JULY 16 – Not every legal suit is the same. Some cases are pivotal because throw into sharp relief the fundamental principles and values that inform claims of legal and political legitimacy within a legal-political order. Such cases are an opportunity to articulate and clarify the principles that govern legitimate political rule.
PR’s suit against the EC is precisely such a case. PR claims that the EC did not uphold its constitutional mandate to be impartial and independent and free of the influence of political parties.
And it claims that various irregularities with the voting procedures, especially the failure to use indelible ink, have compromised the electoral result. PR is asking the courts to issue among other things, a declaration requiring the dismissal of the EC and its immediate reconstitution. And it is seeking an order requiring that there be fresh elections.
The case is a pivotal case because it is an occasion for the courts to clarify that the Malaysian Constitution lays down a legal basis to a “constitutional democracy.”
In a constitutional democracy, there are legal norms put in place to ensure that each citizen has an equal right to political participation, that is, the right to participate in any political decision affecting their fundamental interests.
In a constitutional democracy, the ideals of the rule of law or legality and the ideal of democracy are mutually constitutive ideals: the former aspires to tame arbitrary power while the latter aspires to make such power systematically responsive to the interests of citizens.
Both ideals emphasize the citizen’s perspective as the primary perspective to assess all questions of political legitimacy. In Malaysia, these ideals are yoked together within the fabric of our Constitution.
Elections give special expression to the citizen’s right to political participation by enabling citizens to select which political paradigm should control political decision-making affecting their interests. However, elections are not merely about outcomes or results.
Electoral procedures also require that there is a political environment within which there is fair competition between competing paradigms so that citizens can properly assess and select which among these paradigms will serve the common good. And it requires that there is an adequate electoral procedure by which citizens can exercise meaningful political choice.
Political science establishes that Malaysian politics is “semi-democratic,” which implies that the political environment does not allow for a fair competition between political paradigms; political science also shows how the electoral procedure is skewed. This isn’t new news.
But what is significant is that despite limits to free political competition and deficits afflicting the electoral process, there has been sufficient competition over the last few years in the elections so that they carry real stakes. Hence, GE 12 revealed that the ruling UMNO/BN could suffer significant losses at the polls, giving rise to a “political tsunami.”
It is precisely the fact that there are real stakes that has made GE 13 so important. Prior to the recent elections, there was a palpable sense that there could be political change and a complete shift in political power away from UMNO/BN. But due to the various pathologies afflicting the electoral process this time round, this did not come to pass. So people feel cheated.
But it is important to be precise about why they feel cheated. At one level, this feeling expresses frustration about the accuracy about the electoral result. At another level, the feeling expresses frustrations about the lack of integrity of the voting procedure such that citizens could not meaningfully select a representative government, quite apart from the result.
These frustrations underpin the legal arguments now at issue in the lawsuit filed by PR. The lawsuit challenges the electoral result and implies that voters could not exercise meaningful democratic choice. Of course, both concerns are related.
For example, if the EC failed to use indelible ink, then this opens the door to multiple and fraudulent voting that negates the principle of “one person, one vote, one value.” This problem, in turn, risks distorting the result. PR’s lawsuit captures these deep problems of democratic principle and practice.
The corollary to these concerns is that the lawsuit affirms that the Constitution and associated laws about elections aspire to ensure fair electoral procedures that ensure accurate results.
I think this view of the principles underlying the law is right. But the million-dollar question is whether or not the courts will also take this view. It is difficult to speculate how the courts will respond.
Historically, the Malaysian judiciary has a track record of deference to the government. This problem is made worse by the fact that there are well-known threats to judicial impartiality. Judges are well aware that they need to rehabilitate their reputation as impartial arbiters of the law and the Constitution.
These days, some judges are attempting to show that they are impartial; they have made decisions that do not favor the government. But it is very difficult to predict how judges will respond to this particular lawsuit.
Whatever the judicial reaction, it is vital that judges should refrain from avoiding their duty to decide the issues at stake by resorting to the principle of the separation of powers. In Malaysia, judges have generally embraced a very conservative view of the separation of powers and have used it as an excuse not to make thorny decisions, especially when it comes to judicial review of legislative and executive action.
They have tended to embrace the idea that the doctrine of the separation of powers entails a strict division of role and function between legislature, executive, and judiciary. Judges are loath to make decisions that would appear to require them to make legislative or executive decisions.
But the problem with this view is that it means judges do not uphold constitutional norms when necessary. Indeed, this view has been internalized by judges such that in the 2008 decision of Kok Wah Kuan, the Federal Court went so far as to hold that the separation of powers, especially the power of judicial review, can be subject to legislative limits.
This view of the separation of powers is wrong. Rather than supposing that the separation of powers calls for a rigid separation of functions between organs of government, it is more correct to view the separation of powers as giving expression to the deeper principle or ideal of the rule of law or legality as a “culture of justification.”
In a culture of justification, any exercise of legitimate political power must be seen to be fair, impartial and reasonable. The role of the judiciary is to ensure that the legislature and the executive comply with these values, values that find expression in the constitutional laws of this country.
Courts act as a forum within which an organ of government may be asked to justify its actions by reference to the soundest interpretation of the law, in keeping with the core values of impartiality, fairness, and reasonableness. If an organ of government violates the law as interpreted by reference to these values, then judges are entitled to strike down any decision made by that organ of government. Judges police the fundamental principles of the culture of justification.
This is an important point to note because a central part of our political culture has been the idea that judges should not be seen to “play politics.” Dr. Mahathir Mohammad and those who think like he does about the relationship between law and politics have claimed that judges should not “play politics.”
It seems that whenever the rule of law is invoked as a check on politics, then those who invoke the ideal of the rule of law are doing something illegitimate because they are playing politics. Here, a further assumption within this mindset, when applied to the courts is that they should refrain from undermining legislative and executive decisions because that is what the separation of powers requires; it requires that they don’t play politics.
There are complex reasons for this mindset that I have explored elsewhere. So all I wish to say here is that this kind of thinking is false: it undermines the ideals of democracy and legality and Malaysian political and legal history shows that those who level this kind of claim are not friends of these ideals.
If the EC had failed to properly uphold the laws regulating their role and function, then any decision made by the EC was ultra vires. Judges would be entitled to reach this conclusion, should the facts and the law bare this out.
If judges were to make this decision, then they are not playing politics: they are merely affirming the primacy of the law and the Constitution as fundamental to the healthy operation of a constitutional democracy.
To further affirm the point that judges would not be playing politics, it is important to see that if the courts were to decide against the EC, the decision would not imply anything about which political paradigm to embrace or which political party to support.
That decision would still be left up to voters. All the court would be doing is upholding the constitutional duty to ensure a free and fair electoral process that enables voters can make an informed and meaningful decision about what sort of political paradigm they prefer. Should they use this pivotal case as an opportunity, they could clarify that our law and the Constitution gives expression to an aspiration to become a constitutional democracy.
* Dr Rueban Balasubramaniam is Associate Professor of Law, Carleton University Canada. And he is the principal founder of the Jurist Malaya Initiative for the Rule of Law (see http:juristmalaya.com) For more on the separation of powers, the rule of law, and the judicial role in Malaysia, see R. Rueban Balasubramaniam, “Has Rule by Law Killed the Rule of Law in Malaysia?” (2008) 8:2 Oxford University Commonwealth Law Journal 211-236.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malay Mail Online.