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Maintain sanctity of the Constitution, no need to add Rukunegara as a preamble — Jason Leong Seng Yi

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MARCH 5 — There is a recent move led by Dr Chandra Muzaffar, Chairman of the Rukunegara Mukadimah Perlembagaan (RMP) Initiative and also Chairman of Yayasan 1Malaysia to make the Rukunegara the preamble to the Constitution.

Whilst the intention of Dr Chandra and his supporters is noble and good but upon a deeper consideration, this RMP initiative appears to overlook the complexities of such a move together with the complications and confusion that it will bring.

Let me state at the outset that we have great respect for the Rukunegara and it is important to encourage all Malaysians to understand and put into practice the ideology and principles set out in the Rukunegara.

My cause for concern and objections is merely against making the Rukunegara as the preamble to the Constitution.

The Rukunegara and the Constitution are two sacred documents with very different roles to play but to merge them into one single document will cause more problems than good.

First of all, one needs to understand what a preamble to a law is. The Federal Constitution is the supreme law of the land in the sense that all our laws enacted in Parliament must be made in accordance with the Constitution. Therefore, a preamble to the Constitution can be defined as a brief introductory statement about the fundamental purpose of the Constitution and its guiding principles.

Ideally, a Preamble to the Constitution would state the general intention of the founders of the nation regarding the purpose of the Constitution and what they hope will be achieved by the Constitution.

A move at this point in time to add the Rukunegara as the preamble to the Federal Constitution of Malaysia would certainly cause confusion as to the intention of our founding fathers who drafted our Constitution guided by the Reid Commission set up in 1956 in the run up to our Independence in 1957. The context, community and national landscape in 1957 then was certainly very different from 1970 when the Rukunegara was presented in the aftermath of the May 13, 1969 race riots which was intended to serve as an ideology that sought to establish a common platform for Malaysia’s diverse communities to live together in peace and harmony.

If the Rukunegara is now added as a preamble to our Constitution, it will never be able to reflect the intention and the desire of the founders since such intention is usually written at the time when a Constitution is drafted, in our case in 1957.

By incorporating the Rukunegara now as a preamble to our Constitution, it becomes unfair to the original drafters of our Constitution and the input and vision from the founding fathers of our country, amongst them, our first Prime Minister Tunku Abdul Rahman and his deputy then, Tun Abdul Razak, V. T. Sambanthan, Tan Cheng Lock and Onn Jaafar which were never captured in words to form part of the Constitution.

In any event, historical documents do not reveal that the Reid Commission intended to draft any preamble to our Constitution and there is no record of any such discussion about a preamble.

Dr Chandra Muzaffar, the prime mover and Chair of the Rukunegara Mukadimah Perlembagaan (RMP) Initiative also said that “given its legitimacy, its inclusiveness and its timelessness, the Rukunegara should now be endowed with the force of law. Only then will the courts be able to bestow it with meaning and substance. Though some judges have over the decades alluded to the Rukunegara in their judgments, it has no role in the adjudication process.”

Such a declared intention of the RMP Initiative would bring forth a new set of problems because the typology of preambles to the Constitution is different and varies in purpose.

According to Liav Orgad in his article, “The Preamble In Constitutional Interpretation”, there are different types of preambles and they serve different functions.

Would the Rukunegara merely serve as a ceremonial preamble in the sense that they are not regarded as an integral part of the law or Constitution and therefore do not create rights or have binding interpretative power? This is something like the preamble of the U.S. Constitution which is seen as merely persuasive, symbolic, and, generally, has no legal force.

Or would the Rukunegara be seen as an interpretive preamble in that it is rooted in the common law tradition that asserted that preambles to an act of parliament are a good means to find out the meaning of the statute and the key to open understanding of the statute and the makers of the statute? If so, will the Rukunegara as the Preamble to the Constitution now dictate major elements or perhaps introduce new elements to the architecture of the Constitution itself? Will the Rukunegara now provide principles to assist in the interpretation of our constitutional text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions? These are the extent of the implications of an interpretive preamble.

Or would the Rukunegara be regarded as a substantive preamble in the sense that the preamble is elevated to become legally binding constitutional clauses and serve as independent sources for rights and obligations? If so, will this Rukunegara preamble now become such an important core containing fundamental principles that it can even invalidate a constitutional amendment that violates that spirit of the preamble? Inevitably, with such questions, it will result in a very complex debate of the concept of a constitutional amendment that is unconstitutional vis-à-vis the spirit of the constitution as set out in its preamble. Moreover, in many countries nowadays, the preamble has been used, increasingly, to constitutionalise unenumerated rights.

Therefore, with all these myriad of questions, possibilities and implications, it is not merely a simple matter of endowing the Rukunegara with the force of law. The deeper question is what is the weight of this force of law. Once the Rukunegara is made the preamble to the Constitution, it opens the floodgates as to the many questions of what function and degree of law is accorded to this preamble and its consequential impact on the legal interpretation of the Constitution. The resulting confusion and uncertainties would have negated all the good that it is intended to bring.

Moreover, generally, the function and role of the preamble in the interpretation of a Constitution is usually about a preamble which has existed since the original Constitution was drafted. In that sense, by referring to the preamble, it may assist the court to find the true meaning, purpose or intention of the founders of the nation. However, such an argument cannot be made if the preamble is inserted to the Constitution some 60 years later.

If at all a preamble is needed to be inserted into the Constitution, a more appropriate choice would be that part of the Proclamation of Independence in 1957 which reads: “(Malaysia) 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.”

Alternatively, the words used in the Proclamation of Malaysia in 1963 which reads: “(Malaysia shall) forever be an independent and sovereign democratic State founded upon liberty and justice, ever seeking to defend and uphold peace and harmony among its people and to perpetuate peace among nations.”

This short statement would make it more similar to the preamble to the US Constitution which reads: “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.”

We cannot go back in time. And despite almost 60 years since the Constitution was accepted and promulgated, constitutional literacy amongst the people is still very low. The focus should be on promoting better constitutional literacy rather than making it more controversial and confusing.

In any event, the unintended consequences of adding the Rukunegara as the preamble to the Constitution will create more uncertainties. The contentiousness that it may stir up may be too much to bear. Moreover, by and large, Malaysia is politically stable and Malaysians have lived in peace and harmony with each other.

The position of the Rukunegara as our ideology can be restored to its prominence through many other ways through intense and integrated campaigns and the sanctity of the Constitution should be maintained.

*Jason Leong Seng Yi is the founder and Adviser of Kelab Pembangunan Uniti.

** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.

The Malay Mail Online

 

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