Judges are duty-bound to uphold the Malaysian Constitution

Published on: Sunday, August 30, 2020

By: Frogbuster

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THE Federal Court’s decision not to dismiss the appeal by former Sabah Chief Minister Tan Sri Musa Aman in challenging the validity of Datuk Seri Shafie Apdal’s appointment as rightful CM as academic just because the Election Commission had set the nomination and polling dates or that the Assembly has been dissolved and gazetted, is not surprising. As we are aware even the dissolution has become an issue, not the act of dissolution per se which is any TYT’s (Governor’s) right, but the process or what went into or was not considered in making that decision.

By the oath of office, Judges are duty-bound to uphold the Federal Constitution which is founded on democratic principles. There is a view that every Governor must know that he wears two hats, one as the head of the Executive and the other as part of the Legislature and that these two arms of Government coexist along with the Judiciary as equal partners of the Government.

As head of the Executive branch of government, he appoints the CM after an election based on his assessment as to who in the Legislature enjoys the confidence of the majority of its members. Once that duty is done his Executive duty ends.

As to whether the CM thereafter retains that confidence of the Legislature is purely and exclusively a Legislative function that can only be exercised by the Legislature and not by the TYT any longer.

The pending case before the Federal Ccourt is expected to settle this issue.

In the Sarawak Ningkan case the judge was sceptical of drawing conclusions on the continued majority support of the Legislature by the TYT based on Statutory Declarations, because persons who put their names in a private list supporting a certain person as the CM would hesitate to do so publicly in the Legislature.

This is also an opportunity to distinguish the Perak case or overrule it as a bad law or a law that is ill suited to deal with the political dynamics in Sabah. One of the canons of Constitutional interpretation is the “organic interpretation “ which was advocated by the FC in the Perak Case.

By this interpretation the court will interpret the Constitution in a manner to promote the intent of the constitutional provision so as to eliminate the social evil facing the society. In Sabah one of the main political scourges which makes a mockery of democracy has been party hopping.

It has repealed the anti hopping law during the PBS era, following the FC decision in the Kelantan Case that State Anti-hopping laws are unconstitutional, the courts ought to be proactive in curbing the mischievous acts of breach of trust by the elected representatives.

Frogbuster