The Constitution at a crossroads

EVERY teacher of constitutional law is confronted with some complex questions in class.

How entrenched are constitutionalism and rule of law in our society? Is there supremacy of law over rule of arbitrary power? Are there any effective controls on executive discretion? Is the legal system regulated by a system of checks and balances or have all the institutions for this purpose been co-opted by the political executive to serve its purposes?

There are no simple answers. We have currents and cross-currents, and the picture is mixed.

All in all, Malaysia has a well-developed constitutional and legal system. The post GE-14 government has promised to strengthen democracy, rule of law and constitutionalism. We are on the cusp of change and the following areas need attention:

Constitutional and legal literacy: The rule of law is not a law but a system of values. It cannot thrive if those in power and those subject to the power of the state lack knowledge of and loyalty to basic values of the rule of law. The education system must promote constitutional literacy and respect for the rights of others.

Constitutional supremacy: Despite the explicit provision for constitutional supremacy in Article 4(1), the legal system is replete with federal and state laws that confer absolute, subjective and unconstitutional powers on the functionaries of the state. Citizens’ challenges in the courts to these laws are generally unsuccessful. Judicial review of parliamentary and state laws is not a significant feature of our constitutional scene.

However, there are winds of change and judicial review of executive acts has produced some scintillating judicial decisions. But judicial review of legislative enactments is rare.

The “Islamic state” movement: Islam has a very exalted position in the Constitution but the syariah is not the supreme law of the federation. The Islamic state sentiment is widespread and though it has no basis in the Constitution, its political appeal, especially at election time, is immense. Even within the judiciary, a commitment to the Constitution is not unanimous and many civil court judges are swimming in the tide of the Islamic state.

Federal-state division: Under the Constitution, not all matters of Islam are in state hands. Islamic personal law is in the State List but all other matters of Islam (like contract, tort and crime) are under federal control. Regrettably, many state assemblies are breaking free of constitutional limitations, trespassing on matters in the federal list and violating the fundamental rights of Muslims and non-Muslims alike.

Most of the time the civil courts ignore Article 3(4), which states clearly that nothing in Article 3(1) derogates from any other provision of the Constitution. The judicial tendency is that on any matter with a whiff of Islamic law, the syariah courts have implied jurisdiction. State assemblies are passing laws on many matters like betting, gambling and homosexuality, which are outside their jurisdiction.

On another plane, there are tensions in the federal government’s financial, political and administrative relationship with Sabah and Sarawak. The grievances of these states need to be looked into.

Jurisdictional conflicts: The last three decades have seen painful, unresolved disputes between civil and syariah courts. Article 121(1A) gives autonomy to syariah courts in matters within their jurisdiction. The problem is that even when the 14 powerful syariah establishments exceed their powers or violate the Constitution or infringe fundamental rights, most civil judges refuse jurisdiction to entertain the complaint. The Indira Gandhi decision in early 2018 was a bold exception.

Human rights: The jurisprudence of human rights is developing but is still in its infancy. Many liberties like free speech remain curtailed. Many laws enacted by Parliament ignore constitutional limits and confer absolute power on the executive. Fundamental rights do not apply in the private sector. The international law on human rights is largely kept at bay.

However, there are also many encouraging judicial decisions that have interpreted human rights generously and prismatically and parliamentary restrictions narrowly. In line with this new jurisprudence, the expression “life” in Article 5(1) includes the right to livelihood and the right to continue in public or private service subject to removal for good cause and by resort to fair procedure. The concept of liberty in Article 5(1) is the basis of a right of access to the courts.

Parliament: In our system of democracy, Parliament is supposed to perform a number of functions, among them the making of laws, the control of national finance, and the enforcement of accountability and answerability on the political executive. Regrettably, Parliament is largely a rubber stamp to the executive. It legitimates; it does not legislate.

Powers to combat emergency and subversion: Preventive detention, anti-subversion and anti-terrorism laws under Article 149 abound. The Internal Security Act has been replaced with equally strict laws. Emergency laws under Article 150 lasted for about 47 years from 1964 to 2011. Emergency became the norm. Normalcy became the exception.

Electoral process: The process of drawing up electoral lists, cleaning them up of unauthorised voters and delineating the constituencies in a fair and impartial manner is under the control of a supposedly impartial Election Commission. Until GE14, there was no transparency, impartiality and accountability about the Commission’s work.

Affirmative action: Article 153 on the special position of the Malays and the natives of Sabah and Sarawak and the legitimate interests of other communities is a balanced and moderate provision of affirmative action hedged in by many limitations. Unfortunately, it has been used overzealously and employed by the elites to enrich themselves. Also, the system of affirmative action seems to have forgotten the orang asli and the natives of Sabah and Sarawak. Article 153’s implementation needs careful fine-tuning to honour its original purposes.

Hooligan politics: In the last 15 years, hate speech, hooligan politics, religious extremism, enforced disappearances and political murders have marred our landscape.

Corruption: There is a serious problem of corruption and the looting of public revenues by politicians and the higher echelons of the civil service. Corrupt practices hurt the poor, advantage the rich and subvert social engineering.

Despite the above, one can harbour the hope that on the solid foundation that exists, we can build institutions, principles and procedures to strengthen constitutionalism and rule of law in our nascent democracy. In the new Malaysia after GE14, there is hope that the imperatives of the Constitution will become the aspirations of the people.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is a holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are entirely the writer’s own.

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