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Traumatising the Constitution

The glory of justice and the majesty of law are created not just by the Constitution – nor by the courts – nor by the officers of the law – nor by the lawyers – but by the men and women who constitute our society – who are the protectors of the law as they themselves protected by the law. 

Robert Kennedy, US attorney general and senator

One common feature between Malaysian and American politics is the willful, willing and wanton traumatising of their written constitutions. The US Constitution claims at Article VI, section 2 that the Constitution is the supreme law of the land, as does ours at Article 4. It seems the word “supreme” is lost in translation.

Great is the discomfort in court today, in Malaysia, and in the United States, the moment you mention the Constitution and the supremeness of its majesty, power and authority.

I am yet to see any judge comfortable discussing the Constitution’s provisions given the facts and circumstances in any given case. When you challenge a certain statute’s constitutionality especially during oral argument, you receive a cold stare like you have committed something hideous and sacrilegious.

I suspect American and Malaysian judges agree as a collegial consensus that the written Constitution does not say what it means, and does not mean what it says. At best, the Constitution is an inconvenient truth best left to its own devices to collect dust on the bookshelf where it sits, and never to invoke its usefulness to untie some legal knotty quagmire.

The 13th, 14th and 15th Amendments to the US Constitution, passed after the American Civil War freed the slaves, gave them voting rights and offered them equal protection under the laws.

On paper only. It took another hundred years, in 1965, for the Civil Rights Act to be passed by President Lyndon Johnson in order to give African-Americans equal footing under the sun. Imagine what this statute was designed to do that the supreme law of the land refused to allow.

In Malaysia, Article 153 of the Federal Constitution (FC) places the Malays and the Natives of Sabah and Sarawak on a “special position” status while the legitimate interests of the other communities are to be safeguarded as well by the Yang di-Pertuan Agong.

Without going into the usual ranting and raving of what this supposedly means, I am particularly focused on Article 153 (4) where educational and training privileges are to be enjoyed by the Natives of Sarawak without let or hindrance.


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