Here is Prof Shad Faruqi's article on the Federal Constitution that has gone viral since yesterday. I have some running comments in blue.
The Constitution at a crossroads by Shad Saleem Faruqi
THE Faculty of Law at Universiti Malaya and prominent law firm Chooi & Company relaunched their Constitution and Rule of Law Series last Thursday at the Auditorium Tun Mohamed Suffian.
The highlight of the session was a scintillating and scholarly address by retired distinguished Federal Court judge Tan Sri Zainun Ali on “Safeguarding Constitutional Supremacy”.
As the moderator, I too had the honour of expressing a few thoughts on our Constitution, which I like to call our “document of destiny”.
I began on a positive note by counting our blessings that the Constitution has survived 66 years. There have been no coup d’etats or military takeovers.
It accommodated the transformation of Malaya into Malaysia in 1963.
It managed the peaceful separation with Singapore in 1965.
It outlived the bloody racial riots of 1969.
It outlasted the communist insurgency.
OSTB : From past events in other countries their written constitutions suffer serious threats when there are revolutions, counter revolutions, coup de etats etc. When people overthrow any type of government by force the first thing they will do is to rewrite the Constitution. This has happened a lot in Pakistan, in the Middle East and in Iran. Indonesia, the British-knew-about-it communist insurgency were never threats to our Federal Constitution from outside or internally except that the country was placed under Emergency powers throughout the Communist insurgency. But we must remember that there was no independent Malaysia and hence no Federal Constitution when the Emergency began in 1948. Colonial Malaya was ruled by the British under Emergency powers from 1948 until 1957.
In 1983, 1984, 1993 and 1994, it survived the acrimonious constitutional amendments that curtailed the powers and immunities of the monarchy.
OSTB : The prime ministers and now the ruling governments have changed so many times since 1994 but NONE of those Constitutional amendments have since been re-amended. Why not? Most people seem to be happy with the amendments? Which leads to the question where was the acrimony really felt? Or who felt the acrimony.
Here is some trivia. I heard it directly from YM Tengku Razaleigh Hamzah that during those Constitutional amendments the incumbent was entrusted with talking to the Royals. At one point he thumped the table to get his point across, an event that has not been forgotten by the Royals said Ku Li. Almost the entirety of Malay adat and culture is perhaps concentrated in the majlis, the conduct and decorum at any public gathering. The Majlis Raja Raja would be or should be the epitome of all majlis.
In the late 1980s, the Constitution was seriously weakened, but it survived the Executive assault on the Judiciary when the Lord President and some top judges were dismissed for not pandering to the Executive’s wishes.
OSTB : "for not pandering to the Executive’s wishes"? Certainly an opinionated statement. As I said, since then the prime ministers and the governments have changed multiple times. One prime minister even paid compensation to some of the judges involved.
But NONE OF THEM re-amended those constitutional amendments. Until today. WHY NOT? And lo and behold the incumbent was one of the champions of those Constitutional amendments as well.
But more importantly has the functioning of the Courts been thwarted by those amendments? To what extent? Has justice in this country been miscarried specifically because of those Constitutional amendments? If so lets re-amend the Constitution. But after 35 years no one seems to have sufficient grievances.
Indeed the governments (Federal and State) have lost numerous cases in the Courts, all the time. State and Federal governments (from all sides) have also lost elections and been thrown out of office. Ex-prime ministers have been thrown in jail and deputy prime ministers (more than one) have been charged in Court. Certainly this is only possible through "assault BY the Judiciary".
Of course there has been misconduct and perceived miscarriage of justice by the judiciary but certainly due to a variety of other reasons. It did not take a Constitutional amendment to make a senior Judge go on a holiday with that lawyer.
However, there were, and remain, many other challenges to constitutionalism and the rule of law in our nascent democracy.
1. For 50 or so years after Merdeka, constitutional supremacy was largely a magnificent facade and a legal myth. The Executive-controlled Parliament legislated whatever it liked. In the rare case, like Teh Cheng Poh (1979) when the court nullified an unconstitutional legislation or quashed an illegal administrative order, the Executive hit back with a backdated constitutional amendment!
2. Executive powers in a plethora of laws like the Internal Security Act, Official Secrets Act, Printing Presses and Publications Act, and University and University Colleges Act were virtually unlimited.
Constitutional challenges to these powers, as in the Aliran case, were often dismissed summarily by the courts on the ground that the Executive action was permitted by a parliamentary enactment. The British tradition of parliamentary supremacy dominated our legal system.
