| Sunday, December 04, 2005
| - Malaysian Constitution -
|The success of our constitution in bringing about peace and stability despite the existence of three major races among its population is remarkable. This is due to a sensible and practical government that has been able to bring about increased prosperity and the genius of the people to tolerate the co-existence of different religions and languages, customs and cultures.
Constitutional law deals with the foundations and bedrock of a particular country. The term 'constitution', in any country, basically refers to a set of rules which determines, among others, the manner the institution are to be set up, the powers to be distributed and the justice to be administered.
"The attempt to embody the fundamental institutions of a State in a single document or small groups of documents," says Lowell, "is rarely, if ever, successful; and even if the constitution when framed covers all the main principles on which the government is based, if often happens that they become modified in practice, fully with the actual government of the country."
A constitution is "[a] charter of government deriving its whole authority from the governed" (Black's Law Dictionary). The constitution sets out the form of the government. It specifies the purpose of the government, the power of each department of the government, the state-society relationship, the relationship between various governmental institutions, and the limits of the government. The classic liberalism posits that the state and society can be viewed as a big social contract. If so, in a liberal democratic country, the constitution is the fundamental part of the social contract; it is a fundamental contract between the state and the civil society.
Bryce defines it as "the aggregate of laws and customs under which the life of the State goes on"; "or the complex totality of laws embodying the principles and rules whereby the community is organized, governed, and held together."
Gilchrist writes that the constitution consists of "that body of rules or laws written or unwritten, which determine the organization of government, the distribution of powers to the various organs of government, and the general principles on which these powers are to be exercised."
'Constitutionalism' – democratic government, the rule of the law, the separation of powers, and the observance of fundamental human rights and liberties. These concepts were enshrined in the Constitution of the Federation of Malaya in 1957, and still can be seen in the present Federal Constitution of Malaysia which has evolved over 46 years from that important document.
Constitutionalism is comprised of ideas and theories that essentially put limitations on Political power in general.Government's sway over citizen's in particular.Montesquieu said that "there is no word that admits of more various significations, and has made more different impressions on the human mind than that of liberty."
Constitutionalism established substantive aspects of political liberalism such asSystems of rights designed to protect individuals against the state.The philosophy of limited government.The universal application of rules and so on.
Two key elements of constitutionalismRights provision – safeguards for political rights, for example, freedom of speech.Structural provision – separation of power, representative system.
Rousseau said, "What a man loses by the social contract is his natural liberty and an unlimited right to anything that tempts him, which he can obtain."
Rights provision is to ensure limitation on dangers of democracy by expelling certain issues from the political agenda together. Meanwhile, structural provision is to limit potential threats to democracy through political process.
M.P. Jain explained the distinction between constitution and constitutionalism. He put forward the view that a country may have a constitution but not necessarily constitutionalism. This is because, constitutionalism denotes a constitution not only of powers but of restraint as well, or simple in term, not only the engine but some brakes as well.
Constitutionalism concepts: Doctrine of separation of power.Rule of law.Limited government.Check and balancesMore recent concepts:Good governance.Transparency.Accountability.Call for democracy and respect for human rights.
Dicey defined Rule of Law:Supremacy of regular laws over arbitrary power.Former legal equality before the law.The constitution that is defined and enforced by regular courts.
The emphasis of the contemporary writes is on constitutionalism rather than on constitution. This is made clear by Carter and Herz themselves. They say, "Genuine constitutionalism is likewise absent when constitutions are forever made and remade, changed and abolished so as to fit the political needs of the respective holders…"
Like liberty or democracy, "constitutionalism" is also a fuzzy word, and different people have different ideas about what constitutionalism means. Giovanni Sartori defines liberal constitutionalism as constituting the following elements: 1. There is a higher law, either written or unwritten, called constitution; 2. There is judicial review; 3. There is an independent judiciary comprised of independent judges dedicated to legal reasoning; 4. Possibly, there is due process of law; and, most basically, 5. There is a binding procedure establishing the method of law-making which remains an effective brake on the bare-will conception of law (Sartori, 1987, p. 309). Sartori's definition emphasizes the "rule of law" side of liberal constitutionalism.
Louis Henkin defines constitutionalism as constituting the following elements: 1. Government according to the constitution; 2. Separation of power; 3. Sovereignty of the people and democratic government; 4. Constitutional review; 5. Independent judiciary; 6. Limited government subject to a bill of individual rights; 7. Controlling the police; 8. Civilian control of the military; and 9. No state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution.
Traditionally the theory of constitutionalism and the related jurisprudence of human rights emphasized the protection of the individual against arbitrary powers of the states. But is now being increasingly recognized that private and commercial centers of power and many traditional structures of society pose as much a threat to human dignity and personal liberty as abuse of power by the functionaries of the State. A new jurisprudence is emerging in which the indispensability of safeguards against all forms of tyranny- whether by public authorities or private wielders of despotic power is being felt.
