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Tuesday, August 19, 2008

Re-establishing Malaysia

Re-establishing Malaysia

I think back with amusement to how much I disliked constitutional law as a subject when I was studying law. No matter what, I just could not sink my teeth into it. The doctrine of separation of powers, matters of governance, the multi-faceted role of legislature and so on were not exactly riveting material. And as tempting as it is to blame this seeming aberration on the way I was taught, this would not be the entire truth; there were simply more exciting things in life.

Little did I know that not only would constitutional law feature tremendously in my legal practice as an advocate and a human rights activist, it would also infuse my life in so many other ways as I attempted to understand and give words to my feelings about all that was happening around me. In an increasingly ambiguous environment, I found myself turning more and more to the constitution for certainty.

I did this for one reason. As a society evolves, it challenges itself. Memories being short, even fundamentals are not spared as the scrutiny of those in search of opportunities - social, political or intellectual - is brought to bear on even the most sacred of truths. And though democracy thrives on the clashing of ideas and opinion this entails, democracy also requires there to be basic, unassailable certainties for constructive debate. The ideas that form the picture that is Malaysia, in all their swirling intensity, must fit into a frame. That frame is the Federal Constitution.

As the supreme, or basic, law of the nation, it is intended to give structure to our lives by setting in place a framework for how it is we are to conduct ourselves as a society. By precluding arbitrariness in governance and protecting fundamental liberties, it is intended to provide for sanity in the mad world of politics and government, and the unavoidable excesses of the same.

In the last decade or so, the constitution has however taken a beating. Sadly, much of this has been at the hand of the Federal Court, an institution that was intended to protect it. The net effect of a string of decisions in this period has been the blurring of constitutional positions on key aspects of the system of governance to the extent that we have rapidly lost definition as a nation and the basic structure that is so vital for our continued sustainability has been put under threat.

Though the Islamic “conflicts of jurisdiction” cases have been the most public, this is not the only aspect that has been thrown into confusion by other equally controversial, ambiguous and precariously founded decisions of the court. For instance, it recently declared that the doctrine of separation of powers no longer had a place in Malaysia, an astounding conclusion that runs counter to our system of democracy and does away with the checks and balances so vital to fair and just governance. This is of grave consequence particularly when we consider how the same court not too long ago affirmed Parliament’s right to immunize Executive action from judicial scrutiny by ousting the court’s power to review. In doing so, the court allowed Parliament to place the Executive above the law.

There are other instances where the court approached its subject matter too myopically and with insufficient consideration of the policies that its decisions would invariably create or reinforce. The judicial attitude that has led to the articulation of parliamentary, and not constitutional, supremacy and all that entails has resulted in an unhealthy political environment that lends itself to oppressiveness, divisiveness and intolerance, the full effect of which we are yet to appreciate.

The Federal Court cannot wash its hands of these difficulties by saying that is bound by the law and as such merely applies it. Like apex courts of other nations, the Federal Court is the principal guardian of the constitution and has the power to strike down laws and actions that run counter to it, even those that are aimed at undermining the power of the Judiciary. The court defines our way of life through its interpretation and application of the constitution. That many of the difficulties currently being experienced in this society - from the jurisdiction of the syariah courts to the arbitrariness of governance - can be traced back to decisions of the court only goes to show the extent of the court’s immense responsibility to society.

For this reason, the Federal Court must confront the fact that its decisions do not operate in vacuum or isolation and impact on nation building. More than ever, the court holds the fate of the nation in its hands. It is not too late for the court to act decisively and with a clear vision of our long-term needs to reestablish the framework required for this nation to remain united and capable of growing sustainably for all Malaysians.

(Malay Mail; 19th August 2008)



Anonymous said...

Could there be some confusion between Malaysia's Westminster-style parliamentary government and the lack of a written constitution in the United Kingdom?

i.e. because the ex-colonial power, whose governing structures Malaysia superficially resembles, operates parliamentary supremacy, under which the House of Commons pretty much sets the rules for itself, and there is no separation of powers, successive Malaysian governments find it convenient to (unconstitutionally) adopt Westminsterian precedences to circumvent the written constitution.

art harun said...

