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.
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)
MIS
