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.

by SHAD SALEEM FARUQI
Read more @ http://www.thestar.com.my/opinion/columnists/reflecting-on-the-law/2017/03/16/reaffirming-constitutional-supremacy-a-greater-understanding-of-the-rukunegara-will-restore-not-weak/#dbp2AyI0GhBB8TRG.99

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