My Say: Thoughts on the Constitution’s future 66 years after Independence

This article first appeared in Forum, The Edge Malaysia Weekly on August 28, 2023 – September 3, 2023

As a nation, we celebrate 66 years of Independence this month, and in September, joined by Sarawak and Sabah, we will mark 60 years of the formation of Malaysia.

The Constitution has often been defaced but it has nevertheless engendered a polity that has promoted the flourishing of Malaysia and bestowed prosperity on its people.

A constitution is a fragile document; it can be given meaning only if political actors and the citizenry give their support in adhering to its norms.

The fact of power being constrained by the words of a legal text is in many ways a modern development. Sovereigns in the past wielded absolute power over life, liberty and property.

The emergence of modern constitutions is the result of revolutions (for example, the French and American revolutions). Post-war Malaya and the withdrawal of British colonial rule in the face of a nascent nationalist movement laid the historical context for the formation of the Federation of Malaya. A written constitution was framed reflecting how the powers and functions are to be divided and exercised. It is important to recognise that one of the major purposes of a constitution is the regulation of the exercise of public power. A constitution provides the moral legitimacy to public governance and constitutional law finds its source in the idea of sovereignty being vested in the people.

In transitions of power — for example, through elections — the adherence to the norms of constitutionalism enables the peaceful passage of power instead of plunging the nation into civil conflict. Malaysia has been blessed that we have peaceful transitions of power through both general and state elections.

The three major organs — that is, the executive, legislature and judiciary — work together harmoniously to enable the working of the rule of law.

The judiciary is tasked with the onerous and sacrosanct duty of declaring whether any acts of the executive and legislature have transgressed the legal boundaries and have resulted in the extra-constitutional exercise of power. The judiciary is not arrogating such a power but is in law and fact vested with this duty. Critics who argue that the executive of the day elected by the people ought not to be questioned by an unelected judiciary misconceive the roles of these major constitutional organs.

We would say that the supremacy of the Constitution, which is stated unequivocally under Article 4 of the Federal Constitution, asserts its primacy over legal and executive acts.

This does not mean the judiciary is elevating itself above popular sovereignty. However, the judiciary is the guardian of the Constitution’s norms. Such norms are not merely a philosophical construct. They are a product of political decisions that led to the constituting of and formation of the Federation. The constituting event cannot be abrogated by mere legislation or even amendments that impair the basic features of the Federal Constitution.

This is not to ignore that there are many forces that threaten the fabric of our Constitution. There have been voices that suggest that advocacy of the multicultural and multiracial nature of the Federal Constitution is misguided. It is pointed out, and this is not denied, that the Federal Constitution contains many major elements — for example, relating to the majority race (the Malays), the position of Islam and His Royal Highnesses — that differentiate it from the so–called Westminster model. These substantive elements will and must be given their proper domain.

However, the civic nationalism that drove the formation of the Federation and is mirrored in the language of the Federal Constitution reflects a pluralistic democracy. The foundation of Malaysia as a nation state is not wholly on an ethnic or religious base.

The fabric of our beloved nation is woven with some dominant colours but the variegated patterns that have preserved the happiness and prosperity of the people of Malaysia must be preserved.

Both public (for example, treaties and international conventions) and private international laws (for example, arbitral tribunals on transnational contracts) have abridged in many ways the sovereign powers of Malaysia and in some instances have impacted the operation of constitutional norms domestically.

So too the diversity of claims of states in their relationship with the central federal authority. Strident voices advocate either a vibrant or restrictive construction of fundamental liberties in 21st century Malaysia.

The Federal Constitution has stood the test of time as a whole for all these decades, subject to the fact that political actors abide by its tenets.

If the Malaysian Constitution is to have a future, we ultimately need both Rulers and the ruled (the citizenry) to hold the Constitution up as a beacon for the ship of state.

Towards that end, the recent decision of the cabinet upon the recommendation of the Ministry of National Unity that the Rukun Negara be upheld is very welcomed. Within its tenets are found the very values that birthed our nation.

As John Rawls, the pre-eminent 20th century political thinker, poignantly argued, if public reason and a reasonable conception of justice for a well-ordered society and whose members subordinate their power to reasonable aims are not possible, and human beings are largely amoral, if not incurably cynical and self-centred, one might ask with Immanuel Kant, that, “if justice perishes, then it is no longer worthwhile for human beings to live on earth”.

We ask this too of our fellow Malaysians for all of us, that let it be worthwhile for us to live and work together to forge a just and equitable society.