WHEN THE POLITICAL RUBBER MEETS THE CONSTITUTIONAL ROAD

Contra negentum principia non est disputandum – it is impossible to argue with one who disputes your first principles – Lord Edward Coke (1552- 1634), Solicitor General for England and Wales

Rivalry between constitutional supremacy, as a first principle, and parliamentary supremacy, a British burden, still prevails in both the political systems of colonizer and the colonized. The written constitution is always an inconvenient truth. But given the attitude, altitude and magnitude of the political will, the written constitution as the supreme law of the land must take a knee to kiss the master’s ring. That is basically, if not traditionally, the order of things which mocks rights and fundamental liberties of the electorate. This has become the peculiar solution to control and regulate the very people who put politicians in power through the ballot. In America, the bullet, and the ballad depicting the aftermath of a political assassination, take center stage.

“So far so good’ said the fellow to a witness at a window who had asked “how goes everything” as he was hurtling down a 78-floor burning building. Article 145 Federal Constitution is accurate, right and correct. But Article 69 (2) Federal Constitution says “The Federation may sue and be sued.” Concerned NGOs, law councils, societies, and associations, laypersons and citizens seeking verification, clarification or vindication for questionable judgments should seek the Federal Court’s original jurisdiction standing instead of taking the tortuous High Court, Court of Appeal and ultimately appellate Federal Court route.

The constitutionality of MA63, for example, must encourage the Sabah Law Society and the Sarawak Advocates Association to deliberate and discuss the potential of petitioning the Federal Court in its original jurisdiction role as afforded in Article 4(4) and Article 128 Federal Constitution, and Sections 81 to 85 (original jurisdiction) of the Courts of Judicature Act 1964 (Act 91). The constitutional questions can be petitioned thus:

• Does the Federal Constitution impliedly accept, acknowledge and validate the 18-Point (Sarawak) and 20-Point (Sabah) Agreements outlining their special rights and autonomy?
• Does the Federal government impliedly accept, acknowledge and validate the Report of the Inter-Governmental Committee,1962, under the chairmanship of Lord Cobbold?
• If the answers to (a) and (b) supra are in the affirmative, then why are they not specifically mentioned or enumerated in the Federal Constitution; was it deliberately omitted, and if so why?
• Did MA63 grant Sabah and Sarawak the status and standing as “states” of the Federation as enumerated in Article1(2)(b) Federal Constitution?
• Does Part VI (Relations between the Federation and the States) Federal Constitution constitute an affront to MA63?
• Does Part VII (Financial Provisions) Federal Constitution constitute an affront to MA63?
  
• Does Part XIIA (Additional Protections for States of Sabah and Sarawak) Federal Constitution constitute an affront to MA63?
• Does the Tenth Schedule (Federal Constitution), Part IV (Special grants to States of Sabah and Sarawak) and Part V (Additional sources of revenue assigned to States of Sabah and Sarawak) constitute an affront to MA63?
• Does the Petroleum Development 1974 (Act 144) constitute an affront to MA63?
• Do Native court decisions in Sabah and Sarawak enjoy the status, stature, and standing of stare decisis under the provisions of Article 153, Federal Constitution
  
  

The political rubber must meet the constitutional road in matters relating to MA63 when all the founding documents and records are accessible to the sincere inquirer of facts and the adjudicator of law without the cloud of the Official Secrets Act. The basic problem we are encountering in our courts is the literal interpretation of constitutional law instead of a creative and purposive approach. The Privy Council decried the literal interpretation in Hinds v The Queen [1976]1 All ER 356, citing Liyanage v. Regina [1966] 1 All ER 650, thus: “To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would . . . be misleading.” The literal approach was never adopted and adapted in Teh Cheng Poh v. The Public Prosecutor [1979] 1 MLJ 50. The United States Supreme Court and the Indian Supreme Court have jettisoned and dismissed the literal interpretation of constitutional instruments. So should the Malaysian judiciary.

Our courts must necessarily and needfully invoke and apply the A-M-A-R (Adopt-Modify-Amend-Repeal) Rule as unambiguously enunciated in Article 162(6) and (7) of the Federal Constitution. “The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction,” said Justice Bhagwati of the Indian Supreme Court in Manekha Gandhi v Union of India, AIR (1978) SC 597, 622. The Indian Supreme Court was clearly and cogently telling the Government of India that the political rubber must meet the constitutional road when an unelected and unappointed judiciary says so.

The Malaysian judiciary must not regard the separation of powers as a hard and endless road with several forks in its path. The people’s will requires the reestablishing of the jury system back into Malaysian jurisprudence. Obviously, they are biologically and politically mature to vote, so why shouldn’t they be entrusted as jurors to weigh, sieve, and sift through the facts as presented by witnesses in a court of law? It is not a new trend but an utter necessity that got axed and abolished in 1995 after the infamous Mona Fandey case.