Constitution must remain foundation of the nation

IT is a good thing that the government has announced that Parliament will reconvene on July 26. It has been of major concern not only to some politicians but also to many thinking citizens.

Much concern arose partly due to the perception that the state of emergency was imposed for political reasons rather than security purposes (ie, the management of the Covid-19 pandemic).

One thing all of us should understand is this: Our political system is a democratic Constitutional monarchy. This means that we are a democracy and that we have a monarchy. Generally, we like to say that “democracy is a government of the people, by the people and for the people”, quoting American president Abraham Lincoln. We generally understand monarchy to be a form of government with a monarch at the head. However, the kind of “democracy and monarchy” we have is determined by the Federal Constitution.

In other words, our Constitution is the foundation of our political system. This, unfortunately, is not understood even by some of our political leaders.

In the context of the pandemic and the Emergency, some argue that Parliamentary sittings may not be wise due to the risk of transmission of infection. However, if we want to safeguard our political system as per the Constitution, then the answer is to find a way for Parliament to convene. Hence, the government’s proposal to amend the relevant laws to enable hybrid Parliamentary sittings is welcomed.

Furthermore, the government is under a Constitutional duty pursuant to Article 150(3) of the Federal Constitution to lay the proclamation of emergency and its ordinances before both the Dewan Rakyat and Dewan Negara. This is an important step as it will lead to a debate and act as a check and balance on Executive action by Parliament.

It will also enable the promulgated ordinances to be debated. Our Constitutional democracy does not allow for a dictatorial emergency rule by the Executive. On the other hand, the provisions of the Constitution ensure accountability, transparency and proper exercise of powers by the Executive even during an emergency. Hence, even during a crisis of any sort, citizens must ensure that Constitutional provisions are complied with so that there is no abuse of power by the Executive.

In our system, Parliament is not supreme but the Constitution is. The United Kingdom has Parliamentary supremacy while Malaysia has Constitutional supremacy. What this means is that Parliament cannot simply make any laws it wants. Article 4(1) of the Federal Constitution not only declares itself to be the supreme law of the country but also limits the power of Parliament to pass laws. It does not recognise as valid any law passed by Parliament after Merdeka Day in 1957 that is inconsistent with the Constitution.

The Malaysian judiciary, being a check and balance in the “separation of powers” concept, recognises a basic structure doctrine of the Constitution. This means that there are certain basic features of the Constitution that cannot be abrogated. The Constitution has to be read liberally within the context of the democratic Constitutional monarchical political system of Malaysia.

The pandemic has also given rise to debates about the powers of the Yang diPertuan Agong and the Executive during an emergency.

Some argue that due to the wording of the ordinances passed during the emergency, certain powers reside absolutely with the Yang diPertuan Agong. This was argued especially in relation to calling Parliament to sit. The other side of the argument is that save in three instances as mentioned in Article 40(2) of the Constitution, the Yang diPertuan Agong can only act on the advice of the Cabinet and not at his own discretion. Article 40(2) clearly states that the Yang diPertuan Agong may act at his discretion in the appointment of a prime minister, in withholding of consent to a request for the dissolution of Parliament, and for the requisition of a meeting of the Conference of Rulers for specific purposes.

Some views are influenced by political rather than Constitutional considerations. Citizens should be aware that it is very dangerous to sacrifice Constitutional safeguards for political expediency. We have seen that Article 4(1) of the Constitution declares itself to be the supreme law of the federation and surely it must supersede the emergency provisions or any ordinances.

Provisions in relation to the power and role of the Yang diPertuan Agong are clear in the Constitution and therefore cannot be amended by laws “inferior” to it.

When a King is elected as the Yang diPertuan Agong, he takes an oath to carry out his duties “in the administration of Malaysia in accordance with its laws and Constitution”. In other words, the Yang diPertuan Agong himself is subjected to the Constitution.

Our political system is not that of an absolute monarchy but a Constitutional monarchy. This means that the Yang diPertuan Agong has a role to play in the governance of the nation and in most instances, he acts on the advice of the Cabinet. In a democracy, the Cabinet is supposed to represent the people.

Hence, we have a democratic Constitutional monarchy political system. We should therefore consciously preserve and protect our Constitution as the foundation of our nation. Let us not sacrifice its sacred provisions for political expediency or for a short-term gain lest we set a dangerous precedent.

Senior lawyer Datuk Seri Jahaberdeen Mohamed Yunoos is the founder and chairman of Yayasan Rapera, an NGO that promotes community-based learning activities and compassionate thinking among Malaysians. The views expressed here are entirely his own.