What happened to leaders’ oath to ‘preserve, protect and defend’ the Constitution?

If we continue to subvert the foundations of our Constitution, then it will not be long before greater damage is done to its fabric

Photograph: Wikimedia Commons

Some of us who have had the experience of being a plaintiff, defendant or witness in court proceedings will be aware of the oath we need to take before the judge with our right hand up pledging something to this effect: to speak the whole truth and nothing but the truth so help me God.

If later, during the court proceedings, it is found we have been untruthful, then we would be liable for perjury, a criminal act, as this disrupts the judicial process. Conviction could have serious consequences, including probation time and a fine.

There are other forms of undertakings that are made, such as statutory declarations and written undertakings, made in the presence of a commissioner of oaths. Sometimes, politicians may misuse these instruments, devaluing them in the eyes of the people. This has consequences too.

Then there is the ‘oath of office’ taken when one holds positions of responsibility in the public sphere. This will cover members of Parliament, ministers, the prime minister and judges. It would be interesting to speculate how accountable they have been.

Constitution is supreme

Members of the three arms of government namely the executive, the legislature and the judiciary all take an oath of office upon their appointment to preserve, protect and defend the Constitution. The focus is the Constitution, and laws made by Parliament must meet basic criteria enshrined in the Constitution, failing which these will be struck down.

The Constitution thus remains the preeminent document shared by all Malaysians, and it outlines the fundamental liberties that Malaysians enjoy. The Constitution is supreme, and this is why we need to preserve, protect and defend it.

As has been so eloquently argued by an eminent judge, the source of any constitutional argument should also originate from the constitution itself. “Constitutionalism under our constitutional framework is that the Executive, Legislature and the Judiciary taking an Oath to preserve, protect and defend the Constitution.”

“The Oath is not constitutional bluff, but it is a constitutional contract of the highest nature to protect the Public and read with the Rukun Negara, it puts religious, moral, ethical values to the highest standard with allegiance to the Yang Di Pertuan Agong (YDPA) and not any individual person who was instrumental in the appointment.”

There is thus an obligation and an independence to act in accordance with one’s oath of office. This also means that the executive and the legislature cannot meddle with the constitutional framework to affect fundamental liberties and judicial powers or even violate the doctrine of the separation of powers.

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Violation of oaths?

The paradigm here is based on the constitutional supremacy framework, anchored by the oath of office. When there is no accountability in taking an oath of office, the violation of which has no consequences, then that oath means all things to all people.

Take, for instance, the present backdoor government.

Would it be too harsh to say that all members of this government have violated their oaths of office? By violating their commitment to the people who elected them and the promises made through their adherence to a manifesto, have they not breached the sense of trust and promise expressed to their constituents?

Have they been true to the rule of law? Through party defections, they have violated the reform agenda, the very basis on which their constituents voted them into office. By what moral standards can they justify this as a correct, ethical stand? Having said this, the promulgation of the emergency ordinance by these same actors calls into question their own oath of office.

What I understand by a constitutional monarchy and a constitutional democracy is being blurred. Clarity for me lies through a focus on the primacy of the Constitution. If we continue to rationalise and subvert the foundations of our Constitution, then it will not be long before greater damage is done to its fabric.

From the paradigm of the primacy of the Constitution, the separation of powers, the role of the Agong and the respective oaths on taking office, one needs to get the focus right. The King acts on the advice of the prime minister, representing the executive.

The prime minister secures his mandate from the People’s House, the Dewan Rakyat. You cannot reason this away, and we must be careful that our respected King is not used as a shield by politicians with their own agendas. Expressing our views against the proclamation of this emergency should not be perceived as being disrespectful to the King.  

There is nothing that is disrespectful. The Agong is obliged to accede to the advice of the prime minister, and having refused once, he has decided otherwise the second time. The issue is not with the King but the prime minister as leader of the executive. We should be mindful of our politicians using our respected King as their shield to protect themselves from accountability and spreading fear amongst the people that it is being disrespectful to the King by raising questions regarding the proclamation of the emergency.

