The Court is but the instrument of the law in executing its mandates.
– Isaac C. Parker, American Judge
An unexpected and a novel constitutional crisis occurred during and after the ouster of Sarawak’s Chief Minister Stephen Kalong Ningkan (“Ningkan”) when he challenged the Proclamation of Emergency by the Yang di- Pertuan Agong in 1966.
Whether this was a watershed moment for Sarawak in that there could be nothing more powerful than an idea whose time has come is still in the quiet realms of the debatable narrative.
The faltering decisions of the Federal Court and the Privy Council were like clothes we wear in the theatre of time when a future Executive in 1988 would dismantle the very foundations of parliamentary democracy by muzzling the judiciary.
The three courts were not answering constitutional questions, but seemed to have embarked on a quest. Concrete constitutional questions were substituted by seeking solutions in procedural law. Very sad.
The High Court of Malaya (Borneo) presided by Chief Justice Pike was tasked with striking out Ningkan’s claim – Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (No.2) [1967] 1 MLJ 46 – decided against the applicants.
Pike CJ firmly declared that Article 150 Federal Constitution that vested power in the Yang di-Pertuan Agong could be questioned in a court of law since the Agong acted in hisconstitutional capacity for the Federal Government and not in his personal capacity.
The court further declared it could not question the Proclamation of Emergency if done in good faith. The High Court referred to several British and Indian cases where misuse of power could void the good faith requirement.
Disappointingly, the court did not delve deeper given the seminal dissent in Liversidge v Anderson, [1942] AC 206 by Lord Atkin when he revealed that the majority had abdicated their responsibility to investigate and controlthe executive and were being “more executive-minded than the executive”.
The flinching and the blinking invariably happened then and still happens when the Judiciary frets and fumbles at its Article 162(6) powers to modify any law so that it does not conflict with the Federal Constitution.
A golden opportunity was allowed to slip away when the Judiciary flinched and blinked in the rigorous application of the then unamended Article 121(1) and Article 162(6) of the Federal Constitution.
Ningkan wound its way to the Federal Court – Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119 – that considered the threshold question of judicial review of the Proclamation of Emergency and not its constitutionality. Thank Providence the issue of standing was not invoked!
This is a glaring example of whether one is on a sinister quest by addressing irrelevant and irreverent questions. The 1976 Judiciary was helmed by some titans then. Somehow something went horribly wrong.
Note that when a sitting chief minister supposedly loses the confidence of the majority of the legislature, Sarawak’s Constitution requires him to inform the Governor to dissolve the legislature and callfor fresh elections.
But that did not happen. Instead, the federal government declared an Emergency as if dissolving the Legislature and calling for fresh elections constituted “grave danger”.
The judiciary failed in its primary role in safeguarding and defending the Federal Constitution in the Ningkan case. Political overtones as orchestrated by Executive intervention reigned supreme.
The sole, whole and primary question for the three courts was to declare whether or not the Proclamation of Emergency was constitutionally correct and appropriate given the circumstances in Sarawak at that material time.
When the case reached the Privy Council – Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238 – the world witnessed a classic example of jejune jurisprudence that replaced robust judicial analysis.
The Privy Council accepted the prima facie fact that “there was no actual or threatened outbreak of violence of breach of the peace in Sarawak at any time relevant to the Proclamation of Emergency”!
There were no armed insurgencies or insurrections in Sarawak when the Ningkan case hit the headlines. Adat called for peaceful negotiations as dictated by common sense and not just the application of imported common law.
The Privy Council then went into overdrive when it announced that “the breakdown of stable government and the spreading of rumours and alarm prompted the Yang di-Pertuan Agong to declare an Emergency”!
Ultimately, the Pricy Council crouched like a coward playing injured prey when it reminded itself that the Lord President and Chief Justice of Malaya had decided that the validity of the Proclamation was not justiciable while Federal Judge Ong Hock Thye held that it wasjusticiable.
The dissent by Federal Judge Ong Hock Thye should have impelled the Privy Council to delve deeper into innards of constitutional law relating to misuse of power. But it utterly failed to do so for reasons best known to itself and the discerning public.
Meekly, the Privy Council finally stated that the Ningkan case was “a constitutional question of far-reaching importance which, on the present state of the authorities, remains unsettled and debatable.”
“Even an outlaw group, a pirate ship, a robber gang, a band of brigands, has its own code of law, without which it could not exist,” boasted Robert M MacIver in his The Web of Government under the sub-heading The Firmament of Law.
Where was Sarawak’s own code of law during the Ningkan ouster? Keith E Whittington’sConstitutionalism gives as a strong clue: “constitutionalism is the constraining of government to effectuate fundamental principles of the political regime.”
The political regime issue was conveniently left unaddressed by the High Court, the Federal Court and the Privy Council. If they had they would have been struck head-on with the principal issue of the misuse of power.
Most assuredly, and admittedly, Article 162(6) Federal Constitution was never alluded to or even thought of by these three courts in finding closure to this grave constitutional error.
Carl J Friedrich in his Limited Government: A Comparison, talks about natural law andadat as effective restraints upon governmental action. Why didn’t the three courts take it upon themselves to consult the Adat Iban which was alive and kicking during the Ningkan crisis?
It is strongly believed that a future prime minister was watching the drama of a pliant judiciary. It is strongly suggested that theAh Thian, Ningkanand Teh Cheng Poh cases sealed the Judiciary’s fate for the Executive guillotine in 1988 which began with the removal of the phrase “judicial power” from Article 121(1) federal Constitution.
What’s the point of claiming an independent Judiciary when it is given to flinching and blinking? Will Malaysians ever witness an elected Judiciary? We elect MPs, one of whom becomes the prime minister with the power to appoint judges!
Judicial appointments by the Executive cannot represent parliamentary democracy especially when an organ of government is concerned. The Executive and the Legislature are constitutionally required to call for the electorate to choose, select and elect their representatives.
Malaysian case law hardly mentions the number of times Article 162(6) was called upon to tweak, adjust, amend or even repeal – Article 162(7) – an unjust or unconscionable law that offends the supreme law of the land.
That day may come when a May 9 2018 persuasion will materialise again. Meantime the independent Judiciary must remain a fearless fortress despite judicial appointments.
Victor Hugo was on target when he claimed that “there’s nothing more powerful than an idea whose time has come.” Is Sarawak and Sabah an idea whose time has come given the ramifications of MA63 and associated proof and evidence of its co-equal partnership with Malaya?
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.
