“Writing laws is easy, but governing is difficult.”
– Leo Tolstoy, Russian writer
GOVERNMENT and politics constitute the perfect mix for the failure of laws when an overbearing and overreaching Executive believes the Judiciary must walk blindfolded with hands tied on a tightrope.
Article 122(3) of the 1957 Federal Constitution: “In appointing the Chief Justice the Yang di-Pertuan Agong may act in his discretion … and considering the advice of the Prime Minister …”
At that material time, the Agong had the power and authority to weigh in on the advice offered by the prime minister. His Majesty may reject such advice if he so choses.
The Federal Constitution is very clear that the Office of the Yang di-Pertuan Agong is far from ceremonial as only His Majesty has the power of the pardon and the declaration of a national emergency among other functions and duties.
The most recent Federal Constitution has conveniently and cleverly removed the original Article 122(3) and replaced them with Articles 122A, 122 AA, 122 AB, 122 B and 122 C for obvious reasons and purposes.
Article 122(3) of the 1957 Federal Constitution is on all fours with Article 40 (1A) of the most recent Federal Constitution that the Yang di-Pertuan Agong . . . “after considering advice shall accept and act in accordance with such advice”.
The requirement of accepting the prime minister’s advice by the Yang di-Pertuan Agong is in a grey zone because after consultation with the Conference of Rulers, His Majesty is constitutionally granted to make a decision at his discretion.
Article 125 of the most recent Federal Constitution (Tenure of office and remuneration of judges of the Federal Court) says that a judge of the federal court is eligible for an extension of six months upon attaining sixty-six years of age as the Yang di-Pertuan Agong may approve.
Article 125 implies that the Agong may approve after someone recommends such extension. If that someone is the prime minister, should the approving authority of the Agong be shrouded in doubt, or worse, secrecy?
This fallacy that the Conference of Rulers and the Yang di-Pertuan Agong should be “above politics” is cruelly laughable and preposterous. Evey act of the Office His Majesty Agong and the Conference of Rulers concerns government which is pure politics.
The independence of the authority of the Agong and the Federal Court is clearly enunciated in Article 130 (Advisory jurisdiction of the Federal Court) where the Executive and the Legislature are not even vaguely implied or alluded to.
Article 130 offers a clear path for advice and consultation which necessarily bypasses the Executive and the Legislature. Article 130 is a clear and unambiguous provision that the Yang di-Pertuan Agong’s role is far from ceremonial.
Lao Tzu, in his ‘Way of Life’ described leadership thus:
“The less a leader says and does
The happier his people
The more a leader struts and brags
The sorrier his people.”
Niccolo Machiavelli became the preferred point of reference for twenty-two years between 1981 and 2003. Undoing the mischief is not a herculean task for a future coterie of awakened and enlightened Malaysian leaders.
Malaysian politicians should aspire for wisdom. Equal sharing of power does not mean equal sharing of wisdom. Politics may be a career, but it need not be at the expense of the voters’ trust.
Section 2 of the Judicial Commission Act (Act 695) 2009: “The Prime Minister must uphold the continued independence of the judiciary and must have regard to . . .” Interpretation unnecessary.
Sections 5, 21, 27, 31, and 32 of the Act evidence unfettered involvement by the prime minister which defeats the very purpose of Section 2. The Commission seems virtually powerless.
Executive involvement in the selection of judges may be justifiable because, erroneously, or craftily, the legal and judicial service is under “Public services” according to Article 132, Federal Constitution.
The Commission came into existence in 2009 after the so-called judiciary tampering tapes (if I am correct, correct, correct…) that evidenced judicial appointments’ tampering by one unscrupulous law practitioner.
The 2009 Act evidences extensive Executive involvement which makes concerned Malaysians wonder whether we exchanged one scandal for another this time with legislative fiat.
“Laws control the lesser man. Right conduct controls the greater,” observed Mark Twain. This is the quagmire into which all governments find themselves gravitating to with haste.
Malaysian politics and government is a perfect illustration of Khalil Gibran’s famous remark that man delights in laying down laws while delighting in breaking them. We go from generation to another without learning.
For checking Executive overreach, the Yang di-Pertuan Agong and the Conference have the power to impose the doctrine of Ahl-al-hall wa’l-aqd (the power to loosen and to bind) which was mandated in the 1895 Constitution of the State of Johore.
We have a palimpsest (something with layers of history and meanings hidden in plain sight) Federal Constitution for finding solutions and deciphering conundrums. Yet leaders tamper with and trample upon it.
PMX must obey section 2, Judicial Commission Act 2009 as is his constitutional duty. He took an Oath of office to uphold, defend and protect the Federal Constitution. His legacy is at stake if he doesn’t.
Never let a crisis go to waste. Politicians never anticipate problems; they only react to the expected. Political maturity is another utopian dream in the dystopian rumble of gutter politics.
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.
