A written Constitution is not a mere lawyers’ document. It’s a vehicle of Life, and its spirit is always the spirit of the Age.
— B. R. Ambedkar, Indian jurist
The time to restructure the Federal Constitution (FC) has arrived to accommodate all 21st century stakeholders — the People, the Borneo Regions, the Peninsular States, and most important of all, the unexpected. Any insidious attempts to consider it malleable, or watered-down, is pure treason that must be punished to the full extent of justice.
The FC is not a rudderless vessel in unchartered waters when obvious lacunae in its provisions and break in continuity are hastily filled by weird interpretations offered by subjective third-rate legal skulls bereft of an understanding of its holistic impact on Malaysians.
Article 4 FC has permanently carved constitutional supremacy in stone, not parliamentary supremacy. Therefore, before it gets buffeted by legislative typhoons, and political tsunamis, a climate control mechanism is urgently needed for this fungible 66-year-old document to identify and effectuate every plausible contingency that was not contemplated by the Reid Commission manned by non-Malayans.
The FC rejuvenation to avert subjective and subversive nuances of interpretations must include unambiguous provisions for fugitive extraditions to avoid hiding gargantuan secrets; the accommodation of a coalition government; party-hopping governed by strict liability criminal law; the justification for banning and investigating of books and articles that open minds, as in Nazi Germany; and a categorical affirmation and confirmation of the doctrine of the separation of powers.
MA63 concerning Regions deemed States is a perpetual thorn. Ergo, Article 1(2) FC deserves a special spot in the rubbish bin of history. Article 2 FC also requires a constitutional jettisoning as it grants the Federation unbridled power to admit “new territories” that become States. That’s where the Borneo Regions got skewered.
The FC’s peculiarities in Part V (The States), Party VI (Relations Between the Federation and The States), Part VII (Financial Provisions) — Chapter 2 — Application to States of Sabah and Sarawak, Part XIIA (Additional Protections for States of Sabah and Sarawak), and the Tenth Schedule, Part IV (Special grants to States of Sabah and Sarawak) are an unwarranted constitutional aberration and embarrassment requiring fresh refinements.
How does a Region become a State without constitutional amendment? There is no record of any judge applying Article 162(6) FC to right wrongs. Notwithstanding an independent judiciary and the supreme law of the land, Article VIII of MA63 is the ultimate panacea offering a vibrant constitutional catharsis.
Article VIII of MA63 states that the Governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to, the Report of the Inter-Governmental Committee signed on 27th February 1963, in so far as they are not implemented by express provision of the Constitution of Malaysia.
Thus, no intellectual feast is required for Borneo Regions to solely manage its internal and external affairs. The cake is in the oven ready to be eaten, however, the bakers quarreling about its recipe is a silly exercise in futility. Article VIII MA63 should be permanently rid of false interpretations by the clueless and less-qualified self-styled experts dancing to a distant drummer.
If nation-building means anything as an effort to destroy disunity, then the only available remedy is to carefully and cautiously amend the FC to reflect the autonomy guaranteed in Article VIII MA63 as an Article 76(1)(a) FC imperative since MA63 wears many hats as a treaty, agreement and convention. Let’s not prove Sophocles (the Greek tragedian) right, who said that no treaty is an impediment to a cheat.
The single most agonisingly incurable cancer in Malaysian politics is the wanton undermining of the supreme law of the land by subjective whims, fancies, fears, fibs, foibles and faults nuanced by political policies that automatically sprout as the supreme flaw of the land in a flash. Article VIII MA63 ostensibly wept, slept and got swept under the rug to permanently rot and wither away, but it’s healthy, robust and vibrant as it gets its sustenance from a committed citizenry.
Government needs more than fresh optics to shred the FC of its colonial pith and substance. Sixty-six years of anachronism must go. The prized possession of a revised, revamped, renewed and rejuvenated Federal Constitution that unreservedly protects all stakeholders is the preferred coin of the realm.
Putrajaya now needs to walk to talk no matter how many heads are bobbing or listing uneasily.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
