Articles of faith

A constitution should be construed with less rigidity and more generosity than other statutes.

—  Justice Nik Hashim, Federal Court, Malaysia

Malaysia’s Federal Constitution (FC), once sanctimoniously dubbed the “document of destiny,” was initially developed as a document of harmony inviting “a certain set of principles of constitutional interpretation which are not the same as used in interpreting an ordinary statute or law,” according to Justice Azmel, in Badan Peguam Malaysia v. Kerajaan Malaysia [2008] 2 MLJ 285.

These “certain set of principles” of constitutional interpretation must necessarily create accord not discord, and harmony not chaos and cacophony when thrown under the bus of misunderstanding, misinterpretation and misapplication.

Jeffrey Goldsworthy in his Interpreting Constitutions: A Comparative Study, 2006, notes that judges are being criticised for changing the meaning while purporting to interpret a constitution, thus straying beyond their legal expertise into the realms of politics.

Had Goldsworthy read Article 162(6) and Article 162(7) FC, he would have been assailed with shock and disbelief at the power granted to Malaysian judges in modifying, amending and even repealing a written law to “bring it into accord with the provisions of the Constitution.”

The plain reading of Article 162(6) and (7) FC requires no scholarly or convoluted assistance in semantics. “The past cannot be erased by a new judicial declaration,” said the US Supreme Court in Chicot County Drainage District v. Daxter State Bank, 308 US at 374 (1940), but what if the past was determined by wanton errors given to blatant discrimination?

Article 162(6) FC is a piece of machinery with laser-like focus to excise discriminatory practices. A proactive judiciary dedicated to upholding and defending the FC (read: Sixth Schedule) is more meaningful, crucial and necessary than Malaysia joining any international organisation to prove its human rights track record.

Article 153 moans as the most misunderstood, misinterpreted and misapplied provision. The “special position” for Malays and the Natives of Sabah and Sarawak are enumerated for the “reservation of quotas in respect of services, permits, etc.” The “et cetera” necessarily spurred, encouraged, and activated the NEP in 1970 after the 1969 race riots requiring constitutional law to be translated into enforceable government policies.

The Yang di-Pertuan Agong is commanded under Article 153 to protect the legitimate interests of other communities in his capacity as the Supreme Head of the Federation, Article 32(1) FC. Thus, the Agong has the constitutional power, maybe not political power, to make sure that there can be no blurring of the difference between the preferential and the discriminatory.

Article 153(5) and Article 136 FC say the same thing — that there shall be no impartial treatment of federal employees regardless of race in conformity with Article 8(1) that all persons are equal before the law and entitled to equal protection of the law. Precise and fair judicial decisions must give utterance and traction to this constitutional fiat at all costs.

Article 8(2) FC: Except as expressly authorised by this Constitution, there shall be no discrimination on the ground only of religion, race, descent, place of birth, gender, property, trade, business profession, vocation or employment. This begs the nagging question whether the FC can expressly authorise discrimination. Maybe the Reid Commission meant “preference” or “preferential.”

But comfort appears in Article 153(7) FC that protects all persons from the dissipation of their rights, privileges, permits or licences accrued including the right not to be deprived of licence or permit renewals, or to grants to their heirs, successors or assigns.

There is a school of thought that seems to claim that the NEP and other such government-sponsored programmes are cast in stone in Article 153(9) FC: Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays and natives of any of the States of Sabah and Sarawak. There are two antimonious interpretations for this awkwardly worded provision.

American Judge Learned Hand’s formula “B=PL” is a shining masterpiece in explaining relationships between the citizen and his government: liability turns on the relation between the investment of precaution (B), the product of probability (P), and the magnitude (L) of harm that results from any situation.

If PL exceeds B, then harm is real and measurable. If B equals or exceeds PL, there is no liability.

B=PL is the only lens to look at, into and out of Article 153 FC to develop genuine harmony with responsible government fearful of demonic democracy.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.

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