohammad Faizal Sabtu v PP [2012] 4 SLR 947.

Article 13 (Rights to property) Federal Constitution is another welcome anaesthetic to challenge the Land Acquisition Act 1960 (Act 486) and the National Land Code 1965 (Act 828). The innocuous sounding phrase “save in accordance with law” in Article 13(1) is troubling, flawed, fluid and faulty because it imposes parliamentary will over constitutional supremacy. Article 13(2) is clear that no law shall provide for the compulsory acquisition or use of property without adequate compensation. What if the property owner refuses to sell despite adequate compensation. And how broad should the word “adequate” be extended in law, at law and by law? As Peter M. Tiersma (1952-2014) (Loyola Law School) wrote, “legal language has been called an argot, a dialect, a register, a style and even a separate language. In fact, it is best described with the relatively new term sublanguage, a sublanguage that has its own specialized grammar, a limited subject matter, contains lexical, syntactic and semantic restrictions.”Gobbledygook with legitimacy and legality applied lawfully!

Essentially, Prof. Tiersma was suggesting that lawyers and judges are tasked with reading the minds of the lawmakers to discern the intent of the legislature. It’s bad enough that laws are written with double negatives defying its literal meaning or applying the Golden Rule in statutory interpretation that allows judges to modify the literal meaning of words in a statute if applying them strictly leads to absurdity, inconsistency, or a result Parliament couldn't have intended, ensuring the law serves its true purpose rather than creating an absurd outcome, often used as a fallback when the Literal Rule fails. It provides judges flexibility to interpret text reasonably to achieve justice and legislative intent, preventing unintended irrationality. This buttresses the judicial power of Article 162(6) and (7) of the Federal Constitution which I have labelled the A-M-A-R power (Adopt, Modify, Amend, Repeal).

Toothaches waiting for a tooth are found in the Communications and Multimedia Act 1998 (CMA): In August 2025, the Court of Appeal ruled that the prohibition against content that is "offensive... with the intention to annoy" under Section 233(1)(a) of the CMA is unconstitutional, a landmark decision for freedom of expression; in Sharia laws that occasioned the Federal Court declaring 16 Sharia laws in the state of Kelantan void, ruling that the state legislature lacked the authority to enact them, as the power to create certain criminal laws rests solely with the federal parliament. The difficulty I notice here is that Islam is under State jurisdiction as administered by the Rulers and protected under Article 3(1) of the Federal Constitution (Islam is the religion of the Federation) and Article 11 (Freedom of religion). So, where does constitutional supremacy stand when Sharia laws are seen to clash with legislation?

The Malaysian Parliament extracted the tooth of the controversial Anti-Fake News Act by repealing it in 2019 while Consumer Protection gaps (Lemon Laws) have caused consumers to face difficulties obtaining remedies for significantly defective products, especially vehicles, relying on a patchwork of laws like the Consumer Protection Act 1999, Sale of Goods Act, and Hire-Purchase Act.  We have a long way to go before normalcy is restored by the Madani government that is exhibiting woeful defiance in allowing bad outdated laws get worse.

Malaysians remain unsafe when disobedience to the Federal Constitution remains unpunished as if giving deference to the supreme law of the land is inglorious and obscene. “In many countries, therefore, the constitution deliberately places certain rights out of reach of being overridden even by majority decision and confers upon the courts the power to decide whether the protected right has been infringed.” So said Lord Hoffman in Matadeen v. Pointu [1999] YKPC 9 when the Privy Council responded to an appeal from the Supreme Court of Mauritius. The Privy Council seems to suggest that democratically drafted toothache-causing laws are to be decided by the judicial branch of government giving our Article 162(6) and (7) Federal Constitution a bigger, bolder and brighter bite to the problems we are facing with haphazard and wayward legislation.

The good news is that you can’t bite your own teeth, but our politics and politicians are audibly affected and distracted by the sound of one hand clapping. The Attorney General, the Solicitor General, and judges must be elected by YAB Rakyat. This unholy system of electing politicians who subsequently appoint legal and judicial officers sparks unbridled public outrage and disgust in the interests of the people’s will, the role of justice and the rule of law. The poisonous pill to swallow is that it is the Attorney General who initially decides to initiate criminal proceedings which leads to the prosecution and defence facing off in a court of law. DNAA and NFA “decisions” are therefore unholy aberrations especially after a court of law decrees that the defendant must prepare for trial as there are triable prima facie issues to be adjudicated as directed by the Attorney General, and for the court to either acquit or convict based on all probative facts, proof and evidence as presented.

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