Police are supreme? Let’s have an elected IGP

Wong Chin Huat

The United Kingdom is quite different from most democracies in one way: its Parliament is sovereign. What it means is that nothing done by the Parliament can be considered wrong in the court of law.

This position may be somewhat questionable after the UK ratified the European Convention of Human Rights, making the British government obliged to abide by final decisions of the European Court of Human Rights in Strasbourg, France.

Nevertheless, the UK supreme court ‘s official blog still holds the position that it has no power to “strike down” legislation passed by the Westminster Parliament. It makes clear that “it is not the court’s role to formulate public policy, but to interpret law and develop it where necessary, through well-established processes and methods of reasoning.”

Jean-Louis de Lolme, a British political theorist in the 18th century, was famously quoted as saying that the Parliament can do anything except changing men into women and women into men.

Two centuries later, constitutional expert Sir Ivor Jennings rejected even the exception singled out by de Lolme: “If Parliament enacted that all men should be women they would be women so far as the law is concerned.”

The point that underlines “parliamentary sovereignty” is actually “popular sovereignty” – the will of the people is supreme, hence no one should stop the Parliament elected by the people from doing anything.

Most democracies, however, do not share such view. They believe there are things that the legislature or executive cannot do. That higher authority is called constitution.

Constitutional supremacy in turn gives the judiciary the power to decide if the Parliament/Congress or the government/administration has acted “unconstitutionally” and therefore their act or the laws enacted or policies adopted are null and void.

The core idea is “separation of power”. The power of elected legislature and government is checked by the unelected judiciary to prevent “tyranny of the majority”.

Like most people, I used to believe that Malaysia adopts the principle of “constitutional supremacy”.

I am now convinced that doctrine is close to the belief of Santa Claus. Ok, that may be a bit far-fetched – let’s say it is like tossing a coin and getting the head and the chance of you getting the head is as much as 80%.

The point is that constitutional supremacy is now no longer a certainty.

It depends on … most significantly, whether the Inspector-General of Police (IGP) is pleased with the Federal Constitution.

See, when the Ipoh and Seremban High Courts respectively awarded the custody of children to the Hindu mothers in their battle against their ex-husbands who converted to Islam and then unilaterally converted their children and abducted them, the IGP decided that the police should sit on it.

Granted, the Syariah High Courts in Seremban and Ipoh have earlier granted the custody to the Muslim fathers, the police may feel that they are caught in between. The IGP may file for a stay order until the fathers file in their appeal in the higher courts.

He did not do that. He just decided that his force should sit on it because he reckoned that the common law court and the Syariah Court systems are equal.

See, you don’t need constitutional expert giving testimonies, lawyers arguing their cases and the judges deliberating on the conflicting arguments, the question whether which court system has higher jurisdiction is by a single answer resolved by our genius IGP.

The elected judges check on elected politicians based on the Constitution. The IGP just checks on both the elected politicians and the unelected judges. He decides what decisions from these civilian elites should be carried out and what should not be.

He does not need to study the Constitution. He does not prepare his judgement. He just knows how the Constitution must be applied.

Before the humble judges of the two poor court systems decide on how they should resolve their disagreement on the custodial cases, His Lordship IGP used his wisdom ala King Solomon to rule that the kids should be sent to welfare home.

Now, if a general defies the order of the minister of defence and in turn offers advice on how a battle should be fought, he would be charged with mutiny for challenging civilian control.

Similarly, the IGP is either mutinous or supreme – In the UK, the Parliament can never act mutinously against itself.

That IGP is not stripped of his power for mutiny, but rather now having the Attorney-General to run around the common law and Syariah Courts for stay order, we now know His Lordship IGP is supreme. What he thinks will eventually be translated into legal actions, and likely validated by the court’s decision.

So, how? Macam mana?

The human rights NGOs were right for calling Malaysia a “Police State” but the reasoning could perhaps be wider.

A “Police State” is one in which the police call the shots. A Police State has no question of police actively violating the laws or passively defying the laws because “police are the laws”.

So it’s time to demand for IGP election, like the elections of Sheriffs (county police chiefs) in the United States.

And the IGP election should be more important than the parliamentary elections. After all, the prime minister has abdicated his authority to the IGP. What should we be bothered with the PM or the MPs?

This country practises supremacy of police and the police are as supreme as the Parliament in the UK. So, it is natural that the IGP is elected like the British parliamentarians.

OK, I concede that even election may not substantially change the quantity of grey matters of the next IGP. Nevertheless, we can at least claim that we do not choose the one with the least quantity.