The writer with the legendary Lord Denning during his law student days in London. Denning quoted Fuller that ‘Be you ever so high, the law is above you’.
The Sunday Star
by Roger Tan
WHEN I was young, I would recite the Rukun Negara every morning during the primary school assembly.
When I was older, I would lead in the taking of this pledge as the head prefect of the secondary school every other week. This pledge-taking commenced in late 1970, a year after the May 13, 1969, incident. So this year is the golden jubilee of the Rukun Negara.
Raising our right hands, we would say these words aloud in Bahasa Malaysia:
“We, the citizens of Malaysia, pledge to concentrate all our energy and efforts on achieving these ambitions based on the following principles: Belief in God; Loyalty to the King and Country; Supremacy of the Constitution; Rule of Law; Courtesy and Morality.
What are these ambitions? They are:
> Achieving and fostering better unity amongst the society;
> Preserving a democratic way of life; > Creating a just society where the prosperity of the country can be enjoyed together in a fair and equitable manner;
> Ensuring a liberal approach towards the rich and varied cultural traditions; and
> Building a progressive society that will make use of science and modern technology.
Of course, we would often spend most of our time memorising the five principles, overlooking the importance of the five national ambitions.
Then, we were also too young to know the significance of these principles, particularly supremacy of the Constitution and rule of law.
It was only when I began as a lawyer that I realised the true significance of these third and fourth fundamental principles.
The supremacy of the Constitution means our Parliament is not supreme, unlike the British Parliament, because our Federal Constitution is the supreme law in that even our Parliament cannot make, amend or unmake any law as it pleases. Article 4(1) of the Federal Constitution declares that the Constitution is the supreme law of the land and any law passed which is inconsistent with the Constitution shall be void.
The principle of the rule of law, in simple terms, means no one is above or immune from the law. Article 8(1) of the Federal Constitution also declares that all persons are equal before the law and entitled to equal protection of the law. As Sultan Azlan Shah once said in a case when sentencing a prince, “This equality of all in the eyes of law minimises tyranny”.
It then behoves the public prosecutor and the judiciary to ensure that this nation is governed by the rule of law and not rule the law. Hence, the Attorney General is often called the independent guardian of public interest and protector of public rights; and the judiciary, the fountain of justice and the bulwark of our liberties.
This is obviously the ideal and a grandiloquent optimism. But in practice, a lot depends on the person who sits at these institutions.
In a case brought by one Mr Gouriet in 1977, the British Attorney General refused to give him consent to institute relator proceedings to injunct the Union of Post Office Workers from boycotting all postal communications between Britain and South Africa as such actions would constitute criminal offences under the Post Office Act 1953.
When the Attorney General argued that his discretion was absolute and not subject to judicial review, Lord Denning had this to say:
“What is to be done about it? Are the courts to stand idly by? Is the Attorney General to be the final arbiter whether the law should be enforced or not?
“It is a matter of great Constitutional principle. If the Attorney General refuses to give his consent to the enforcement of the criminal law, then any citizen in the land can come to the courts and ask that the law be enforced.
“This is an essential safeguard; for were it not so, the Attorney General could, by his veto, saying ‘I do not consent’, make the criminal law of no effect.
“Confronted with a powerful subject whom he feared to offend, he could refuse his consent time and time again. Then that subject could disregard the law with impunity.
“It would indeed be above the law. This cannot be permitted. “To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: ‘Be you never so high, the law is above you’.”
However, Lord Denning’s decision is subject to Article 145(3) of our Constitution which expressly confers the powers to institute, conduct or discontinue any criminal proceedings on the Attorney General.
Hence, with all due respect, not many lawyers are excited about the proposal to amend the Constitution for Parliament to approve the appointment of the Malaysian Anti-Corruption Commission (MACC) chief and a special tribunal to remove him. The more urgent amendment is to give independent prosecutorial powers to MACC.
Now, after more than 30 years in legal practice and soon becoming a sexagenarian, it saddens me that we still see, after 63 years of Merdeka and 50 years of the Rukun Negara, the many inequalities and injustices in our society. Some once vociferous non-governmental organisations have also gone elegantly silent.
The saddest part is when there appears to be one law for the poor and weak and another for the rich and powerful. To quote the Anglo-Irish novelist of the 18th century, Oliver Goldsmith: “Laws grind the poor, rich men rule the law”.
Of course, this is not just unique in Malaysia. Currently in Thailand, there is a public outcry after the police and the Attorney General dropped charges against Red Bull heir Vorayuth Yoovidhya. Vorayuth was accused of killing a police officer in Bangkok in 2012 after crashing his Ferrari and using cocaine at the time of the hit-and-run accident.
