Defend the basic structure of our nationhood
If the Constitution’s meaning can be erased or rewritten, and the framers’ intentions ignored, it ceases to be a constitution and would instead become a concoction of political expedients that serve the contemporary policy agenda of the few who are entrusted with public authority to preserve it
Khaw Veon Szu, fz.com
IT WAS with prophetic foresight that George Washington, one of the founding fathers of the US, once declared: “I have always been persuaded that the stability and success of the national government and consequently, the happiness of the people of the United States, would depend, in a considerable degree, on the interpretation and execution of its laws.”
And it literally takes only the interpretation of one word in the Federal Constitution by the Federal Court – and that word is “parent” – to further divide our already polarised multi-racial and multi-religious society.
Last year, barely one month after the most hotly contested general election since independence, we were confronted with the tussle over just one word – should it be “parents” or “parent”? Should that single word be read in the national language as “ibu atau bapa”, or as “ibu dan bapa” instead?
Apparently, guided by the Federal Court’s landmark judgment in the case of Subashini Rajasingam v. Saravanan Thangothoray (Subashini’s Case) handed down in 2007, the then proposed Administration of the Religion of Islam (Federal Territories) Bill 2013 adopted the former interpretation, that is “ibu atau bapa”, which would mean that a father or a mother alone could unilaterally convert a child to Islam without having to obtain the consent of the other parent.
But the proposed bill was strenuously opposed by civil society and various non-Muslim religious groups, which prefer the latter interpretation, making it compulsory for the consent of both parents to be obtained before converting a child to Islam.
Notwithstanding the fact that the proposed bill was eventually withdrawn by the government primarily due to the public outcry, this unfortunate episode clearly demonstrates the significant implications of judicial interpretation of the Constitution on our society besides highlighting the delicacy in managing a changing nation like Malaysia.
It is germane to stress here the dynamic link between the Constitution and a changing nation. The Constitution is the bedrock on which a living, evolving nation is built. It is and must be a timeless yet durable foundation that individuals can count on in a changing nation.
Much like a contract, the Constitution sets forth certain terms and conditions for governing – the basic structure that holds the same meaning today as it did yesterday, and tomorrow. It binds one generation to the next by restraining the present generation from political experimentation and government excess.
If the Constitution’s meaning can be erased or rewritten, and the framers’ intentions ignored, it ceases to be a constitution and would instead become a concoction of political expedients that serve the contemporary policy agenda of the few who are entrusted with public authority to preserve it.
Hence, both the judiciary and legislature, the two institutions entrusted by the supreme law of the land – the Constitution – and mandated by the people through the electoral process to uphold, defend and realise our forefathers’ vision, must resist any attempt by political forces of whatever stripe to temper with the basic structure of our nationhood.
In this regard, it is indeed timely to recall what Tun Suffian Hashim, the former head of the judiciary, had to say about the duty of judges in upholding and defending the Constitution in a multi-racial and multi-religious society: “…In a multi-racial and multi-religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian, or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion so that nobody reading our judgment with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot…”
Even though Suffian’s words were directed at judges, they also ring true for members of our legislature and the executive. In fact, all of them are duty bound to uphold, defend and realise the principles of the supremacy of constitution, equality before the law and other basic features of our nationhood as enshrined in the Constitution.
Make no mistake, in the years to come, the Constitution, the foundation upon which Malaysia stands, will continue to be challenged and tested by the rising call for more civil liberties, the escalating demand of regional sentiments in Sabah and Sarawak in particular, and the persistent push by various Islamic forces to hasten the pace of Islamisation.
At a critical time like this, the nation is in dire need of courageous, determined and principled individuals in the corridors of power at Putrajaya, in Parliament and on the bench of Istana Kehakiman.
They have to brave the seemingly insurmountable challenges and rise to the occasion with strength and hope, to hold the nation together by defending the basic structure of our nationhood.
Khaw Veon Szu, a former executive director of a local think tank, is a practising lawyer. Opinions ex- pressed in this article are the writer’s personal views.
