CONSTITUTIONAL CONCUSSIONS, CONVULSIONS, AND CONUNDRUMS

[1] Chief Justice Hughes sounds like the man who caught his wife in bed with another man. Enraged and outraged, he looked around for a sharp object, found an umbrella, and asked the man, “is this yours, you bastard?” The man says, “yes.” The husband breaks the umbrella into a dozen pieces, and screams at the lecher,” I hope it rains!”

[2] It does, and mean, nothing – absolutely nothing – for the politicians and the power-brokers to agree with what the judges say the Constitution is. At best, it’s comforting. A mere platitude, maybe even a cliché. In Loh Kooi Choonv Government of Malaysia (1977), Raza Azlan Shah established that the Malaysian Constitution is not merely a “pious platitude” but the supreme law of the land. Putrajaya listening?

[3] There are established laws that impose a punishment for disobeying or violating the Federal Constitution – the supreme law of the land – if the Attorney General himself decides to obey and abide by the standards and strictures of the Federal Constitution mandated under Article 145(3). Apparently, he says what the Constitution is. Putrajaya listening?

[4] The Sedition Act 1948 should be proactively activated for punishing those who incite contempt against the government, the judiciary, or the Yang di-Pertuan Agong. The Penal Code (Act 574) is another law that should be aimed against anyone who directly threatens the constitutional order. And then there is SOSMA (2012) to deal with threats to public order and security often linked to undermining the nation’s structure. Putrajaya listening?

[5] This should keep the Attorney General’s Chambers ultra-busy, but alas, their focus seems to be elsewhere. We harbor irresponsible types who threaten public order by running off their mouths with no regard for racial and religious sentiments and sensitivities. This is treason when you indulge in provoking violence as a precursor to destabilize good governance. Putrajaya listening?

[6] The judicial putsch of 1988 in Malaysia saw Article 121 of the Federal Constitution badgered and butchered with the removal of the phrase “judicial power.” So, in essence, it’s fair to say that the Constitution is what the Executive and Parliament say it is. It’s a sinister pitch in that the Federal Constitution is still the supreme law of the land subject to the extreme demands and commands of Putrajaya, like it’s listening to and encouraging constitutional disorder.

[7] Ever once in a while, our judges get to say what the Constitution is in cases like Alma Nudo, Semenyih Jaya, Indra Gandhi and SivarasaRasiah where the basic structure of the Constitution is discussed, debated and belabored. Everybody is happy as it hits the law journals as if carved in stone and cast in concrete. Meanwhile, Putrajaya is busy lessening the score for constitutional supremacy.

[8] The issue of places of worship being built on “illegal land” is unnecessarily and needlessly controversial, and agonizingly laughable. When and how did land begin to be owned by the government? Imported English land law agrees there is no such thing as ownership of land but only of possession. But Hindu, Buddhist, Judaic, Christian, Islamic, Jain and Tao adat decree that land belongs solely to The Almighty Creator, and that mankind merely serves as responsible sojourners and custodians, never the outright owners. The National Land Code 1965 is superior to adat? Adjectio domini per continuationem possessionis (Latin) - the addition of the right of property by continued possession. Land ownership is sacrosanct. This is the common law that needs to be applied. Putrajaya listening?

[9] Any law styled a code is suspect. A code needs to be deciphered and decoded. What if a court of law had the wrong combination, description or definition? The National Land Code 1965 is silent as to who owns all the land and soil in peninsular Malaysia. Native and Aboriginal land title has always ruled the roost efficiently declared in Article 8(5) Federal Constitution and sections 6 and 7 of the Aboriginal Peoples Act 1954. The Sagong Tasi case of 2002 settled the score once and for all. Putrajaya listening?

[10] The Federal Constitution is buffeted almost every day with convulsions, concussions and conundrums when the “save in accordance with law” phrase is paraded, parlayed and parodied in a court of law while the discerning public holds its breath. Many pieces of legislation have been defenestrated because they were unconstitutional. Putrajaya must become the listening post.

[11]Unconstitutional laws of Malaysia include Section 9(5) of the Peaceful Assembly Act 2012; Section 233 of the Communications and Multimedia Act 1998; Section 498 Penal Code; Section 4C of the Income Tax Act 1967; and Section 20 of the Extradition Act 1992. Many other pieces of legislation await the axe. Putrajaya and Parliament should be listening.

[12] Bribe givers and bribe takers are openly violating Article 13 (rights to property) Federal Constitution, and yet no proactive and reactive action is taken. Recent news reports say the MACC Chief is being investigated for owning more than 100,000 ringgits worth of shares beyond the limit allowed for public servants. But who guards the guards anyway? Is the MACC Chief on garden leave, suspended until investigations are completed, or is he still walking the corridors instead of walking the plank?

[13] Thomas Jefferson, America’s 3^rd President, could not help himself and his opinion when he claimed that “in questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” He forgot that the American Constitution was written by the supposed mischief-quelling confidence of man. How about the Reid Commission’s omissions?

[14] Malaysian judges are required to take a formal Oath of Office and Allegiance (Sixth Schedule of the Federal Constitution) promising to faithfully discharge their duties, bear true faith and allegiance to Malaysia, and to preserve, protect and defend the Constitution. Apparently, this oath emphasizes upholding judicial independence, impartiality and integrity.

[15]Preserve, protect and defend the Constitution is a tall order if and when our judges show true grit in invoking the A-M-A-R (Adapt, Modify, Amend, Repeal) doctrine enshrined in Article 162(6) and 162(7). Together with this crucial mandate is Article 182(7) (Special Court) that grants immeasurable support, discipline, power and authority to the Yang di-Pertuan Agong as the sole Executive.

[16] YAB Rakyat must keep reminding those in power of these constitutional provisions that should create convulsions, concussions and conundrums to an overreaching Executive located in Putrajaya. The Federal Constitution, as a document of dedication and devotion for the defense of national security, safety, and stability, is not difficult to read and understand for anybody motivated to separate truth from fiction and fantasy.

[17] All Ministers are also required to take similar oaths as the judges. Whether they are strictly adhered to, abided by, and unreservedly obeyed by Ministers and other public officers is painfully evident. The public is very well aware that the mischief and misconduct of those in power sends shock waves to the Federal Constitution and slight tremors to the Attorney General’s Chambers.

[18] Malaysian capital markets seem safe, strong, stable and secure from manipulation and corruption from within and without. At least that’s the optics. After 1MDB, where the entire blame fell on a sitting prime minister, it is a fervent Malaysian wish, hope and prayer that some agencies will remain immune from the cancer of corruption.

[19] Ultimately, it is the sworn patriotic duty of every Malaysian to make sure that the Federal Constitution doesn’t become a prisoner of its own conscience written into lifelong existence as a higher law that should rightfully cause convulsions, concussions and conundrums upon anyone or anything that dares to offend its worth, value and standing as the socioeconomic-geopolitical conscience and consciousness of Malaysia.

[20] A National Watchdog Council helmed by qualified professionals representing YAB Rakyat has become necessary to make sure the tail doesn’t wag the dog. Can’t trust the lapdogs anymore, can we?