I have in recent weeks taken much pleasure in hearing politicians and lawyers increasingly talk about the “oath of office” in their public discourse.
A most recent example involved the recent Kelantan shariah law case. Opposition parliamentarians calling for a “fully” shariah legal system were accused of violating their oath of office, which requires them to “preserve, protect and defend” the Federal Constitution.
Judges, too, have started using my favourite phrase, found in their oaths, vowing to “preserve, protect and defend” the constitution.
But does the legal industry know what that responsibility entails?
Many would be aware that the same phrase is found in the oath of office taken by the president of the United States, but that does not mean that we derive our constitutional principles from the US. Far from it.
In India, judges take an oath to “bear true faith and allegiance” to that country’s constitution, while in England they swear to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”
Malaysia’s constitution must be interpreted according to the vision of her own founding fathers as reflected in the findings of the Reid Commission, an independent commission tasked with shaping its framework in consultation with all stakeholders, including the nine Malay rulers.
That is where the true aspirations of the rakyat are reflected. So, what then did the framers of our constitution mean by “preserve, protect and defend”?
In my view, the inability of the legal industry to guide judges effectively in upholding their oath of office according to its true meaning has resulted in friction among the rakyat, which has in turn compromised social justice and rule of law.
This, in my view, is the leading cause of the jurisdictional dispute between the civil and shariah laws and courts of the country, as seen once again in the recent Kelantan shariah case.
Presently, the three key words in the oaths are nothing more than a fashionable phrase mouthed by judges, lawyers and politicians. In reality, however, they make up a formula devised by our founding fathers to address all constitutional woes faced by the country.
Apart from my own efforts in developing the doctrine over the past two decades, culminating in my judgment in the case of Public Prosecutor v. Aluma Mark Chononso (2020), the jurisprudence in this area has so far remained entirely undeveloped.
To my mind, it can allow for the resolution of all disputes as per the legitimate expectation of all Malaysians to safeguard their rights as entrenched in the constitution and the UN charter and conventions, and to live a harmonious life.
I believe the public is now becoming aware of an alternative interpretation of our constitution that I have promoted, namely that the custodian of all constitutional rights is the Conference of Rulers, acting through the Yang di-Pertuan Agong.
The king is not merely a ceremonial head, as many have suggested until now. No, he is the grantor of licences to the three pillars of government – the executive, legislature and judiciary – to administer the country as per the constitution, with the rulers retaining the final say.
One of the terms of that licence must be that each branch of government will apply its powers and exercise its duties in accordance with the mandate given to it by the constitution, no more and no less.
For example, as I have explained in Nik Nazmi’s case (2014), any legislation introduced by the federal and state governments in breach of the constitutional methodology is capable of being demolished through the application of the oath of office jurisprudence.
The impugned legislation ought to be reviewed at three stages – by the legislature, executive and judiciary – giving proper weightage to the legitimate expectations of all Malaysians under the constitution in matters of fundamental rights, including free speech, religion, equality and peaceful assembly.
Only if there is evidence of a breach by the legislature in its formulation, or by the executive and its various agencies in its implementation, can relief be sought from the courts.
That relief need not be just in the form of striking out legislation as the Courts of Judicature Act 1964 empowers the courts to grant other remedies capable of maintaining a harmonious relationship between the executive, legislature and the judiciary.
One obvious justification for striking down such legislation would be if it is proven to be illegal, irrational, unreasonable, disproportionate to the problem at hand, harsh and oppressive, etc. To help in determining this, the courts can rely on a wide body of precedents developed both in Malaysia and elsewhere.
However, as legislators are the elected representatives of the people, the courts must honour the separation of powers doctrine by being slow to resort to its power to strike down legislation unless it is in clear violation of the constitution.
In practical terms what this means is that a public-spirited litigant cannot apply to strike down legislation as soon as it is enacted unless and until sufficient evidence exists to show it is illegal, irrational, unreasonable, disproportionate, harsh or excessive, so much so that the court cannot save the legislation or any part of it.
In leading common law jurisdictions like India, the applicant must be an aggrieved person, and must be able to demonstrate so on affidavit.
It must be borne in mind that certain provisions in legislation are formulated primarily for political, security or other reasons.
For instance, there are many provisions in our Penal Code which have never or rarely ever been acted on but remain in the books to sustain the rule of law and social ethics for harmonious living. This is in fact a colonial methodology to safeguard the nation of vice by prior notice and threat of enforcement to sustain law and order.
Only an aggrieved person – one who has been affected by them – should be in a position to challenge these provisions. Otherwise, the courts will be inundated with vexatious litigants bent on challenging their legality in purely academic exercises.
Typically, “aggrieved persons” will emerge once the executive or its agencies seek to enforce legislation on the public. Only then will facts emerge for evaluation by the courts as to whether the law is irrational, unreasonable, etc. either in its framing or application, and, therefore, unconstitutional.
On my part, this was the approach I took in my dissenting judgment in the Court of Appeal case of Nik Noorhafizi Nik Ibrahim v. PP (2013) involving the Police Act 1967, and in Nik Nazmi Nik Ahmad v. PP (2014) which was in respect of the Peaceful Assembly Act 2012.
To sustain the rule of law, lawyers and academia must guide the courts in formulating decisions whether to save or strike down legislation premised on the right propositions of law. This must be done without compromising the role of elected representatives in the lawmaking process, especially in cases where there is a clash of public opinion.
The recent Kelantan shariah enactment case in the Federal Court was one that has seen fierce clashes of public opinion. This was to be expected given the sensitive nature of its subject matter.
The legal industry must take steps to ensure it is better prepared to preserve, protect and defend the constitution the next time around.
The views expressed are those of the writer and do not necessarily reflect those of FMT.