Dear Imtiaz,
As you would know, my biggest problem with DrM’s administration is the fact that he had, deliberately and consciously, destroyed the existence of any notion of separation of powers in our country. Granted, the doctrine of separation of powers as practised in our country (and even in the UK) is not premised upon absolute independence of each other. However, it was not in dispute that separation of powers was part and parcel of the model of democracy which we adopted and practise. It must be remembered that even where separation of powers is not so premised – where it could be better be described as “fusion of powers” – the somewhat “limited” independence has been proven to work as an effective mechanism of “check and balance”.
Take the UK for example. The Executive, and thus the Prime Minister, must be members of thye House of Commons. There is thus a “fusion” of the two arms of administration, namely, the legislature and the executive. Such is the position in Malaysia as well. In addition, the Law Lords (who occupy the highest Court in the UK, the House of Lords) are also members of the Upper House of the legislature (or the Parliament), which coincidentally, is also known as the House of Lords. Seemingly then, the separation of powers does not exist in the UK as there is an obvious mixture of fusion of the legislature, executive and judiciary. Be that as it may, the UK judiciary guards its “independence” and execute their “check and balance” function as a necessary arm of the administration with a degree of dogged ferocity, the intensity of which is almost unparallel in the whole Commonwealth.
Total separation of powers, in my opinion, could only be found, at least in theory, in states where the executive, legislature and judiciary are separately and independently appointed or elected. The USA is one such country. However, of course, the same system could also be opened to abuse due to the politics of patronage and sponsors. The system which the UK and Malaysia practise could only therefore, at best, be described as a limited separation of powers.
Be that as it may, it is not the labelling and branding of the system, no matter how flowery and artistic the language employed, which would make the system any more independent or free of interference. Rather, it is the willingness of the occupants of the seats of the various branches of the administration to ferociously and jealously guard their liberty, freedom and independence and to perform their respective duties and functions as an essential arm of the administration which ultimately makes the system work.
Sadly, such trait was not quite prevalent in our Judiciary, even before 1988. And after the case of Lim Kit Siang v UEM was decided by our then Supreme Court whereby the Court bent over on all fours to “accommodate” the executive, a right royal sodomy was inevitable. The rest as they say, is history.
It is just as well than that the Federal Court held that separation of powers has never been a part of our Constitution.

Anonymous said...

Let me propose further that it is only through our Federal Court first and foremost that can lead our nation back to its original and still largely the intent of most Malaysian.

After 50 years of UMNO rule we are ever more divided on the toughest issues not closer. These issues must be settled at an environment of the highest standards and that can only be achieved in unquestionable Federal Court. Its never going to be in the Parliament or Cabinet or even in the media and public movements.

The Federal Court is not detached of what is Malaysia, it will determine what is Malaysia.

Anonymous said...

Looks like we have to keep promoting awareness of what Good Governance is all about until it becomes a reality in our beloved Malaysia.


Universal principles of good governance and rule of law .....

Can we learn from the Iraqi experience???

