Sunday Star (Used by permission)
by Shaila Koshy
The 14th Malaysian Law Conference last week discussed candidly whether the Federal Constitution of today is the same as the Merdeka Constitution of 1957 and whether the judiciary – the guardian of constitutionalism – has lived up to its oath.
THERE is no way that one can ascertain if the aspirations articulated at a country’s birth have come to fruition unless one knows what those aspirations were.
Thus, at the 14th Malaysian Law Conference themed “50 Years
of Merdeka” earlier in the week, knowing one’s history was never more
Looking at the big picture at the conference was senior lawyer Tommy Thomas in his paper Social Contract: The Constitutional Covenant.
For a start, do Malaysians know that:
> THE social contract at Merdeka was this – undivided loyalty to Malaya from the non-Malays, a right to use their language and observe their religion with the trade-off being special privileges to help Malays up the economic ladder;
> THAT citizenship was not on a two-tier basis, and there would be no apartheid, partition or repatriation;
> THAT the social contract provisions were sacrosanct and enjoy constitutional status because they have been included (Articles 3, 4, 8(1) and (2), 11, 12, 14-31, 152, 153 and 161-161H); and
> THAT Sabah and Sarawak’s entry into the federation strengthened the importance of the Merdeka social contract and elevated it to international law status with treaty ramifications?
The most radical change to the social contract was the establishment of the New Economic Policy after the 1969 race riots.
While Thomas lauded it as “one of the greatest achievements of peaceful wealth generation; a revolutionary effect by evolutionary means”, he added that even Deputy Prime Minister Datuk Seri Najib Tun Razak had acknowledged on Sept 4 that affirmative action must also assist the non-bumiputra, especially the poor and the low-income households.
While the Federal Constitution contains the most important laws which Malaysians have agreed to live by and it outlines the basic structure of their government, democratic constitutionalism is said to be based on ideals of individual freedom, community rights, and limited government power.
How have we fared? Not well enough, if we look at the breakdown in ethnic relations and the social contract our founding fathers had brokered, defended and modified in the early days of nationhood, said Thomas.
Judging the judiciary
Calling for a return to the wisdom of 1957, lawyer-cum-politician Datuk Zaid Ibrahim noted: “In the comfort of our economic growth, people don’t seem to care too much about the independence of the judiciary and separation of powers.”
Speaking at the session What The Constitution Means To Me, he added: “A government cannot build a lasting peaceful country on arrogance.”
In Malaysia, there is very little to separate the Legislature from the Executive, so how has the judiciary – the last bastion for constitutionalism – performed as the guardian of our Constitution?
Universiti Teknologi Mara law professor Dr Shad Saleem Faruqi gave this indictment: “Barring a few honourable exceptions, our judges have not lived up to their solemn promise to ‘preserve, protect and defend’ our document of destiny.
“They have not employed the doctrines, principles and methods of public law to preserve and strengthen the rule of law and to enforce accountability in government.”
Fellow panellist in the session Contributions of the Judiciary to Malaysian Constitutional Law, senior constitutional lawyer Datuk Dr Cyrus Das, said courts in many countries accepted that while a two-thirds majority in Parliament allowed a ruling party to amend the constitution, it did not mean that alterations changing the basic structure of the constitution could be made.
And although the Malaysian constitution was based on a social contract, he said, this had yet to be accepted and adopted by the judiciary here.
“To me, the constitution now means nothing because it can be changed at any time,” Raja Aziz Addruse, another senior constitutional lawyer, had lamented in the session with Zaid.
The most powerful indictment against the judiciary came from the Sultan of Perak Sultan Azlan Shah, who said in his opening address: “Sadly, I must acknowledge there has been some disquiet about our judiciary over the past few years and in the more recent past.”
A former Lord President himself, Sultan Azlan called for reforms, adding that an independent judiciary was depended on as well as an independent Bar with a high standard of integrity and ethics among its members.
He didn’t let the lawyers off, referring to allegations against some lawyers, that is, those who have “either misled the courts, or attempted to choose the judges or courts for their cases to be heard so as to obtain a favourable decision in their client’s favour”.
In the session 50 Years After Independence: Is All Well With The Malaysian Legal System? the chair, lawyer Steven Thiru, acknowledged there had been an overall deterioration in standards in all areas of the legal system, adding that the infamous video clip that had come to light had exposed both the judiciary and the legal profession to public ridicule.
The session discussed the important question of ethics, the quality of legal education on offer and the need for a common Bar examination and for continuing legal education.
This conference was also important because of the varied current issues it covered: challenges in Islamic commercial law, property rights, technology and the law, the family unit, the role of local authorities, the future of policing, malpractice litigation, freedom of expression in the arts and freedom of religion and information.
It also touched on electronic evidence, corporate law, indigenous customs and cultural rights, lawyers becoming working machines, the Myanmar impasse and the invisible refugee and migrant worker communities.
A good first for the Bar was the attendance of a prime minister to deliver the keynote address and of a ruler to open the law conference. There was also good participation from the Attorney-General’s Chambers and the police force.
A dent in the buzz, however, was the poor representation from the judiciary: the only ones who accepted the Bar’s invitation to the opening on Oct 29 were President of the Court of Appeal Datuk Abdul Hamid Mohamed, who is acting Chief Justice since Nov 1, Federal Court Justice Tan Sri Zaki Tun Azmi and 10 judges of the Court of Appeal and High Court. Chief Judge of Malaya Justice Datuk Alauddin Mohd Sheriff was abroad on leave.
One important repercussion for the public would be the execution of a suggestion made during the forum on the video clip for lawyers to boycott the courts in an effort to clean up the judiciary.
Lawyer Haris Ibrahim, who had submitted a petition to the King last week containing 5,036 signatures from the public for a Royal Commission of Inquiry into the video clip, had proposed the drastic step if a meeting between Bar president Ambiga Sreenevasan and the Prime Minister on the issues raised by the tape came to nought.
The proposed boycott raises crucial questions for everyone: What do we really want of the judiciary and Malaysia?