“I am opposed to the accumulation of executive power.” – Noam Chomsky, American professor and linguist
“EXECUTIVE Immunity is a limited right of government executive officials to not be sued in civil court for certain acts of official misconduct. It differs from executive privilege, which is a limited right to refuse to come before or furnish information, documents, or items to the legislature or judiciary.”
That’s what almost all law lexicons say. But the variants in law, politics, justice and social issues have different parts to play like actors on a stage. They say their piece, or more, and then they are forgotten by the audience until curtain call.
Executive immunity in the United States started a wave of insanity and atrocity when commentators had a field day in denouncing the recent Supreme Court verdict on executive immunity.
The United States Supreme Court also granted presidents in general a definitive “absolute immunity” from prosecution for core official acts and said presidents should be presumed immune for a much more expansive list of acts.
One commentator fired this salvo: “Thanks to presidential immunity and executive control of the Justice Department, there are no consequences to executive branch lawbreaking. And when it comes to presidential lawbreaking, the sitting president could literally strangle someone to death on national television and meet with no consequences.”
Is it because the United States has evolved to a new standard in the new world order? Or is it because the most powerful man/office in the world must enjoy a greater degree of immunity? It is certainly a strategic plan to give this man and his office unbridled power.
The granting of such executive immunity in a democracy is far from normal. Nine unelected judges in the United States Supreme Court decided to be the voice of millions of voters in granting this dangerous but novel immunity.
The apex court held thus: “Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”
“There is no immunity for unofficial acts” is a loud, clear and unmistakable message that the executive is not absolutely free to do what he desires to do today and tomorrow. It is also clear that there is no executive immunity for past unofficial deeds, misdeeds or crimes.
The position in the United Kingdom which gave Malaya a written constitution is somewhat different from the American stand. In the UK, executive immunity, which protects government officials from lawsuits for actions taken in their official capacity, is a complex issue with various nuances.
The position in the UK is further expounded that it’s not a broad, absolute shield, but rather a limited privilege that aims to protect officials from being unduly harassed or burdened by lawsuits related to their official duties.
So, the wise beard mused: “If you are in public office by your own volition and do not wish to be harassed, then make sure you stay out of mischief, misdeeds and mistakes.”
The ancient adage “the King can do no wrong” – rex non potest peccare (Latin) – took a curious trajectory if not another dimension when Article 182 Federal Constitution was entrenched in 1993 and 1994 to abolish the immunities previously held by the Rulers, following concerns about their abuse.
In Malaysia, the Yang di-Pertuan Agong enjoys constitutional authority as the Executive. Article 182 makes it clear there is no executive immunity even for the Head of the Federation. It’s a mirror of Article 8(1) which is clear that “all persons are equal before the law and entitled to the equal protection of the law”.
Article 8(1) and Article 182 are designed to tell the world that in Malaysia no one is above the law. The personal and official capacities of the Executive in Malaysia enjoy zero immunity under applicable laws and the Federal Constitution.
Section 5 of the Government Proceedings Act 1956 (Act 359) is abundantly clear that public officers can be sued. It expansively says that immunity for government is also non-existent. Again, equality under the law, and nobody is above the law.
And this places a huge ethical and moral responsibility upon the Attorney General who has expansive powers under Article 145(3) to initiate or discontinue proceedings except those involving Sharia courts, Native courts and the Armed Forces court martials.
The whole gamut of executive immunity is therefore in the hands of this public officer who is appointed by the Executive and not elected to office by the voters. This unbridled power can upset the applecart for political persuasions and purposes.
Executive immunity is only a temporary shield and a glass one at that. The terms “subjective and objective” which are absolutely necessary to decide issues of executive summary, for example, were discounted in Theresa Lim Chin Chin v IGP (1988) 1 MLJ 293 by the apex court.
What then is the yardstick to determine facts and the law given the circumstances and the felt necessities of the times? Jurisprudence of doubt?
Ultimately, our adat is a powerful panacea for the administration of government. R.J. Wilkinson in his “Papers on Malay Subjects (1922) said that “adat would have survived well had it not been superimposed by the modern law from Britain.”
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.
