If you want to amend or rescind any Article in the Constitution, or get the Emergency lifted, we must first ensure that we get a two-thirds majority in Parliament. Without that we can talk till the cows come home and make all sorts of promises, which we will never be able to deliver.
NO HOLDS BARRED
Raja Petra Kamarudin
HINDRAF has challenged me to state my stand on Article 8 of the Federal Constitution of Malaysia. I have, in fact, already done that many times before. So allow me to repeat myself here.
I am opposed to the violation of many Articles in the Constitution, not just Article 8. But I am more opposed to the many laws that were passed by Parliament that violate the Constitution. Unfortunately, Malaysia declared a State of Emergency in 1962 during the Konfrontasi with Indonesia and since 1962 the State of Emergency has not been lifted although there is no longer any Konfrontasi with Indonesia. There is no longer even any Malayan Emergency (1960) since the Communist Party of Malaya signed a Peace Treaty with Malaysia in 1989.
But the Emergency remains and because of this Parliament is able to pass laws under Emergency provisions although these laws may violate the Constitution. In other words, illegal laws can become legal if Malaysia is in a State of Emergency like it is now.
Then we have contradictions ‘embedded’ in the Constitution that ‘cancels off’ other parts of the Constitution, another bone of contention for me. Therefore, while the Constitution allows certain things, another part of the Constitution forbids what has been allowed. In other words, while the Constitution guarantees certain things, another Article in that same Constitution takes away that guarantee.
For example, one Article in the Constitution allows freedom of assembly. Then another Article allows the police to forbid us from assembling. Then we have one Article in the Constitution that forbids discrimination based on race or religion (Articles 8 and 12). Then another Article in the Constitution imposes quotas based on race and religion (Article 153). Then the Constitution says we can’t be detained or arrested without due process (Article 5). Then the same Constitution allows for detention without trail.
And so on.
We have to decide whether certain things can or can’t be done. According to our Constitution, they can and can’t be done both at the same time. And this is why so much confusion has been created. For example, we have two courts, the Shariah and Common Law court. But which court has jurisdiction over Muslims? If we were to say we have left Islam then what happens? Can the Shariah court still punish us for drinking beer or will the beer drinking charge be dropped and instead we are charged for apostasy? And can they enforce the punishment of beheading in a public place if we admit to apostasy and are found guilty by the Shariah court?
This is just one example of the grey areas in our Constitution and laws that need addressing.
Without confusing you with the entire Constitution, let us look at just one section below -- PART II - FUNDAMENTAL LIBERTIES -- to understand what I am talking about. And let’s see if you can spot what has been allowed and then disallowed in the same breath.
To address the many problems we need to first un-declare the Emergency and restore the spirit of the Constitution. However, to do that, you need a two-thirds majority in Parliament, which we do not have. Therefore we are stuck with the Constitution. Worse still, we are stuck with the Emergency and all the violations to the Constitution that the Emergency allows.
If you want to amend or rescind any Article in the Constitution, or get the Emergency lifted, we must first ensure that we get a two-thirds majority in Parliament. Without that we can talk till the cows come home and make all sorts of promises, which we will never be able to deliver.
My ‘favourite’ Article in the Constitution is Article 4(1), which says: This Constitution is the supreme law of the Federation and any law passed after Merdeka Day, which is inconsistent with this Constitution, shall, to the extent of the inconsistency, be void.
This means, any laws passed after Merdeka that violates the Constitution is an illegal law. In that sense Malaysia has many illegal laws. But if we are in a State of Emergency then laws that violate the Constitution can be passed.
Articles 5 and 8 are anther two that need addressing. Currently, both are being violated.
Now, Article 10 is my ‘pet hate’. While it starts off by saying “every citizen has the right to freedom of speech and expression; all citizens have the right to assemble peaceably and without arms; all citizens have the right to form associations”, in that same breath Articles 10 (a), (b) and (c) take away those rights “in the interest of the security of the Federation”.
Can you see how Malaysians have been played here? Sure, HINDRAF is upset. Well, so am I. And I am not just upset about Article 8 like HINDRAF is. I am upset about the whole shooting match. We need to more than just enforce Article 8. We need to enforce all the rest as well.
And this is why we have to rise above fighting for the government to enforce Article 8 of the Federal Constitution of Malaysia. We need to fight for a two-thirds majority in Parliament so that corrections and amendments can be made in its entirety.
That should be our struggle.
THE FEDERAL CONSTITUTION OF MALAYSIA
Article number: 4
(1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day, which is inconsistent with this Constitution, shall, to the extent of the inconsistency, be void.
(2) The validity of any law shall not be questioned on the ground that -
❍ (a) it imposes restrictions on the right mentioned in Article 9 (2) but does not relate to the matters mentioned therein; or
❍ (b) it imposes such restrictions as are mentioned in Article 10 (2) but those restrictions were not deemed necessary or expedient by Parliament for the purposes mentioned in that Article.
(3) The validity of any law made by Parliament or the Legislature of any State shall not be questioned on the ground that it makes provision with respect to any matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground or -
❍ (a) if the law was made by Parliament, in proceedings between the Federation and one or more States;
❍ (b) if the law was made by Legislature of a State, in proceedings between the Federation and that State.
(4) Proceedings for a declaration that a law is invalid on the ground mentioned in Clause (3) (not being proceedings falling within paragraph (a) or (b) of the Clause) shall not be commenced without the leave of a judge of the Supreme Court; and the Federation shall be entitled to be a party to any such proceedings, and so shall any State that would or might be a party to proceedings brought for the same purpose under paragraph (a) or (b) of the Clause.
PART II - FUNDAMENTAL LIBERTIES
Article number: 5
● (1) No person shall be deprived of his life or personal liberty save in accordance with law.
● (2) Where complaint is made to a High court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.
● (3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
● (4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate's authority:
Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day.
Article number: 8
● (1) All persons are equal before the law and entitled to the equal protection of the law.
● (2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
● (3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of the State.
● (4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.
Article number: 10
(1) Subject to Clauses (2), (3) and (4) -
❍ (a) every citizen has the right to freedom of speech and expression;
❍ (b) all citizens have the right to assemble peaceably and without arms;
❍ (c) all citizens have the right to form associations.
(2) Parliament may by law impose -
❍ (a) on the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;
❍ (b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, or public order;
❍ (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.
(3) Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) may also be imposed by any law relating to labour or education.
(4) In imposing restrictions in the interest of the security of the Federation or any part thereof or public order under Clause (2) (a), Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law.
Article number: 12
(1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth -
❍ (a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or
❍ (b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation).
Article number: 13
(1) No person shall be deprived of property save in accordance with law.
(2) No law shall provide for the compulsory acquisition or use of property without adequate compensation.
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