OSTB : And it is an extremely good, useful and most important of all proven system for a law abiding and democratic society. I am not a lawyer but I studied some law and learnt enough to know that the highest form of law in any society is its morality. The moral law is the highest law of the land. What this also means is that even the best and most beautifully crafted Constitution or Legal System will be only as good as the morality of the people who claim to live by it. Including those who crafted and drafted it.
Everyone knows 'thou shall not steal'. But they steal. Then they go to the Courts and jail people who want to expose their thievery. It has happened here.
But morality is not written down. Either you have moral values or you dont. Notwithstanding what is written in the Federal Constitution.
But still, it is critical that parliament remains supreme over everything else in the land. Someday we will get the morality, ethics and values right and then we will better appreciate the robust British parliamentary system which we have.
You put monkeys in Parliament the Sultan will buy their painting.
3. More than 100 statutes (and some provisions in the Constitution) contain “ouster clauses” barring the courts from reviewing Executive action. Additionally, there is a surfeit of self-imposed limitations by the Judiciary on judicial reviews.
4. In 1988, the amended Article 121(1) sought to emasculate the inherent, prerogative power of the courts to review government action.
OSTB : Again this is not the fault of the Constitution but of the politicians. Politicians have simple agendas - survival, power and money - not necessarily in that order. And since politicians are elected by the people and reflect the peoples' aspirations this is therefore the fault of the people. Yes dear reader it is your fault. The people must be educated, they must become more informed and they must elect politicians who have better character and integrity. Choose a better person. To be able to choose a better person we ourselves must be more informed.
5. The Islamic state movement seeks to subject Article 4(1) – that the Constitution is the supreme law of the Federation – to Article 3(1), that Islam is the religion of the Federation. Its advocates overlook Article 3(4) that says, “Nothing in this Article derogates from any other provision of this Constitution.”
6. Till the courageous Iki Putra decision, state assemblies felt free to pass any law on “offences against the precepts of Islam” despite explicit limits on this power (that this power cannot be exercised in relation to any matter in the federal list or covered by federal law).
OSTB : Obviously the islamic state movement does not like the present Constitution. But minus a coup de etat or violent revolution they have no choice but to go through the democratic process. Through the ballot box.
THEY WILL FAIL. This is a certainty. They simply do not have the demographics. Except for irritants in one or two states. But those are state matters - not Federal.
Hence their anger at Ms Nik Elin's legal challenge. Nik Elin's challenge should be allowed to proceed because it seeks to "clarify" the absolute fact that (among other things) Islam in Malaysia is a state matter. There is no "federalisation" of Islam. Which is what the islamic state movements do not like. They want to federalise Islam. But much comment has already been raised that the JAKIM (as an example) is an unConstitutional organisation because Islam is not a Federal matter whereas JAKIM is a 'federal' organisation funded by Federal funds. Nik Elin and Tawfik Tun Dr Ismail would very much like the Sultans to take firmer control of religious matters in their respective states - which is as per the Federal constituion. But we all know that the money to fund all religious activity comes from the Federal government. There always are quid pro quos.
7. Federal violations of Sabah-Sarawak rights are now coming home to roost.
8. The 1964 and 1969 proclamations of national emergency under Article 150 lasted 47 years and cast a dark shadow on constitutionalism.
9. Almost all the check-and-balance mechanisms of the Constitution failed to operate satisfactorily. Parliament and the Executive reigned supreme.
OSTB : There have been some shadows but all of them were caused by the politicians. In education, in glaring criminal prosecutions or lack of prosecutions, in the acquittals, discharges of charges etc, in religious matters, those disappearances were not caused by any flaws in the Constitutions but in the failure to uphold the Constitution, aided by the politicians, the legal fraternity, perhaps the judiciary influenced by their own beliefs, the enforcement authorities etc. The law is only as good as the people entrusted to uphold them.
10. Because of political instability since 2018, the Westminster-style constitutional monarchy is growing stronger with some “Eastminster” style powers!
11. Neither in the Legislative sphere nor in holding the government to account did Parliament exercise its powers satisfactorily. The Executive dominated Parliament.
12. The non-separation between the Attorney General (AG) and the Public Prosecutor gave credence to suspicions of selective prosecution and unequal treatment under the law.
13. In the 1980s, judicial independence was threatened by the Executive. Now, some pressure groups are behaving like a “state within a state” and trying to compel the courts to get out of the way of the tides of public opinion. A disturbing fact is that some judicial decisions often go unenforced.
OSTB : “Eastminster” style powers! Is that a good thing or a less than good thing?
