This is your law

Off the Edge
By Malaysian Bar Council (Constitutional Law Committee)

After decades of marginalisation by being selectively used for politically expedient ends, the Federal Constitution receives a proper public introduction

AS THE BAR Council embarks on the PerlembagaanKu/MyConstitution campaign to encourage greater public appreciation of the Federal Constitution, four members of the Bar’s Constitutional Law Committee share their thoughts on why they do what they do, and why the Federal Constitution of Malaysia is a really good thing to get to know. Firdaus Husni is working to spread word of the campaign online; Shamala Balasundaram is co-writing an introductory ‘Rakyat’s Guide’ booklet to the Constitution in non-legalese; Kwan Will Sen is working on the launch; and Grace Wong co-leads the campaign online.

As young professionals embedded in the Malaysian legal system, what can they tell their fellow Malaysians about the Constitution, which is perceived very differently along Malaysia’s racial, linguistic and rural-urban divides? What these young lawyers have to say about the country’s basic law may not resonate in some quarters, a fact not lost on them.

Malaysian Muslims stand in line to enter the Palace of Justice in Putrajaya near Kuala Lumpur May 30, 2007

‘It is frustrating to hear people say that the Constitution is just for lawyers or politicians, or that it has no relevance in their lives,’says Shamala Balasundaram. ‘But why would they think otherwise?’ she adds pointedly. ‘I wasn’t taught much about the Constitution in school. I’ve never heard of a public consultation on proposed amendments to the

Constitution. Yet, the Constitution does affect my life – it tells me I’m a citizen, it recognises my rights, it gives me the power to vote for my leaders.’

Firdaus Husni notes the lack of a ‘sense of belonging’, that Malaysians in general do not claim the Constitution for their own. It’s ‘an intangible sort of feeling,’ adds Kwan Will Sen: ‘As cliché as it sounds, you can’t love someone if you don’t know him or her. I am proud of my Federal Constitution and I am passionate about introducing it to those who don’t. That is essentially what this campaign is all about, the get-to-know. And I am driven by my role as a “match maker”.’ Excerpts from the conversation: Tengku Razaleigh Hamzah, in a speech delivered on October 16, said that the Constitution may be open to subversion if we forget that the Constitution belongs to us, protects us all, underwrites our nationhood, and we fail to defend it. Do you agree with this?

SB: I think the statement is far too diplomatic. The Constitution has been subverted. In 1988, for example, Article 121 of the Constitution was amended to remove significant power from the Courts. On one interpretation, the Courts now only have power given to them under federal law (in other words by Parliament) as opposed to power given by the Constitution itself. It shows that the amendment was bulldozed through with little care for its wider implications or for the legitimate concerns of those who rose in protest.

The Article 121 amendment and many other unjustified amendments took place, because only certain segments of society – lawyers, some politicians, social commentators – actually knew what was happening, took an interest, and had the avenue to speak out in dissent. They were in the minority. It was easy to label them as ‘the opposition’, ‘lawyers’, ‘NGOs’ and be dismissive. Imagine though if housewives, teachers, engineers, businessman, labourers, farmers – every segment of society – spoke up, whether for or against a proposed amendment? Not so easy to label and dismiss them all.

WS: Ignorance and naivety is the biggest threat to our country.

Once someone thinks that it’s okay not to care or know the Constitution, a domino effect takes place ....

Within the Constitution are safeguards to protect us all. Once the rule of law undermined, all that is left of the Constitution is simply a document without its ‘spirit’. The day that happens, we should start to think about a revolution, for real.

Firdaus Husni, Shamala Balasundaram, Kwan Will Sen and Grace Wong

GW: I completely agree with Tengku on this. The public at large seem to have forgotten that they are entitled to turn to our Constitution for answers whenever they feel that their rights and liberties have been violated. Most of us are aware of the existence of the Constitution but are ignorant of its contents ... [of] their rights under the Constitution, which is the supreme law of our country. The [aim of the PerlembagaanKu/MyConstitution campaign] is to ... provide an avenue for the public to turn to when they [have questions about the Constitution].

