©The Star
(Used by permission)
Reflecting on the law by Shad Saleem Faruqi
As we bask in the glorious memories of Merdeka, it is necessary to reflect on 50
years of constitutionalism. Is it a legal myth or a legal reality?
AT THE stroke of midnight on Aug 31, 1957, cries of “Merdeka” filled the air
seven times and Malaya began its tryst with destiny.
A written Constitution was adopted as the “supreme law of the Federation” and as
the chart and compass and sail and anchor of our nation’s legal endeavours.
The Constitution was inspired by the ideals of the rule of law, separation of
powers, fundamental rights, limited Parliament, controlled executive,
independent judiciary and a federal–state division of powers.
Judges were entrusted with the power and duty to preserve, protect and defend
the basic charter against all those who would lay rash hands upon the arc of the
Constitution.
As we bask in the glorious memories of Merdeka, it is necessary to reflect on 50
years of constitutionalism. How has constitutional supremacy worked? Is it a
legal myth or a legal reality?
No one can deny that theory and reality have not marched hand and hand. The
supremacy of the Constitution is subject to a number of exceptions provided for
in the Constitution itself.
Ouster clauses: The bold proclamation of constitutional supremacy in
Article 4(1) is immediately qualified by Article 4(2), Article 150(8) and many
other provisions which bar judicial review of some types of legislation or
decisions.
Articles 149 and 150: Article 149 authorises Parliament by a simple
majority procedure to enact laws to combat subversion, and these laws shall be
valid even if they transgress the guarantees of personal liberty (Article 5),
freedom of movement (Article 9), freedom of speech, assembly and association
(Article 10) and right to property (Article 13).
Article 150 goes even further. Once a proclamation of emergency has been made by
the Yang di–Pertuan Agong, Parliament is authorised to suspend any provision of
the Constitution except six topics in Article 150(6A).
By ordinary legislative process, fundamental rights and the federal–state
division of power can be violated. A parallel legal system which has legal
superiority over ordinary laws can be put in place.
What is troubling is that the country has been under a continuous state of
emergency since 1964. The proclamations issued in 1964 and 1969 have not yet
been revoked. Such a state of affairs is not conducive to the flowering of the
rule of law, constitutionalism and human rights.
Residual nature of human rights: The Constitution has been so framed that
Parliament can restrict fundamental rights by ordinary legislation, by special
laws passed under Articles 149 and 150 and by constitutional amendments.
By far and large the chapter on human rights imposes restraints on the executive
but puts no significant hurdles in the path of Parliament.
Easy amendments: The frequency and the relative ease with which
constitutional amendments have hitherto been accomplished, weakens the belief in
constitutional supremacy. A supreme Constitution should have a measure of
entrenchment.
Absolute powers: A large number of governmental powers are not subject to
any real control. The declaration and continuation of an emergency, the
decisions of the Federal Government in matters of deprivation of citizenship,
and the powers of the Attorney–General under Article 145 are outside the regime
of accountability and answerability to anyone.
Under a large number of laws Ministers have absolute, unreviewable discretion.
Judges have a mixed record of review of such legislation.
Ineffectiveness of judicial review: Judicial review is the litmus test of
constitutional supremacy.
Despite the lofty ideals of Articles 4(1), 162(6) and 128, judicial review of
legislative and executive acts on constitutional grounds is not a significant
feature of the Malaysian Constitution. This is due to a number of factors.
First, the regime of security and emergency laws permits very little scope for
judicial review.
Second, courts interpret subjective powers literally and show a general
reluctance to read into these laws implied limits or to subject them to the
explicit and implicit standards of the basic charter.
Third, judges steeped in the British tradition of parliamentary supremacy are
reluctant to invalidate Acts of Parliament or even secondary legislation on the
ground of unconstitutionality.
Fourth, with some honourable exceptions, the tendency of most Malaysian judges
is to reduce constitutional issues to administrative law questions.
Thus in the Aliran case for a printing permit, the then Supreme Court brushed
aside momentous constitutional questions and decided the case in favour of the
Government by reference to administrative law principles of illegality,
irrationality and procedural impropriety borrowed from the famous GCHQ case of
Britain.
Islamic law: When the Reid Commission’s proposal to leave out any
provision for an official religion was reviewed by the Working Party and Article
3(1) was inserted into the Constitution to make Islam the religion of the
Federation, it was also provided in Article 3(4) that “nothing in this Article
derogates from any other provision of this Constitution”.
The implication of Article 3(4) is that despite Islam’s special and exalted
status, the syariah is not the basic law of the land.
It was not the intention of the drafters of the Constitution to allow Article
3(1) to trump constitutional supremacy in Article 4(1) or to take away
fundamental rights in Articles 5 to 13 or to alter the constitutional scheme of
federal–state division of powers.
In the last decade, however, a critical mass of Muslim lawyers, judges and
politicians has adopted the view that Islam is the core, central, overriding
feature of the Constitution.
“Islam” in Article 3(1) is not merely ceremonial. It refers to a way of life, a
system of values, and a set of highly developed laws to cover all aspects of
personal, civil and commercial life.
The consequence has been that State Assemblies have been enacting laws and
authorising administrative actions that violate the human rights guarantees of
Articles 5–13, imposing penalties far beyond their powers, and trespassing on
federal jurisdiction.
Because all this is done in the name of religion, politicians look the other
way. Most judges are reluctant to test these laws or actions on the yardstick of
the Constitution.
Painful dilemmas are arising in cases where one of the litigants is Muslim and
the other non–Muslim.
Clearly, in this area, the Constitution stands at a crossroad. Political
decisions are needed to restore the original scheme of things or, alternatively,
to open negotiations with all stakeholders to bring critical changes to the
Constitution.
A silent or surreptitious re–writing of the Constitution is not desirable.
Constitutional change and growth is normal. Pakistan with its 97% Muslim
population adopted the supremacy of the syariah in the early 80s.
If it is the aspiration of a majority of the Muslims that the supreme
Constitution should apply only to non–Muslims and the syariah should be the
supreme law for adherents of Islam that would be legitimate.
But we need fuller discussion of this matter, its mechanics, its extent and
scope and its safeguards for non–Muslim interests in those cases where
jurisdictions will invariably clash.
There is no reason to believe that the Merdeka spirit of moderation, negotiation
and reconciliation cannot be revived again.
Dr Shad is Professor of Law at UiTM.