The strength of the constitution lies entirely in the determination of each citizen to defend it. Only if every single citizen feels duty bound to do his share in this defence are the constitutional rights secure.
– ALBERT EINSTEIN, THEORETICAL PHYSICIST
Einstein’s dictum is wholly relevant to right-thinking Malaysians, especially those amongst us who genuinely care, and are extremely troubled about what is right, wrong, fair and not popular as enumerated and described in our Federal Constitution (FC).
We must never quit enquiring and ascertaining if our FC is a Janus-faced political arrangement, a citizens’ mere Will of Rights, a pretzel-logic social accommodation, a societal compromise, or a cultural convenience that one could not enter into evidence in a court of law as the ultimate weapon of choice to secure our God-given rights that demand good and honest governance.
We must continue to demand answers as to whether the FC is a generator of rights, a barometer of rights, a perpetrator of rights or just a parchment promise with meaningless words good for quotation and citation in a court of law feigning justice while failing to do justice.
We have seen this happening since the inception of government in our communities while the rakyat expects honest governance.
In our system of parliamentary democracy in Malaysia the FC is the supreme law of the land according to Article 4 with its four sub-sections and four sub-sub-sections, but it does not restrict Parliament from silencing the FC when it is expedient to do so. Article 4(2)(a) speaks volumes for this position.
Thankfully, a clear and distinct mandate of the doctrine of the separation of powers is found in Article 4(4) when a law passed by Parliament can be ascertained or validated as to its constitutionality by an application to the Federal Court. One entire Article in the FC could offer differing and awkward provisions with rules and exceptions.
The late great Justice Eusoffe Aboolcader in the aftermath of the Datuk Harun Idris case in 1977 wrote: “It is accordingly absolutely clear that the doctrine of inherent police power, as interpreted by the American courts, has no force or validity under the Federal Constitution of Malaysia, and no place in the framework of its constitutional process.”
Police power is the inherent power of a government to exercise reasonable control over persons and property within its jurisdiction in the interests of the general security, health, safety, welfare and morals except where legally prohibited. There is always and exception to the rule.
There could not be a clearer message to the government leaders as to its unbridled power to do as it wishes and wants. His Lordship’s cautionary warning is totally relevant and applicable today as far as the listening and caring rakyat is concerned. Does the federal government listen and care?
The most worrisome and troubling guarantee, assurance, insurance or promise is found in Article 8 FC when it explains the power, authority and applicability of equality. Article 8(2) FC quickly subsumes Article 8(1) when it says there shall be discrimination if “expressly authorised” by the FC with a cleverly designed phrase oozing with a double negative.
The equality guarantee means nothing in the face of Article 145 which grants the Attorney-General power to institute criminal proceedings with limitations not controlled by Article 8 as occasioned in Johnson Tan Han Seng v. Public Prosecutor [1977] 2 M.L.J. 66.
Equality in Malaysia has many faces, forms, shapes, spirits, hues and pith depending on the entity or party invoking it. Article 8 is also at odds with Article 136 where it says that there shall be an impartial treatment of federal employees regardless of race. Fare thee well meritocracy!
The thin edge of the wedge is visible when the government goes on a frolic of its own to interpret the FC as it sees fit to the detriment of the wishes, expectations and aspirations of the rakyat. Our judiciary should not sacrifice or compromise the rakyat’s fundamental liberties.
Issues dealing with national security and public order (health, welfare, morals) may necessarily suspend the laws and the constitutional guarantees.
Abraham Lincoln warned: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”
Ultimately, we have only one supreme law to pay homage to, so where do the rakyat turn to if this icon of constitutional worship is subject to desecration?
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