Turning to law making, of the 900 odd Acts of Parliament passed since Merdeka, there are at least 14 statutes (all presented by the Executive) which cause severe inroads, and, for practical purposes, abrogate constitutionally protected fundamental rights. 1. Public Order (Preservation) Act, 1958. 2. Prevention of Crime Act, 1959 3. Trade Union Act, 1959. 4. Immigration Act, 1959 5. Internal Security Act, 1960. 6. Societies Act, 1966. 7. Police Act, 1967. 8. Emergency (Public Order and Prevention of Crime) Ordinance, 1969 9. Universities and University Colleges Act, 1971. 10. Official Secrets Act, 1972 11. Sedition Act, 1972. 12. Essential (Security Cases) Regulations, 1975. 13. Printing Presses and Publicity Act, 1984. 14. Dangerous Drugs (Special Preventive Measures) Act, 1975
A government that respects constitutionalism will govern the country according to the power provided in the constitution. Our country does practice doctrine of separation power. The executive, Federal Legislature and the judiciary. A matter regarding elections clearly stated in Part VIII in the Federal Constitution. Human rights or fundamental liberties is well defined under Part II. But, in the same document itself put some limitation or could be harshly said to violate our human rights.
The major human rights cases in the 1960's were Stephen Kalong Ningkan, Assa Singh and Karam Singh. In each case executive action based on laws which were clearly inconsistent with the letter and spirit of the fundamental liberties enshrined in Part P of the Federal Constitution was upheld. The Karam Singh case, in particular, was a dangerous precedent; it approved the entirely subjective discretion of a detaining authority which meant that such discretion could not be reviewed by Court, thereby eroding the liberty of an individual (protected by Article 5).
The most pernicious legislation is the Internal Security Act (ISA) which gives sweeping powers to the Executive, (the police and the Minister of Home Affairs) to arrest and detain any person for a period of 60 days; thereafter the Minister can order that person to remain in detention for a further two years, which detention can be renewed indefinitely every two years. Preventive detention is terribly insidious because a person's liberty is deprived without trial. Other extraordinary powers extend to prohibiting meetings and banning publications, books and periodicals. When presenting the Bill in Parliament on 21 June 1960, the then Deputy Prime Minister and Home Minister, Tun Razak stated that as there were still 583 armed terrorists in Northern Malaya there was still a need for the people "to be protected from communists subversion." He also gave the assurance that the ISA would be used with the utmost care so as to avoid the abuse. Despite that assurance, more than 20,000 people had been detained during the period 1960 to 1990 under the ISA for diverse reasons which have nothing to do with communist subversion. With the signing of a formal peace treaty with exiled remnants of the Communist Party of Malaysia in Thailand in 1989, reliance no longer seems to be placed by the Executive on communism as a ground for detention. As with other restrictive laws in Malaysia, the ISA, already a powerful weapon in the armoury of the Executive, through a series of amendments, has incrementally extended executive powers, while stripping away the scant judicial safeguards designed to protect against their abuse. Now, the reality is that once a person is detained under the ISA, he or she has no effective recourse to legal protection nor any opportunity to establish his or her innocence of the accusations made against them. As such, the ISA is contrary to the Part II fundamental liberties and core principles of international law, including the right to liberty of the person, to freedom from arbitrary arrest, to be informed of the reason for arrest, to the presumption of innocence and to a fair and open trial in a court of law. In fact, it would be impossible to find any scholar of worth or independence prepared to argue the contrary.
A government that respects constitution will also govern the country according to the power provided in the constitution. For example in the Proclamation of emergency. In order to ensure security against subversion, organized violence, and crimes prejudicial to the public and emergency powers. The first Emergency, which ended after the 12-year communist insurgency on 31 July 1960, was followed by the Second Emergency, which was declared on 3 September 1964 for the whole of Malaya by reason of Indonesian Confrontation. The Third Emergency, limited to the State of Sarawak, was declared on 14 September 1960 by reason of the events surrounding the dismissal from office of the Chief Minister, Stephen Kalong Ningkan. The 13 May 1969 riots led to the declaration of the Fourth Emergency for the whole nation on 15 May 1969. Finally, on 8 November 1977, the Fifth Emergency, limited to the State of Kelantan, was declared to deal with a political crisis there. The Second to Fifth Emergencies have yet to be revoked.
The issue is whether the proclamation itself is justiciable. Prior to 1979, it was not quite clear whether it was. The Privy Council in Ningkan's case. in 1968, had found it necessary to decide whether such power existed, although the Federal Court in the same case had said a proclamation was not justiciable. Later judicial pronouncement in Malaysian courts appeared, nonetheless, to indicate that it might be held to be justiciable.
