By Professor Shad Saleem Faruqui
As we bask in the glorious memories of Merdeka, it is necessary to reflect on 50 years of constitutionalism. Is it a legal myth or a legal reality?
AT THE stroke of midnight on Aug 31, 1957, cries of "Merdeka" filled the air seven times and Malaya began its tryst with destiny.
A written Constitution was adopted as the "supreme law of the Federation" and as the chart and compass and sail and anchor of our nation's legal endeavours.
The Constitution was inspired by the ideals of the rule of law, separation of powers, fundamental rights, limited Parliament, controlled executive, independent judiciary and a federal-state division of powers.
Judges were entrusted with the power and duty to preserve, protect and defend the basic charter against all those who would lay rash hands upon the arc of the Constitution.
As we bask in the glorious memories of Merdeka, it is necessary to reflect on 50 years of constitutionalism. How has constitutional supremacy worked? Is it a legal myth or a legal reality?
No one can deny that theory and reality have not marched hand and hand. The supremacy of the Constitution is subject to a number of exceptions provided for in the Constitution itself.
Ouster clauses: The bold proclamation of constitutional supremacy in Article 4(1) is immediately qualified by Article 4(2), Article 150(8) and many other provisions which bar judicial review of some types of legislation or decisions.
Articles 149 and 150: Article 149 authorises Parliament by a simple majority procedure to enact laws to combat subversion, and these laws shall be valid even if they transgress the guarantees of personal liberty (Article 5), freedom of movement (Article 9), freedom of speech, assembly and association (Article 10) and right to property (Article 13).
Article 150 goes even further. Once a proclamation of emergency has been made by the Yang di-Pertuan Agong, Parliament is authorised to suspend any provision of the Constitution except six topics in Article 150(6A).
By ordinary legislative process, fundamental rights and the federal-state division of power can be violated. A parallel legal system which has legal superiority over ordinary laws can be put in place.
What is troubling is that the country has been under a continuous state of emergency since 1964. The proclamations issued in 1964 and 1969 have not yet been revoked. Such a state of affairs is not conducive to the flowering of the rule of law, constitutionalism and human rights.
Residual nature of human rights: The Constitution has been so framed that Parliament can restrict fundamental rights by ordinary legislation, by special laws passed under Articles 149 and 150 and by constitutional amendments.
By far and large the chapter on human rights imposes restraints on the executive but puts no significant hurdles in the path of Parliament.
Easy amendments: The frequency and the relative ease with which constitutional amendments have hitherto been accomplished, weakens the belief in constitutional supremacy. A supreme Constitution should have a measure of entrenchment.
Absolute powers: A large number of governmental powers are not subject to any real control. The declaration and continuation of an emergency, the decisions of the Federal Government in matters of deprivation of citizenship, and the powers of the Attorney-General under Article 145 are outside the regime of accountability and answerability to anyone.
Under a large number of laws Ministers have absolute, unreviewable discretion. Judges have a mixed record of review of such legislation.
Ineffectiveness of judicial review: Judicial review is the litmus test of constitutional supremacy.
Despite the lofty ideals of Articles 4(1), 162(6) and 128, judicial review of legislative and executive acts on constitutional grounds is not a significant feature of the Malaysian Constitution. This is due to a number of factors.
First, the regime of security and emergency laws permits very little scope for judicial review.
Second, courts interpret subjective powers literally and show a general reluctance to read into these laws implied limits or to subject them to the explicit and implicit standards of the basic charter.
Third, judges steeped in the British tradition of parliamentary supremacy are reluctant to invalidate Acts of Parliament or even secondary legislation on the ground of unconstitutionality.
Fourth, with some honourable exceptions, the tendency of most Malaysian judges is to reduce constitutional issues to administrative law questions.
Thus in the Aliran case for a printing permit, the then Supreme Court brushed aside momentous constitutional questions and decided the case in favour of the Government by reference to administrative law principles of illegality, irrationality and procedural impropriety borrowed from the famous GCHQ case of Britain.
Islamic law: When the Reid Commission's proposal to leave out any provision for an official religion was reviewed by the Working Party and Article 3(1) was inserted into the Constitution to make Islam the religion of the Federation, it was also provided in Article 3(4) that "nothing in this Article derogates from any other provision of this Constitution".
The implication of Article 3(4) is that despite Islam's special and exalted status, the syariah is not the basic law of the land.
It was not the intention of the drafters of the Constitution to allow Article 3(1) to trump constitutional supremacy in Article 4(1) or to take away fundamental rights in Articles 5 to 13 or to alter the constitutional scheme of federal-state division of powers.
In the last decade, however, a critical mass of Muslim lawyers, judges and politicians has adopted the view that Islam is the core, central, overriding feature of the Constitution.
"Islam" in Article 3(1) is not merely ceremonial. It refers to a way of life, a system of values, and a set of highly developed laws to cover all aspects of personal, civil and commercial life.
The consequence has been that State Assemblies have been enacting laws and authorising administrative actions that violate the human rights guarantees of Articles 5-13, imposing penalties far beyond their powers, and trespassing on federal jurisdiction.
Because all this is done in the name of religion, politicians look the other way. Most judges are reluctant to test these laws or actions on the yardstick of the Constitution.
Painful dilemmas are arising in cases where one of the litigants is Muslim and the other non-Muslim.
Clearly, in this area, the Constitution stands at a crossroad. Political decisions are needed to restore the original scheme of things or, alternatively, to open negotiations with all stakeholders to bring critical changes to the Constitution.
A silent or surreptitious re-writing of the Constitution is not desirable.
Constitutional change and growth is normal. Pakistan with its 97% Muslim population adopted the supremacy of the syariah in the early 80s.
If it is the aspiration of a majority of the Muslims that the supreme Constitution should apply only to non-Muslims and the syariah should be the supreme law for adherents of Islam that would be legitimate.
But we need fuller discussion of this matter, its mechanics, its extent and scope and its safeguards for non-Muslim interests in those cases where jurisdictions will invariably clash.
There is no reason to believe that the Merdeka spirit of moderation, negotiation and reconciliation cannot be revived again.
Dr Shad is Professor of Law at UiTM.