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©Malaysiakini (Used by permission)
by Fauwaz Abdul Aziz

A complete overhaul of the Federal Constitution is needed now more than ever due to its failure to live up to international human rights standards and the aim of national integration, and because of the attacks on it by the executive and its dilution by the judiciary.

Making a case for this yesterday was human rights lawyer Edmund Bon who presented a paper on the topic - ‘Foraging for Rights to Forge a Nation: Is it Time to Reconstitute the Malaysian Constitution? - at the closing session of the three-day 14th Malaysian Law Conference in Kuala Lumpur.

Human rights and citizens’ identity are two related but indispensable features of a constitution and a nation-building project because guaranteeing human rights, in particular the right to non-discrimination, gives the citizen an equal share in the nation and sense of ownership, said Bon in his 21-page paper.

“After 50 years, is there a case for changes to the Malaysian Constitution in relation to these areas, and if so, in which direction?” asked Bon, who called for a royal commission to recommend reforms to the Constitution.

According to Bon, who heads the Bar Council’s human rights committee, there is a danger in “romanticising” the scope and intent of the Constitution beyond the historical circumstances of its birth and in ignoring the need to change in tandem with developments in human civilisation.

In this regard, the human rights movement then in its infancy when fundamental liberties were written into the Constitution 50 years ago did not have the chance to impact substantively on its formation.

As a result, the right to life or personal liberty, for example, has been limited to protection from being physically restrained or detained. The right to earn a livelihood or to travel abroad could not be assumed as given due to the narrow definition given then to life and personal liberty, said Bon.

Similarly, Article 8 pertaining to citizens’ equal protection and recognition by the law has led to interpretations based on the “narrow and archaic ‘formal equality model’ as opposed to the ‘substantive equality model’ mooted by international standards.

Along the same lines, human rights’ analysis of restrictions based on the “two-pronged approach of legality and necessity in a democratic society” do not feature in the application of the Constitution’s provisions for free speech and freedom of assembly, said Bon.

Reid Commission

For these reasons, he said, it cannot be maintained without qualifications that the Constitution is a ‘living document’ as it is often said.

“The Constitution, it is submitted, must admit the realities in the passage of time and embody the idea of law within it as including rules of natural justice and equity consonant with internationally accepted customs and usages of civilised nations. But has this been so in Malaysia?” he asked.

Turning to the judiciary, Bon noted that the Reid Commission’s recommendation for the Constitution to ensure the powers by the highest court in the land to review laws, acts, and decisions of the government on substantive grounds - as opposed merely to procedural ones - was left out.

Also not included in the final draft of the Constitution was the Reid Commission’s initial recommendation to clearly demarcate the respective powers of the Executive, Legislative, and Judiciary.

Coupled with the judiciary’s track record of deferring to the Executive and Parliament, this has resulted in the deplorable state of the justice system which has seen the declining status of the judiciary as the “third pillar of the nation”, said Bon.

“It is nothing to be pleased about that the Constitution is at grave peril through a combination of instrumental weaknesses in the protection of fundamental liberties and the toleration of institutional genocide of the Judiciary (by the Executive branch of government).”

Another shortcoming of the Constitution is that it had locked into the system two contradictory terms of reference whose arrangement - dubbed the Social Contract - was meant to be temporary but had been perpetuated with disastrous consequences for national integration:

Article 8 on equality enshrined that part of the contract pertaining to the granting of citizenship to non-Malays while 153, among others, ensured Malay control over the political administration of the country as well as certain socio-economic safeguards.

This ‘ethnicised Constitution’, therefore, enshrined the optimism of its drafters in the eventual integration of the respective communities, said Bon. They failed to address, however, the question as to how this was to be achieved based on the ‘special preferences’ for the majority Malays.

“To posit the emergence of equality from a premise of inequality ignored the possibility that preferences for one ethnic group would further divide rather than unite... Short-sighted as it was, the [drafting] Commission was overly optimistic,” he said.

NEP economic imbalanes

When the National Economic Policy (NEP) and similar policies came into force after the 1969 riots to redress the economic imbalances as a means of promoting national integration, its limited successes were countered by the subsequent worsening of intra-Malay inequalities.

Furthermore, such policies apparently sanctioned by the Constitution led, on the one hand, to the feeling among Malays that such affirmative action was their inherent right - as opposed to a temporary boost - while the minorities felt a growing sense of being discriminated against.

Worsening this was the imposition of the predominantly “Malay way” in almost every aspect of public life, said Bon.

“Surreptitiously, the political hegemony by the Malay majority appears to dictate a ‘Malay way’ which appears to find a place in every facet of a citizen’s life. Education, language and culture have become fraught issues, leading to a defragmentation of trust among ethnic groups,” he said.

“It is submitted that what began as provisions in the Constitution intended to assist the marginalised has now been turned against the minorities of this country in more ways than one, violating basic rights. No assistance may be found in the Constitution,” he added.

In conclusion, Bon said the “limping nature” of constitutionalism in Malaysia - brought on by an outdated conceptualisation of human rights and a social contract bargained informally and engineered 50 years ago - demands a resurrection of sorts through the “overhaul” of the nation’s charter.

“Problems which have arisen since Independence point to an acute need for greater direction and an overhaul of the Constitution to imbue human rights perspectives as an important policy remit.

“Forces of change compel us to look ahead for a new vision where human rights are at centre-stage, and not merely an impulse by-product of decolonisation.

“Despite the attacks on the Constitution, the surge of any reform rests on the peoples’ aspirations, and whether we are willing to seek a constitutional resurrection.”

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