Constitution As A Dynamic And Nation Building Document
Written by Prof. Madya Dr. Shamrahayu Ab Aziz. Posted in
After 58 years of independence Malaysians are now 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 Constitution is the final reference of all laws and policies.
More than that, we, have taken the notion that the Constitution is a document that built the country. It is also the document responsible for the nation-building and ideological direction of the country. Generally speaking, the Constitution is a legal body giving the Government ways to manage the country and giving to the people in the country to live the life.
The Constitution operates at the time of its inception and was projected for the unknown future of the nation. The Constitution is not just a mere set of fundamental laws that form the basis of governance of our country but it embodies and reflects certain basic values and objectives that were held very dear to our founding fathers.
Although our Constitution does not contain a preamble to state clearly the values, and objectives of the Constitution, it is perceived that they are founded on the terms of reference of the Constitutional Commission which was appointed to draft the Constitution for independent Malaya.
The terms of reference stated that
“The members of the Commission were appointed in the name of Her Majesty the Queen and Their Highnesses the Rulers with the terms of reference as follows:
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: and
To make recommendation for a federal form of constitution the whole country as a single, self-governing unit within the Commonwealth based on Parliamentary Democracy with a bicameral legislature, which would include provision 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”.
It is perceived that, at the time the Commission drafted the Constitution it was meant to be a document that award us with sovereignty, internally powerful and externally free; We want to have a bicameral legislature that can hear the voices of the people and to preserve the rights of the states forming the Federation and the minorities; We want to establish a Federation with centralised power; We want to preserve the position of the traditional Malay Rulers; We want to preserve the Malay privileges and at the same time acknowledge the value of citizenship.
Generally speaking, the Constitution should be rules of life having something ahead, something solid and having a permanent structure to keep people’s eyes and minds made up to a certain high mark. Be that as it may, there should be a certain flexibility. If we have everything rigid and permanent, we may stop the growth of a living and vital concern of the of the nation. Accordingly, our Constitution was drafted keeping the mind the dynamism that it may take to cater the need of future generation.
Our Constitution thus, may be amended whenever certain amendment procedural process is met. This makes our Constitution a dynamic document; to suit to the need, aims and aspirations of the generations. In fact, most of our constitutional provisions may be amended upon obtaining the support of two-thirds majority of Members of Parliament (in House of Representatives and the Senate) though the Yang di-Pertuan Agong shall no longer have room to check the results. The Conference of Rulers has some say in the amendment process which include amendment to the provision of 10 (4), the law passed within the purview of Article 10 (4), the provisions relating citizenship, matters relating to provision on Conference of Rulers, the position of states, seditious expression in the Parliament and state assembly, the relevant provisions of Malay and native privileges and legitimate interests of other races. (See Article 159(5)).
Therefore, realistically notion of the constitutional supremacy can be diluted with the support of two-thirds majority of members of Parliament; but this is indeed a condition for the constitution to be a dynamic document to suit to the development of time and masses.
However, considering the very 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 was uphold 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 whole aspirations of the nation 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 marginalize 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, giving votes and approve any Bill diminishing the fundamental subjects adopted during the inception of country, the basic structure that determine the country’s inspiration and aspiration as envisaged in Constitution. Members of Parliament cannot allow the Bill that contradict the principles of nation building as they are the caretakers of the Constitution.