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The Agong is acting on advice, and this second time there is added pressure on him. Our politicians are expressing good intentions regarding the health situation, but this can also hide bad motives. They are not being transparent and accountable and may be perceived as violating the Constitution and their own oath of office. They could have gone to Parliament if they respected the people’s chamber. They did not, and you and I know their reasons for that.

Recourse to courts

The fact is many now perceive that our Constitution is being violated. The people’s fundamental liberties are affected. Could it be that the power to determine this lies with the judiciary?

As one respected judge so rightly concludes: “Thus absolute independence as well as the requirement to act professionally as per the oath with full allegiance to the YDPA is mandatory.”

“Thus, basically it means that the Executive and the Legislature will not act or legislate to whittle down the constitutional framework in favour of the public or destroy the fundamental liberties or impinge on judicial powers of the court in violation of the separation of powers doctrine, based on Constitutional Supremacy framework.

“The Judiciary is expected to police the executive and legislature to ensure that the constitution is not amended or destroyed against the interest of the public and the fundamental liberties provision are not made illusionary by way of legislation which are harsh and oppressive and are inimical to the Universal Declaration of Human Rights as legislated and incorporated under the Suhakam Act 1999 etc., as well as entrenched in Articles 5, 8 etc of the Federal Constitution.”

So going to court is the citizens’ right, and this does not reflect negatively as questioning the actions of the King. The courts remain the last bastion against abuse of powers even those conferred under the Emergency (Essential Powers) Ordinance 2021. This must be seen in the context of the citizens’ desire to preserve, protect and defend the Constitution amid the perceived failure in this regard by the executive and through the lack of involvement of the legislature.

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It is questionable whether an emergency of this nature is needed to deal with a health crisis. Only a serious exceptional circumstance affecting national security should call for the imposition of an emergency, and this should be done in accordance with the Constitution and determined following debates and a vote in Parliament.

The best forum for this to be discussed and debated is the Dewan Rakyat – the People’s House. Now we are even deprived of this fundamental constitutional right. Where does the prime minister derive this power and right to do what he has done? Has he acted ultra vires the Constitution? Can he act arbitrarily on the whims and fancies of his cabinet and against his own oath of office?

What are the avenues open for the people who are peace-loving and concerned? How can we trust our present government, which already has serious trust deficit issues with the people? This together with the perceived violation of their oath of office at the personal individual level and lack of respect for the Constitution will drive out investors and hurt the economy for years to come.

Character is the premium that is missing. We have all witnessed what former US President Donald Trump has done to democracy and the institutions of governance in the US. People who lack character will pollute our institutions as well, and there is thus the need to defend our Constitution.

The institutions in the US withstood a stern test, as they have a free press and individuals from both parties who stood up for what is right. Character is about being true to the oath one has taken irrespective of benefits, promotions, titles or what others do or say.

This trust deficit will hurt the standing of the nation and its economy and erode respect. How we look at the problem is the problem. Is it constitutional supremacy or parliamentary supremacy? While the former is in keeping with the oath of office, the latter is an aberration from our colonial past.

The ultimate arbiter is the judiciary as the custodian of the Constitution. The character of our judges will be put to the test.

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loyal malaysian
loyal malaysian
25 Jan 2021 6.23am

Haridas, read together with Ganesan’s opinion of the constitutionality of the emergency, I do wonder why no rakyat has dared mount a judicial review of the proclamation so far.
But, then, as I reflect on the saying, “if not me, then who?” – I realise each of us have our constraints.

The transfer of High Court judge Mohd Nazlan Mohd Ghazali, administratively normal as claimed, is perhaps, meant as a warning to other legal brains not to be so righteous with their legal reasoning but to toe the official line.
At this critical juncture in our nation’s history, it is important that our judiciary “remain the last bastion against abuse of powers …under the Emergency Ordinance 2021.”
Will it? Only time will tell…