Tuesday, September 21, 2021

Danger of quoting the constitution selectively for political purposes

If we subscribe to the notion that our constitution is supreme and that the rule of law must be upheld, we should then embrace the two concepts wholly and not partially.

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“A constitution is the act of the people in their original character of sovereignty. A government is a creature of the constitution; it is produced and brought into existence by it. A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and logical result, that the governmental exercise of any power not authorised by the constitution is an assumed power, and therefore illegal.” – Constitutions, Government and Charters by Thomas Paine

Although it is arguable that my office is political, I am not a politician. Neither do I have any political ambitions, nor any aspiration for any political party post. Consequently, I do not feel the need for any political posturing or any desire to dive into any political maelstrom for the purpose of thrusting myself into political populism.

Notwithstanding, I am now moved to explain a basic little thing which many of us profess to know of in abundance but do little to understand, while some others do understand but elect to apply it only when it suits them.

This little thing is known as the Federal Constitution.

Thomas Paine defines the constitution thus:

“A constitution is a thing antecedent to government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government. It is the body of elements to which you can refer and quote article by article; and which contains the principles upon which the government shall be established, the manner in which it shall be organised, the powers it shall have, the mode of elections, the duration of parliaments, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and, in fine, every thing that relates to the compleat (sic) organisation of a civil government, and the principles upon which it shall act, and by which it shall be bound. A constitution, therefore, is to a government what the laws made afterwards by that government are to a court of judicature. The court of judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made: and the government is in like manner governed by the constitution (emphasis is mine).”

The Federal Constitution, to use plain language, is the mother of all our laws. Being so, it governs all our actions, whether as citizens or as agents of institutions. It creates institutions, give powers to them and spells out how those powers are to be utilised or exercised. In addition, it spells out the rights of the people as well as guarantees some basic rights of the people that dignify all of us as human beings. But at the same time, it also spells out circumstances under which those rights may be curtailed by the state or the relevant institution.

In practical reality, no country in this world has applied the doctrine of separation of powers in its absolute terms.

The Federal Constitution creates three main institutions in the administration of our country. These are the executive (consisting of the prime minister and his or her cabinet), the legislature (commonly referred to as the Parliament) and the judiciary (otherwise called the courts). The constitution then divides the powers among these three institutions to ensure the smooth running of the country. This is so that each institution knows its powers and the limit of its powers. This is called the division of powers.

Each institution is therefore expected to exercise its respective powers independently and without any interference from the other institutions. This is known as the doctrine of separation of powers.

This is where we sometimes get confused.

Separation of powers is not a legal principle. Just like the social contract, it is not a conceptual construct that is clothed with legal sanction or enforceability. It is merely a political theory. A doctrine. Nevertheless, some say that it is embedded in the Federal Constitution. Some others say that is the premise of our administration. While it is not the purpose of this note to ponder on this issue, one thing is clear, namely, the separation of powers is not a legal principle. It is therefore not legally enforceable. It is also subject to any qualification expressed in and by the Federal Constitution and any laws made pursuant to the constitution.

In practical reality, no country in this world has applied the doctrine of separation of powers in its absolute terms. Parliament and the executive will of course always be formed by the same majority members. Members of the judiciary will always be appointed by the executive.

In the UK, the concept of parliamentary supremacy would mean that the Parliament stays above the judiciary and the executive, thus wielding more powers than the other two.

The Indian Supreme Court in Ram Jawaya Kapur v State of Punjab, among others 
held that the Indian Constitution has indeed not recognised the doctrine of separation of powers in its absolute rigidity. In the US, Professor James R Hall states that “the doctrine of separation of powers of government is of course not susceptible of rigorous application”. (quoted by John A Fairlie in The Separation of Powers, Michigan Law Review Vol. 21, No. 4 (Feb, 1923).

By contrast, the division of powers among the three institutions as stated in the Federal Constitution is a legal principle. The Cabinet exercises executive powers. The Parliament makes laws. And the courts adjudicate. These are legal principles and being so, they are enforceable.

Being so, there are instances when it is legally permissible for one institution to venture into the realm of the other institutions. When one institution is legally permitted to “interfere” with the workings of the other institution, that “interference” is valid and enforceable regardless of the fact that that “interference” is repugnant to the doctrine of separation of powers. This is because rigorous and absolute application of the doctrine of separation of powers is impossible for any modern government.

