Can We Amend the Basic Spirit of a Constitution?
One of the more controversial debates in the early days of the Malaysian Federal Constitution was over whether its basic spirit could be amended away. Was it possible for Parliament to amend the Constitution to a point where it basically contradicted the spirit and intent with which the original Constitution was drawn up?
This question was settled by the Federal Court in 1977. That year, it was argued before Raja Azlan Shah (who would later go on to become the top judge in the land, and then ascend to the throne of Perak) in Loh Kooi Choon v. Government of Malaysia that the government, by retrospectively amending the Constitution in order to permit the Restricted Residence Enactment to contradict Article 5(4) of the Constitution (which guarantees an arrestee the right to be produced before a magistrate and not be detained further without the magistrate's consent), had contravened the basic structure and spirit of the Constitution.
Raja Azlan Shah rejected this argument. Although Article 4(1) states that any law passed after Merdeka (independence) day that is inconsistent with the Constitution shall, to the extent of the inconsistency, be void, he held that the Constitution could not be internally inconsistent. If it explicitly allows certain laws to contradict the Constitution, then that contradiction is constitutional.
This decision was later affirmed in 1980 by a different panel of judges in the Federal Court, in the case of Phang Chin Hock v. Public Prosecutor. Lord President Suffian Hashim held that:
For the purpose of this appeal it is enough for us merely to say that Parliament may amend the Constitution in any way they think fit, provided they comply with all the conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself.
It seems clear, then, that according to the Malaysian judiciary, a Constitution can be amended in any way the government sees fit, provided that all the procedures for making constitutional amendments are followed correctly.
This decision does not conform to our natural sense of justice. After all, it seems odd to permit a Constitution to be amended at will, without any binding principles to be tethered to.
In countries where the amendment process is drawn-out, it may make sense to not have such binding principles. If the amendment is subject to a referendum, or if it requires the approval of, say, a particular number of state legislative assemblies, then clearly any problems with the amendment should come to light during the process.
Indeed, this is probably a more effective way of entrenching the Constitution than the direct method of declaring certain parts of the Constitution off-limits (as Malaysia has done with several "sensitive issues" pertaining to citizenship, royalty, race and religion). After all, thanks to the complex process for securing amendments to the US Constitution, I think less than two dozen amendments have been made to it, in all.
Where the process is significantly easier, however, as it is in Malaysia, things get difficult. Thanks to the government's penchant for treating the Constitution as another piece of ordinary legislation, over 30 articles were added and repealed between 1957 and 2003. One estimate of individual amendments to the Malaysian Constitution puts the number at about 650.
This has obviously gotten out of hand. If the Constitution is not a guiding beacon of principles, a lighthouse of ideals for its people, then what is it? Is it a mere child's essay, with new sentences to be squeezed in at the margins, and spelling errors to be crossed out in crayon?
It is my submission that as the purpose of a Constitution is to determine the very principles upon which a country is founded and governed, there should be a certain spirit of the Constitution that cannot be contravened, cannot be amended.
But what spirit is this? I think that what the spirit and intent of a Constitution is should be spelled out clearly in a preamble. The United States Constitution does this quite clearly:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Malaysian Federal Constitution, however, is completely lacking in any sort of preamble stating the basic spirit it was written in. As a result, sorting out complex issues, such as those about the unwritten "social contract" ostensibly governing race relations, is significantly more tedious and difficult than it would otherwise be.
If we want a preamble, it would not be very hard to find one. The Malayan Proclamation of Indepence provides a ready-made statement of founding principles, and the Rukunegara also lists several principles and ideals that the country has ostensibly devoted itself to.
If we would like to take our Constitutional preamble from the Proclamation of Independence, there are two possible suggestions, one of which directly pertains to the Constitution:
AND WHEREAS by the Federal Constitution aforesaid provision is made to safeguard the rights and prerogatives of Their Highnesses the Rulers and the fundamental rights and liberties of the people and to provide for the peaceful and orderly advancement of the Persekutuan Tanah Melayu as a constitutional monarchy based on Parliamentary democracy;
Alternatively, one could choose the closing paragraph of the Proclamation:
NOW In the name of God the Compassionate, the Merciful, I TUNKU ABDUL RAHMAN PUTRA ibni AL-MARHUM SULTAN ABDUL HAMID HALIMSHAH, PRIME MINISTER OF THE PERSEKUTUAN TANAH MELAYU, with the concurrence and approval of Their Highnesses the Rulers of the Malay States do hereby proclaim and declare on behalf of the people of the Persekutuan Tanah Melayu that as from the thirty first day of August, nineteen hundred and fifty seven, the Persekutuan Tanah Melayu comprising the States of Johore, Pahang, Negri Semblian, Selangor, Kedah, Perlis, Kelantan, Trengganu, Perak, Malacca and Penang is and with God's blessing shall be for ever a sovereign democratic and independent State founded upon the principles of liberty and justice and ever seeking the welfare and happiness of its people and the maintenance of a just peace among all nations.
Whichever definition of founding principles we choose, it is clear that travesties of justice such as the one that occurred in Loh Kooi Choon's case could not occur (barring some unnatural definition of "liberty and justice" or "fundamental rights and liberties"). The government would not be able to willy-nilly transgress the rights of the Malaysian people at will.
A constitution without any principles is little better than no constitution at all. In a country governed by the rule of law and set up under a constitution, it is crucial that there be some founding principles and a fundamental spirit for the country to avoid losing sight of. Without being tethered to any such principles, the country and its people are lost.