The 14thof May 2018 was a day of great anger.
I wrote this essay, but declined to publish it. I left it alone, and went away.
I just found it. As have you.
Its purpose is to ask you to contemplate two questions.
Start with this: ‘Isn’t it treason to knowingly subvert the Rule of Law and the Separation of Powers?’
The genesis of treason as a common law crime can be tranced all the way back to an English statute enacted during the reign of Edward III (1327–1377). It prohibited waging war against the king, or helping his enemies. Treason was created as a law to punish disloyal and subversive thoughts. In the 13thcentury, the crime of treason was expanded to encompass anything the king did not like. It became the Crown’s political tool. In the UK, until the 19th century, the punishment for treason was ‘hanging, drawing and quartering’. It was afterwards defined narrowly. The word is absent in the Malaysian Penal Code. But section 121 of the Penal Code does punish a person with death, or life imprisonment, and fine, for ‘waging war’ against the King or any state ruler. But our Malaysian definition is a stone age definition: e.g. ‘whoever … imagines … the death of or hurt to the [King] or [any state ruler] their heirs or successors, shall be punished with death …and … fine’. Odd, that.
Yet misleading (or indeed lying to) the King on constitutional matters does not attract death.
Yet obtaining royal approbation to ascend to high office by subverting the Constitution, by impairing countless future generations by interpreting that Supreme Document by unconstitutional reasoning, obtaining royal approval by a deceptive twisting of the principles of Rule of Law, by convicting someone when he ought not to be convicted, by refusing to prosecute someone who must be arraigned, but stealing away the wealth of the nation – you might reason – is treasonous.
It isn’t treason, although sometimes we all wish it could be!
What you complain of is unconstitutional conduct.
It is a violation of the Rule of Law.
Nani Palkhivalla, one of the greatest flowers of the Indian Bar, spoke of exactly the same thing in the Kesavanada Bharati case in 1975 (and against its review in 1977).
It is said that while many speak glibly of the Kesavanada Bharati case, few indeed that understand the significance of the principles buried deep within the vaults of its report.
The (then) Indian Supreme Court Judge Krishna Iyer was one who could plumb its depths. At the close of arguments, surveying an equally divided supreme court of twelve men – he alone understood the significance of Palkhivalla’s arguments and chose to stand by him. His unflinching loyalty to the Rule of Law stands us all in good stead, not only in India, but from the shores of Barbados to Philadelphia.
Palkhivalla gave tongue to words that echo through the decades: He said that it was conduct:-
‘… which tears at the very fabric of the Constitution’.
We might all do well to remember that!
Your complaint is that a man who is a leader of a free nation, or his colleague in the cabinet, or the perceived masthead of the Rule of Law – if he helps in its subversion, and paves the way for its ultimate destruction years down the line – such a person ought to be punished most severely.
For a Great Being once said:
Justice hath a mighty force at its command.
It is none other than reward and punishment for the deeds of men.
By the power of this force the tabernacle of order is established throughout the world, causing the wicked to restrain their natures for fear of punishment.
So what then should we do with men and women, politicians, their hangers on, judges, and lawyers who tore at the fabric of our Federal Constitution? Those who heinously subverted the flow of justice by their subterranean motives?
Such men and women breached the very concept of Merdeka for which our forefathers aspired. They substituted themselves in place of colonialists – and did the same thing in the name of a twisted group of constitutional thieves. They plundered the nation of its greatest asset – the Rule of law.
They raided, and carted away its treasury. And now they dare speak of ‘the law.’
Such conduct is abominable.
We have seen it so often that we have almost become inured to it.
But we rose from slumber on 10 May 2018.
We changed our collective mindset on that day.
But we are far from proper relief. The danger is real.
This week a lawyer wrote an exegesis on it. He called it, ‘Whither the judiciary: empowered arbitrator or lame duck?’
I can tell you what would have happened if this had been done in Europe, the US or the UK.
We should be no different.
What do you think should be done next?