Defects are not free. Somebody makes them, and gets paid for making them.
– W. Edwards Deming, American management consultant
The art, science and business of government is easily identified by its myriad variations, deviations and applications to clumsily endure, not cure, deliberately self-inflicted defects. It’s conscience suicide. The curious, cautious and concerned citizen and the judicial civilisation have to become potent.
The legislature is dedicated to making loose laws that will require institutional reforms while simultaneously providing an escape route for self-interests, concealed agendas and suspect motives. This is unstoppable in a regime that practises parliamentary supremacy. Making a law airtight, waterproof, ironclad and foolproof is considered too draconian. Lawyers will be out of work!
It has been suggested by the Turkish thinker Mehmet Murat-ildan that “clever nations are the ones who keep changing governments. Because power must change hands otherwise it will get spoiled and rot.” But law, justice and government cannot work in isolation or in a vacuum. It’s classic conspiracy with unseen and hidden hands.
Malaysia enjoys constitutional supremacy, not parliamentary supremacy. But, when a written law threatens to overrule the Federal Constitution, everyone scrambles to split hairs by either concealing a conspiracy, uttering some platitudes, exposing legislative oversights, or making rash decisions. In Repco Holdings Bhd. v. Public Prosecutor [1997] 3 M.L.J. 681, the appellate court held that Section 126 (2) of the Securities Industry Act 1983 (SIA) and Section 39(2) of the Securities Commission Act (SCA)1993 were unconstitutional, null and void, among other things.
SIA was enacted to regulate the stock exchange and persons dealing and trading in securities. SCA was enacted to regulate and develop Malaysian capital markets. The very essence of capitalism became subject to parliamentary defects and deformities to test and try constitutional supremacy.
In Mamat bin Daud & Others v. Government of Malaysia [1988] 1 M.L.J. 119, Section 298A of the Penal Code was declared to be “a colourable legislation in that it pretends to be a legislation on public order, when in pith and substance it is a law on the subject of religion with respect to which only the states have power to legislate under Articles 74 and 75 of the Federal Constitution.” Again, constitutional supremacy earned another feather in its cap.
These two cases showcase a veritable combination of legislative oversight, incompetence, an awkward conspiracy, and an ever-vigilant judiciary. The American thinker Noam Chomsky remarked that “the general population doesn’t know what’s happening, and it doesn’t even know that it doesn’t know.” Does this apply to Malaysia and Malaysians? Remember the twists, turns, tales and tokens of truth that took centre stage concerning the root and shoot causes of the May 13, 1969 “political riots”?
Malaysia’s Companies Act 1965 is another smokescreen of sorts involving company directors. Some judges have addressed the “commercial morality” of profit-making companies although it sounds like an oxymoron. In Raja Nong Chik v. PP [1971] 1 MLJ 190, the court saw section 135 of the Act as a watchdog of high standards of conduct in connection with dealings with their own shares. What if the stockbroker is a close friend of one of the litigants? The Companies Act offers loads of protection because corporate inhibitions and prohibitions constitute anathema to the profit-motivated-profit-seeking-profit-making private sector entity.
What if a director of one company is also a director of a rival company? Here the Raja Nong Chik standard of commercial morality comes under scrutiny. In Shanghai Hall Ltd v Chong Mun Foo & Ors [1967] 1 MLJ 254, the High Court ruled that one could be a director of a rival company provided he made a disclosure. The Court relied on some English cases that wreaked of unadulterated capitalistic odour with contradictory principles and double standards – Bell v Lever [1952] AC 195; SCWS v Meyer [1959] AC 324; and The Charterbridge Case [1969] 2 All ER 1183; and Lindgren v L & P Estates [1968] 1 All ER 917.
Take SOSMA: PDRM must placard in every police station in several local languages that Article 5(3) Federal Constitution guarantees arrested persons the right to consult a lawyer before police interrogations begin. That right to counsel begins immediately after arrest, and not just during the trial phase. See ∂ (1973) 1 MLJ 54. PDRM officers must endure training in constitutional supremacy.
Deformities in law-making, a defective Bar, and an effective Bench speaks volumes of government of the people, by the people, and for the people.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
