The reasons for this disappointing state of affairs are many. First, there is a serious lack of constitutional literacy within society, the public services and Parliament Neither at the secondary nor tertiary level of education is there any imparting of knowledge of the Federal Constitution’s principles, provisions and purposes. The only exceptions are the few law faculties that conduct courses in Malaysian laws.
Second, because of the generous recognition of foreign law degrees, it is permissible in Malaysia to be appointed a superior or subordinate court judge, a member of the Bar, or a member of the Judicial and Legal Service without ever undergoing a course in the Federal Constitution!
Third, even the Certificate in Legal Practice course does not have any mandatory content about the fundamentals of our supreme Constitution.
Fourth, the British philosophy of parliamentary supremacy retains influence in the corridors of our Parliament and the drafting unit of the Attorney General’s Chambers. This is evidenced in many parliamentary statutes conferring “absolute discretion” on the Executive, and nearly 100 laws containing “ouster clauses” forbidding the courts from reviewing the legality of executive policies and decisions.
It is submitted that in a country with a supreme Constitution, no legislation should be permitted to create the monster called “absolute discretion”. Further, all ouster clauses, in whatever disguise, should be, and are occasionally being regarded, as a violation of constitutional supremacy (Article 4), personal liberty (Article 5), equal protection under the law (Article 8), and the courts’ constitutional as well as inherent powers of judicial review (Article 121).
Fifth, even subsidiary legislation and departmental policies often trump the Constitution. Within the bureaucracy, “dasar kementerian” is often regarded as an overriding factor. Yet, many judges look the other way.
Fortunately, the tide is changing; in the last decade, there have been scintillating judicial decisions asserting the supremacy of our basic charter and underlining the role of the courts as the guardian of constitutional values like the rule of law, separation of powers, and limited government.
To come back to the question as to why the Constitution should be taught, studied and internalised, let it be noted that a Constitution is the highest law of the land. It is the apex of the legal pyramid. It is of superior legal validity to all other laws of the land whether passed by the federal Parliament, state assemblies or local authorities.
The Constitution is the foundational law on which all other laws must rest. It is the template, the benchmark and the litmus test of the validity of all federal, state, secular, religious, primary, subsidiary, national, international, pre-Merdeka or post-Merdeka laws.
At the structural or organisational level, the Constitution creates the various branches and institutions of the state and describes the manner in which the state is organised, government carried on and justice administered.
A Constitution is like a political architect’s master plan for the nation.
Besides creating the institutions of the state, the Constitution allocates powers and functions to these institutions and provides limits within which the powers must be exercised. It prescribes the procedures that must be followed when the allocated powers are to be exercised.
It prescribes rules about the relationship of the various branches and institutions with each other and with citizens.
In the matter of human rights, the Constitution is the guarantor of our freedoms. It confers some basic rights on all citizens and imposes limits on state power to restrict these rights.
The might of the state is balanced against the rights of citizens. Controlling the government without crippling it is the foremost function of constitutional law. This way, totalitarianism is avoided.
Where there is a right, there must be a remedy. The Constitution provides recourse to the courts and other remedial institutions whenever rights are infringed.
At the philosophical level, a Constitution supplies the fundamental or core values on which society is founded. These values are political, religious, moral, cultural and economic. They may be contained in a stirring preamble to the Constitution, be implicit in the glittering generalities of the Constitution, or encapsulated in venerated historical documents like the Rukun Negara.
A Constitution that will endure must not depart too far from the indigenous, autochthonous values and customs of the people. At the same time – and herein lies the great challenge – a Constitution must be idealistic and transformative. It must hitch itself to the stars. It must be receptive to change, reform and development. It must bridge the gap between formal rights and functional realities. It must function not just to protect the privileged and the rich but also to liberate the poor and the marginalised. It must contain within it seeds of change for a new, just social order. It must evolve to meet the felt necessities and values of the times. For example, our Constitution says nothing about sustainable development, climate change or the rights of future generations.
Its provisions for the protection of the Orang Asli are feeble.
Lately, the plight of illegitimate children, abandoned babies, undocumented children, offspring of victims of the sex trade, and refugees and asylum seekers has gained our attention.
Here is where constitutional amendment procedures and activist, dynamic, and prismatic judicial interpretations can play a constructive role.
In a fragmented and ethnically divided society, the Constitution must seek to weld people together into one common nationality, to build bridges where walls existed.
In 1957, the Constitution walked the middle path of compromise, moderation and accommodation between the special needs of Malays and the legitimate interests of the minorities who had made Malaya their abode. Regrettably, there is little understanding of the carefully crafted and diligently negotiated “ethnic clauses” of our Constitution.
If in a country there are regions, states or provinces that exhibit significant differences from the rest of the land, then the Constitution must recognise their uniqueness, accept legal pluralism and maintain unity in diversity by granting them special autonomy. A good example is Sabah and Sarawak. The special rights granted to them in 1963 are not well understood and not adequately enforced.
Better constitutional literacy will help to close the gap between the imperatives of the Constitution and the realised aspirations of the people – at least for those who believe in the Constitution and wish it to survive and be strengthened.
If there are some fringe groups that believe that what the Federal Constitution says does not matter, then we need to engage with them and win them over. The challenge is immense, but for the sake of the nation, it is worthwhile. Prof Emeritus Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Chair Holder at the Faculty of Law, Universiti Malaya. The views expressed here are the writer’s own.
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