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©The Sunday Star (Used by permission)
Point of View by Tun Hanif Omar

Now that we do so many things that we couldn’t do 20 years ago, can we interpret our laws properly? 

THREE slogans were in introduced into our lexicon by Tun Dr Mahathir Mohamad in an effort to take Malaysia out of her predictable comfort zone into a more dynamic mindset.

The first was coined for the first general election he led the Barisan Nasional into in 1981. Do you still remember it? 

“Cekap, Bersih, Amanah” or efficient, clean, trustworthy. Why Mahathir chose this slogan I never got down to asking him.  

Mahathir replaced Tun Hussein Onn who was noted for being bersih and amanah. But, had Mahathir noticed that corruption and integrity had become contentious issues by 1981?  

If Hussein had started off less sure-footedly than Tun Razak, it was mainly because he had been out of politics from the early 1950s to 1968 and didn’t know so well the who’s who of politics and government service whereas Tun Razak had effectively been Malaysia’s CEO for 14 years when he took over the premiership.  

And before that, Tun Razak had had that great benefit of the tutelage of the dynamic supremo, General Sir Gerald Templer.  

In 1976, when Hussein succeeded Razak in the midst of the gurgitation of the Harun Idris saga, he was still finding his footing in the treacherous waters of Umno and Malay politics.  

And then, when he was sure of himself, his old heart problem got the better of him and government business perceptibly slowed down for a couple of years.  

Perhaps that was why Mahathir included the word “cekap” in his new slogan, as a promise to speed things up. 

Under Mahathir, the cekap part was certainly achieved: the other two parts were sacrificed on the altar of rapid development.  

The second slogan was, “Look East” which rudely nudged us out of our normal, mental box and told us to emulate the successful Asian nations of Japan, principally, and Korea.  

If they could vie with the West in science, technology and business competitiveness, we should take a leaf out of their experiences. 

Inspiring slogan 

And he capped both of these with that powerful rallying call, “Malaysia Boleh!” And suddenly, many of us found the confidence to believe in ourselves – that we were or could be as good as the best if we set our minds to it. 

“Malaysia Boleh” has become the butt of many jokes since then as some Malaysians competed in achieving ostensibly meaningless world records but I still think it is a great slogan that is extremely inspiring and relevant. 

On the eve of Merdeka, Doubting Thomases decried our pretensions, saying that a people who couldn’t even produce a needle couldn’t possibly succeed in independence.  

But today we can make our own motorcar and motorcycle engines; we are dabbling in as yet simple unmanned aerial vehicles or drones which, no doubt, will keep on improving as we believe we boleh. 

We have made our own small satellites which can take useful aerial images of the earth below and one is already aloft with a larger one, the “Razaksat”, waiting to be sent up.  

So, the Angkasawan project is a logical progression in this battle to inspire young Malaysians to go for science and technology, to think out of the box and to believe that they can achieve their dreams. 

But the project is very expensive and before we commit ourselves to a second angkasawan, we should evaluate the benefits we actually derive from the first angkasawan project one year after Sheikh Muszaphar’s return today.  

Our scientists must work out the experiments that could be undertaken by the next angkasawan that can make a second project worthwhile.  

Now that we do so many things that we couldn’t do 20 years ago, can we interpret our laws properly? “Malaysia Boleh”, did you say?  

The NST of Oct 17 reported that our de facto Law Minister had said that, “The Yang di-Pertuan Agong has to act on the advice of the prime minister on extending the tenure of the chief justice ? who is due to retire at the end of the month” as the king is “a constitutional monarch (and) was bound by the prime minister’s advice in the appointment and promotion of judicial officers” including “whether to extend by six months the tenure of the chief justice after he attains the compulsory retirement age of 66”. 

The Minister is himself a lawyer. Thus a golfing friend thought that Datuk Seri Nazri Aziz must be right.  

Indeed, most people have heard that it is the convention if not the law that a constitutional monarch must act on the prime minister’s advice.  

However, the following day Nazri’s interpretation of the parameters of the Yang diPertuan Agong’s power vis-à-vis the chief justice’s extension of tenure was pooh-poohed by the well-known legal practitioner, Karpal Singh. 

“The extension ? is the prerogative of the king,” Karpal intoned. “He said a phrase in Art 125(1) of the Federal Constitution (which) stated that a judge shall hold office until he attained the age of 66 and a further six months ‘as the Yang diPertuan Agong may approve’ should be read together with Art 40(2)”. 

Art 40(2) says that “the Yang diPertuan Agong may act in his (own) discretion” (and not necessarily on the advice of the prime minister) in respect of (a) the appointment of a Prime Minister, (b) the withholding of consent to dissolve Parliament, (c) the requisition of a meeting of the Rulers’ Conference AND (d) in ANY OTHER CASE MENTIONED IN THIS CONSTITUTION”.  

And, as Karpal had said, it is so mentioned in Art 125(1) that the chief justice’s extension of tenure by six months beyond the compulsory retirement age is “AS THE YANG DI-PERTUAN AGONG MAY APPROVE”.  

So we have two divergent legal opinions and the Cabinet would do well to consult the AG's Chambers.  

To me, the relevant words in Art 125(1) and Art 40(2) are clear and unambiguous. The relevant phrase in Art 125(1) is so different. 

Four rules 

When we interpret law according to the Common Law tradition, we must go by one of the four rules of interpretation: the literal, golden, mischief and purposive rules. Here, only the literal or purposive rule seems applicable.  

Thus, whether we go by the literal or purposive rule of interpretation, the extension of the chief justice’s tenure of office is clearly the sole prerogative of the Yang di-Pertuan Agong.  

In my humble opinion (but I am not a practising lawyer), here it’s a case of Karpal boleh! In the face of those clear words, a court would find it difficult to come to some other conclusion.  

Could some legal luminaries enlighten us further? 

Friday’s The Star headline said, “Ex-ISA detainee gets RM2.5mil in landmark decision.”  

High Court Judge Hishamudin Mohd Yunus made the award after Abdul Malek Hussin had succeeded in proving that his ISA arrest following the Reformasi demonstrations was mala fide, was for political and not security reasons, and that he was abused and tortured by police officers including the highest ranked officer.  

I feel that the Minister or Deputy Minister of Internal Security should require all police officers to read Justice Hishamudin’s remarks or have them read out to them.  

It is important for them to realise that they must be apolitical and carry out their work professionally. The law expects that from them and there is a cost to misbehaviour.  

Here is further cause for the much-delayed IPCMC. But will the IPCMC be in the shape envisioned by the Royal Commission?  

Strange that the Law Minister has not circulated the draft bill to erstwhile members of the Royal Commission for their comments! 

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