New ‘rulers court’ can restore rule of law

 

Established in 1833, the Judicial Committee of the Privy Council acts as the highest court of appeal for several Commonwealth countries.

Malaysia used to be one of those countries, until 1985, when the right of appeal to the Privy Council was removed from our statute books.

Perhaps the loss of that check-and-balance is what brought about the destruction of the rule of law and social justice in this country.

Within a few short years, Umno was declared illegal, and Lord President Salleh Abas and several other senior judges were removed from office, as the executive sought to create a compliant judiciary.

The incident was a blatant encroachment by the executive into the judiciary, triggering a breakdown in the rule of law. Indeed none other than the great judge himself said this to me during a chance meeting at Subang Airport some three decades ago.

Readers of my judgments and articles would be aware that, in my view, the Federal Constitution only grants the three traditional pillars of government – the executive, legislature and the judiciary – a licence to administer the country.

Our constitution, however, is unique in that it also establishes a fourth pillar, the Conference of Rulers, which has been given the final say in the administration of the country and the rule of law.

That means the rulers ought to take an active supervisory role in ensuring adherence to the rule of law.

Until 1985, the Malay rulers were entitled to lean on the Privy Council for advice on how the rule of law should be maintained in the country.

Following the repeal, a lacuna arose which has not been filled. This has been to the detriment of social justice, allowing unchecked the enactment of abusive laws that transgress accountability, transparency and good governance concepts.

Indeed, our rulers would have appreciated being able to call on the eminent and impartial advice of the Privy Council today.

Recent media coverage of Najib Razak’s pardons process have seen many of our leading jurists, commentators and politicians spouting muddled jurisprudence.

Some have peddled false and misleading narratives, while others have simply displayed a lack of understanding.

As a result, even straightforward concepts enshrined in the constitution, such as the absolute right of rulers and governors to grant pardons, and the role of the pardons board in the process, have been cast aside or compromised.

Numerous other recent events have also laid bare the collapse of the rule of law in the country, including the numerous race and religious issues that have arisen and the resulting boycotts of businesses.

Meanwhile, the Conference of Rulers appears to have shied away from playing an active role in remedying the ensuing injustice likely due to an incorrect interpretation of the power it wields in the administration of justice.

That, unfortunately, has left Malaysia like a car with one of its four wheels removed.

To my mind, the imbroglio can only be resolved if the rulers accept and enforce their true constitutional role in the administration of the country.

To enable them to do so, they must insist that an advisory body, independent of the existing court system, be formed to advise them on matters pertaining to the administration of justice and the restoration of the rule of law in Malaysia.

Such a body will be the modern day equivalent of the Privy Council, acting as a formidable check-and-balance to the role of the three licensed pillars of government.

This “rulers court” should comprise retired judges and jurists, preferably from England and other established common law countries, who are capable of rendering sound and impartial advice.

It should also act as an oversight committee and must be empowered to advise the rulers on complaints from the public about breaches in the rule of law by the government and its various agencies, political bodies and politicians, as well as violations by constitutional functionaries of their oaths of office.

There is no doubt in my mind that the framers of our constitution had originally intended the Privy Council, made up of judges without religious or racial biases, to perform this very role.

That is why Article 38 of the constitution has vested prerogative and discretionary powers in the rulers, including the power to act in matters of a sensitive nature. The constitution has also given the Yang di-Pertuan Agong the keys to Parliament and command of the army.

The removal of the Privy Council as the rulers’ sounding board almost 40 years ago now has created a gaping hole in the rule of law which must be plugged.

The time has come to bring that council back in another form. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.