Our Constitution’s Moral And Legal Essence
The word ‘constitution’ comes from Latin which means ‘to install’ or ‘to set up’. It is used in modern sense to justify the independence and the sovereignty of the State. Thus, nearly all countries in the world are formed and established by the Constitution. In the modern sense also the Constitution forms the fundamental principle of democracy.
For Westerners, England is considered as the homeland of the Constitution and Constitutionalism although England does not have a codified Constitution. In England, the principles of Constitutionalism are seen in some laws passed by the Parliament (Acts), such as the Habeas Corpus Act in 1679 and the Bill of Rights of Act of 1689.Constitution and Constitutionalism in England is said as a product of the Enlightment, which has been defined as a philosophical or an intellectual movement of the seventeenth and eighteenth centuries marked by a celebration of the powers of human reason. Enlightment is also said as a keen interest in science, the promotion of religious toleration, and a desire to construct governments free of tyranny.
While some others agree that the Madina Charter is the first Constitution in the world that contained some norms and values of Constitutionalism.
The American Continent developed the second phase of constitution and constitutionalism in 1776, and later on followed by France in 1791. During the French Revolution the bourgeoisie fought for civil rights and economic freedoms. The Constitution then formed as a legal document to replace feudal absolutist due to people’s understanding and aspiration to participate in government and to lead the government.
The Constitution functions as a legal document having the highest legal force providing the general principles of the State functions. In Monarchical Constitution it forms a basic law regulating the relationship between the State and the Monarchy, the relationship between the Monarchy and the people and the relationship between the State and the people.
In the case of the multi-cultural society, the Constitution regulates the relationship among the people, not only in a day-to-day social conduct but also in socio-economic matters. In this respect the Constitution functions as guiding instrument having a legal force, but originating from moral principles for maintaining equilibrium among the group members of the society forming the State. Meanwhile, in the case of a Federal Constitution, the Constitution posses extra duty, that is to regulate the relationship between the states forming the Federation.
The science of Constitution develops the approaches of the essence of the Constitution. The Madina Charter represents the Islamic values and norms of Constitutionalism. It was developed as a legal document to be respected and abided by all members, including the administrators. It provided limitations to the powers of the State administrators to God’s divine revelation. Be that as it may, the Madina Charter also preserved and guaranteed the values of human being within the ambit as allowed and encouraged by the Divine. The document thus, may be said as representing the religious view points on the essence of the Constitution and Constitutionalism. Religion in Islam is not a merely doctrinal Divine aspirations but a way of life. Thus, religious viewpoints from Islamic perspectives is not limited to personal relationship of one individual to his God, but at the same time to include the way to live the life as individuals and as a member of the State. Thus, Islamic Constitutionalism shares the view, and thus includes the essence of morality in it.
Hobbes and Locke for instance, represent the Liberal essence of the Constitution. The Liberal essence of the Constitution considers the Constitution as a legal document. It serves as the highest law of the land. The Liberal essence of Constitution it limits the power of the state and guarantees human rights. Therefore, the Constitution in their view serves the interest of the whole society.
Meanwhile, Lasalle and Lenin represent the Social-Democratic view. In this view, the Constitution is to serve the State. The State prevails over individuals. In other words, the essence of the Constitution in the view of the Social Democratic is said to serve the interest of the States, not the interest of the people.
In the case of Malaysia, our Constitutions (Malaysian Constitutions), the Federal Constitution and the State Constitutions share the same functions and some of the essence discussed above. It is certainly true that there are aspects of Malaysian Federal and State Constitutions offer democracy as a process to form and manage the government. Be that as it may, the Constitution contains some traditional elements and cultural values that must be appreciated and paid great attention to for Malaysians to have a higher morality. The real quality of justice and balance of the essence of the Malaysian Constitution especially in the context of multicultural Malaysia must properly be drawn out and understood in order to make them able to function as a legal and moral document.