Malaysia or Malaysaja Pt 3 :True meaning of a constitution
Nurul Izzah Anwar, Malaysia Chronicle
The Prime Minister recently stated that we will be a failed state if we do not transform the nation, only confirms that we need a Political Contract. I had suggested the need to add a fifth pillar to the existing four pillars of the National Transformation Agenda, which is Political Reform.
October 10- As I spoke in Penampang, Sabah last night, I am reminded that we have just celebrated Malaysia Day.
I am also reminded that the original intent of the constitution is to serve as the protector for all Malaysians, not just for the selected few.
Decisions and events made in the past are being felt today, and what we decide today as the people will indeed shape our tomorrow.
With that in mind, I am happy to note that the effort to create a culture of constructive engagement with all concerned Malaysians for a better Malaysia, has received wide response of all types; whether in support or in opposition to the arguments set forth in the past two previous articles.
I see this as a healthy beginning, as all opinions must be accepted and considered constructively in the spirit of a true democracy.
Both my previous articles touched on framing a much-needed understanding of our constitution.
I highly recommend that all these articles are read together with the Malaysian Constitution.
Therefore, this third article focuses on searching for the true meaning of a constitution, as the constitution is the primary reference document of a legitimate and sovereign nation.
It is crucial for any citizen of any nation to understand their legitimate rights, especially in light of the need to clarify and reconcile a constitution, when facing with the challenges and contradictions in the context of nation building, where democracy and an open society is a prerequisite, to continue developing in a globalised and competitive world.
Unless the citizens of a democratic nation truly understand the meaning of a constitution, the constitution can never be the foundation of a nation, which will only allow tyranny and injustice by the ruling elites to reign supreme.
The prime minister recently stated that we will be a failed state if we do not transform the nation, only confirms that we need a Political Contract. I had suggested the need to add a fifth pillar to the existing four pillars of the National Transformation Agenda, which is Political Reform.
I have also alluded that Political Power without a Political Contract based on the spirit and letter of the original constitution is akin to playing football without rules. The “game” would be unfair and unjust as it would only serve the interest of those in power and not the people.
The questions posed in this article are applicable universally to any democratic nation in the world, while certain examples are specific to our country for illustrative and educational purposes only.
The Purpose of a Constitution
A constitution is essentially the written supreme law of a nation that can be viewed as a form of a contract between a representative government and the governed (citizens).
The supreme law means it is the primary governing law that sets the legal golden standard (benchmark) of which any introduced law is determined to be either in conformance (consistent) or otherwise.
For example, the Malaysian Constitution states in Article 4(1) “that the constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the maximum extent of inconsistency, be void.”
However, for 50 out of our 53 years as an independent nation, this fundamental principle of Article 4(1) has been superseded with Part XI — Special Powers, Articles 149 and 150 (amended in 1960) that allows for laws that are inconsistent or contradictory to the constitution be made.
Since independence, we have had five emergency proclamations, including the 1964 Indonesia-Malaysia Confrontation and the racial riots of 1969, of which most of it has yet to be repealed.
The laws passed and still in force stemming from these Article includes, the Internal Security Act (1960), the Sedition Act (1948), the Printing Presses & Publications Act (1984), the Universities and University Colleges Act (1971), the Societies Act (1966), the Police Act (1984) and the Official Secrets Act (1972).
Therefore, how can citizens of any democratic nation reconcile the existence of draconian anti-democratic laws and the continued enforcement of emergency ordinances that subjugates a constitution with inconsistencies and contradictions from its mutually agreed original form?
A nation is a sovereign entity guided by a constitution that is a form of a contract between a legitimate representative government and the governed (citizens).
A contract is an instrument to bind an agreement between parties. In regards to a constitution, it then can be deconstructed into the key elements of a contract which are:
• The Offer – to be a lawful citizen of a country.
• The Terms – articles or laws establishing the rules, rights and responsibilities which are used in defining the relationship between the government and the governed (citizens).
• The Acceptance – to agree and accept the offer and terms unconditionally.
• The Consideration – citizenship rights in exchange for affiliation and delegation of specified powers to the government.
• The Capacity of Contracting Parties – competence and free will to enter into a contract.
• The Intent of the Parties to Contract – mutual assent or a “meeting of the minds” of the parties on all proposed terms and essential elements of the contract.
• The Object of the Contract – must be legal, binding and enforceable to all citizens.
Therefore, how can any citizen of any democratic nation reconcile between other forms of “contracts,” established by the few, which may be in breach of an existing “constitutional contract”?
The constitution is in essence the granting (delegation) of legitimate political powers from the citizens through the following levels of governing structures, from the people to a local government to a state government to a central or federal government, based on mutually agreed terms and by a “legitimising” selection process of free and fair elections.
The governing pillars of a nation can be in the form of a Constitutional Monarchy with a democratically elected parliament to form a legitimate government.
Free and fair elections are the foundation of a democratic nation that votes a legitimate three-tiered form of representative government (local, state and federal governments) with a specified tenure.
Therefore, how can citizens of any democratic nation accept the withdrawal of free and fair elections to appoint either a “legitimate” local, state and federal government?
How can citizens of any democratic nation call for restoring elections that were originally in a constitution but for specific reasons were later withdrawn?
How can citizens of any democratic nation ensure that all elections are indeed free and fair without any forms of discriminatory practices and undue advantage for only selected incumbent political parties?
How can any citizens of any democratic nation call for the sanctity of a balanced and equitable relationship between states in a federal system that could have avoided the current Kelantan oil royalty claim issue or the implementation of the 20-point agreement for Sabah and 18-point agreement for Sarawak?
The legitimate political powers are defined by the “limits of power” and “separation of powers” principles.
The constitution under the “limits of powers” principle recognizes the protection of certain fundamental rights and liberties of the individual citizens such as equality, freedom of speech, freedom to assemble, freedom of association, freedom of religion, and right to property among others.
Therefore, how can citizens of any democratic nation accept in any form the denial of their fundamental rights and liberties without recourse or judicial review as defined by the “limits of power” principle?
And the constitution, under the “separation of powers”, principle organises government into three branches: the executive, the legislature and the judiciary.
The amendment to the constitution and forming of laws is done by tabling, debating and passing a majority vote by members of the legislature.
The interpretation of the constitution and laws is delegated to the judiciary.
The administration of the constitution and laws is delegated to the executive.
Therefore, how can citizens of any democratic nation accept the centralisation and interference by one branch over another in contradiction of the “separation of powers” principle?
And, apart from having the judiciary interpret the constitution, a parliament to amend the constitution and an executive to administer the constitution, why not add a fourth “element” to decide on the constitution which is a people’s referendum mechanism to exist?
