It must be remembered that the federation to which we aspire is the freedom to govern ourselves under a system in which parliamentary institutions shall be exclusively representative of the people’s will – Tunku Abdul Rahman, subsequently the first Prime Minister of the Federation, moving the Second Reading of the Federal Constitution Bill, August 15, 1957.
Prof. Judge (Dr.) Navin C Naidu, LL.D., K.C. (South African Kingdoms)
Tel: +41 767012147 (Switzerland) / Tel: 6010-959-5755 (Malaysia)
Those are stirringly inspiring words especially the phrase that underscores a “parliamentary system that shall be exclusively representative of the people’s will.” In the grand scheme of things, the people’s will is enumerated in Part II of the Federal Constitution as nine fundamental liberties – Articles 5, 6, 7, 8, 9, 10, 11, 12 and 13. The question is whether those nine fundamental liberties create a contract between Malaysians and the Federal and State governments of Malaysia. It must be remembered that certain rights are inalienable in that it is inspired by de facto tenets, and not created by de jure regimes like an elected government. The U.S. Constitution is founded on the concept of inalienable rights that needs no government constraints, restraints, limitations or demands.
“Enlightened “European philosophical tinkerers like Jeremy Bentham, Thomas Hobbes, John Locke, Jean Jacques Rousseau birthed the concept that the chaos of the “state of nature” required an organized society that justified political rule through rational consent. In plain language, this is a social contract established upon the idea that some individual freedoms are surrendered in exchange for the protection, order, and benefits provided by a government, forming an implicit agreement between the governed and the rulers that legitimizes government authority and creates mutual obligations. The “state of nature” created by an All -Powerful Creator recognized, regarded and revered as Brahma, Jehovah God, and Allah have been relegated to the political will aided and abetted by man-made laws.
The problem is with the issue of surrendering some individual freedoms that are rationally disproportionate to the protection, order, and benefits provided by the government. I mean how many police stations are there for every community with regular police patrols tasked with preventing crime as opposed to solving crimes after they are committed. We seldom see police patrols except during roadblocks and VIP out-riders calling the shots. This smacks of a breach of the contract. But then there is Section 9 of the Police Act 1967 (Act 344) that grants any person the right to apply for the presence of a Watch Constable for purposes of personal protection. Sadly, the applicant for such protection must pay for this service! This is akin to paying taxes.
So, the contract, whether social, moral, legal, or political, is out of sync with the benefits and protection as originally intended or planned. The economic contract is virtually non-existent especially with cheap imported foreign labor that offers no social contract benefits to the blue-collar Malaysian workforce. Here the contract is said to be violated. Labor constitutes one’s right to a livelihood as enumerated in the Malaysian Court of Appeal in Tan Tek Seng vSuruhanjaya Perkhidmatan Pendidikan (1996) that elevated labour rights to the status of constitutional rights guaranteed by the Federal Constitution by expanding the meaning of the right to life to include the right to livelihood and adopting a prolific view of equality (Article 8, Federal Constitution) as encompassing principles of fairness.
American courts have said that “natural rights and the social contract limit legislative powers because the object of a written constitution is not to grant legislative power but to confine and restraint it.” See Sill v. Corning, 15 N.Y. 297, 303 (1857) citing Weisterv. Hade, 52 Pa. St. 474, 477 (1866). The Malaysian Federal Constitution is made from a different fabric altogether where the will of the people remains intact with restraints and constraints entrenched and entombed in the supreme law of the land which has is no match for the extreme law of the land – the political will. Change and reform are totally alien to our culture.
The principle of fairness is subject to a host of subjective analysis when one considers Article 8(2) Federal Constitution which literally says that the Federal Constitution may authorize discrimination with the strength and vitality of a constitutional right. The powers-that-be have chosen to overlook this bond-breaking constitutional aberration which mocks the social contract. The people’s will, as envisaged by our founders and framers, is humiliated, downtrodden and wasted as an act of arrogance and ignorance by corrupt consciences and absent civic consciousness.
Liberty of the person in Article 5(1) Federal Constitution is tongue-in-cheek because of the phrase “. . . save in accordance with law.” What if the law is weak, self-serving (read: Danaharta Act) ambiguous and inefficient? What if the facts of the case do not match any written or common law? Article 6 (4) - Slavery and forced labour prohibited - Federal Constitution is painted with a broad brush on the canvas of human rights and fundamental liberties as it restricts the rights of employees who are in the service of a public authority. Read Article 6(4) to get a bucketful of breaches to fundamental liberties. Again, this constitutional irregularity remains in the never-never land of change and reform that mocks and humiliates the people’s will.
Unfortunately, in Malaysia, our fundamental liberties have been subjected to race, religion and regional biases. Associate Justice Henry B. Brown of the U.S. Supreme Court aptly encapsulated the problem thus in Plessy v. Ferguson, 163 U.S. 537 (1896): “Legislation is powerless to eradicate racial instincts.” What will it take to eradicate this in Malaysia? What if, for example, every non-Malay embraced Islam as provided for in Article 160 (Interpretation) Federal Constitution, and became a Malay, would that permanently eradicate race and religion?I doubt it as meritocracy, while beginning to play a significant role in public and private sector employment sectors, would usher in the inevitable chaos, mayhem and madness.
The social contract with Sabah and Sarawak in the Malaysian matrix is legally void and voidable because many mandates, assurances and promises enumerated in MA63 have not been enforced. Discussions, debates, discourses, litigation and threats of litigation have replaced strict adherence to contractual ethics. A novation to MA63 might be necessary to recalibrate the equation gone foul and awry. Again race, religion and region continue to widen the chasm between obedience to the rule of law, the people’s will and the political will. Imported parliamentary democracy in Malaysia competes with ancient acknowledged adat. It is time politicians took the bull by the horns and quit encouraging bovine excrement.
“The law . . . no passion can disturb. ‘Tis void of desire and fear, lust and anger. It does not enjoin that which pleases a weak, frail man, but without any regard to persons commands that which is good, and punishes evil in all, whether rich or poor, high or low. ‘Tis deaf, inexorable, inflexible” – Algernon Sidney, Discourses Concerning Government.