Wednesday November 18, 2009
Understanding our basic rights
REFLECTING ON THE LAW
By SHAD SALEEM FARUQI
Most Malaysians still need to understand and practise the principles enshrined in the Constitution. The Bar Council has helped to make a start.
THE Bar Council’s Constitutional Law Committee launched its Kempen PerlembagaanKu last Friday. The campaign was conceived and spearheaded by a group of dynamic young lawyers headed by Edmund Bon, whose enthusiasm and idealism inspired many law students and volunteers to participate in this two-year endeavour to spread constitutional literacy.
Prior to this popular campaign, individual efforts to disseminate knowledge of our basic law had limited impact. There are half a dozen textbooks including Document of Destiny published by The Star in 2008.
Professor Aziz Bari of UIAM writes regularly in the Malay media. Since the year 2000, I have contributed at least 400 articles on the Constitution in my columns in The Star.
One can only hope that the committee’s campaign can lead to some fundamental changes in the way the Constitution is treated in this country. Its basics are not taught in primary or secondary schools or in tertiary institutions except in law faculties.
The civil service examination requires only a basic knowledge of the legal system. The danger of superficial familiarity is that the interpreter can employ it to suit his prejudices and preferences.
In theory, the Constitution is the supreme law of the federation. It is the law on which all other laws rest. It is the apex of the legal hierarchy, and no law can violate its prescriptions.
Parliament is not supreme. We all have a right to go to the courts if a legislative, executive or judicial act infringes on the glittering provisions of the Constitution.
At the organisational level, the Constitution is the political architect’s master plan for the nation. It provides the foundation on which the superstructure of the state rests.
It creates the various institutions of the state and defines and limits their powers and functions.
It describes their relationship with each other and with the citizen.
At the social level, the Constitution is the vehicle of the community’s legal and social life. It is the repository of the nation’s dreams and demands, and its values and vulnerabilities.
The Constitution walks the middle path between the special rights of Malays and natives of Sabah and Sarawak, and the legitimate interests of the minorities who made Malaya their abode.
At the human rights level, the Constitution seeks to protect fundamental freedoms and to reconcile the irreconcilable conflict between the might of the state and the rights of the citizens.
The chapter on fundamental liberties, the existence of a judiciary that was meant to be independent, the provision for judicial review, the institution of popular elections and representative parliament are clearly meant to create a democra-tic and responsible government under the law.
In his Proclamation of Indepen-dence, former prime minister Tunku Abdul Rahman encapsulated the constitutional dream beautifully: “This nation shall be founded upon the principle of liberty and justice and ever-seeking the welfare and happiness of its people.”
Looking at the positive side, we can count many sterling achievements. The Constitution has survived the vicissitudes of politics for 52 years.
We have peace and stability. No religion, region or race is up in arms against the government. There are no civil wars or secessionist movements.
We have kept the army and the police in their barracks. These are exemplary achievements.
Despite many inter-racial and inter-religious problems, we have lived in relative peace and harmony.
Our society is a mosaic, not a melting pot. Though deeply fragmented, we are like the colours of a rainbow, separate but not apart.
We have achieved fantastic economic success. The economic and social system provides upward mobility unmatched in much of Africa and Asia.
We have a literacy rate in the high 80s. Free education has supplied millions of citizens with the opportunity to break free of environmental handicaps.
But not all is well. The Constitution has not yet become the chart and compass, and the sail and anchor of this nation’s endeavours.
Its imperatives have not become the aspirations of the people.
In some countries, the Constitution applies even within homes, workplaces, clubs, political parties, and contractual and private relationships.
However, in Malaysia, the courts have held in the Beatrice Fernandez case that the shade of the Constitution is available only in the public sector.
In that case, a female employee of MAS was dismissed on grounds which would easily constitute gender discrimination in the public sector.
Parliament has failed to perform its role as the nation’s premier law-making authority. It mostly legitimates, it does not legislate.
It has failed to check the executive and to perform its role as the grand inquest of the nation.
Judicial review of parliamentary and state legislation is almost impossible to obtain.
Many other institutions like the prosecutorial services, the police, the elections commission, the anti-corruption commission and the civil service have failed to arouse confidence in their fairness and impartiality.
The continuation of the Emer-gency since 1964 has created a vast repository of unlimited and unreviewable powers in the hands of the executive.
The amendment process has often been used to enlarge powers and curtail liberties.
The social contract between the various communities is under severe strain. We have to find solutions to some difficult, heart rending problems that have come to the fore.
What can be done? Constitutional literacy needs to be improved at all levels of society. The governors as well as the governed must be familiarised with their rights and duties.
It is too often the case that we emphasise our rights, powers and privileges but not our duties and constraints.
As a people, we know very well how to ask what the country can do for us, not what we can do for the country.
NGOs and distinguished individuals must continue their concerted actions to demand from the executive, the legislature and the judiciary that the Constitution be restored to the pedestal on which it was placed when Malaya began its tryst with destiny.
As citizens, we must respect the delicate compromises woven into the fabric of the Constitution, honour the social contract and walk the Constitution’s path of moderation, compassion and compromise.
We must respect our document of destiny when it helps as well as when it hurts.
We must make the spirit of the Constitution stronger.
We must stand up and be counted when the sacred provisions of the Constitution are trampled upon or its spirit violated.
The Bar’s Constitutional Law Committee has lit a candle. May its glow illuminate the land.
> Prof Datuk Dr Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM.