Reclaiming our Federal Constitution — Tunku Zain Al-’Abidin

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Source: The Malay Mail Online

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OCTOBER 14 — Among our citizens, vastly different interpretations of our Constitution exist. Each formed from different worldviews, each proclaiming legitimacy. If this trend continues unabated, greater polarisation will occur.

That is why steps need to be taken to ensure the vast majority of Malaysians accept a common understanding of the supreme law of the land.

To reclaim it, we need to understand how it came into being. Those who possessed sovereignty and political power agreed our new nation required a constitution, and one was duly drafted and approved. But when was their understanding of this document contested to the extent it became necessary to say we need to reclaim it?

Early opponents of our Constitution were easy to identify since they rejected it outright; but later, the tools of reinterpretation and amendment were used to slowly change its character. This was a political process, often using racial or religious language, accompanied by the centralisation of power.

A significant amendment came in 1988 when the courts were divested of the judicial power of the Federation. This has further enabled specific articles being highlighted as a means to justify laws and policies that might previously have been deemed unconstitutional.

The Constitution may only be reclaimed through a political process using history as its basis: From the intentions of the Constitution’s authors and approvers, to the commentary of leaders who served afterwards. Both Tunku Abdul Rahman and Tun Hussein Onn opined the way the Constitution was being treated in later years was not as they understood it. Now, the phenomenon of reinterpretation by politicians continues largely unchallenged.

Just as creating the Constitution was seen as a national project, its reclamation must be similarly perceived. Various efforts have been mooted, including a Second National Consultative Council for “national calibration” by Datuk Seri Nazir Razak.

If such a body gathered the right people commanding confidence from all sections of the population; as well as securing the adoption of its resolutions by government, it could make a significant contribution in reclaiming the Constitution for all Malaysians.

The central question to this effort is: Despite undeniable changes in our society, can the Constitution still accommodate the vast majority of citizens? If the answer is no, then the only logical conclusion is that we need a new one. If the answer is yes, then we must ensure it is preserved, protected and defended.

In preserving the Constitution young Malaysians must understand the historical narrative of its development, and appreciate how it affects them as citizens today. Students should be taught, for example, why we have a Dewan Rakyat, what its powers are, and how they can elect candidates to it.

Of course, there should be no monopoly over the teaching of history or citizenship; the challenge for every democracy is achieving a sufficient agreement in the core values of a nation, while also enshrining freedom of expression.

In protecting the Constitution, national institutions must enjoy public confidence. Recent concerns, including parliament’s passing of the National Security Council Bill, the Election Commission’s delimitation exercise and the status of local agencies’ investigations into 1MDB — have raised doubts about the independence of national institutions.

The Constitution never envisaged these institutions would be compromised, and it is because of such perceptions many today appealing for royal intervention. However, as the royal institution was also affected by constitutional amendments, some of these proposals themselves trigger questions of constitutionality.

Since so much power resides in the Executive, it is vital the political leadership commits to protecting the Constitution with the support of their parties. Political parties on all sides need to be incentivised to subscribe to a common interpretation of the Constitution, and there is none stronger than the voting public itself.

The defence of the Constitution must come from citizens using the democratic space available. If previous assaults on the Constitution were enabled by a preoccupation with economic growth, recent times have seen enormous displays of citizen action, inevitably also triggering reactions.

It is in this space the Federal Constitution must be demonstrated to have the answers to national polarisation.

Our first Yang diPertuan Agong said: “The Constitution is a democratic achievement of the highest order; a charter of our common belief that certain fundamental liberties are essential to the dignity and self-respect of man; a comprehensive declaration of duties and responsibilities, authority and prerogatives; the guardian of the rule of law. It belongs to all of us.”

Perhaps this royal injunction can be disseminated to all who would reclaim, preserve, protect and defend our Federal Constitution.

* This is an abridged excerpt of the Inaugural Lecture of the Constitutional Law Lecture Series delivered by Tunku Zain Al-’Abidin at Universiti Malaya.