In fact, I last quoted these words of Oliver in 2006 when I wrote about two councillors of the Klang Municipal Council reportedly erecting their mansions without any approval. It was reported that for this contravention of planning and building laws, councillor Datuk Zakaria Mat Deros was only slapped with a fine of RM24,000 which was described as the maximum fine permitted under the law. It was also reported that council enforcement officers had demolished a rival restaurant for minor infractions but took no action against Zakaria’s unlicensed restaurant.
And in the United Kingdom, there is also public outcry over double standards and hypocrisy in the enforcement of coronavirus restrictions. No action was taken against Prime Minister Boris Johnson’s chief adviser, Dominic Cummings, when he drove the length of England with his wife and child during lockdown. Cummings’ excuse for driving from Durham to Barnard Castle before returning to London was to see if he could drive safely after his eyesight became affected by coronavirus. Despite public outcry, he neither resigned nor apologised.
On the other hand, EU Commissioner Phil Hogan resigned after flouting Ireland’s public health restrictions limiting indoor gatherings by attending the Oireachtas Golf Society dinner on Aug 19 together with 80 other people, including the Irish Supreme Court judge and former Attorney General, Séamus Woulfe who is currently fighting for his career. New Zealand’s Health Minister, David Clark, also resigned after he broke the country’s stay-at-home order to take his family to the beach. UK’s leading epidemiologist who advised the government on its coronavirus response, Professor Neil Ferguson, also resigned after he breached lockdown rules by allowing his lover to visit his home.
Back here, Deputy Health Minister Datuk Dr Noor Azmi Ghazali and Perak state executive councillor Razman Zakaria were fined RM1,000 each for violating the movement control order (MCO).
And then Plantation Industries and Commodities Minister Datuk Dr Mohd Khairuddin Aman Razali was reportedly issued a compound for RM1,000 by the Health Ministry for not observing the mandatory 14-day quarantine after his return from Turkey. He neither apologised nor resigned. Instead, a party leader of his had the temerity if not audacity to blame Mohd Khairuddin’s violation on the Health and Foreign Affairs Ministries.
Let us now compare this with the punishments meted out against some of the other defaulters. A site supervisor was fined RM5,000 in default of five months’ jail for breaking his 14-day home quarantine to enjoy a plate of noodles. A 72-year-old woman who was pictured having a meal while wearing a pink Covid-19 home quarantine tag on her wrist at an eatery was jailed one day and fined RM8,000 in default of six months’ jail. A private university student was jailed seven days and fined RM800 for defying the MCO to present a cake which she had baked to her boyfriend. Three men were sentenced to three days’ jail and fined RM1,000 for teeing off during the MCO, and a single mum was originally jailed for breaching the MCO.
It follows Malaysians are rightfully concerned to know why Mohd Khairuddin reportedly did not observe or did not have to adhere to the mandatory 14-day quarantine after his return from Turkey.
How our public institutions deal with this breach by a member of the government will go a long way to either inspire or undermine confidence among law-abiding Malaysians. The very foundations of our legal system will be shaken if the rich, powerful and elites have such scant disregard for the law and are allowed to disobey the law with impunity.
I could not agree more with the CNN report of Aug 30 entitled “Elites are flouting coronavirus restrictions – and that could hurt us all”. In it, writer Laura Smith-Spark put it trenchantly:
“When countries impose restrictions to combat the coronavirus, there’s an implicit pact between the government and people: we’re all in this together.
“So when the powerful or influential break the rules, it provokes fierce public anger and puts society’s inequalities on full view.”
The report also quoted Professor Susan Michie of health psychology at University College London that “trust and perceived fairness are both very important in terms of protecting adherence. Trust is very difficult to build up again – it’s easy to lose, difficult to build up.”
It follows if there is no fidelity to our Covid-19 restriction laws, it will undo all the good work that our health workers and other frontliners have done so far to fight this pandemic, because once trust is gone, it is difficult to build up or recover it.
This reminds me of the oft-quoted comparison of law to a scarecrow by Shamsul Hoque, the director of the Legal Education and Training Institute of the Bangladeshi Bar Council. He wrote in 2013:
“The scarecrow is put in a cornfield to frighten birds away. The innocent, simple birds are really scared and they don’t dare to come near the field.
“But some birds, strong and greedy, do not get frightened. They are often found not only to come near the scarecrow but also to perch on its arms and head to rest after eating the grain to their hearts’ content.
“Seeing these birds enjoying food and security, some other birds ask themselves, ‘They are having good meals. The scarecrow does not scare them. Why should we be fools and starve?’ So all the birds join in the feast.”
When that happens, it becomes a lawless society. Rule of law will also become rulers of law and rule the law.