|
©Malaysiakini
(Used by permission)
by Fauwaz Abdul Aziz
As part of the winding-down session of the three-day 14th Malaysian Law
Conference, several former judges and lawyers yesterday spoke on ‘What the
Constitution Mean to Me’. The following are extracts of what they said.
VC George (ex-judge, ex-Bar Council chairperson)
(De facto law minister) Mohd Nazri Abdul Aziz is on record for saying that for
any changes we make in respect of the appointment and promotion of judges to the
superior courts, the move for such change has to come from the judges.
He seems to think that is the constitutional requirement. He (makes it) appear
that is the constitutional position - that any move by the executive or
parliament to make any changes in respect of the appointment and promotion of
judges will run foul of the doctrine of powers!
This erroneous understanding of the position is dangerous, that the cabinet and
prime minister may be inadvertently misled by the erroneous understanding of the
de facto minister of law. He and I have one thing in common - YB (yang berhormat)
Nazri and myself both know nothing about the Constitution.
Raja Aziz Addruse (senior lawyer, International Court of Justice
commissioner)
We have to know which constitution we are talking about. In 1957, when Tunku
Abdul Rahman declared the country an independent country, the proclamation had
envisioned a new state, which is to have a constitution which protects
fundamental rights and liberties and the relationship between the rulers and the
governed, and so on.
When the prime minister (Abdullah Ahmad Badawi) declared the same independence
lately by reading the proclamation in 2007, is the constitution that we are now
have the same constitution that came into being in 1957? My answer to that is
that it’s not.
(Firstly) Since 1957, there have been a lot of things done to the Constitution
which make it no longer possible for us to say that there are the checks and
balance which had been built into the Constitution in 1957..
The second (reason) is government’s own interference, (for example) ... the
Restricted Residence Act, Article 121...
Since 1957, the fundamental rights actually no longer exist. That might be a
very hard way of saying it, but if you look at the authorities, the courts do
not seem to think that the fundamental rights must be protected. Right from
1967, we have the ISA (Internal Security Act) cases. Karam Singh was the first
case... That has been the case until even the latest case of Ezam (Mohd Noor)...
It is (because of) these amendments (that make it) - to me - impossible to say
that the Constitution protects rights because these rights can be changed at any
time - it is changeable at the will of the executive, or (when) the courts do
not feel like giving to the individual these rights.
What does the Constitution mean to me? It means nothing to me at the moment,
because it can be changed at any time.
Sulaiman Abdullah (ex-Bar Council chairperson, senior lawyer)
Tun Mahathir Mohamad never played any games ... from what I gather, his spare
time hobby is woodwork and carpentry, and woodwork and carpentry means
everything is under control. The wood doesn’t behave itself, you just cut it
down.
I think that approach has fashioned his whole life. So, for me, if you play
games, you will know the importance of rules and you will know the importance of
an impartial referee. You do not shoot a referee and you do not change the
rules. For me, the rules is the Constitution and the referee is the judges...
Let us not fool ourselves, though we talk about the ‘glory days’ of the
Constitution and the judiciary, there never was a period really when the judges
lived up to their oath of obeying the Constitution and really implemented the
Constitutional provisions to serve the people rather than to serve the
government...
(However) I do not share Raja Aziz’s pessimism. For me, the Constitution is a
vibrant document if only our judges would live to their job as you yourself has
done so exemplary, my lord chairman (referring to former judge VC George). If
only our judges would live up to their job rather than earn that description of
Lord Atkin when he said, “We have judges who are more executive-minded than the
executive.”
JC Fong (Sarawak attorney-general)
The Malaysian Constitution, if we take it back from 1957, is 50 years old. Many
countries, according to Tun Suffian (Hashim), who gained independence about the
same time as Malaya or Malaysia had their written constitutions torn up by the
generals. Fortunately, in Malaysia, we don’t have any generals who dare to tear
up the Constitution. We should be lucky. We still have the Constitution
proclaimed in 1957...
What the Constitution means to me as a Malaysian is not only a supreme law of
the country but something that offers me, for whatever its imperfections, my
fundamental liberties and freedom to do what is right. It is a document that
creates institutions that can be keep the stability of this country, and the
federation together...
True, it is not perfect, but for what I hear at this conference, the
imperfections is not so much because of its provisions. The problem seems to be
on those who have the duty to interpret and uphold it. So, it is the human side
that contributes to whatever problems or unhappiness one may have about the
Constitution.
Therefore, to address and resolve this, you would have to have people who are
true to their oath of office in upholding the Constitution, to understand it,
and for all Malaysians to understand and respect its provisions, and always to
regard it as the supreme law of the country guiding all their actions and
undertakings.
Thomas Jayasuriya (Ex-Sabah attorney-general)
I don’t hold the same view as Raja Aziz. I think it is a constitution that we
have to make work. It’s not a perfect cnstitution, but I think it’s workable.
It’s not static. At the same time, you don’t want to tamper with the
Constitution. You make the amendments when it is very necessary...
Sultan Azlan (Shah of Perak) said: There cannot be an independent judiciary
without an independent Bar. I don’t think that we should lose heart. I think we
should take it as a challenge. I think that with all collective minds that we
have. We will be able to overcome this. How, I’m not quite sure. To me, this is
a constitution that we should make work.
Edmund Bon (lawyer)
The argument has been made quite well by Raja Aziz about how the judiciary has
watered down a lot of the original intents... of the Constitution. Also, how the
judiciary has agreed to its own castration by Parliament and by the executive.
It’s very sad today that the judiciary accepts decisions which take away their
separation (of powers from the executive). Recently, (Court of Appeal president)
jstice Hamid (Mohamad) agreed there is really no separation of powers in this
country. Free speech, sedition, assembly - we have laws that violate the
Constitution yet are upheld as constitutional. For that, we have seen three
broad trends.
The first trend is that judges have applied slavishly the literalist approach to
the constitutional rights, and that has taken away a lot of the spirit and
intent of Part II (of the Constitution pertaining to fundamental liberties).
Secondly, judges have taken the position that our constitutional rights are
subject to local laws, so when Parliament passes those laws, they are accepted
and in many cases judges have accepted that local laws ... and technicalities...
should triumph over constitutional liberties.
The third point is, despite Malaysia having ratified the Convention of the
Rights of the Child and Convention on the Elimination of All Forms of
Discrimination Against Women (and other international obligations), these have
had little impact (on local laws) and much is not in accord with international
human rights law...
Nizam Bashir (lawyer)
The Constitution is a document that contains all the relevant rights that we
need, and in that sense is a reflection of what Malaysia is or aspiring to be.
The problem is, 50 years hence, when we scrutinise the cases, the misdeeds of
the executive, you can see a gap between what is in the document and what is the
reality.
Zaid Ibrahim (Umno Kota Baru MP, lawyer)
I’m utterly depressed because I sense that in the comfort of our economic
growth... of this new world that we’re experiencing now, people don’t seem to
care too much. When you hear statements from the government (regarding the
judicial crisis), what independence? What separation of powers?
(On BN leaders’ statements against the Walk for Justice:) You can make
statements like that because you have so much power. You don’t care... You
cannot make a lasting peaceful country on arrogance. You will create trouble.
 |
Subscribe to this comment's feed
Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
