Is there a way to overcome this constitutional impasse?
Judge Learned Hand, once said, ‘If the Spirit of Liberty flees your heart, no written Constitution can ever save you.’
Some politicians have dragged that spirit of liberty to the grave.
Our Federal Constitution has failed us.
The ideas I present here originated from Mr T. Gunaseelan.
There is a simple solution to this grave problem.
In school, my teacher, Mr Chakravarthy, used to say, ‘Go back to the basics’.
Why do we need Constitutional Law?
It protects the people from being bullied, from theft of state property and from a breach of trust.
The Constitution is a commitment to ensure that both individual interests, and collective interests are satisfied.
That ‘commitment’ is called ‘the doctrine of Constitutional morality’.
It is a willingness to be faithful to basic legal values.
The Indian Supreme Court has invoked this in 2 cases:-
(1). Indian Young Lawyers Association v State of Kerala; and
(2). Government of NCT v Union of Indian.
Have our politicians been ‘faithful to basic legal values’ or the underlying principles of the Constitution which they swore to uphold?
Now consider my earlier video entitled, ‘14 reasons why this Perikatan Nasional has to resign’?
So, what can the King do, under these circumstances? Can he fire the Cabinet and the PM?’ But the Constitution does not seem to empower the King to dismiss the PM.
Only when someone else comes with the majority can the King appoint the new PM.
His Majesty may do one of 2 things: undertake to appoint a New PM —or go to the Federal Court for its opinion.
The Doctrine of State necessity
The doctrine allows those without power to assume power, outside the Constitution – especially during a ‘public emergency’.
The courts do not approve of it.
’The Doctrine of State Necessity in Pakistan’,
Mark. M. Stavsy, Cornel International Law Journal, [1983] p.34.
Courts mostly reject its use unless specific exceptions exist, especially public order.
Our current circumstances are strong enough to invoke this doctrine.
Can the King use the doctrine of necessity? If so, how?
Remember the 14 major problems which we have spoken of in an earlier video? The Cabinet is bent on avoiding its Constitutional duties. And people are dying in the thousands.
Can the King appoint a new PM if the incumbent PM has lost his majority?
In our opinion: Yes.
That majority cannot be tested before Parliament —its is now closed.
The Constitution allows the King can ask the Federal Court for its opinion. He could ask whether, under these circumstances, he could appoint a new PM. [Art. 130, Constitution].
Second Option : The Federal Court itself can act, ’suo moto’.
What is to stop the Federal Court from taking judicial notice of the current Constitutional conundrum?
And the Cabinet’s wayward behaviour?
True, the Malaysian Federal Court has never acted suo moto on any issue.
That does not mean that it cannot; or that it will not.
There is nothing to stop the Federal Court from so acting.
Will our judges do it?
Third Option
Any citizen or public interest group can write to CJ to invoke the ‘Epistolary jurisdiction’?
There is precedent for this.
In early 1960s, a prisoner’s postcard as a petition:
Gidern v Wainwright (1963) Sup. Crt.
The Indian Supreme Court in S.P. Gupta v Union of India 1981 did the same.
It accepted a letter as Writ Petition.
I am confident that the three proposals above will receive the people’s support.
The Nuclear option
There is such a thing call the ‘inherent jurisdiction’ of the court.
It is a power that the Courts give themselves in order to do justice.
The Federal Court is the court designated by the Constitution to answer
difficult Constitutional issues.
Every judge in the land, when she or he took the oath of office, swore to protect the Constitution and the Rule of Law.
If so, there is nothing to stop the Federal Court from calling before itself the incumbent PM to prove his numerical support in the Dewan Rakyat.
These are extraordinary times.
Unusual times call for unusual measures.
Eventually, if no one is willing, we have to trust our judges to do what is right.
This is because, as Lord Denning once said:
“Someone must be trusted. Let it be the judges.”
[Lord Denning, ’The Family Story’]
GRATITUDE:
This video would not have been possible without the relentless, unceasing and often sleepless efforts of the Japanese artist, En. Samad Hassan, the sacrificial research and scripting of Miss KN Geetha, Mr. JD Prabh Singh and Mr GS Saran.
MUSIC
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Licensee: A Samad Hassan
Registered Project Name: GKtv Law
License Date: April 5th, 2021
Item License Code: A4652EDRQV
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