What's in a Constitution?
FEDERAL CONSTITUTION SERIES (PART 2)
This article is extracted from a teaching session by Emeritus Professor Shad Saleem Faruqi organised by CNBM on 8th November 2016.
Every constitution in the world – whether American, Indian, etc – is a mixture of political, economic and philosophical ideals. It reflects the values and vulnerabilities of the nation, including its dreams and demands. In short, it reflects the economic, political, historical and existentialistic reality.
It is also full of conflict. For example, the demand for liberty versus the demand for order and stability; the demand for keeping the Constitutional sacred and at the same to bring changes through the amendment process. So the Constitution is really not an ideal document. Nowhere in the world is it an ideal blueprint. It is more like walking on a tight rope – reconciling conflicting demands in a way that produces the least friction.
The Malaysian constitution is no different. So many of its features are from purely objective and idealistic points. Its features are unsatisfactory. But if you look at it from an overall context of history, the demographic position in this country, the economic situation of various communities, then one can began to understand. As a student of comparative constitutional laws, I recognize the problems of reconciling conflicting interests, harmonizing various demands in many constitutions.
Special provisions for regions In India, for example the region of Kashmir, and in Malaysia the regions of Sabah and Sarawak, have special rights. That is clear violation of equality before the law. Why should Sabah and Sarawak have more rights than Negeri Sembilan or Perlis? It is because of some geographical factors, because of various economic factors. Kashmir in India has special position compare to the other 25 states. So, everywhere in the world, there are special provisions for regions, sometimes for religions, sometimes for races.
Addressing unusual issues Or sometimes in some cases there are very unusual issues about liberty versus security especially in Malaysia because the constitution was born during the Communist emergence and Communist subversion. Therefore Articles 149 and 150 were set in to give Parliament and the Executive virtually unlimited power to combat emergency and subversion. The executive has overused these powers; abusing them to continue emergencies for nearly 48 years. In fact, the emergency period lasted from 1964 to 2012 and that is certainly not what the constitution contemplated. But my point is that one can understand that the constitution born during the Communist emergency did provide for Article 149 and 150: subversion and emergency.
Right to property So with the introductory background, perhaps I will give one more example as to how the constitution reflects an existentiality reality that may not necessarily be an ideal. All constitutions, at least all the constitutions in democratic countries, provide for right to property. But really, is the right to property as just and right as we make it out to be?
At the moment, if you have the money, you can buy 10 houses. There are people who are homeless. Is it that really fair and just from the religion, moral, democratic point of view, from social justice point of view that some have 10 houses and others none?
Maybe one can distinguish between movable and immovable property. Movable property could be unlimited but there should be some ceiling for immovable property. But I am not a socialist. Like most of you, all of you, I am a house owner; I am a dirty capitalist, as some might say. But nevertheless, from the point of social justice, I do ask myself – Is it fair in constitutional documents to give people unlimited right to property rather than redistribute property more justly?
The American constitution is a one of liberty, but actually it disregards the rights of the homeless. Those of you who had been to New York can see that there are people who sleep on the pavement, some on cardboard boxes. And yet the constitution is rather indifferent to the plight of the poor. By this I want to show you that the Malaysian constitution has to be seen in this broader context.
Establishing the foundation of a newly independent state Constitutions are birthed to mark the stages and progression towards self-government; to establish the foundation of a newly independent state; to start afresh after any major upheaval whether it is the defeat of Japan after World War Two; or in Iran where an ideological upheaval happened when the Shah was disposed and Islamic forces took over; or when India gained independence; or when Bangladesh separated from Pakistan.
All Constitutions are born to mark a stage in nation development. Sometimes, the developments are marked by violence and upheaval. Constitutions in those situations mark a very important phase in a nation’s history. END
>> Next: The history of the Malaysian Federal Constitution
