A duty to protect the Federal Constitution

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Perlembagaan Persekutuan

It is the duty of all citizens to ensure that the constitution remains as the guiding principle of this country, writes Lavaniyan Nathan Jothy.

The Federal Constitution is an astonishingly important document that provides the framework for the relationship between the people and the federation. It creates a boundary between what the federation can and cannot do in respect of its executive and legislative duties.

The constitution provides the demarcation of the state–federation domain and lists the matters over which they have the authority to administrate and to legislate. Fundamental provisions give certain inalienable rights that individuals may enjoy without unreasonable restrictions being imposed on its free exercise. It allows for the creation of the judiciary, the civil service, the administration of the country financial obligations and expenditure, and the electoral system.

The constitution declares itself as the supreme law of the country, and this mean that any law made by the executive that is inconsistent with its provisions will be void. This is necessary in order to prevent the executive from making law that is repugnant or law that will be perceived to be serving the interests of particular causes or individuals.

Thus, in an ideal world, the constitution would be an effective tool against recalcitrant or corrupt politicians, preventing them from using their public posts or positions as a means of enriching themselves at the expense of the people.

The constitution also informs the international community that Malaysia is an independent and sovereign country with its own jurisdiction, army, political institutions and territorial boundaries.

The constitution assumes various roles in our society. It is a legal as well as socio-political document. Behind it lies its own jurisprudence and philosophy, cultural make-up and historical journey, leading up to its current body of law and provisions.

The constitution provides for the rule of law, the importance of the parliamentary democratic process and the preservation of the social contract that the various race had agreed upon during the formation of the country. It has social programmes for the ethnic Bumiputera natives and provisions for the establishment of religious bodies.

Can the constitution create rights which are not stipulated in its articles? Take for example the right to health. The right to access to healthcare is a universal human right but it is not found in the constitution. But the constitution provides that no person shall be deprive of his life in Article 5 – and this by extension means the country must have an adequate healthcare system to ensure that the right to life and the care of the sick and the infirm are taken care of.

The idea of the Malaysian political entity therefore revolves around those rights that the constitution has provided either implicitly or expressly.

Limitations and amendments

The 222 members of Parliament tend to represent the various rights that the constitution provides. Some politicians emphasise the supremacy of race and religious sanctity, a right that is clearly enshrined in Articles 3 and 153 of the constitution. Others emphasise the importance of the equality provision of the constitution as found in Article 8. Those with conservative views will insist that Article 3 is the only important provision in the whole scheme of the constitution.

The constitution, besides creating these legal rights, has also imposed limitations on these rights. So we find that the right to freedom of speech and expression and to freedom of association and assembly are limited ostensibly so as not to be prejudicial to public order.

The constitution as of 2017 has been amended 57 times. Among the controversial amendments were the removal of the Yang DiPertuan Agung’s immunity to be sued and the removal of the judicial power of the courts in matters relating to Sharia jurisdiction. Amendments have also significantly curbed the right to freedom of speech, assembly and association in the country.

The fact that the constitution has been amended with such frequency over the 60 years since 1957 shows that the constitution is not as formidable as it sounds. All it takes is a two-thirds majority rule and our constitution will have certain new clauses inserted or removed.

A weak opposition and a lack of internal political dissent have largely contributed to these amendments being passed. Another reason could be that the members of Parliament themselves may not have understood the significance of the proposed amendments made and the future implications of the changes made.

To retain the constitution in its original form nevertheless would have been absurd as a constitution is recognised as an evolving document: it changes according to the needs of the times and the interests of society that is bound by its content.

Retaining the spirit of the constitution

The biggest question now is this: can the constitution retain its role and importance as changes in society take place? The larger demands of the population will eventually shape the outcome of many political decisions. Religious demands, social and ideological changes, the demands of the many over the interests of the few, and the continued dominance of race-based parties all can shape the future nature of the constitution.

As time passes and demographic changes take place, can we retain the spirit of the constitution as a document based on consensual agreement upon the formation of this country?

In 2016, Malaysia had a population of 31m comprising a majority of Bumiputera (68%) and Muslims (61.3%). In 2015, the Pew Research Centre reported that by 2050, seven out 11 Malaysians will profess the religion of Islam or identify themselves as followers of Islam.

This change of population and the kinds of demands they will make surely will be a cause for concern among the future generation of this country especially the non-Muslims and minorities.

How much these changes in society will affect the constitution in the future is something that many of us cannot predict. Hopefully, any changes that might take place will not reconstruct the original ideology of the constitution, which is to provide fair and equitable rights to all citizens.

The Federal Constitution is a document that formed the founding understanding of this country, and it is the duty of all citizens to ensure that it remains as the guiding principle of this country.

Lavaniyan Nathan Jothy is currently a post-graduate law student at a local university.

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2 COMMENTS

  1. If I may digress :

    The Syariah goes against the secular structure of the Malaysian Federal Constitution, which does not envisage a theocratic Islamic state, or a parallel criminal justice system where Muslims and non-Muslims are subjected to unequal treatment before the law.

    In Che Omar Bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, the then Supreme Court held that laws in Malaysia do not have to conform to Islamic principles, and confirmed that Malaysia is a secular state. Thus, if hudud were brought into the criminal justice system, it would result in the importation of Islamic penal law into a secular system. This would result in a rewriting of the Federal Constitution.

    Hudud is also inconsistent with these provisions of the Federal Constitution:

    (1) Article 5 clause(1) of the Federal Constitution confers to all citizens the right to life or personal liberty, which cannot be deprived “save in accordance with law”. The word “law”, as defined in Article 160 clause (2) of the Federal Constitution, does not expressly provide for, or mention Syariah as part of the definition of law. The Syariah was clearly omitted from the definition;

    (2) Article 7 clause (2) of the Federal Constitution protects against repeated trials of accused persons in criminal offences. A Muslim person, who is tried and convicted for an offence under the Penal Code, may then be exposed to a second trial for the same offence and punished under hudud laws. This would be in breach of Art.7 cl.(2); and

    (3) Art.8 cl.(1) of the Federal Constitution guarantees equality before the law and equal protection of the law. The Syariah would be applicable only to Muslims. This would offend Art.8 cl.(1), as it would result in divergent procedures, separate evidentiary rules and differing punishment being applicable to Muslims as compared to non-Muslims, in respect of criminal offences. A Muslim offender would also face heavier punishment under hudud laws for the same offence, compared to a non-Muslim offender who is not subject to hudud laws. Further, the hudud laws entrench, and result in, injustice and discrimination against women and this would be contrary to Art.8 cl.(2).

    The Federal Court in the case of Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 forcefully stated that :

    “Further, it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric.

    “Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional.

    “Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution.”

    As Hudud is inconsistent with the rights guaranteed by Part II which are enforceable in the courts that form part of the basic structure of the Federal Constitution, there is no doubt as to its unconstitutionality.

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