The politicians will decide - if they have comfortable majorities and stable governments. The politicians must realise that they can only win comfortable majorities if they look after the rights, interests and welfare of the people.
Since 2008 (when Abdullah Badawi first lost the 2/3 majority in 39 years) democracy has been working better in Malaysia - but still not good enough.
Do not look at Sabah and Sarawak as renegades. Far from it. Sabah and Sarawak are the best examples of democracy working in Malaysia. I hope Sarawak and Sabah will NOT secede from Malaysia. We need Sabah and Sarawak to make democracy work in Malaysia. You want my vote show me what have you done for me? Its as simple as that.
This is what the Malay politicians (yes the Malay politicians) do not seem to understand. Almost all of them are graduates of UMNO. Or they subscribe to the UMNO philosophy. So although UMNO has been kicked out NONE of UMNO's outdated policies from 1970 have been changed. And they somehow expect that magically 'this time around' those policies that got UMNO kicked out WILL NOT get themselves kicked out.
Woi, tikus makan racun mati.Kucing makan racun tak mati ke?
14. Constitutional literacy within the public services, Parliament, politicians and the public remains weak. “Constitutional patriotism” is even rarer!
15. Some courts have held that the Constitution’s safeguards do not apply in private sector relationships.
16. The citizenship chapter bristles with gender discrimination.
17. Endemic corruption favours the rich and subverts social engineering measures.
However, there are soothing winds of change. The Constitution appears to be in renaissance. Till the 1990s, the courts generally interpreted the Constitution literally, textually and pedantically.
Now, fresh winds of “constructive interpretation” are blowing due to the contributions of many constitution-minded jurists like the late Datuk Seri Gopal Sri Ram, Datuk Seri Mohd Hishamuddin Yunus, Tan Sri Zainun Ali, Datuk Mah Weng Kwai, Tun Richard Malanjum, Chief Justice Tun Tengku Maimun Tuan Mat and Tan Sri Nallini Pathmanathan.
The influence of legal practitioners should not be overlooked as they often plant the seeds that lead to the greening of the landscape of ideas.
There have been many important legal and political developments in the last two decades.
1. Previously, the Bar and judiciary were steeped in the tradition of parliamentary supremacy. Now, constitutional review of legislation is increasingly an issue.
2. The Constitution is being subjected to a creative, liberal, “constructive interpretation” by some judges.
3. Separation of powers and independence of the judiciary are being strengthened.
4. Article 4(1) on constitutional supremacy and Article 121(1) on the judicial power are being seen as generic, interconnected and overarching.
5. Human rights are being interpreted prismatically and as an interconnected whole.
6. Laws conferring absolute discretion are being read as a violation of equality under Article 8(1).
7. The basic structure doctrine that a constitutional amendment cannot destroy the foundational principles of the Constitution has been revived.
8. Article 121(1A) on the independence of the Syariah Courts is being reinterpreted to permit judicial review of the Syariah authorities if they act unconstitutionally.
9. The AG’s absolute powers under Article 145(3) were tamed in the case of Sundra Rajoo (2021).
10. In some recent cases, constitutional guarantees may apply to private law situations.
11. Administrative law issues (like natural justice) are being constitutionalised. This is a remarkable development because in the past, constitutional law issues were often reduced to issues of administrative law.
12. Ouster clauses in legislation have been declared to be unconstitutional. Ouster clauses within the Constitution pose a greater problem and are being scrutinised.
13. The 47-year-old emergency ended in 2011. The one proclaimed in 2022 had an admirable sunset clause.
It is clear, therefore, that there are currents and cross-currents in Malaysian constitutional law.
The Constitution is in flux. Only time will tell which tide will prevail.
My hope is that the Constitution – our document of destiny, our chart and compass, our sail and anchor, our armour of defence against the passions, prejudices and vicissitudes of politics, the guardian of our rights and the source of our freedoms – will be restored to the pedestal on which it was placed when Malaya began its tryst with destiny.
I pray that the Constitution’s imperatives will one day become the aspirations of the people.
Emeritus Prof Datuk Dr Shad Saleem Faruqi is Holder of the Tunku Abdul Rahman Chair at Universiti Malaya. He wishes all Christian readers the love and blessings of the Christmas season and prays for peace on earth and goodwill towards all humanity. The views expressed here are the writer’s own.
OSTB : We need to hear more from Prof Shad Faruqi and like minded legal eagles. The people really need to be educated. Sadly there are huge forces in this country who want to keep the people ignorant. The politicians are one big group. The religious fellows are the other group. They cannot handle scrutiny. Asking questions is too toxic for them. We must be beware of both these groups.
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.
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