Daulat — An afterthought

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Clive Kessler, The Malay Mail

After referring to a recent commentary (‘Almost there!’: The end of democratic Constitutionalism in Malaysia?), the first part provided an introduction to a more extended analysis of these issues that I wrote in 2009.


This final instalment, or “Afterword”, offers some further reflections (February 2014) on four aspects or implications of my original argument developed in 2009 and presented in 2010.

i. The question of “Originalism”

My argument consists of a critique of those — the Perkasa-minded “new royalist” theorists and the shari’ah-minded Islamo-Malay ideologues — who seek to misappropriate the meaning and authority of the Merdeka Constitution of 1957 for their own purposes: for purposes, and by means of some idiosyncratic and  bizarre interpretations of its content and intent, that are simply mischievous, and perhaps even perverse.

My argument is a defence of what I take to be — and what most serious scholars recognise as — the “original” and “authentic” meaning of the Constitution.

Taking this position raises the question of so-called “originalism”.

Constitutional theorists in the USA, referring to their own nation’s founding charter, have coined the term “originalism” to characterise the position which holds that the role of judges, and all historically-minded expert scholars, is simply to discover and uphold the original meaning of the USA Constitution, as it was intended and understood at the time by those who framed it — to uphold their views and none other.

Of the many criticisms and rejoinders that have been offered to that position, one is relevant here.

If one were to uphold the USA Constitution as it was originally intended and understood, slavery would never have ended, women would never have been recognised as citizens entitled to vote and so on.

In other words, no political or social progress would ever have been possible. It would have been deemed, necessarily, as constitutionally impermissible.

Any change, no matter how necessary or reasonable it might be in its own terms, might ever be accepted and allowed to take hold if its import ran counter to the subjective intentions — and stood beyond the horizons of the very time-bound understandings — of the so-called Founding Fathers of the USA and its Constitution.

These criticisms have great force and merit.

But they can be misconstrued.

They have force. But theirs is a limited force, not a force of unbounded and infinite reach.

To refuse “originalism” and say that change is possible, even necessary, and hence not impermissible is not so say that any and all proposed changes are legitimate, acceptable and equally reasonable.

Change that enlarges the meaning of the constitution in accordance with its original spirit and intent may be accepted; innovations and modifications that run counter to them — to the constitution’s animating aspirations and its unfolding developmental trajectory — are not, and cannot be justified and made enforceable simply by uttering an anti-“originalist” catch-cry.

The critique of “originalism” is a critique of a narrow-minded literalism, of a doctrinaire “strict constructionism”, in legal interpretation.

This critique takes its stand on the ground that constitutions, like the societies whose lives they frame and shape, evolve. The constitution, no effective constitution, is a  dead document, frozen in time — a means whereby the dead hand of the past may fasten its grip upon the windpipe through which the “breath of life” animates the public purposes of a developing, progressive nation.

To mean anything, and serve any worthwhile purpose, a constitution must evolve. But the so-called “living constitution” must have its roots in the founding constitution. It must remain faithful to its ideals and principles and give continuing, evolving and appropriate expression to them as times and circumstances change.

So the Merdeka Constitution and its well-known aspirations cannot simply be set aside by those who now wish to institute a new ethnocratic ascendancy, whether on “blood and soil” or clericalist foundations. Or, rather, if people want to do that, they must set aside the Federal Constitution, and do so explicitly.

They cannot do so as they prefer and please in the name, and by invoking the majestic authority, of a Federal Constitution — the currently existing constitution — that was avowedly and explicitly promulgated as the “supreme law” of a modern, inclusive and progressive nation.

In short, one may uphold the spirit and affirm the intent of the Merdeka Constitution without putting oneself, and one’s argument, beyond the pale of reasonability as rigidly doctrinaire and “originalist”.

And one cannot, explicitly or otherwise, invoke the key ideas of “anti-originalist” theory in order to say that, at any time, the Federal Constitution, despite its well-known origins and history and nationally-formative meaning, may mean, or be made to say, anything that one cares to assert — no matter how antithetical that position may be to the history and long-accepted meaning of that foundational document.