Constitutional morality: The way forward

 

“Wrong does not cease to be wrong because the majority share in it.”

- Writer Leo Tolstoy

Discussion on a particular constitutional amendment is often reduced to asking what the federal government is up to and whether it can or cannot secure the required two-thirds majority in Parliament, like the recent failed attempt to limit the prime minister’s office to only two terms.

At other times, the discussion is centred on whether an amendment, if passed in Parliament, will correct “an inherent conflict of interest,” as in the case of a proposed amendment to separate the role of the public prosecutor from that of the attorney-general.

In this particular case, the discussion will likely focus on the need for transparency and accountability, painfully reminded by the sudden and summary removal of the AG, Abdul Gani Patail, in July 2015 by the then prime minister Najib Abdul Razak, when the former was part of the task force investigating IMDB.

And there are yet other voices reminding us that, like all other constitutions, ours is not cast in stone but is a living document that must be regularly amended to serve the needs of an evolving society in a constantly changing world.

The speed of change can indeed be both dazzling and daunting.

Basic structure doctrine

Also coming into increasing focus is the “basic structure doctrine”, an implied but judicially recognised limitation on Parliament’s power to amend the Federal Constitution, ensuring that core constitutional principles like judicial independence, rule of law and the essentially secular character of our Constitution are not destroyed by a two-thirds majority in Parliament.

On top of all this is the constant refrain from our fellow citizens in Sabah and Sarawak that the letter and spirit of the Federal Constitution has not been honoured by successive federal governments, leading to genuine feelings of being “done in” by an all-powerful centre more focused on “peninsula” matters, if not, on exploiting the resources of these two states.

They assert with increasing frustration that revenue from petroleum has not been fairly shared per the Malaysia Agreement 1963 (MA63) signed on July 9, 1963.

To this add their angst over “Project IC”, which permanently altered the voting demographics of Sabah in the 1990s. And widespread corruption and wastefulness at the centre have not helped at all.

In the midst of all this, “Malaysia Madani”, espoused as a foundational philosophy by the current PM, is increasingly looking like yet another self-serving slogan devised in the lofty fashion of all previous governments, not willing to walk the straight and narrow of our Constitution but instead pander to a vocal majority that sees parliamentary democracy as a means to an end.

‘Straight and narrow’

What is the common thread running through these issues and what is to be done? And what exactly do we mean by the “straight and narrow” of our Constitution?

In a nutshell, it refers to an over-riding morality embedded within our Constitution, the constitutional morality that shields our fundamental rights of equality, freedom and justice from the onslaught of popular morality that insists the majority view must always prevail.

The term “constitutional morality” is not new. It was first used by English historian George Grote (1794-1871). Alumni of the University of London will be delighted to know he was one of its founding fathers.

He used this term to denote a political culture that willingly adhered to high constitutional standards out of a sense of duty and moral responsibility towards all citizens of a country.

Constitutional morality is not mere compliance with the law and its technicalities, like meeting the two-thirds threshold. It protects those who are marginalised and discriminated against - think minorities, think the Orang Asli, think religious freedom, think privacy, think dignity and think of an everyday plurality of views and voices.

Yes, also think Sabah, Sarawak and state rights.

Popular morality, on the other hand, is rooted in cultural mores, religious beliefs, language nationalism and long-standing traditions.

Although it mirrors and echoes the voice of the majority, it is not necessarily fair to everyone, especially if that majority harbours, rightly or wrongly, long-standing grievances, prejudices and anger against minorities - like in the pre-Civil Rights US.

But here comes the crunch: national unity and justice will be imperilled if it is left in the hands of the majority. Instead, it must be left to our courts and the system of justice to do what is right, even when it’s difficult or unpopular.

Teaching constitutional morality

There was no clearer example of exercising constitutional morality under these circumstances than the decisions of Tengku Maimun Tuan Mat when she was our chief justice.

Former chief justice Tengku Maimun Tuan Mat

She was keenly aware that the majoritarian view of justice and rights can differ greatly from the way constitutional morality sees right from wrong based on universal norms, mores and values and that the morality contained within the various provisions of our Constitution was carefully designed to ensure the unity, progress and well-being of the nation as a whole, no matter who ruled in Putrajaya.

Some critics caution that court-determined constitutional morality is a threat to democracy and the power of the popular vote; that the law must be derived from socio-cultural values, and that justice cannot entirely be left to the courts.

But most societies today are multi-racial and multi-religious, and almost all of them are struggling to reconcile deeply rooted religious and cultural beliefs with the universal values enshrined in a shared and inclusive constitution.

Apart from the courts, education, awareness, scholarship and civil discourse can help institutionalise constitutional morality into our collective consciousness.

In particular, honest history as opposed to revisionist history can play an important role in fostering constitutional morality. In addition, “constitutional morality” can be taught and tested in our law faculties.

The Madani government, if it is really serious about building a progressive and inclusive civil society, should include constitutional morality as a subject in the school curriculum.

Progressive and peaceful countries do not pit public morality against constitutional morality for short-term political gains but instead create a fairer and more democratic society by fostering the latter and keeping the former in check.

There is no other way forward for Malaysia. - Mkini

---

MURALE PILLAI is a former GLC employee. He runs a logistics company.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.