Constitutionalism: arising or erasing?

Liberty lies in the hearts of the people; when it dies there, no constitution, no law, no court, can save it.

— Learned Hand, American appellate judge.

The UK, Saudi Arabia, Canada, New Zealand and Israel function with “uncodified or unwritten constitutions.” The Westminster subtleties of government authority and citizens’ rights are technically unwritten in the UK in one single document but they are enmeshed in conventions, treaties, precedents (common law), supremacy of and Acts of Parliament, and fundamental principles.

C.R. Munro in “Studies in Constitutional Law,” (2nd edn, 1999), pp.69-71, disagreed with Sir Ivor Jennings, one of the five in the Reid Commission that birthed our Federal Constitution (FC), that “laws and conventions are the same because both rest essentially upon general acquiescence,” (Jennings, “The Law and the Constitution” (5th edn, 1959, at pp. 103-136)). Munro correctly pointed out that while laws are enforceable in a court of law, conventions are not.

Meanwhile, in Eastminster, China’s legal theorist Jiang Shigong argues that China is ably led by the ruling Communist Party thus not requiring rigid compliance with its written and unwritten constitution (Read: parchment promises mean nothing without proven leadership).

Westminster-style constitutions are premised upon English and European traditions, usage and practice that largely have little or no relevance in Asia. Even the constitutional conventions bear little resemblance to Asian adat.

So, what happens when a nation decides to set aside its written constitution but instead abide by its local written laws which could be socially tailored, legally amended and legitimately suited to local conditions based on adat?

What may be practical is an enforceable written “Instrument of Governance” (IOG) enumerating all the rights, privileges, powers, obligations, duties and functions of both the governed and the government spelling out the penalties and accompanying punishments for both in the event of breaches and violations using adat as the guide and guardian.

Malaysia’s FC and State Constitutions do not provide enforceable sanctions and punishments for its violations. The conundrum is obvious when other applicable (federal) laws are invoked to proffer charges while simultaneously offering defences for the wrongdoer often through some ambiguity in statutory verbiage.

A precedent-setting argument can be made that since the FC does not provide for sanctions and punishments being that it is the supreme law of the land (Article 4), other punitive laws do not apply if the FC is to be strictly construed, interpreted and applied, federal law notwithstanding.

E.C.S. Wade, ‘Introduction’ in A.V. Dicey’s “An Introduction to the Study of the Law of the Constitution (10th edn, 1985), pp. cli-clvii, observes that conventions, not only laws, were “intended to secure the ultimate supremacy of the electorate as the true political sovereign of the State.”

The “supremacy of the electorate” is the key ingredient in the unenumerated constitutional conventions. Constitutionally mandated elections every five years, or sooner upon the resignation of a prime minister and his Cabinet, became an awkward and inevitable inconvenience occasioning the appointments of two prime ministers that prevented a parliamentary vote of confidence for selecting a prime minister.

Most consecrated principles in the FC were plunged into ignominy, turbulence, uncertainty and inconsistency following the amendment to Article 121 in June 1988 subjecting judicial power to federal law thus bidding farewell to an independent judiciary.

Richard Malanjum CJ (Sabah & Sarawak), dissenting, in Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1, lamented the erosion of judicial power post-amendment Article 121 FC, as did some non-opinionated legal scholars. Practically, the judiciary is edentulous for now.

If the 1950’s fashioned FC is a genuinely enforceable social contract designed to endure changing social, economic and political conditions, Parliament must muffle the zealots who are inconvenienced by its strictures as they assiduously marshal support for constitutional amendment. Our system of government will be destroyed if two-thirds in Parliament intend to replace a constitutional gem with a politically virulent germ.

Article 8 of the Federal Constitution would never have been a bee in the bonnet if the Reid Commission had substituted “Equity” for “Equality.”

Today, if the will is available, that would be a genuine constitutional amendment for all the good reasons.

Raising, not erasing, constitutional mandates is the sworn voters’ duty to our nation’s geopolitical and socioeconomic advancement, betterment and well-being where nobody is left behind regardless of race, religion or political persuasion.

A new beginning post-GE15 would certainly discourage the nagging and sickening feeling that we exchanged one tyrannical system for another.

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