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KUALA LUMPUR, Tues: The focus of the session this morning in on the Federal Constitution, and the main issue addressed by speakers is whether the true purpose and spirit of the Federal Constitution, i.e. ‘constitutionalism’, have been upheld after 50 years of entering into the social contract.

Mr Tommy Thomas kicked start the session by tracing back the historical background of Malaysia before gaining independence, the difficulties and challenges faced by our founding father in gaining independence from the colonial master, the threat of the communists, the formation of political parties, the ideals and efforts behind the drafting of our Federal Constitution.

Against this background, Mr Tommy Thomas stressed that the main feature of Malaysia, is its multi races and multi religion set up, and he argues that the Federal Constitution is essentially a ‘social contract’ between the 3 main communities in Malaysia, whereby what it intends to achieve are, amongst others, as follows: -

* there is no intention of repatriation of non-Malays
* there shall be no discrimination based on race or religion
* the need to have undivided loyalty to the country and one citizenship
* there shall be no sacrifice of any ethnic, culture or religion. Racial differences were recognized and diversity was encouraged.
* there is no intention to assimilate one race with the other.
* Malaya was always to remain a plural society.

Mr Tommy then went on to set out the basic structure under the Constitution and the key social contract provisions in the Constitution, which he argued include, religion of the Federation (Art. 3), supreme law of the Federation (Art. 4), equality (Art. 8(1)), anti-discrimination (Art. 8(2), freedom of religion (Art. 11), education rights (Art. 12), citizenship (Art. 14-31), National Language and other language (Art. 152), reservation of quota for permits, etc for Malays and natives (Art 153), and additional protection ofr Sabah & Sarawak (Art. 161-161H).

Mr. Tommy also addressed on the impact of the May 1969 riots on the social contract, including (i) the passing of a series of far-reaching constitutional amendments which had the effect of widening and broadening the special privileges of Malays and the natives of Sabah & Sarawak, (ii) making the public discussion of sensitive issues seditious and therefore eroding the freedom of expression under Article 10, (iii) granting the Conference of Rulers the veto-power in the amendment or repeal of the provisions of the Constitution and thus making them the 4th branch of government under the doctrine of separation of powers. The NEP was also discussed in in Mr Tommy’s paper entitled “The Social Contract: The Constitutional Covenant”.

At the end, Mr Tommy highlighted the recent threats to the social contract, which include the following: -

* the process of Islamisation, and role of UMNO in this regard;
* the (political) claim that Malaysia is an Islamic State;
* the attitude of the civil courts concerning Syariah jurisdiction;
* the racial insensitivities shown by leader of political parties;

Mr Tommy suggested that as we celebrate Malaysia 50 years of independence, it would be timely for us to revisit and re-examine the social contract as its root in order to prevent any further departure from the true intention of the social contract. The words and deeds of our Bapa Kemerdekaan must be heeded.

Dato’s Cyrus Das in his speech touched upon the contribution of the judiciary to Malaysian Constitutional Law. In his paper, he focused on the approach taken by our judges in interpreting the Federal Constitution. He argued that our judiciary adopted a conservative approach in this regard. For example, Articles 5 & 8 of the Constitution were interpreted narrowly and disjunctively, when it should be interpreted conjunctively to ensure the freedom guaranteed in the Constitution is given its fullest effect. On the amendment of the Constitution in Article 159, he argues that the fundamental features of the Constitution should never be allowed to be amended simply by a passing majority in Parliament.

Dato’ Cyrus Das, in the limited time allotted to him, also touched upon the access to justice and how our judges have interpreted “ouster clauses” so widely so as to deny the access to justice. He argues that access to justice is a constitutional right, and not a common law right, which the judges can simply disregard.

Prof Shad Saleem Faruqi is very honest in his view on the contribution of the judiciary to the Malaysian Constitution, when he said that there is not much to celebrate or commemorate on the contribution of the courts to the constitution. His view is not without basis, and he made the following observations: -

i. Constitutional supremacy is merely notional, and he argued that the courts are not just legal but also a moral institution.

ii. The is a poor record of constitutional review of legislation, where he argued that judges are reluctant to invalidate parliamentary legislation.

iii. The reluctance of the judiciary in reviewing executive act on constitutional and administrative grounds.

iv. The frequency and the relative ease with which constitutional amendments have been accomplished weakens the supremacy of our Constitution.

v. a large number of governmental powers are not subject to any real control.

vi. Ineffectiveness of judicial review, which is the litmus test of constitutional supremacy.

vii. The claim that Malaysia is an Islamic State has created various conflicts with the provisions of the Constitution.

In his conclusion, Prof Shad Faruqi observed that over the 50 years of independence, there are many de jure and de facto departures from constitutional supremacy. On present political realities, the Constitution has not proven to be a significant fetter on executive and legislative powers. There has arisen a ‘political sovereignty’ over legal sovereignty, and the courts have failed to enforce constitutional supremacy and have, instead, cooperated with the executive and pressure groups to bring about fundamental alterations to the basic structures of the Merdeka Constitution. A change of the political power is required for the change of the current trend.

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