Every man is guilty of all the good he didn’t do.
– Voltaire, French writer and philosopher
The independence of the Judiciary, by the Judiciary and for the Judiciary defines a democratic judiciary where judges are elected by popular vote. The pioneering spirit of Malaysian voters must emulate the trend-setting Mexicans.
This is a serious unfixed problem. “Politics is the art of the postponement of problems,” observed Jiddu Krishnamurti. An unelected judiciary and local governments symbolize the law of unintended consequences.
Justiciability of social, economic and political rights must remain supreme using creative constitutional interpretations where bending the law is mending the law without breaking it. The Indian Judiciary has achieved remarkable success in this trajectory of jurisprudence.
The Indian Judiciary is supremely unique in that the Executive is disbarred from participating in judicial appointments. So supreme that Indian Prime Minister Indira Gandhi was declared unqualified and unfit to be an MP in 1975 by the Indian Supreme Court.
She swiftly declared an internal Emergency leaving the Judiciary helpless, impotent and unable to enforce the judgment. Mass arrests of politicians and journalists followed for 22 months. Executive power enjoys enforcement power that Judicial power constitutionally lacks.
European fallacy about three co-equal government organs, separation of powers and the basic structure doctrine of the constitution is nothing but a narcissistic power game meant to befuddle the citizenry.
Despite the chaotic politics in America, state and federal courts have the gall, guts and gumptions to entertain petitions for subjugating the President in his role as Executive and Commander-in-Chief up to a point.
An elected Judiciary could boldly declare certain governmental acts, commissions and omissions as unlawful to stay the Executive hand that attempts to undermine the national constitution.
But the political merry-go-round is in top operational condition when the Legislature and the Executive can constitutionally “overrule” the Judiciary by passing new laws! That’s democracy in action.
Imagine the enactment and enforcement of the FOEPA (Fulfilment of Elections Promises Act). The Judiciary entertains, considers and decides citizens’ petitions claiming government violations of the Act.
And imagine the Solicitor-General countering with the argument that the FOEPA is unconstitutional. Political fun, fanfare and fireworks begin when Parliament mischievously repeals the FOEPA!
A democratically elected Judiciary would ideally have its own incarceration facilities and Police Force taking instructions collectively from the Yang di-Pertuan Agong, the Chief Justice, an impartial Attorney General, PDRM and MACC in the spirit and substance of Article 182(7) Federal Constitution.
An unelected Judiciary without a jury system spells doom and gloom for civil rights with any government advancing oppressive policies as an affront to the Federal Constitution.
Politically matured Malaysians toppled such a government on 9 May 2018 radically altering the status quo. Therefore, the jury system must return as the law of intended consequences dictates.
Lord Denning explained: “Twelve persons, selected at random are likely to be a cross-section of the people as a whole and thus represent the views of the common man.”
Voters representing the common man must climb into the skin of the elected government and walk around in it to confidently know if the ballot paper means anything for the betterment of Malaysian society.
With an elected Judiciary and the return of the jury system the rule of law and the role of justice become democratically visible, audible and palpable.
Without a jury system in place, the unelected judiciary is skating on thin ice. The jury makes a world of difference as it can deflect and lessen Executive disapproval of judgments.
A British parliamentarian once quipped that the only way to skate on thin ice is to skate fast and hurriedly. But then, justice hurried is justice buried regardless of how it’s sliced, diced, spruced and spiced.
The jury and judge found Mona Fandey, her husband and another person, guilty of murdering a politician who sought supernatural powers. They appealed to the Federal Court that upheld the conviction. They were hanged in 1993.
The government decided to officially abolish the jury system on 1 January 1995. The government that depends on the ballot paper chose jury abolishment because it believed jurors couldn’t handle facts like they handle the power of voting!
How did the Mona Fandey jury fail the criminal justice system? A judiciary without a jury system is like a firing squad firing blanks. Curiously section 174 of the Penal Code of Malaysia is still valid and relevant despite jury abolishment.
Legislation is not the answer. Common sense offers better outcomes. The will and expectations of the people are seldom reflected in government policies except selfish elitist demands.
Democracy is in jail facing an uncertain future. Civil rights and fundamental liberties face harassment and arrest. Judges know the Federal Constitution is undermined. Meanwhile the pliant media applauds government as insurance to protect their printing licences.
Just like politicians who never get re-elected for dismal performance, the same can be said of elected judges when Malaysia rises to the occasion as it should very soon to get democracy permanently out of jail. Democracy in jail is like free citizens walking around in chains.
Democracy is not going to run amok if Malaysians do good, like Mexico, by electing judges as a dignified and democratic right. No evidence of a national soul fracture.
Ultimately, every man is guilty of all the good he didn’t do.
The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune. The writer can be reached at chiefjudge@secamtektektribe.org.
