The oath of office and a requirement that judges not act unconstitutionally are among the hallmarks of our Federal Constitution.
In fact, the constitution does not guarantee security of tenure for judges who act unconstitutionally or misconduct themselves in office, or even in their personal lives.
Thus, judges have a constitutional obligation to act as per their oath of office to preserve, protect and defend the constitution as well as a duty not to act unconstitutionally or participate in any form of misconduct which can undermine the dignity of their office.
In a previous column, I had said that Malaysia’s “rule of law” is different from the one in place in England – the source of our common law – and India, the country which gave us the framework for key legislation still in use here.
One major reason for that difference lies in a unique feature contained in our constitution, namely, the oath of office prescribed for members of the executive, legislature and judiciary.
That oath reads: “I, (name), having been elected/appointed to the office of (position) do solemnly affirm that I will faithfully discharge the duties of that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.”
For judges, the constitution specifies that the phrase “the duties of that office” in the oath is to be replaced by “my judicial duties in that office”.
Just prior to the formation of Malaysia, the case of The Government of the State of Kelantan v. The Government of the Federation of Malaya and anor (1963) – one of the earliest constitutional cases in the country – came up before the High Court.
In it, then chief justice James Beveridge Thomson – who went on to become the first Lord President of the Federal Court later that year – imported the doctrine of parliamentary supremacy into his decision without appreciation of the purport of the oath of office and the applicable rule of law.
Regrettably, in my view, Thomson CJ’s omission to correctly identify the basis of the rule of law paved the way for many more decisions which promote parliamentary supremacy in this country. That failure has led to the destruction of the fabric of our constitution, which is based on constitutional supremacy.
This, in turn, has led to abusive laws and decisions by all three branches of government which are out of step with the constitution. In my view, it has crippled social justice as well as the economic progress of the country, and instead promoted kleptocracy, corruption and misconduct.
Most importantly, jurists have failed to appreciate that the Federal Constitution cannot function as intended by our founding fathers if the separation of powers between the three branches remains a myth, something I have addressed previously.
Having served in the judiciary, I am aware that none of the members of the three pillars of government have been schooled in the constitutional oath jurisprudence.
I say this for several reasons. When I studied law in London, I did not come across teachings about the oath of office. Neither have I heard of any constitutional jurist who advocated it.
In fact, it was something I discovered when taking my own oath as a judicial commissioner in 2007. I subsequently developed the concept in more than 30 written judgments, culminating in the case of Public Prosecutor v. Aluma Mark Chononso (2020).
In my view, this oath of office jurisdiction buries the concept of parliamentary supremacy and brings into force a new regime of the rule of law based on the supremacy of the constitution.
Parliamentary supremacy can engender colonisation, dictatorialism, abusive laws and many more.
In Malaysia, there is very little that the courts will be able to do if we subscribe to it.
In civilised countries like England, the standard bearers for parliamentary supremacy, a “check and balance” exists in the form of an independent judiciary which operates with meritocracy and intellectual honesty as its pillars, and integrity as its shield.
That allows for the rule of law to exist, premised on justice, equity and good conscience, with no room for the public to complain that the separation of powers doctrine is merely a myth.
The English judiciary also operates in an environment where the media, academia, bar and other interested groups are open and objective in their criticism of the judiciary’s conduct and decisions as opposed to simply attempting to patronise them, as happens quite often here.
The lack of open and objective scrutiny has left Malaysia with several penal statutes which I consider to be abusive.
A simple test to identify whether a law is abusive is to check it against its equivalent law in England or India. Here are four examples.
Caning is not a penal punishment in England or India. Why is it still in our statute books?
Next, presumptions are nothing more than a legal fiction and cannot be made the substantive element of a crime.
For instance, Section 37 of the Dangerous Drugs Act 1952 contains a presumption that an accused who is found in possession of drugs above a threshold quantity is presumed to be trafficking in it. Such a law is abusive as it allows the prosecution to secure a conviction without the need to tender corroborative evidence at trial.
Thirdly, laws which aim to imprison offenders for nonviolent crimes or social offences without providing alternative and civilised options like the confiscation of assets are also unjust and must be removed from our statute books. Similarly, community service may form a better type of punishment for social-related offences.
The Official Secrets Act 1972 and other security-related legislation, which until now have enabled kleptocrats to promote corruption and corrupt practices, should also be done away with or amended to be in line with equivalent laws in England or India.
Judges must uphold their oath of office when scrutinising constitutional amendments and legislation passed by Parliament to ensure they do not violate the constitution or social justice norms related to human rights obligations.
In my opinion, any learning or dissemination of knowledge on our constitutional law without reminders to the three pillars and legal industry of the oath of office jurisprudence and how it had been breached in particular instances will not help to promote the rule of law and social justice.
The views expressed are those of the writer and do not necessarily reflect those of FMT.