Is there a juster justice and a more lawful law?
– Max Radin, American legal scholar
Article 10(1)(c) Federal Constitution (FC) is a broad-brush stroke upon the constitutional canvas expansively guaranteeing all citizens have the right to form associations while callously giving substance and meaning to liberty of the person at Article 5. Restrictions ambush the uninformed in Article 10(2).
Whether Malaysian politics attaches party loyalty, fidelity and vendetta with the freedom to associate is a toss of the dice given the events after February 2020. Conflating the constitutionality, unlawfulness or immorality of party-hopping in the hustle and bustle of politics is the DNA of the deep state.
“Constitutional positivism requires protection of the rule of law that depends wholly upon constitutional text,” declared the apex court in Karam Singh v. Minister of Home Affairs [1969] 2 MLJ 129 despite the skewering of Article 5 FC in the bargain. Thus, all 183 Articles and 13 Schedules FC are cast in constitutional concrete positivism that obviates clarification, explanation or justification.
But, the label “positivist” is a concept that denies any necessary connection between morality and law, according to D. Dyzenhaus, The Genealogy of Legal Positivism (2004). It appears the Karam Singh court engaged in intellectual malapropism caused by mental lethargy.
What should jump at the rakyat is that the Executive failed to invoke Article 149 FC when 10 MPs party-hopped creating an action prejudicial to public order leading to the February 2020 collapse of the PH government? Wasn’t public order disrupted and threatened? These 10 party-hopping constitutional gatecrashers are still MPs making, bending and breaking the law with delight and derring-do.
The blinding floodlights of Article 51 FC (resignation of MPs) read in conjunction with Article 10(1)(c) FC (freedom to associate) are perpetually turned off. Article 51 was not inserted to tacitly accommodate resignations from retiring politicians. It serves a specific function that must be seen in the context and underpinnings of the freedom to associate or disassociate.
Part VIII FC dealing with elections does not prescribe or proscribe party-hopping and the effect it would have on the hopper’s constituency. Does this mean that the freedom to associate is left intact and undisturbed if an elected MP decides to hop from his or her political party without having to go through the rituals of Article 51 FC?
A gaping lacuna exists in our election laws demanding Malaysian courts of law to apply neutral principles of law, deduction, analogy, precedent, rule of application, identification and balancing of competing social policies and judicial restraint (sorry, Lord Denning). Surely our higher courts are capable of this normal routine of decision-making without external assistance.
Any anti-hopping law cannot be airtight, foolproof and waterproof without exculpatory, exit and escape clauses. When you elect your MP or state legislator, are you electing the person per se or his political party that best suits your political persuasion? This has been left unexplained and unfixed like the potholes in our streets and highways.
The FC was conceived in and during a national emergency that spanned from 1948 to 1960. It’s time we applied the adage tempora mutantur, nos et mutamur in illis (Latin) – times are changed and changing; we are also changed and changing with them.
America, the beacon of hyperbole and hypocrisy, attempted to liberate the freedom to associate with their sinister Jim Crow laws so that the white race could enjoy their freedom of associating by keeping black Americans separate, but equal! Oppression using region, race and religion continues.
Mature politicians must heed Bolshevik leader Lenin: “I am bound to accord you, in the name of free speech, the full right to shout, lie and write to your heart’s content. But you are bound to grant me, in the name of freedom of association, the right to enter into, or withdraw from, association with people advocating this or that view.”
Freedom to associate and a perpetual partnership with wealth-creation and self-reliance must be introduced immediately with aggressive policies encouraging food production in Malaysia’s perennially fertile soils instead of importing RM50 billion worth of food products annually, according to recently released reports.
Nothing wrong with the patriotic freedom to associate with food, shelter and clothing that does not impose a heavy burden on earning and spending power.
Article 10(1)(c) FC need not be limited to politics. It can offer juster justice and a more lawful law for food availability at affordable prices for all Malaysians. Everything else is a hedonistic luxury.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
