©The Star (Used by permission)
Reflecting On The Law by SHAD SALEEM FARUQI
AUG 31, 2017, will be the 60th anniversary of Merdeka and of the Federal Constitution. In conjunction with this important milestone, a group of distinguished citizens is taking the initiative to propose to the Government that our venerated national ideology – the Rukun Negara – be incorporated into the Federal Constitution as its Preamble.
Preambles are opening statements that express the aims and objects, dreams and demands, values and ideals of a nation.
They are “glittering generalities” and polestars for action. They provide the guiding light for interpreting the Constitution and are its chart and compass.
Almost all the 180 Constitutions of the world possess Preambles. But Malaysia is an exception.
Our Constitution lacks a Preamble. Our basic law’s rich ideals, values and goals have to be extracted and distilled from the 183 Articles and 13 Schedules that constitute our supreme law.
After the convulsions of May 1969, a National Consultative Council (NCC) of 67 distinguished persons was assembled under the chairmanship of Tun Abdul Razak Hussein, then Deputy Prime Minister and chairman of the National Operations Council, to draft our blueprint for national unity.
Some of the towering personalities on the NCC were Tun Dr Ismail Abdul Rahman, Tun Tan Siew Sin, Tun V.T. Sambanathan, Tun Ghazali Shafie, Datuk Harun Idris, Datuk Haji Mohamed Asri, Tun Datu Mustapha Harun, Tun Hussein Onn, Dr Syed Hussein Alatas, Prof Ungku Abdul Aziz, Tan Sri Syed Jaafar Albar, Tengku Ahmad Rithauddeen, Tun Dr Lim Chong Eu, Tan Sri Dr Aishah Ghani, Tan Sri Lim Phaik Gan, Datuk Seri S.P. Seenivasagam, Tun Sakaran Dandai, Tan Sri Ong Kee Hui, Datuk Stephen Kalong Ningkan, Bishop Gregory Yong and Rev Datuk Dennis Dutton.
The NCC drew from all races, religions and regions, the ruling Alliance and opposition parties (except one), federal and state governments, Sabah and Sarawak, civil society groups and minorities. Regrettably, women were under–represented by only two members.
The NCC chiselled out five stirring objectives of our nation. These were: unity; a democratic way of life; a just society where the prosperity of the country can be enjoyed together in a fair and equitable manner; a liberal approach towards our rich and varied cultural traditions; and a progressive society that will make use of science and modern technology.
Supporting the objectives were five transcendental ideals: belief in God; loyalty to king and country; supremacy of the Constitution; rule of law; and courtesy and morality.
The Rukun Negara was launched by the then Yang di–Pertuan Agong on Aug 31, 1970. Like the Pancasila of Indonesia, the Rukun Negara was meant to be the sail and anchor of our nation and its guiding philosophy.
Unfortunately, it could not be presented to Parliament because the Emergency Proclamation of May 15, 1969, had sent Parliament into dissolution. Regrettably also, the Rukun Negara has not become the guiding light it was meant to be. Lip service is paid to it in all schools. It is honoured but hardly observed and emulated.
In fact, it distils the essence of our Constitution and provides direction for legislative, judicial and administrative action.
For example, the Rukun Negara’s “supremacy of the Constitution” is provided for in Article 4. “Belief in God” is honoured in Articles 3 and 11. “Loyalty to King and country” are required by innumerable provisions including Articles 32–38.
“Rule of law” is implied in provisions for judicial review of governmental action in Articles 4 and 128. “Morality” is safeguarded by empowering Parliament in Articles 10 and 11 to enact laws to safeguard morality.
“Democratic way of life” is promoted by innumerable provisions conferring personal liberties and providing for elected and representative assemblies.
“Rich and varied cultural traditions” are protected by provisions for freedom of religion, right to native language and traditions, customary rights, freedom of speech, assembly and association, and the special rights of Sabah and Sarawak in our federal set–up.
Incorporating the venerated provisions of the Rukun Negara into the opening passage of our document of destiny will strengthen both documents at a time when the Constitution is under attack from many quarters, when its lofty ideals are being ignored and when those whose job it is to enforce it look the other way when some lay rash hands upon the edifice of the Constitution.
Some detractors may ask: will adoption of the Rukun Negara question policies that prioritise bumiputra? The answer to this is that the special position of the Malays and the natives of Sabah and Sarawak is entrenched in the Constitution and the Rukun Negara’s emphasis on “supremacy of the Constitution” implies acceptance of the Constitution as a whole, including the Constitution’s provisions on the “social contract” i.e. the special position of the Malays and natives of Sabah and Sarawak, plus the legitimate interests of other communities.
If Article 153 is enforced in the spirit in which it was drafted, it will obliterate identification of ethnicity with economic function and will bring the bumiputra of the peninsula and Sabah and Sarawak into the mainstream of economic life, while at the same time permitting the other communities to pursue their vision of the good life within the limits of the law. This will in the long term promote greater stability and unity.
Finally, one needs to answer the question what democratic right or legitimacy does the “Rukun Negara group” have to propose an amendment to our Constitution? The reply to this is that in many democratic countries groups of citizens are allowed to participate in the legislative process.
In Australia, constitutional amendments require the people’s mandate at a referendum. In the United Kingdom, the Referendum Act permits the Government to seek the people’s consent to legislative initiatives.
Many states of the United States of America permit a proportion of voters to ask for initiation or recall of a legislation.
In Malaysia, consultation with affected interests or appointment of citizens’ committees prior to the enactment of legislation is a common practice. The Standing Orders of the Houses of Parliament permit Legislation Committees to consult with citizens’ groups.
Though there is no explicit provision in Malaysia to mandate any of the above forms of democratic participation, a citizens’ initiative to amend the Constitution is not against any law. In fact, it is a ringing affirmation of democracy.
Shad Faruqi is Emeritus Professor of Law at UiTM. He wishes all readers a Happy New Year. The views expressed here are entirely the writer’s own.