Visitor No since 22-10-98
The constitution is our judicial cornerstone Print E-mail
Monday, 09 January 2006

©Malaysiakini
By KJ John

I totally agree with Suhakam chairman Abu Talib Othman - who as attorney-general had helped craft the Article 121 (1A) provision - that the primary legal authority of the nation is and must always remain the constitution.

The case for such a ‘constitutionalism’ was exceptionally well argued by constitutional lawyer Dr Cyrus Das in a two-page interview carried in the Sun’s weekend edition dated Jan 7-8, 2006. He states that "constitutional illiteracy" is today prevalent throughout society and equally within government agencies. He thus proposes that constitutional education begin in schools so that all Malaysians are made aware of their rights, responsibilities and obligations under this rule-of-law principle.

To quote him: "The constitution itself needs to be looked at and interpreted in a way that gives remedy to every Malaysian regardless of his religious faith. A legal system that declares that it cannot give remedy - as the courts now declare - ... reflects a serious shortcoming in the system. It has to be corrected because we cannot take pride in our legal system if access to justice is not given its due."

I am not constitutional lawyer, but rather a student of the constitution with an excellent teacher, the late eminent professor and Islamic scholar, Dr Ahmad Ibrahim, at Universiti Malaya. I am also a nationalist schooled at the Royal Military College. My views below therefore express a kind of "constitutional nationalism" which seeks to transcend the narrow parochial nationalism often embedded in ethnic nationalism. Please hear me out.

Judges fail to uphold constitution

As a student of systems science, I am taught that all systems adhere to the set theory of mathematics. Therefore, if Malaysia is a system, there are many sub-systems which make up the socio-political and geographical community we call Malaysia. Put simply, Asean is a supra-system and Selangor a sub-system in socio-political terms.

As a constitutional nation-state that Malaysia is, the supreme law of the land is the social contract as embodied in the written constitution. Unlike, the British model, our forefathers chose to have a written constitution as in the American model. The federal constitution then is our largest rule-defining system, as with the American constitution. Truly our forefathers, via the constitution-forming Reid Commission, framed our rule-defining system with much forethought and wisdom of hindsight from the experience of other nations, including the American experience.

Our forefathers, including the Council of Rulers agreed and signed the social contract that became our national constitution, and thus the supreme law of the land. Therefore, when sub-articles or amendments of the constitution are crafted to define and limit certain prevailing conditions or problems, they must always be interpreted within that specific rule-defining context.

Context always defines the text, and not otherwise, in all today's rational science and logic systems. Therefore, it is totally unbecoming and unacceptable that we have judges who do not uphold the spirit and supremacy of the constitution and betray their "personal faith fears" in decisions related to fundamental and basic human rights of all Malaysians already guaranteed by the constitution. This is the rule-of-law principle already protected and preserved by the Rukunegara. If our judges do not understand and truly appreciate the content and spirit of the Rukunegara, they should resign. I fear for this nation's future, otherwise.

I therefore also agree with Dr Das that by merely crafting and singing songs about the five principles of Rukunegara will not assist us in fully appreciating the real spirit of the constitution and matters related to the rule-of-law principle. If I am not mistaken, the five principles of the Rukunegara were adduced out of the constitution and was a simple but effective way to summarise the highest legal principles of our nation. These five principles seek to define the constitution to the ordinary Malaysian.

‘Thank God that he is alive’

Abu Talib was quoted to have said that "the law was only meant to prohibit the civil courts from having jurisdiction over matters which were solely within the jurisdiction of the syariah courts." Then, he appears to have gone on to interpret the words, "within the jurisdiction" as laid out in the schedule nine of the constitution to "refer only to a person who professes the religion of Islam."

He subsequently concluded, "If the plaintiff is a non-Muslim, then it would be wrong of the Syariah Court to say that it has jurisdiction over a non-Muslim. The problem arose because the courts did not have the courage to interpret the law in the spirit of which it was written." That was the spirit of one important drafter of the then amendment. Thank God that he is alive to state it, unlike the founding fathers of the constitution and the social contract.

Context always defines the spirit of the law, and the spirit of the law always guides the interpretation of the law. So, here we have the lawmaker of the day helping us define the "intent of the law," or the amendment of the Article121 (1A) specifying the real intent and purpose of the amendment, which was Opposition Leader Lim Kit Siang's primary concern at DAP-organised parliamentary roundtable.

