Reflecting On The Law-Reaffirming Constitutional supremacy

LAST week a Roundtable Discussion was organised by Perkasa, the Malay rights pressure group, to examine the “Rukunegara Muqaddimah Perlembagaan” (RMP) proposal by a citizens’ group to convert our Rukunegara into our Constitution’s Preamble.

Perkasa concluded that the RMP campaign “would be detrimental to Malay and Bumiputra interests”.

To begin with, Perkasa should be congratulated for the peaceful, democratic and civilised manner in which it put its views forward. In the past we have had individuals and groups resorting to threats of violence, rape and intimidation against people with differing views.

However, the substance of what was said at the Perkasa confabulation deserves examination.

Motives: One learned speaker alleged that those who support this RMP initiative have a hidden agenda. In reply, I wish to say two things. First, this demonisation is a game two can play. In reciprocity one could ask whether there are some inarticulate agendas in the RMP opponents’ minds since they are questioning our nation’s venerated ideology, denigrating it and depicting it as a threat to Islam and Bumiputra rights.

One must not forget that the Rukunegara was formulated by a council headed by Tun Abdul Razak whose concern for Malay empowerment can hardly be doubted. The council was composed of many towering, iconic personalities from all races, religions and regions.

The Rukunegara’s teachings have been drilled into our children’s minds for 47 years. Suddenly, a group of patriots are finding the Rukunegara’s principles and objectives a hidden threat to their well-being and a contradiction with some core provisions of the Constitution!

In fact, the Rukunegara and the Federal Constitution complement each other. A greater understanding of the Rukunegara will restore, not weaken the Constitution.

Second, there is nothing hidden about the aims of the RMP initiative. The aims are to reassert the supremacy of the Constitution by adding to it the wisdom of the Rukunegara; to restore the spirit of moderation, accommodation and multi-culturalism that animated the leaders of our independence; to promote greater federal-state comity especially in relation to Sabah and Sarawak; and to express concern at the decline of national consensus on major issues.

Constitutional supremacy: The Constitution is our chart and compass and our sail and anchor. Regrettably, many post-1990 constitutional practices (like State Assemblies trespassing into federal legislative jurisdiction; or the ecclesiastical authorities of one religion raiding the places of worship of another religion) undermine constitutional supremacy. These practices also violate the ideals of the Rukunegara.

Moderation: Though with some flaws, our Constitution was a masterpiece of compromise, compassion and moderation. It provided a rock-solid foundation for our society’s hitherto exemplary political stability, economic prosperity and inter-communal peace and harmony. Undermining the Constitution has weakened our social fabric.

Preamble cannot override Article 153: A retired Chief Justice is reported to have expressed the opinion that “all laws, regulations, orders and executive actions which give privileges to Malays and natives of Sabah and Sarawak will be unconstitutional and void the minute the Rukunegara becomes the preamble”.

Most respectfully, this view is legally incredible and politically inflammatory. First, a preamble can never override explicit provisions of the Constitution. A preamble by itself is not legally enforceable and cannot be made the basis of a legal claim. It consists of glittering generalities, broad and sweeping statements that encapsulate the ideals and aspirations contained in the Constitution.

A preamble is like a guiding light, a moral compass and an aid to interpretation. If the provisions of a Constitution are vague, then the preamble can be summoned to aid interpretation. But if the law is clear and unambiguous and explicitly confers a right or imposes a duty, a preamble cannot stand in the way.

Second, there is no conflict between the Rukunegara and Article 153. The Rukunegara’s principle number 3 “upholding the Constitution” and its objective number 3 of “creating a just society in which the wealth of the nation is equitably shared” are consonant with the affirmative action provisions of Article 153. Upholding the Constitution includes fidelity to all its provisions, including those on inter-ethnic relations.

Third, even if there was a conflict between a general preamble and a specific, explicit provision, the suggestion that the rule of interpretation that “later in time overrides former” will apply is not correct. The explicit provision must prevail and the preamble must give way. Besides the rule “later overrides former”, there are other rules of interpretation like “harmonious construction” and “special overrides general”. Article 153 is special and the preamble is general.

Nothing in Article 153, which deals with the special position of Malays and the natives of Sabah and Sarawak, will be adversely affected by incorporating the Rukunegara as a Preamble to the Constitution.

Article 153 is one of the longest articles of the Constitution, consisting of nearly 781 words spread over 12 clauses. It is so deeply entrenched that it cannot be amended by Parliament except by a two-third majority of the total membership in both Houses, the consent of the King and the consent of the Conference of Rulers.

Islam: The 1957 Constitution gave to Islam an exalted position, but did not make the syariah the supreme law of the land. Instead,

Article 4(1) chose constitutional supremacy. Article 3(1) recognised “other religions”. Article 11 gave freedom of religion to all persons. The Rukunegara honours the Constitutional scheme of religious pluralism. Though the Rukunegara does not specifically mention Islam, its respect for God is consistent with Article 3(1) on Islam.

Atheists: Will the Rukunegara’s “Belief in God” violate the rights of atheists, agnostics and animists? It is submitted that the Rukunegara does not compel anyone to believe in God. All it does is to reflect the spirituality of the bulk of the population. It is also in line with Article 3(1) (on Islam) and Article 11 (on freedom of religion).

In sum, the allegation that incorporating the Rukunegara into our Constitution will undermine the special position of Islam and the Malays is unfounded. It is based on the politics of fear-mongering. A fusion between our supreme legal charter and our nation’s political and social ideology will do much to strengthen the Constitution and to restore it to an even keel. That will be a cause for celebration for some of us, and perhaps a matter of concern for some others.

  • Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at University of Malaya. 
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