Our constitution was drafted keeping in mind the dynamism that it might take to cater to the needs, aims and aspirations of the future generations.
AFTER 58 years of independence, Malaysians are familiar with the nature of our Constitution. We have begun to understand the theory of constitutional supremacy: the Constitution is the supreme law of the land and the final reference of all laws and policies.
More often than that, we have accepted the notion that the Constitution is the document responsible for nation-building and ideological direction of the country.
It gives the Government ways to manage the country and the people of the country ways in which to live their lives.
The Constitution operated from the time of its inception and was projected for the unknown future of the nation.
It is not a mere set of fundamental laws that form the basis of governance of our country, but it also embodies and reflects certain basic values and objectives that were held very dear by our founding fathers.
Although our Constitution does not contain a preamble to clearly state its values and objectives, it is founded on the terms of reference of the Constitutional Commission which was appointed to draft it for independent Malaya.
“Appointed in the name of Her Majesty the Queen and Their Highnesses the Rulers”, they were given these terms of reference:
To examine the present constitutional arrangements throughout the Federation of Malaya, taking into account the position and dignities of Her Majesty the Queen and of Their Highnesses the Rulers;
To make recommendation for a federal form of constitution for the whole country as a single, self-governing unit within the Commonwealth based on Parliamentary Democracy with a bicameral legislature, which would include provisions for:
i. The establishment of a strong central government with the States and Settlements enjoying a measure of autonomy;
ii. The safeguarding of the position and prestige of Their Highnesses as constitutional Rulers of their respective States;
iii. A Constitutional Yang di-Pertuan Besar (Head of State) for the Federation to be chosen from among Their Highnesses the Rulers;
iv. A common nationality for the whole of the Federation;
v. The safeguarding of the special position of the Malays and legitimate interests of other communities.
At the time the Commission drafted it, the Constitution it was meant to be was a document that awarded us with sovereignty; internally powerful and externally free.
We want to have a bicameral legislature that can hear the voices of the people and preserve the rights of the states forming the Federation and the minorities; establish a Federation with centralised power; preserve the position of the traditional Malay Rulers; preserve Malay privileges and at the same time acknowledge the value of citizenship.
The Constitution should be rules of life having something ahead of them, something solid and a permanent structure to keep people’s eyes and minds made up to a certain high mark.
There should also be a certain flexibility. If we have everything rigid and permanent, we may stop the growth of a living and vital concern of the nation.
Accordingly, our Constitution was drafted keeping in mind the dynamism that it might take to cater to the needs, aims and aspirations of future generations.
Our Constitution may be amended whenever the amendment procedural process is met. In fact, most of our constitutional provisions may be amended upon obtaining the support of a two-thirds majority of Members of Parliament (in the House of Representatives and the Senate).
The Conference of Rulers’ consent is required in the amendment process, which includes amendments to Clause (4) of Article 10 and any law passed under it, as well as the provisions relating to citizenship, the Conference of Rulers, the position of states, seditious expression in the Parliament and state assembly, the relevant provisions of Malay and native privileges, and the legitimate interests of other races.
Realistically, the notion of constitutional supremacy can be diluted with the support of a two-thirds majority of the Members of Parliament; but this is indeed a condition for the constitution to be a dynamic document to suit the developments of time and the masses.
However, considering the notion of the establishment of the state, the dynamism shall not eliminate the basic foundation of the country.
The basic structure or the values and the objectives of the constitution that were upheld in the terms of reference must not be diluted by the amendment.
If not, the whole structure at the time of the inception of the constitution shall collapse and the aspirations of the nation in their entirety shall go.
The aspirations of the country and basic principles underpinning the Constitution must continue to exist and be free from amendment, though subsidiary matters may be amended.
The amendment must not marginalise the basic structure of the Constitution.
Therefore, it is important for all parliamentarians to appreciate the basic construction of this state as enshrined in the Constitution.
Parliamentarians should not support, give votes and approve any Bill diminishing the fundamental subjects adopted during the inception of a country.
It is the basic structure that determines the country’s inspiration and aspiration as envisaged in the Constitution.
Members of Parliament cannot allow a Bill that contradicts the principles of nation-building, as they are the caretakers of the Constitution.
Prof Madya Dr Shamrahayu A. Aziz The STAR Home News Opinion Columnist 13 October 2015