A global consensus recognizing that good governance is vital for economic development and poverty alleviation has emerged. Good governance provides an enabling environment for general economic development, human resources development, ensuring the prevention and resolution of conflict. All these elements are essential to build a firm common ground for Iraqi national reconciliation. Good governance, as we know, is a pillar of democracy. Finding a consensus on a definition of the concept of good government has not been easy. Does it apply to just sound administration and management or does it also refer to the political domain and political leadership? Is it a universal principle or does it vary according to context? This vagueness raises the risks associated with applying a concept, which may not be rooted in the particular socio-cultural and political environment of Iraq. It is generally accepted that in the context of a political and constitutional environment that upholds human rights, democratic principles and the rule of law, good governance is the transparent and accountable management of human, natural, economic and financial resources for the purpose of equitable and sustainable development. Citizens expect the government to respond to their needs through a systematic process of accountability, transparency, and checks and balances. Good governance ensures that political, social, and economic priorities reflect broad consensus, that decision-makers represent the voices of the poorest and the most vulnerable in allocating development resources, and that the rights of the people are respected. It entails clear decision-making procedures at the level of public authorities, transparent and accountable institutions, the primacy of law in the management and distribution of resources and capacity building for elaborating and implementing measures aimed in particular at preventing and combating corruption. Essentials of Good Governance, The United Nations Development Program (UNDP) defines good governance as “the responsible exercise of political, economic and administrative authority in the management of a country’s affairs at all levels”. Good governance, among other things, is participatory, transparent, accountable, effective, equitable, and fair. It promotes the rule of law. Participation ensures an open, inclusive, participatory political system. It involves citizens in the decision-making process and in implementing public projects orother government activity. Participation goes beyond mere consultation and implies the existence of opportunities to contribute through gainful employment; opportunities to move in the mainstream of political, economic, and cultural processes and the eradication of the marginalization of groups and discrimination, poverty, and deprivation; and freedom from vulnerability through a guaranteed system of social safety nets and social security systems. To this end, good governance embraces the concept of devolution of power to local authorities and communities. The right of citizens to participate in the conduct of public affairs is more directly exercised at local levels. The existence of local authorities that are given real responsibilities can provide an administrative system that is both effective and close to the citizen. Transparency involves establishing appropriate lines or forms of accountability between the government and the public, which should include access to information through suchmeasures as freedom of information legislation, open decision-making, and rules ofsubstantive and procedural fairness. The rule of law assumes the existence of inalienable rights and liberties for every citizen, which governments should not touch or violate. To some extent the essence of the rule of law lies in its juxtaposition to “the rule of men or women”. This aphorism seeks to state the following basic principles: that all state power ought to be exercised under the authority of law; and rules of law should govern the election and appointment of those who make and execute policy, as well as the manner in which such policies are made and executed to ensure rationality and fairness in the decision-making process. In addition, good governance must assure the equal participation of women with men in all processes of governance. Only complete equality between men and women in all legal, political, and social arrangements can create the proper conditions for human freedom and good governance. Establishment and protection of good governance whatever the case, it is agreed that good governance is above all a domestic issue and inadequate domestic policies have played a role in widening the gap between rich and poor and achieving good governance is a process which must come from within andsteps must be taken to support and recognize genuine initiatives to attain it. Transparency, good governance and development are closely linked and together they become a vehicle to improve the human condition. The promotion of good governance requires a determined campaign against corruption, which is one of the most concrete expressions of misadministration. The quality of the administration of a country’s resources is an essential factor that explains its development performances — good or bad. Good governance is the true test of democracy. A government, which administers scarce resources in accordance with the real needs of the population, must be fundamentally democratic.

The political, judicial and intellectual elite must be benchmark and models of integrity. The political leadership must be genuinely determined to attack the problem of corruption and must demonstrate that determination. Good governance like democracy must not be allowed to become just another slogan - a false front to placate the providers of funds. Experience shows that it is unrealistic to hope to change things at the instigation of civil society alone. The essential first step is to influence public opinion and make decision-makers and the public at large aware of the devastating effects of misadministration. Underemployment, inadequate or sporadic employment and low wages continue to contribute to a high level of poverty in Iraq which in turn feed the militias and terrorists groups. We have to extricate ourselves from our backwardness by building a strong and democratic Iraq. Debates on national issues are healthy and should continue even after the national reconciliation. Different point of views should be respected. After all, “in a democracy dissent is an act of faith, like medicine, the taste of its value is not in its taste, but in its effects.”


The success of efforts to improve governance, the respect of human rights and the rule of the law throughout Iraq will depend on the development and strengthening of institutions that underpin good governance, democracy and the rule of law. With respect to the current political process, these efforts cannot succeed unless economic conditions in Iraq improve and develop to a level where Iraq is able to develop and sustain the institutions necessary to promote governance, the protection of human rights and the rule of law. Good governance cannot flourish along side grinding poverty and weak state institutions.

Dr. Widad Al-Ali,
Executive Director
Al-Yaqeen Centre for Training, Studies and Development

Anonymous said...

These judges are not stupid. They understand the Constitution ("black letter law") as well as anyone but they are frightened that BN/UMNO/bangsa kita does not like some aspects of it because it stands in the way of their ability to loot the country will nilly. So they take the cowards way out...not caring that history will judge them for what they have avoided/done in the name of "developmental justice"( in other words:"I will give the desired result not the legal one), it being the Malay opposite of the organ puteh's "Palm tree justice" (i.e. where there is a desire to do justice even if one is not aware of black letter law.