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KUALA LUMPUR, Mon: “You may think that as an English lawyer, I am ill qualified to speak on such a subject since it is the best, if not the only, fact asserted about the British Constitution that it is unwritten ... ” Such were the words spoken by Michael Beloff QC in the beginning of his keynote address entitled “Fundamental Freedom in a Written Constitution” at the Malaysian Bar Conference today.

His performance, however, proved that he was speaking too modestly of himself. The illustrious Beloff QC took us on a brief historical excursion into the fundamental freedoms found in many written documents, the most prominent being the Magna Carta of 1215 and the Bill of Rights of 1688. Magna Carta is from time to time still quoted in the Courts,-in particular its memorable proposition “to none will we deny or delay justice”. However, it was the American and French Revolutions of 1757 and 1789 respectively that produced two models, the American Constitution and Bill of Rights as well as the Code Civil respectively, to serve as examples for later human rights instruments.

Then, the excursion went on to the Second World War and the post-war Universal Declaration of Human Rights of 1948 and the European Convention on Human Rights of 1951 (“ECHR”) where the former painted strokes of a rights-based philosophy on the global canvas, the latter on a continental one.

From the speech of Mr Beloff, it could be gathered that fundamental freedoms are not codified in one document alone, like we have in Malaysia. Rather, they exist in many treaties and conventions all over the world. One such example is the litany of Geneva Conventions.

Other examples include the International Labour Organisation (ILO) established in 1919 that promoted a series of multilateral agreements to prevent the exploitation of workers. Others include a Slavery Convention which came into force in 1926, the Genocide Convention of 1948, the Convention relating to the Status of Refugees of 1966, the Convention on the Elimination of All Forms of Racial Discrimination of 1965 and the Convention on the Elimination of All Forms of Discrimination against Women of 1979, the Convention Against Torture of 1987, and the Convention on the Rights of the Child of 1989.

From the historical excursion, Mr Beloff gave us his opinion on the advantages of a written constitution from the perspective of fundamental rights. They are as follows:

1. It focuses its attention on fundamental rights; giving them a status which they would not otherwise enjoy, especially where the Constitution is the Supreme Law against which the validity of legislation or executives acts must be tested;

2. It renders the rights knowable. In modern practice they have transparency. There is text to which citizen, lawyer and judge can all resort; and,

3. It defines the dimensions of fundamental rights. In modern parlance, a written constitution gives certainty to fundamental rights.

Mr Beloff went on to share with us examples from the constitutions of Malaysia, Singapore, India, Canada, New Zealand and Australia where freedom of expression is provided but with restrictions.

With the examples given, one is tempted to ask whether there is a template for an ideal constitution, but unfortunately there is not. The shape of what has been given as well as what has been created is affected as the judiciary in each country, the custodians of the constitution, put their special indigenous mark of the instrument.

Fundamental rights, whether provided for in the constitution or not, will only have life when supervised by an independent judiciary addressed and so assisted by an independent legal profession.

In short, fundamental rights in a constitution are important, but equally important is to identify fundamental obligations as well.

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