Should the Constitution be static and unchanging in its original form or should it be fluid and change according to the times?

FH: It shouldn’t be static. It should encompass a societal approach towards issues, nurturing national progress rather than hindering it, and a consensual interest of the general public rather than of a certain group of society. Hence, the description of the Constitution as a document for all.

SB: The Constitution has been amended so many times already, so the question of letting it remain in its original form doesn’t arise.

I think the possibility of change to the Constitution must always be left open. There are many potentially positive changes that can be made to our Constitution. For example, it may be significant to entrench a right to health care, education and privacy in our Constitution.

However, the power to amend has been abused time and again and that is a real concern. The amendment to Article 121, for example, eroded the system of checks and balances envisioned in the 1957 Constitution. Then there was the peculiar amendment in 2007, simply to increase the retirement age of the Election Commission chairman from 65 to 66!

The Constitution is the foundation for Malaysia. Any change to it must be undertaken only after close study, public consultation and with proper regard for its implications.

WS: Being a man-made document, it is bound to have deficiencies. Realistically, there ought to be some space for changes to be made.

It should not, however, be amended merely to accommodate the changing times, [but] out of necessity. Careful deliberation and proper planning must be given credence.

The Constitution is the charter that holds our future and must not be compromised simply by the whims and fancies of the two-thirds majority in Parliament.

People change. But that doesn’t mean the Constitution has to.

GW: The Constitution lays down the backbone of our rights and establishes the structure, procedures, power and duties of the government. I say it is the backbone because any laws made in Parliament must be made in accordance with the Constitution.

On one hand, it is important that this document should not be allowed to be amended according to the whims and fancies of the law-makers. This is to safeguard the Constitution from being used as a tool of manipulation and oppression. On the other hand, the Constitution, which is also referred to as a living document, should reflect the changes within society. So it is necessary for the Constitution to be amended in times of need, while ensuring that such amendments cannot be used to anybody’s personal advantage.

If you had the power to make one amendment to the Constitution, what would that amendment be?

FH: Adding more safeguards against amending the basic structure of the Constitution, which forms the spirit of the document ... what its framers had originally intended [it to be] for the nation. When the basic structure is eroded without justification, the people will lose respect for the supreme law of the land.

SB: I would amend the Constitution to provide that future amendments to the Constitution may be by way of referendum only – direct democracy in action. Proposed amendments would have to be justified directly to the people. There would have to be publicity, public debate and public consultation – all the things we don’t see today. We the people, whose Constitution it is, would be able to vote for or against change to this fundamental document affecting our lives.

WS: The preamble.

Including a preamble which states the purpose and direction of the FC (Federal Constitution) adds character and colour to the FC.

For instance, in the Constitution of the United States of America, its preamble states, ‘We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility.... do ordain and establish this Constitution...’

We can work on something along those lines and set a preamble which encompasses the Federal Constitution as a whole. With the preamble, we will be reminded of the core values
that makes Malaysia who she is, lest we forget.

GW: The Constitution provides for the fundamental rights of the people and it should not be amended according to the whims and fancies of the lawmakers. If I had the power,
I would not amend the Constitution itself. I’d much rather see changes in the execution of the principles of the Constitution, that is to say, amend the laws enacted so that they harmonise with the rights and liberties guaranteed by the Constitution.

The PerlembagaanKu/MyConstitution campaign kicks off on November 13 at the Bar Council Auditorium at 3pm. Members of the public are invited and free to attend. Please email Ms Lim Ka Ea at kaea@malaysianbar.org.my. You can also follow the campaign online via:
www.myconstitution.com
www.malaysianbar.org/constitutional_law_committee
www.facebook.com/MyConstitution
www.twitter.com/MyConsti
www.youtube.com/user/PerlembagaanKu