K. Haridas: Why we must preserve, protect and defend constitution (The Malaysian Insight, 22 January 2021)

https://www.themalaysianinsight.com/s/296555

MANY of us who have had the experience of being a plaintiff, defendant or a witness in a court proceeding will be aware of the “oath” that we need to express in front of the judge with our right hand up pledging something of this nature, “To speak the whole truth and nothing but the truth so help me god”.

If it is then found during the court process that one has been untruthful then he or she will be liable for perjury, a criminal act as this disrupts the judicial process. Conviction could lead to serious consequences, including probation and fine.

There are other forms of undertakings that are made like statutory declarations and written undertakings made in the presence of a commissioner for oaths.  

Many of these instruments have been misused by politicians and remain devalued in the eyes of people. All these have consequences.

In addition to this there is the “oath of office” taken when one holds positions of responsibility in the public sphere. This will cover members of parliament, ministers, prime minister and those in the judiciary. It would be interesting to speculate how accountable these are in the public space.

Members of the three arms of government – namely the executive, legislature and judiciary – all take an oath of office upon their appointment to preserve, protect and defend the constitution.

The focus is the constitution and laws made by Parliament must meet the basic fundamental criteria as enshrined in the constitution, failing which these will be struck down.

The constitution thus remains the pre-eminent document that is shared by all Malaysians and outlined herein are all the fundamental liberties enjoyed by all Malaysians. The constitution is supreme and this is why there is a need to preserve, protect and defend it.

As has been so eloquently argued by an eminent judge the source of any constitutional argument should also originate from the constitution itself.

“Constitutionalism under our constitutional framework is that the executive, legislature and the judiciary taking an oath to preserve, protect and defend the constitution.

“The oath is not constitutional bluff, but it is a constitutional contract of the highest nature to protect the public and read with the Rukun Negara, it puts religious, moral, ethical values to the highest standard with allegiance to the Yang di-Pertuan Agong and not any individual person who was instrumental in the appointment.”

There is thus an obligation and an independence to act in accordance with one’s oath of office. Fundamentally, this also means that the executive and the legislature cannot meddle with the constitutional framework to affect fundamental liberties, judicial powers or even violate the doctrine of separation of powers.

The paradigm here is based on the constitutional supremacy framework, which is anchored by the oath of office.

When the oath of office is one that is not accountable and the violation of which has no consequences then it means all things to all people. Let take for instance our present backdoor government.

Would it be too harsh to say that all members of this government have violated their oath of office? By violating their commitment to the people who elected them and the promises made via their adherence to a manifesto have they not breached the sense of trust and promise expressed to their constituents?

Have they been true to the rule of law? Then by party hopping they have violated the reform agenda, the very basis on which their constituents voted them into office.

By what moral standards can you justify this as a correct and an ethical stand? Having said this the promulgation of the emergency ordinance by these same actors calls into question their own oath of office.

What I understand by a constitutional monarchy and a constitutional democracy is being blurred. Clarity for me lies by way of a focus on the primacy of the constitution. If we continue to rationalise and subvert the foundations of our constitution, then it will not be long before greater damage is done to the very fabric of our constitution.

From the primacy of the constitution, separation of powers, role of the Agong and their respective oaths on taking office one needs to get the focus right. The king acts on the advice of the prime minister representing the executive.

The prime minister secures his mandate from the people’s house the Dewan Rakyat. You cannot reason this away and we must be careful that our respected Agong is not used as a shield by politicians with their own agendas. Expressing our views against the proclamation of this emergency should not be perceived as being disrespectful to the Agong.

There is nothing that is disrespectful. The Agong is obliged to accede to the advice of the PM and having refused once he has decided otherwise the second time.

The issue is not with the Agong but the prime minister as leader of the Executive. We should be mindful of our politicians using our Agong as their shield to protect themselves from accountability.

Our politicians are expressing good intentions with regard to health but this also hides bad motives. They are neither being transparent and accountable and can be perceived as violating the constitution and their oath of office.

They could well have gone to Parliament if they respected the people’s chamber. They did not and you and I know their reasons for not doing so.

The fact is there are many who now perceive that our constitution is been violated. The people’s fundamental liberties are affected.

Could it be that the power to determine this lies with the judiciary. As one judge concludes, “Thus absolute independence as well as the requirement to act professionally as per the oath with full allegiance to the Agong is mandatory”.

“The judiciary is expected to police the executive and legislature to ensure that the constitution is not amended or destroyed against the interest of the public and the fundamental liberties provision are not made illusionary by way of legislation which are harsh and oppressive and are inimical to the Universal Declaration of Human Rights as legislated and incorporated under the Suhakam Act 1999 etc, as well as entrenched in Articles 5,8 etc of the federal constitution.”

So to go to court is the right of the citizen and this does not reflect negatively as questioning the actions of the Agong.

The courts remain the final bastion against abuse of powers even those conferred under the Emergency (Essential Powers) Ordinance 2021. This must be seen in the context of the citizens’ desire to preserve, protect and defend the constitution.

It is questionable whether an emergency of this nature is needed to deal with a health crisis. Only a serious exceptional circumstance affecting national security should call for the imposition of an emergency.

The best forum for this to be discussed and debated is the Dewan Rakyat – the people’s house. Now we are even deprived of this fundamental constitutional right.

Where does the prime minister derive this power and right to do what he has done? Has he acted ultra vires the constitution? Can he act arbitrarily on the whims and fancies of his cabinet and against his own oath of pffice?

What are the avenues open for the people? How can we trust our present government which already has serious trust deficit issues with the people?

Character is the premium that is missing. We have all witnessed what former president Donald Trump has done to democracy and the institutions of governance in the US.

People who lack character will pollute our institutions as well and there is thus the need to defend our constitution.

This trust deficit will continue to have serious impact on the nation’s standing, economy and respect. How we look at the problem is the problem. Is it constitutional supremacy or parliamentary supremacy?

While the former is in keeping with the oath of office, the latter is an aberration from our colonial past. The final arbiter is the judiciary as the custodian of the constitution. The character of our judges will be on test. – January 22, 2021.