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Constitutional credibility, constrictions and corrections

A constitution that is made for all nations is made for none.

– Joseph de Maistre, French politician

WHETHER the Federal Constitution, as the supreme law of the land, is able to stand on its own right, while the Executive pits extreme political themesas schemes of government policies seems to excite only academic interest.


Whether constitutional supremacy is a fact of law and life, in Malaysia, depends on how the three organs of state grapple with its plethora of nuances todiscourage cavalier interpretation and toxic application.


When the supreme law of the land fails to offer lasting solutions to the convoluted life of the law, the blame lies squarely on the shoulders of oath-takers who shy away from the persuasions of Article 162(6)(Existing laws).


What the Federal Constitution is, and how it ought to be interpreted was narrowly explained in Loh KooiChoon v Government of Malaysia [1977] 2 MLJ 187: “Our Constitution now stands on its own right . . . and its wording can never be overridden by extraneous principles of other Constitutions . . .”


The Reid Commission’s omission of local custom and culture, however, is noteworthy. The wording of the existing Federal Constitution, despite constitutional amendments crafted between 1981 and 2003 — the ‘amendomania’ era — requires course correction.


Loh Kooi Choon elicited a quote from Justice Felix Frankfurter in Graves v. New York ex. Rel. O’Keefe, 306 U.S. 666 (1939): “the ultimate touchstone of constitutionality is the Constitution itself and not any general principle outside it.”


“Other constitutions” and “principles outside it” has not prevented our eminent men in robes to impact law, politics and government while writing judgments that include other constitutions and principles outside it.


Written constitutions offer comfort and solace to philosophical and scholarly reflections, but errant politicians indulging in Article 162(6) interpretations can unleash acceptable misery and mischief upon the rakyat.


Loh Kooi Choon (1977) was echoed in the Federal Court: PP v Kok Wah Kuan [2007] 6 AMR 269; [2008] 1 MLJ 1. The Federal Constitution found some clarity, certainty and consistency, albeit transitory.


Kok Wah Kuan postulated that “it is the provision of our Constitution that matters, not a political theory by some thinkers.”  It is doubtful whether this admonition changed and corrected the collective attitudes of the elite.


“Extraneous principles of other Constitutions. . .” was inspired by a 1963 Nigerian case — Adegbenro v. Akintola — that was assiduously applied in Ningkan(1966), Tun Datu Hj Mustapha Datu Harun (1986), and other constitutional cases that demanded adjudication in Malaysian courts.


Jingoism aside, the Federal Constitution is embarrassed and belittled when extraneous principles of other constitutions are invoked and applied that do not comport with or advance Malaysian customs and culture.


Whether other commonwealth judiciaries have invoked the principles of the Malaysian Federal Constitution to shed light on some jurisprudential issues they had to grapple with is very much unknown.


 The pressure on the Federal Constitution is subtly gauged by the limited power of judicial review granted in Article 4(3) despite judicial power enunciated and enumerated in Article 162(6).


The Federal Constitution is not a grandfather clock with a huge pendulum swinging back and forth as if activated by erratic and erroneous gravitational pull of the politics of the day.


The concept of natural justice as a source of power, authority and inspiration for our Constitution was clearly enunciated in Karam Singh (1969); Ong Ah Chuan (1981); Haw Tua Tau (1981); and Che Ani bin Itam (1984). Natural justice is a friendly planet that orbits in our jurisprudence depending on the 4-R factor.


The stress and tension often felt by the supreme law of the land can be lessened if local customs and culture are not just cursorily consulted but vigorously applied despite the tongue-in-cheek Civil Law Act 1956.


But our judges are apparently led by the Westminster model of jurisprudence. Three or four years of study in the UK has converted almost every Malayan and Malaysian lawyer into a staunch supporter of Pax Britainnica.


The principal purpose of written constitutions, courtesy Justice Fazal Ali in Pathumma v State of Kerala AIR 1978 SC 771, Indian Supreme Court: “Courts interpret constitutional provisions against the social setting . . . with deep awareness of . . . society, the needs of the nation, the problems of the day taking into consideration the temper of the times and living aspirations and feelings of the people.”


Justice George Seah, the sole dissenter in Merdeka University (1981), put paid to the authority that the Malaysian government is a limited government governed by the supreme law of the land.


The life of the law will not need resuscitation if judges like Fazal Ali and George Seah were oft quoted. The supreme law of the land must be taken seriously, and not merely cited or quoted to embellish and adorn-binding written judgments that discourage, resist and prevent future overruling.


Parliamentary laws, not the Federal Constitution, expose and punish wrong-doers. It should cause acute discomfort for those who take an oath to uphold, protect and defend constitutional supremacy.


A revolutionary call for restoration ofconstitutional legitimacy must become a public outcry. Corrections, constrictions, conflations and convulsions can cause constitutional credibility and credulity to crumble.


Ultimately, for the purpose of the public interest, the public may have to step in to defend, protect and uphold the the Federal Constitution.…


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