Case Study: Jurisprudential Issues of the Perak’s Fiasco

The recent Perak has highlighted a few very interesting jurisprudential issues with regards to:

What is law?
If an unjust law is made, would it still be considered a law?  What would the remedy be to “correct” an unjust law?

In the 90’s the Federal Court decided that anti hopping law is unconstitutional as it infringes our rights to freedom of association.
Therefore, a judgment by the Court would be considered a law. In the case where parliament might have made some vague or unjust laws, it is often the court that has the power to rectify and interpret the law to provide justice to the people. Of course we are taking into account of the pressure of the public and perhaps the morality of the judge.

However, in this case, the judgment is passed from the highest court of the country and it was made to rectify the “ultra vires” move by the State government when they introduced anti hopping law in Sarawak.

So what remedies do we have? The parliament could explicitly repeal the judgment of the court by enacting an anti hopping law. And since the government did not, it is assume that this interpretation of the constitution shall be deemed correct and in line with the wishes of parliament.

On the other hand, anti hopping law might just be a serious breach of the foundation of our constitution and government where it defeats the spirit of election and collapses a democratic institution. This is because when a government is formed by defections of the representatives of the party; it does not necessarily reflect the will of the people who elected. For most people who voted, the basis of their votes are usually party based. Very rarely we see cases of independent gaining victory in elections. People usually voted for the ideals and manifesto the party they represent and therefore defection is clearly a serious breach.

Subsequently, defections of MPs who are bribed are serious problem. The lack of anti hopping law will encourage this practice.
Therefore, the cons of not imposing an anti hopping law would be:

Defeating the election system
Morality of the defected MP and bribery issues.

So what are the remedies into the unjust law that we have?

Malaysia as a Constitutional Monarchy is a rather interesting concept where the rulers can have their say to change the course of immoral and unjust law pertaining our constitution.

Where the court and the parliament have explicitly agreed to pass an implement an unjust law, the ruler does have the power to rectify the situation.

In the case of Perak, the ruler might not have been able to pass an anti hopping law. However, the sultan has the discretionary power to dissolve the parliament. This is because neither party has a clear majority as the seats in the parliament are a tie at 28:28. Furthermore, defections are the main cause of this scenario, and the Mps in question are doubted over their sincerity in switching parties and money politics is suspected.

All the more reason for the ruler to call for an election and let the people decide on the new government.

Perhaps, the questions that the ruler should ask in where dissolution is viable would be:
Whose interest is at stake? The opposition? The Chief minister? The state government? Or the interest of the rakyat? And this will lead us to question 2

Why was the MPs voted in the first place? Is it because of their personality or their affiliation with the political party?
If it is for the political party, all the more reason for an election.

If it is purely on the individual, then we need to look at the bigger picture. Which government would the people prefer? Therefore an election is necessary and would be the best decider.

Consequently, either way, an election is the only viable option for us to retain a democracy.