In traditional terms, based on the original social contract of 1957, Malaysia is a constitutional monarchy and a parliamentary democracy.
That meant we had a constitutional monarch and we were a Westminster-type democracy.
The role of the monarch was defined by the federal constitution, and which even originally included the doctrine of ‘the king can do no wrong!\’ But since then, two sets of amendments have changed that and thereby anthropomorphized the role of the rulers in our constitution.
They now can do \”wrong\” under the normal civil and criminal laws of the nation, and when they are not performing a role assigned by the state. However, they now have a special court to try them.
While the wings of the monarch have been clipped two times, it however appears that the role and position of the chief executive of the government has been enlarged more and more.
In fact, a cabinet member, for his PhD thesis, had argued that we may be becoming \”an executive state\”.
The certainty of this reality has been become even more real with the latest two laws of the nation; the Malaysian Anti-Corruption Commission (MACC) and the Judicial Appointments Commission (JAC).
In the meantime, the clipped wings of the judiciary also remains vide the \”offending and destabilizing Article 121 (1). What do I mean?
Raising some questions
One of the conclusive evidences adduced vide the VK Lingam tape commission of inquiry was that the office of the Prime Minister was open to undue influence and we all saw the resultant effects of such an influence on the blind Lady of Justice in Malaysia.
She had in fact learned to open one eye, when and where necessary. It was proven beyond any doubt to both the commission members and the public that in the past justices were bought and sold for favourable decisions, or to close one eye to evidences and facts.
It was further testified that a lawyer could even write judgments for a judge. Premised on the findings of such a commission of inquiry, and the peoples\’ uproar over the matter, we can presume that the JAC was partially intended to be an at least 80 percent solution to the problem of wrong judicial influence.
But, was it so designed? Does the law, address the major or key points that are needed to ensure no such undue influence based on the past practices?
Having only read the newspaper and other accounts of the same to date, I have already come to the conclusion that JAC avoids the addressing the key issues of the undue influence of the office of the PM in the appointments of the Chief Justices and other key judges of the appeal and other jurisdictions.
I simply want to therefore raise some more questions related to the matter as a non-included observer of the law.
In any good system of governance, the judiciary is at least a one-third arm of any good governance system of checks and balances. Unlike the legislature that makes the laws, it is the judiciary that examines and reviews the laws of Malaysia against the spirit of the constitution in her interpretation; implementation and exercise vide enforceable laws.
It is within the jurisdiction of the executive to enforce both the spirit and the law as embodied in the articles of the constitution, laws and by-laws and all other authorisations arising from the supremacy of the federal constitution.
The chief executive is the Prime Minister who is the \”prime among equals\”, another doctrine of Westminster system.
The first and most primary change therefore needed to resolve the problem of the one-eyed judiciary was Article 121 (1) which had reduced the role of the judiciary to that of merely an interpreter of the particular legislature of the specific laws in Parliament.
It appears that the government is \”shying away\” from such constitutional amendments under some lame excuse.
The opposition has already stated that they will support the reinstatement of the independence of the judiciary.
So, I fail to understand why there is this reluctance to \”re-amend Article 121 (1) and to reinstate the original social contract for good governance as already agreed and still being practiced all over the British Commonwealth of nations.
Giving judiciary its wings
The said constitutional amendment made in 1988 had the effect of curtailing the freedom of the judiciary, and thereby \”opening one eye of the blind Lady of Justice\”.
In effect therefore, the judiciary was \”instructed by the legislature\” to train their minds and to close one eye in a fixed and particular way to favour the legislature on specific laws and to overlook the overall spirit of the federal constitution and all her provisions!
As a consequence, as demonstrated again and again in the last decade and half or so, the period since 1988 has become the darkest hour in the history of the judiciary of Malaysia.
It also finally led to the sacking of the former Chief Justice and other judges over the disagreement between the leadership of the judiciary and the executive, namely the then Prime Minister.
The office of the Prime Minister was thus inadvertently turned into that of the chief executive of the almost ‘Republic of Malaysia,\’ or an executive state.
Therefore, while well-intentioned Abdullah Ahmad Badawi has at least kept his word to table the aforesaid law, my question is when is the judiciary going to be given her real wings?
To me therefore, the real concern at hand is that we are in fact moving towards an executive state, wherein the Prime Minister is no more just one among equals but rather like a president and chief executive?
Our problem is that, not only is our PM not elected; worse still, he is only elected by about 2,000 people and now given almost absolute power.
The role of the monarchs
What are the real implications of all this? I raise these concerns especially so in the light of the recent public space dialogue about the \”proper role of the Council of Rulers in Malaysia and that of the Yang diPertuan Agong\”.
The so-called label of the dialogue was ‘the immunity of the monarchs\’.
Therefore, the objections raised by the Sabah and Sarawak JPs, and elected representatives are also related to the more substantive constitutional provisions about their two Chief Ministers being consulted in the appointments of their Chief Judges.
The Minister in PM\’s Department has argued in Parliament that the PM would always do that.
Is such ‘good faith\’ alone enough, in the face of absolute power? Why then did the Sabah judge resign prematurely after he made the disclosure about \”BTN courses instructing judges to favour the government in decisions\”?
The PM was even present at such training courses by the BTN for judges.
In fact, I have personal testimonial evidence that in a most recent BTN half-day course in KL to public servants that \”the Ketuanan Melayu (Malay supremacy) agenda\” was still being preached, propagated and justified.
Maybe it is time for us to fully revert and review if in fact the monarch\’s do not have a positive role in the correct interpretation and implementation of the original social contract?
After all, the state enactments give them almost absolute authority in Islamic matters of the state. They are also charged with the full responsibility to ensure the correct implementation of the Article 153.
Why then is Umno the only ‘so-called expert and authority of even such maligned implementations\’?
Why is the BTN even necessary? Maybe it is time to review the wrong direction we are headed in this nation, in terms of absolute power and the distribution of that power.
The monarchs may in fact have a critical and positive role as moderator and mediators of the real \”Malayness\” of all such intentions; as has already been enshrined in the original constitution.
God bless Malaysia as we seek and know our real identity.
