Inorder to become the master, the politician poses as the servant.
– Charles de Gaulle, 18th French President
President de Gaulle struck a raw nerve. In Malaysia, we call our leaders “public servants”, who are very public whenever the cameras are roving and rolling.
Thepolitical will of the people in power has demonised democracy to such an extent that no nation state is safe with such unbridled energy hovering over its citizens like an ominous cloud.
The Malaysian political will is ruled and controlled by a total lack of understanding or knowledge of the rule of law. This is evidenced by the total denial of the rights and liberties enumerated in the Federal Constitution.
Our elected public officials are on a frolic of their own. They obviously listen to the deafening roar of their over-inflated egos. They forget why they are elected in the first place.
The first victim is the rule of law. The second is the role of justice. Very few of our leaders really listen to and abide by the supreme law of the land – the Federal Constitution.
Our elected officials still believe Parliament is supreme as in Westminster. They still believe laws passed by the Malaysian Parliament are supreme.
Article 4 of the Federal Constitution says it is the supreme law of the land. Catch any politician unawares and ask him/her to explain certain parts of the supreme law of the land.
Will Rogers made the point: “I don’t make jokes. I just watch the government and report the facts.” That ought to hit home without being rude or crude.
The latest political will is the real threat to property rights as enshrined in Article 13 Federal Constitution with the planned assault by the Urban Renewal Act nearing its Second Reading in October 2025.
Pre-enactment scrutiny of legislation is one avenue available for judicial review may advise the legislature to hold the passage in abeyance. It’s not been tried as yet in Malaysia.
Malaysians must take up cudgels and set a precedent by directly petitioning the Federal Court in itsoriginal jurisdiction capacity to determine a constitutional question concerning property rights as enumerated in Article 13, Federal Constitution.
Constitutional review is another avenue available under Article 4(4) and Article 128 of the Federal Constitution where the apex court is alerted to examine a constitutional question.
Section 17A of the Interpretation Acts 1948 and 1967 (Act 388) throw a searchlight on “regard to be had to the purpose of the Act.”
Section 17A is a sobering thought for property developers and property owners where the latter is usually the victim. Wonder what the purpose of the Urban Renewal Act would be. Political will, most assuredly.
Strong-form judicial review of the constitutionality of legislation as in the United States is missing in our tropical climes as it is in New Zealand where weak-form judicial review is still holding its breath.
A genuine activation of the political will is the unflinching judicial authority to strike down legislation that is an affront to constitutional rights as enumerated.
Malaysia’s Federal Court is undoubtedly accepted as the institution with overarching and final authority on issues of constitutionality. But it cannot and should not stand up to vested interests expressed as political will.
Explication (analyse and develop) of the Federal Constitution is an express mandate that is couched in implied terms to include upholding, defending and protecting it – Article 162(6) and (7) Federal Constitution.
The political will must necessarily understand, and know, that a right is some legal, moral or social claim which citizens are entitled to without question. Ops Lalang of the 1980s is a stark exemplar of the political will.
Similarly, politicians must understand, and know, that a freedom is something that has no government restraint or control over certain actions by the citizens. Freedom is not a loose cannon either.
The Malaysian Judiciary is obviously aware of the legendary Marbury v Madison, 5 US 137 (1803) which declared the US Supreme Court’s power to declare any legislation as unconstitutional – a power not explicitly granted in the Constitution!
This is a perfect example of explicating a written constitution by analysing and developing it while upholding and defending it. The Federal Constitution is the supreme law of the land.
Malaysia’s political will rules the rule of law and reigns over the role of justice. The Attorney General is either in a bubble of immunity protected by the political will or without any inkling of what his duties and obligations are under the Federal Constitution.
The political will unleashed in foreign policy is a stark contrast to that involving domestic policy. What motivates the political will is very obvious even to apolitical citizens.
There is a written manual for politicians’ duties, functions and obligations called the Ministerial Functions Act 1969. Section 2(2)(a) of the Act underscores the Yang di-Pertuan Agong’s law making power concerning property rights of the particular Minister.
Malaysian Ministers evidently go about their business without heeding the Act that is supposed to be a watchdog so that they do not become lapdogs to anything or anyone hiding in the shadows.
Our political maturity will ultimately depend on the maturity of democratic principles that offer legal, moral and social pith and substance to the political will.
In the ultimate analysis it’s the will of the people who purposefully put people in power.
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.
