Constitutionalism and rule of law — Shad Saleem Faruqi

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Source: The Star Online

BY SHAD SALEEM FARUQI

Shad Saleem Faruqi - file pic

Shad Saleem Faruqi – file pic

Rights without remedies are like lights that do not shine and fires that do not glow

THIS year will be the sixtieth anniversary of our Federal Constitution. It is appropriate, therefore, to ask whether our Constitution has become the chart and compass and sail and anchor of our endeavours, or whether its supremacy is a legal myth.

At the very outset it needs to be noted that constitutionalism is not like a lamp you can switch on. Constitutionalism takes decades to develop roots. Much depends on the nature of the society the Constitution seeks to regulate and transform, the extent of the changes sought to be wrought and the existentialist realities on the ground.

Thomas Paine captured the magnitude of the challenge by asserting that “when it can be said by any country in the world, my poor are happy, neither ignorance nor distress is to be found among them, my jails are empty of prisoners, my streets of beggars, the aged are not in want, the taxes are not oppressive, the rational world is my friend then (only) may that country boast its constitution and government”.

Obviously we have a long way to go. But there are also many blessings for those who want to see them.

Our Constitution, though much amended, has survived the vicissitudes of race and religious politics for 60 years. Our Parliament has fulfilled its legislative function, at least partly, but not its role as a check and balance institution. The judiciary, likewise, asserts itself sometimes to enforce constitutional supremacy, interpret human rights generously and keep the flame of constitutionalism alive.

With the blessings of God we are not at war with any nation or with ourselves. War is the enemy of human rights. The threat of terrorism is under control.

Despite the worsening race and religious rhetoric of our politicians and the overzealousness of some public servants, the rakyat retains harmony and congeniality. Unlike in many other Asian, African and European societies, there has been very little racial and religious violence.

The armed forces are under civilian control. There has been no attempted coup d’etat. Elections have been held regularly and state governments have risen and fallen. Regrettably, many aspects of the electoral process fail public confidence.

An ambitious and partly successful experiment in social engineering has been pursued peacefully and in a cooperative manner. Five-plus decades of a state-supported social welfare agenda has ensured basic necessities of life for the population. A large middle class has grown. However, there are pockets of poverty where the rays of justice have not penetrated.

The 48-year-old emergency was lifted in 2012 and hundreds of emergency laws came to an end. Some outdated laws like the Restricted Residence Act, Banishment Act and the Internal Security Act were repealed. The Printing Presses and Publication Act and the Police Act were amended.

Replacement legislation like the Peaceful Assembly Act, Security Offences Special Measures Act and the Prevention of Crime (Amendment & Extension) Act have some redeeming but many troubling provisions.

With the passage of the Peaceful Assembly Act, the role of the police seems to have changed. From the old command-and-control approach of preventing, prohibiting or regulating, the times now call for the police to be a facilitator of freedom of assembly and association.

Women have been emancipated though more needs to be done to achieve functional as opposed to formal equality.

Despite the above achievements, there remain many structural and other hurdles in the way of constitutionalism.

Constitutional patriotism has failed to develop. Our document of destiny’s imperatives have not become the aspirations of our institutions, our leaders and our citizens.

Constitutional supremacy is a legal myth. There is no dearth of parliamentary laws that confer absolute discretion on the executive. Many actions of government departments are based on policies that show scant awareness of constitutional limits.

Only once in a while does a challenge to this state of affairs succeed in the courts because most of our judges are supporters of the status quo and view their role with caution.

The constitutional system of checks and balances has grown weaker, not stronger. Federal-state relations, especially with Sabah and Sarawak and opposition-controlled states, have grown tense. There has been a politicisation of most of our constitutional institutions.

Some intractable challenges of religious and racial pluralism are confronting us. Due to the racialisation of most issues, an enlightened discourse on the burning issues of the times is often difficult.

There are unresolved jurisdictional disputes between civil and syariah courts. These need to be resolved as they have human rights implications.

In a democratic state, the greatest challenge is to balance the might of the state with the rights of citizens and to surround both power and freedom with restraints. In contemporary Malaysia, this need for a just balance is being acutely felt in a number of areas.

There is violation of constitutional rights in the name of the syariah. Many State Enactments use Schedule 9 powers to enact legislation that infringes federal powers as well as the constitutional rights of Muslims. For example, thought control is pervasive.

The Attorney-General’s uncontrolled discretion under Article 145 to raise or refuse prosecution, transfer cases vertically or horizontally, and choose one law over another is a challenge to the ideal of equal justice.

Threats to human rights come not only from government agencies but also from private centres of power whether local, regional or international.

Tyranny in all its forms should be combated. But due to the public law/private law dichotomy, constitutional principles are excluded from employer-employee, contractual and private relationships.

Lately, hooligan politics, hate speech and threats of violence have become common.

Corruption is endemic and bleeds the economy. It diverts funds from worthwhile causes and human rights protection to private pockets.

Rights without remedies are like lights that do not shine and fires that do not glow. Expeditious, inexpensive and informal means of seeking redress should complement judicial remedies.

In sum, our rule of law, constitutionalism and human rights are fragile. Fortunately, there are currents and cross-currents.

All of us have a role to play to plant those seeds that may lead to the greening of the landscape of ideas.

Shad Faruqi is Emeritus Professor of Law at UiTM.