The glory of justice and the majesty of law are created not just by the Constitution – nor by the courts – nor by the officers of the law – nor by the lawyers – but by the men and women who constitute our society – who are the protectors of the law as they themselves protected by the law.
Robert Kennedy, US attorney general and senator
One common feature between Malaysian and American politics is the willful, willing and wanton traumatising of their written constitutions. The US Constitution claims at Article VI, section 2 that the Constitution is the supreme law of the land, as does ours at Article 4. It seems the word “supreme” is lost in translation.
Great is the discomfort in court today, in Malaysia, and in the United States, the moment you mention the Constitution and the supremeness of its majesty, power and authority.
I am yet to see any judge comfortable discussing the Constitution’s provisions given the facts and circumstances in any given case. When you challenge a certain statute’s constitutionality especially during oral argument, you receive a cold stare like you have committed something hideous and sacrilegious.
I suspect American and Malaysian judges agree as a collegial consensus that the written Constitution does not say what it means, and does not mean what it says. At best, the Constitution is an inconvenient truth best left to its own devices to collect dust on the bookshelf where it sits, and never to invoke its usefulness to untie some legal knotty quagmire.
The 13th, 14th and 15th Amendments to the US Constitution, passed after the American Civil War freed the slaves, gave them voting rights and offered them equal protection under the laws.
On paper only. It took another hundred years, in 1965, for the Civil Rights Act to be passed by President Lyndon Johnson in order to give African-Americans equal footing under the sun. Imagine what this statute was designed to do that the supreme law of the land refused to allow.
In Malaysia, Article 153 of the Federal Constitution (FC) places the Malays and the Natives of Sabah and Sarawak on a “special position” status while the legitimate interests of the other communities are to be safeguarded as well by the Yang di-Pertuan Agong.
Without going into the usual ranting and raving of what this supposedly means, I am particularly focused on Article 153 (4) where educational and training privileges are to be enjoyed by the Natives of Sarawak without let or hindrance.
This is huge because this is where practitioners of the proposed Sarawak’s Constitutional Native Court – judges, lawyers, prosecutors, paralegals, law researchers – should take advantage of this constitutional provision to bring it to fruition aided with the full impact of the “special position” standing of the Natives of Sarawak.
Article 153 (10) seems to say that Sarawak is not after all a “State” in that it has unbridled power to amend its Constitution to take full advantage of the “special position” of its Natives.
Abraham Lincoln, 16th President of the United States, was not mincing words when he declared that “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”
Unabashedly subverting and perverting the Constitution has been the mainstay of many nation states. Both have perfected the art of ignoring and addressing questions concerning the sanctity of the supreme law of the land.
A paper promise is what a paper promise is. No more no less.
I am willing to concede that traumatising and terrorising the Constitution may not rear its ugly head if there is such a thing in a perfect world as an independent judiciary. No nation state in the world today can lay claim to this noble achievement.
No matter which direction we turn for inspiration and encouragement, we are forced to face despair and hopelessness knowing the reach and grasp of the executive. In this regard, the US is way ahead of Malaysia in that the Congress has the power to impeach and remove a sitting US president.
Here, the executive has the power to remove and replace whomsoever he pleases in Parliament or the civil service. The power is authoritarian and nationalistic in a right-wing system of government and social organization – the very definition of fascism.
May 9, 2018 changed the course and destiny of Malaysia as a great beginning and a trailblazing awakening of the power of the vote. Maybe the time has come for us citizens and denizens to demand the return of the jury system and to select, elect and vote of our judges, too, instead of relying on the usual executive appointments.
That would bring about a healing, not a stealing of the Constitution.
Ultimately Benjamin Franklin’s observation make perfect sense – “a democracy is two wolves and a small lamb voting on what to have for dinner. Freedom under a constitutional republic is a well-armed lamb contesting the vote.”
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
