Sunday, August 14

Upholding the Constitution for all generations


IT is a marvellous thing when words written at a nation’s birth are able to protect future generations of citizens. On Sept 12, 1959, preceding the inaugural sitting of the Dewan Rakyat, the first Yang di-Pertuan Agong in his royal address said, “We are pulling a switch which starts two dynamos of democracy – our Constitution and our Parliament – to serve the political needs of this new nation now and of generations of Malayans not yet born.”

On Oct 25, 2020, after a special meeting of the Malay Rulers, the 16th Yang di-Pertuan Agong acted in the spirit of that Constitution, ensuring the continuity of that Parliament, by preventing the nation from entering a state of Emergency. The possible motivations for that request have been much analysed, but the majority of commentators, and overwhelming public opinion, agree that an Emergency was not necessary.

Naturally, lawyers bolted into action. Some, citing case law, insisted that the Agong must always act according to advice, but others, referencing other precedents, argued that the Agong alone decides whether a state of emergency exists. Former Dewan Rakyat Speaker Tan Sri Ariff Yusof opined that one of the exceptions to acting in accordance with advice as stated in Article 40 (1) “stares at us in the face” in Article 150 (1), and went on to say that “The Constitution is a living document.

It must be interpreted accordingly in a dynamic and progressive manner anchored on its basic principles.” From the standpoint of historical intent too, there must be a reason why the authors of the Constitution wrote particular articles in a particular way.

Following this, the Agong called for cross-partisan support of the 2021 Budget “to ensure the well-being of the people and the recovery of the country’s economy”. It is up to politicians to work out their differences, and the last week has seen more of the political ping-ponging that Malaysians have become accustomed to, impervious to the rising numbers of coronavirus cases. All sides pledging their loyalty to the Agong, one side says, “you must support us no matter what”, while the other side says “you must compromise so we can support this bill”.

On the latter, it was a significant sign that opposition leaders met the Finance Minister prior to the tabling of the Budget, while talk of a Confidence and Supply Agreement has resurrected the prospect of other institutional reforms. It is at junctures like this that MPs should think about why their constituents sent them to the Dewan Rakyat in the first place.

Even as that process continues, the issue of an Emergency was again raised as the only supposed way in which to prevent the upcoming Batu Sapi by-election and Sarawak state elections that present a risk of further spreading Covid-19.

On this, alternative solutions have been proposed: a political solution that would see major parties agreeing not to contest; a legal solution that amends the Constitution to postpone these elections (with a sunset clause to prevent future abuse); or, if elections are inevitable, to follow the best practice of other countries, which have successfully done so in recent months, alongside measures to extend absentee and postal voting.

Having said that, given the ongoing attribution of the Sabah election to our current wave of Covid cases, it will be difficult to reach the same level of comfort that New Zealanders had during their general election last month, in which the government’s handling of the virus made a major contribution towards their re-election.

As I write, the country with the highest number of Covid infections, the United States of America, is counting votes in their Presidential election. With the results so far being much closer than pollsters predicted (again), lawyers for both sides are reportedly on standby to use whatever legal means necessary to gain a victory for their candidate.

I have shared on many occasions my observations of deep and seemingly implacable polarisation in the United States, at the crux of which is the fact that different groups of citizens can look at their founding documents and national symbols and conclude that they mean something unrecognisable to other citizens looking at exactly the same things.

This is the kind of polarisation that Malaysia must avoid, and that is why we harp on and on about our Federal Constitution, the Rukun Negara, even Negaraku. All these words mean something: in ensuring the rule of law, the separation of powers, and in cultivating a shared sense of belonging and destiny.

It is when individuals and institutions live up to the expectations of these words that citizens can have faith, even comfort, that adversities can be overcome.

Tunku Zain Al-Abidin is founding president of Ideas.