The Parliament has also on many occasions “usurped” the power of the courts to adjudicate and pass judgments.

For example, there have been cases where the executive exercised its powers to ban a book. However, the courts reversed that ban and ordered that the book be un-banned. On the face of it, the court was in fact interfering with the powers of the executive. How could the court do this? Isn’t this an affront to the doctrine of separation of powers?

The answer is no. Why not? Because the court is legally empowered to overrule some actions of the executive under the law. This is permitted by the Federal Constitution and the Courts of Judicature Act. The executive therefore cannot complain, in this situation, that the court is interfering with its powers or that the court is breaching the doctrine of separation of powers. In this scenario, the court has a source of law to do so. That law is the Courts of Judicature Act.

By contrast, the Federal Constitution expressly stipulates that the Dewan Rakyat shall regulate its own proceedings. It also specifies that the validity of any proceedings of the Dewan Rakyat shall not be questioned in any court. That is why the court cannot entertain any question as to the validity of any proceeding of the Dewan Rakyat. In other words, in this situation, the courts do not have any source of law to do so. If the court, in defiance of the express provision of the Federal Constitution, proceeds to adjudicate on the validity of any proceedings of the Dewan Rakyat, that would then be against the law. That is because the courts have no source of law to do so.

The Parliament has also on many occasions “usurped” the power of the courts to adjudicate and pass judgments. For instance, the Parliament has passed laws to provide that in case of a person is found to possess a certain amount of drug, he shall be presumed to be a trafficker. This provision takes away the power of the courts to determine whether that person is in fact and in law a trafficker. In addition, the provision of laws passed by the Parliament to impose a mandatory death sentence in certain offences is also an “interference” by the Parliament of the court’s power to decide on the punishment for that offence.

However, those “interferences” are allowed and valid because the Parliament has the source of power to do so. That source of power comes from the Federal Constitution.
Coming to the topic that is fuelling the current political whirlpool, can the executive stop the Parliament from sitting? We can argue all we can about this issue. But we have taken an oath to defend and protect the Federal Constitution. Being so, we have to go back to the Federal Constitution to find out the answer. As with the two examples above, it boils down to the source of law.

The Federal Constitution provides that the prime minister may advise the king to proclaim an emergency. This the prime minister has done and the king has proclaimed an emergency.

The Federal Constitution also provides that during an emergency, laws by way of ordinances may be promulgated by the king (in accordance with the advice of the prime minister) if circumstances exist which render it necessary for His Majesty to take immediate action.

Such laws have been promulgated on the advice of the prime minister. In one of them, all meetings of the Parliament have been cancelled.

If we subscribe to the notion that our constitution is supreme and that the rule of law must be upheld, we should then embrace the two concepts wholly and not partially.

The emergency and the ordinances that have so far been promulgated are actions taken under a specific source of law, namely under and pursuant to the Federal Constitution. They are backed and substantiated by valid and enforceable legal principles spelt out in the Federal Constitution just like the power of the courts to curtail and even reverse some of the actions by the executive. Whether we like it or not, that is the power of the Cabinet or executive and that power has been exercised.

As Paine puts it, “a constitution defines and limits the powers of the government it creates”.

If we subscribe to the notion that our constitution is supreme and that the rule of law must be upheld – as we often loudly proclaim – just as those ideals are spelt out in our Rukun Negara, we should then embrace the two concepts wholly and not partially. We shouldn’t blow hot and cold and accept whatever actions when they benefit us or our aspirations or desires, only to shout and scream when those actions don’t serve our interests.

There is however liberty to agree or disagree. And there may be personal or political reasons to do so. I am just stating the law as it is. If we feel that this law is not good, it has to be changed. It behooves those who disagree with the law to then change this law when opportunity presents itself.

Until then however, all MPs, myself included (although I am not an elected member), must act in accordance with our oath. This oath is set out in the 6th Schedule of the Federal Constitution. Part of the oath is to “protect and defend” the constitution. It is therefore imperative for us to embrace the Federal Constitution in its entirety and not pick and choose the application of any of its provisions as and only when it suits us.

Azhar Harun is the speaker of the Dewan Rakyat.

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