The omission of good is no less reprehensible that the commission of evil.
– Plutarch, Greek philosopher
Malayan legal heavyweights like Dr. Radhakrishna Ramani, Yong Shook Lin, C S Jayaswal, T Rajendra and E D Shearn were not included in or engaged by the Reid Commission in pre-Merdeka Malaya.
Foreigners, untutored and inexperienced about Malayan adat, were assigned this crucial nation-building undertaking. The Federal Constitution (FC) therefore needs a complete overhaul to reflect Malaysian adat in this digital age.
Perhaps it’s time for eminent lawyers in Malaysia to be recognised, endorsed and assigned as Agong’s Counsel (AC). The Queen’s Counsel (QC) days should be spoken about in the past tense before too much tension brews over purported expertise in dispensing law and justice.
Lest we forget, Westminster labeled their future American citizens as three-fifths of a person (slaves) until the 13th, 14th and 15th Amendments were entrenched after the American Civil War. The unmistaken sine qua non of a civilised Christian God-fearing nation still evidences deep wounds that will never heal.
Right-thinking Malaysians must therefore take stock to right the wrongs of omission by the Reid Commission by and through the ample supply of proactive and progressive legal minds in Malaysia. We have been sitting idle for far too long caught up in the crossfire of race, rage, religion and region post-May 13 1969.
The word “protection” only appears once in Article 8(5)(c) in the FC. Fundamental liberties in Article 5 to Article 13 have no protection per se except for a parchment promise open to lawyerly arguments and judicial decisions that cast a Nelson’s eye to Article 162(6) FC.
The rights and protection of women, children and the mentally-challenged are equally omitted as if driven to give credibility to Buck v. Bell 274 US 200 (1927) which became the bellwether for eugenics. Adolf Hitler swiftly took advantage of this American experience for which he is still cursed.
There is no mention of the rights of voting citizens to find relief except for Article 118 (method of challenging election) F which appears to offer some comfort, but not protection and means to the man-in-the-street intending to challenge an election.
The rights of bright students who score straight nine or ten A’s in the SPM examinations are non-existent when the choice of their future careers through tertiary education institutions are restricted. Article 12 FC does offer “rights in respect of education” but the mention of students’ rights is omitted except for institutional rights.
The prevention of corruption, nepotism and cronyism is totally absent in the FC incentivising lawyers to mount challenges to the Malaysian Penal Code and the Criminal Procedure Code having the tendency to violate fundamental liberties.
The safe haven of Article 10(1)(c) FC offering “freedom to from associations” grants veiled rights from hidden hands and agendas with the veil of Article 43(6) FC requiring all ministers to take an Oath of Secrecy!
The FC is the supreme law of the land according to Article 4. A supreme law is a peremptory law that should be free from restrictions and limitations.
Lord President Tun Suffian declared in Ah Thian v. Government of Malaysia [1976] 2 MLJ 112, 113 that “Parliament and state legislatures are limited by the Federal Constitution; they cannot make any law they please.” But that was before the 1988 judicial crisis.
The prevention of economic downturns, poverty and unemployment are also omitted to the extent that the well-being of citizens is taken for granted by purportedly sound fiscal and monetary policies (read: subsidies).
The “working wounded” seldom have protection said Douglas LaBier in his Modern Madness, while capitalists (read: neo-colonialists) endorse land, labor, capital and entrepreneurship as the four pillars of an economy.
The omissions encountered in the FC should be addressed and made whole by an Article 142 Commission which prohibits a politician from participating. This is a good sign.
The Yang di-Pertuan Agong has the power and discretion to appoint capable men and women to form the Federal Constitution Task Force with clear guidelines to Malaysianise the FC.
“Omission is a sin only if, in the process of deceiving, you forget the truth. Lying is a sin only if, in the process, the lie becomes the only truth,” observed Julianna Baggott.
Is the truth forgotten when there are only nine fundamental liberties for Malaysians in the FC out of 183 Articles and 13 Schedules? The rest represents protections galore for the government and its actors. This is garden variety autocratic democracy.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