Constitutional lawyers Prof Shad Saleem Farouqi and Malik Imtiaz Sarwar have both spoken clearly on this issue as well. In fact, UiTM Prof Shad was quoted to have stated, "Judges in civil courts these days often beat a hasty retreat the moment they get a whiff of cases that have something to do with Islamic laws. The federal constitution is silently being rewritten. It does not do justice to the country's legal system."

At the same roundtable, Malik Sarwar was quoted to have said: "Right now the High Court is taking the view that if it is anything to do with Islam, then they don't want to take it. This includes things which are not even law, but are rejected by the High Court because the state legislature has the power to make laws over the matter and therefore, these counts under Syariah Court jurisdiction."

Malik Sawar was arguing that if the jurisdictional problem was created by the 1988 amendment, then it should be repealed. He concluded, "By reinstating Article 121(1), it will make things easier, because the (civil) courts are emboldened, because they definitely know that they will have jurisdiction."

The M Moorthy case


Even more interestingly, Zaid brahim, the MP for Kota Baru and senior partner and chairman of Zaid and Co - one of the largest government-approved law firms in town - and who also spoke at the roundtable, wrote an earlier comment solidly arguing for a constitutional court to be set and given the final say on all such constitutional matters. He stated that "the paramount question that many feel in their hearts but fear to ask is whether there is justice when dealing with issues of faith in this country."

Referring to the late M Moorthy case, he wrote, "the case brings to the fore not just issues of jurisdiction of the civil courts over Islamic matters but, more importantly, the fundamental nature of the constitution itself."

He could not be more right, which is the prime reason, a scribe like me, who is not constitutional expert, also chooses to get involved in the issue as an ordinary citizen. If the constitution of the nation is not respected and accorded by the highest courts of the nation, wherein lays the rule-of-law principle of the Rukunegara and whither Bangsa Malaysia - the cornerstone of the Vision 2020 argument of Dr Mahathir Mohamad?

But, maybe Mahathir got his wish for his "Islamic state," which he fearlessly and wrongly argued for before his retirement. Prime Minister Abdullah Ahmad Badawi has wisely turned that political argument into his equally political "civilisation or progressive Islam thesis."

Nonetheless, such executive and urgency-driven amendments to the constitution, without much forethought and wisdom, are coming to roost in the nation now. We are truly getting an "Islamic state" wherein non-Muslims are denied their basic and constitutional rights under their own national constitution. What then does it mean to be a Malaysian if I have no basic and fundamental human rights in the only nation wherein I am a citizen?

As well argued by Dr Das, our constitution must define all our core values in this nation, as agreed to by all our forefathers, including our Council of Rulers then. The Rukunegara captures these values, and needs to be reinstated as the guiding core values on all matters related to the nation-state, without exception. All constitutional amendments must thus be measured against the Rukunegara principle and uphold the supremacy of the constitution, not otherwise.

Protect constitutional rights

Maybe, it is God-ordained that it befalls upon PM Pak Lah's government to clean up the political abuse that has become a culture in Malaysia, especially with government agencies who do not respect the rights of non-Muslims in the specific cases raised. Lawyer Roger Tan wrote an excellent piece on how the constitutional rights of non-Muslims are denied in the case of worship places, when Article 11 (5) of the Constitution protects, preserves and guarantees such a basic right of faith and practice.

While the noisy and vociferous few among the religious Islamic conservatives in Malaysia have argued against the interfaith commission, I hope the Pak Lah government will not merely take a knee-jerk reaction because of the few, but relook at how the constitutional rights are protected for every Malaysians, and especially widows and other family members.

As a Malaysian Christian in this nation and as a father, I want to train and teach my children to love this country that we call our own, but I can only do so with a clear conscience if their constitutional basic rights are protected and preserved under our principles of good governance.

If governance becomes weak and inefficient or over-zealous because of the noisy few or poor enforcement, I fear to teach my children "blind obedience and loyalty" when the whole world is their backyard and they sincerely have other options. God bless this nation as we work through these "maturing, and teething problems." If Pak Lah said, our problems are "our values," not our hardware and software, I cannot agree more.

*KJ John served in public service for 30 years and took optional retirement to work in his own consulting group. He hopes to see transparent and open, new governance practiced in Malaysia some day.

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