Why The Constitution Matters At This Time

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From Philip TN Koh
If we are to ask any Malaysian we may get different answers. For activists, it’s the fundamental liberties, for example the right to assemble and other allied rights.
I would argue alongside Prof Mark Tushnet from Harvard that “the constitution matters because it provides a structure for our politics. It’s politics, not ‘the constitution’ that is the ultimate — and sometimes proximate — source for whatever protection we have for our fundamental rights”. ( YaleUP) (2010)
My argument also augments Tushnet’s that the constitution delineates the boundaries of political behaviour.
Of late, there has been in the public discourse a host of answers proffered by lawyers and ex-judges — opinions which should be given due weight and attention. The difficulties for concerned citizens is to shift through them and distinguish between what is wheat and what is chaff.
Only when the Federal Court makes a ruling, then and only then can one say that is the declared opinion and is the law. But when that takes time, the courts are drawn into the “political thicket“, from which they cannot extricate themselves since it involves a construction of the scope of applicable provisions and the law.
There are insuperable barriers to reach the goal of judicial interpretation, for example clauses that state that no challenge can be made in any court in matters of proclamation of the emergency and promulgation of ordinances flowing from that.
Another is in relation to the Dewan Rakyat and the rulings of the speaker, which are normally considered to be final and not susceptible to judicial scrutiny.
The polarisation and proliferation of legal opinions in the media add to the noise and complexities for the bewildered citizens. Some questions are treated as if they are capable of drawing an unequivocal “Yes” or “No” answer.
In many ways, such discourses and even contestations are a healthy sign of deliberative democracy and one must not descend into cynicism or sarcastic dismissal of ad hominem rejection of the same.
All readers come to a text with an interpretive perspective that the constitutional document charts out for us and all political actors the boundaries for their decision-making and actions.
Jurists write about conventions which flesh out the bare bones of the norms of a constitution. If political organs refuse to abide by the constitutional provisions with exercise of “ positive critical morality”, then behaviour may debase the workings of the constitution.
If the body politic can be compared with the body of a person (this well-worn metaphor has been applied since ancient times), then each limb and organ cannot say to each other that it does not need the other.
The painful truth for us all is to witness constitutional organs and office holders, be they the prime minister or the constitutional monarch and Rulers and Dewan Rakyat/Dewan Negara members (including the speaker), involved in a public spat over the functioning of constitutional governance.
Each should strive to work harmoniously so that the conventions which rely on decision makers can cooperate for the body politic to be healthy.
All of us pray for that to happen as many of us hold no partisanship on who wins or who loses.
We don’t want the people of Malaysia to suffer or damage inflicted on the fabric of constitutional governance. - FMT
Philip TN Koh is an adjunct professor at Universiti Malaya.
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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