The Constitution itself subjects government to certain principles which cannot be ignored. It not only disperses power among the federal and state governments, and between the legislative executive and judicial branches: it also provides fundamental liberties as criteria for the treatment of individual citizens. It lays down norms for the public service: the Public Service Commission ensures that the recruitment, conditions and discipline of public servants is independent of the government of the day, and applies the standard of recruitment and promotion according to merit. The Constitution also enshrines the basic conventions of the Westminster-model system of government, such as ministerial responsibility, both collective and individual. The structure of Malaysian government is also broadly similar or analogous to that obtaining in Westminster.
When a constitution is in flux there may not be constitutionalism, but the constitution is there. India amended her constitution nineteen times in six years and the forty-second amendment alone covered 59 clauses of the existing Constitution and the forty-fourth amendment also did not lag behind. Article 31 has been amended and re amended five times in this process. Now there is a rapid succession of amendments; a total of 74 and many more are awaiting completion of the process.
Admittedly, whether the frequency amendment is necessarily a bad thing is difficult to say. Or whether the constitutional amendments thus far have changed the original nature of the Malaysian Constitution. But whatever one has to say one has to begin by looking at the number of amendments that have been made since 1957. On the record we have had some 44 amendments. This may create the impression that the Federal Constitution has been amended so often so much so that the existing constitution is different from the one accepted on 31st August 1957. more so when one compares that with the American constitution, which began operation 1787, but has only been amended 27 times in the period of more than 200 years.
The growth of political parties, with rigid organizational discipline, the need for rational action in the interest of the public, and the urgency of dispatch in military and foreign affairs, in brief, have resulted in the shift of leadership in all modern democracies. Executive leadership has, in fact, at all times been essential to the success of government. But "constitutionalism and constitutional democracy," observes Carl Friedrich, "have been confronted with a most delicate task: how to discover institutional patterns which would provide vigorous and effective action, without allowing those who are called upon to take such action to turn into irresponsible despots."
Another important general feature of the constitution is the relationship between Islam and the constitution. Freedom of religion is both of importance in it self in a multi-religious society such as Malaysia, and that this principle is in no way contrary to the principle that Islam is the religion of federation. Therefore, it is expected that freedom of religion is specifically safeguard in the constitution. Article 11(1) says that every person has the right to process and practice his religion and subject to clause 4, to propagate it. Article 11 (4) allow States to legislate for the control or restriction of the propagation of any religious doctrine among person professing Islam. Article 11 (5) creates further restriction on freedom of religion by providing that Article 11 does not authorize any act contrary to any general law relating to public order, health or morality.
Freedom of religion is however bolstered by other provision. Article 11 (2) says, no person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposed of a religion other than his own. The issues of religion matters were explored in the important case of Halimatussaadiah v Public Services Commission, Malaysia and Anor, where the plaintiff worked with the government since 1973. In 1985, the government issued a serviced circular on the subject of dress code for government officers. The circular mentioned that a female officer could not wear anything that covers her face. At that time plaintiff wore purdah to work. She was later dismissed for not complying with the circular.
Plaintiff seeking "inter alia" a declaration that circular which in effect prohibits the wearing of purdah is null and void in contravention of Article 11. Court held that this article protects absolutely the religious beliefs of the people but in exercising religious practices, Article 11 (5) also clearly forbid any act which may lead to public disorder, affect public health or morality. Her practice of wearing purdah to work is not a practice of her religion of Islam but only a customary dress worn by Arab Ladies. What plaintiff claimed to be practice of the religion of Islam is a threat to public order in the circumstances she was in where her work required her to handle files relating to government secrets. The identity of the public officer handling these files should and must determine to avoid dangerous and disastrous results. Contras in the case of Meor Atiqulrahman Bin Ishak & Ors v Fatimah Bte. Sihi & Ors, where plaintiff claimed to have dismissed from school for wearing turbans in school besides wearing school uniform. Plaintiff also seeks for court to declare that their expulsion from school was void and null and no effect. Meanwhile, defendant claimed that contended that plaintiff in wearing turbans had breach Article 3 (5) (v) of the School Rules 1997, prepared by the school headmasters according to the Ikhtisas Circular Letter no.9 (1975) Ministry of Education. The main issues are whether the headmaster had the jurisdiction to prevent all pupils from wearing turbans and whether the rule preventing pupil wearing turbans are null and void according to the constitution. The school rule is declared void and null by virtue of Article 11 (1) of Federal Constitution unless it relates to the general law of public order, public health and morality under Article 11 (5) which overrides Article 3 and 11. Moreover, wearing a turban is valid according to hukum syarak, and not void under civil law for Muslim and non-Muslims. Therefore, the wearing of turban is valid according to the constitution.
In conclusion, after through a lot of discussion above, a clear distinctive line could not be distinguished among the government that respects constitution nor constitutionalism. In some cases, government act may differ from the principle hold by the constitution or perhaps require in constitutionalism. In other popular words, the issue discuss here in all respects difficult to be put in black or white.
|posted by Q-KHALIFA @ 5:03 AM