DOCUMENT OF DESTINY-THE CONSTITUTION OF THE FED. OF MALAYSIA

Speech by Prof Dr Shad Saleem Faruqi (PIC) at the launch of his book, "Document of Destiny, The Constitution of the federation of Malaysia"
Friday, 27 June 2008

Yang Amat Arif Tun Dato’ Seri Abdul Hamid bin Haji Mohamed
Y.A.A. Tan Sri Dato Zaki Tun Azmi
Y.A.A. Tan Sri Dato Seri Panglima Richard Malanjum
My Lord Justices of the Court of Appeal
Mr Justice Zubayer Rahman Chaudhri, Supreme Court, Bangladesh
Yang Berbahagia Dato’ Seri Prof. Dr. Ibrahim Abu Shah
Yang Berbahagia Datuk Ng Poh Tip, Editorial Adviser

Distinguished guests, learned colleagues and valued friends:

This moment is a “dream moment” for me, and I wish to thank you all from the bottom of my heart for making it so memorable for me.

I am just an ordinary law teacher in the evening of my career. Everyday I watch the shadows lengthening and the hues of the sunset growing deeper. But your kind presence here makes the colours of dusk appear brighter and lovelier and gives me that warm feeling that perhaps 37 years as a law teacher were worth it and not wasted.

It was not my expectation that my publisher would so generously organise something so grand. And it was beyond my imagination that Y.A.A. Tun and the nation’s leading judges, jurists and legal luminaries would add grace and grandeur to this occasion.

But I was emboldened to approach Y.A.A. Tun because of a chance meeting I had with Tun at UiTM’s campus in Merbok, Kedah where Tun had gone to deliver an address to our students. Tun’s humility and humanity, simplicity and integrity shone through. And so, despite some nervousness, I approached Tun’s chambers for an appointment. It is a measure of our Chief Justice’s prompt attention to detail that less than 24 hours after I contacted Tun’s chambers, Tun personally sent a very warm e-mail message to say – and these were his words – “that he felt honoured to accept my invitation”.

I am deeply grateful to Tun and I feel honoured and blessed beyond what I can describe.

I also wish to say that it has been my privilege to be associated with the teaching of constitutional law at UiTM for the last three and a half decades. I have been assigned other subjects as well – contract, tort, administrative law, family law, clinical legal education, jurisprudence – but none of the subject arouse the awe and the sense of semi-sacredness that I feel when I lecture on the glittering provisions of the Constitution.

This is because I see the Constitution not just as a lawyer’s document but also as the vehicle of a community’s legal, political and social life. More than any other law, a Constitution is the repository of the nation’s dreams and demands, its values and vulnerabilities. It provides the foundation on which the superstructure of the state rests. It creates our basic institutions and vests them with powers and responsibilities. It protects fundamental freedoms. It seeks to reconcile the irreconcilable conflict between the might of the state and the rights of the citizens.

As the years passed and my immersion in constitutional law deepened, I began to see its majesty, its beauty, its contradictions, its flaws, its historical antecedents and its complexity.

Each year, as I ended the course, the islands of knowledge began to grow. And as the islands of knowledge began to grow, the shorelines of mystery began to expand.

Despite three and a half decades, I still feel like the child at the seashore with just a few pebbles in my bag and a vast ocean of knowledge stretching right up to the horizon beyond me.

Yang Amat Arif Tun, my Lords and distinguished guests:

I present this work to you with great hesitation and nervousness. Despite its 47 chapters and 800 pages, it is incomplete. The views I have expressed in it are subjective and flawed despite my sincere efforts at a dispassionate analysis.

I am deeply conscious that to comment objectively and fairly on the state of constitutionalism and human rights in any country is not an easy task because the Constitution is silhouetted against the panorama of history, politics, economics, culture and philosophy. A mature analysis requires a historian’s perspective, a lawyer’s acumen, a politician’s insight, a philosopher’s vision and the executive’s experience. Unfortunately I lack all these attributes.

Y.A.A. Tun and our distinguished judges:

Because of the veneration I feel for the Constitution, there is also a sense of veneration I feel for the institution of the judiciary.

I am aware that many continental countries do not place the judiciary at the heart of the legal system. But being a child of the common law tradition, I see the judiciary as a vital component of our constitutional arch. I see the judiciary as the bulwark of our liberties and protector and guardian of values on which a democratic, rule-of-law society thrives.

I have to confess that my book subscribes to an activist role for the judiciary. I believe – though mistaken I may be in this belief – that throughout the world there has been a massive enlargement of the bureaucratic apparatus of the state. The traditional parliamentary techniques for providing a check and balance and for supervising the administration are not working well. Therefore, it is imperative that judicial control over the administration must be proportionally strengthened. “As liberty is subtracted, justice must be added”.

I am aware that judicial activism has its critics even in the land of Marbury v Madison. But I believe that in the area of constitutional law, judicial activism is unavoidable.

This is because the Constitution consists of glittering generalities and wisdoms of the past that could not possibly calculate for the felt necessities of today and of posterity. The Constitution has, therefore, to be interpreted to keep pace with the march of times, to stay sensitive to the rise and fall of ideas and to remain abreast of the tides that continue to wash at our shores.

Secondly, life is larger than the law. Now and then novel situations arise on which the law provides no guidance. The judge has two choices. He can wring his hands in despair. Alternatively, he can, as Justice Bhagwati put it poetically, “reach out into the heart of legal darkness where the flames of precedent fade and flicker”, and “extract from there some raw materials with which to fashion a signpost to guide the law”. The contemporary philosopher, Ronald Dworkin, gives similar advice in situations when rules run out. According to him, the judge can rely on “non-rule standards”, principles, doctrines and standards to assist in the decision. These non-rule standards then become an integral part of the majestic, seamless web of the law. A constitutional court judge is entitled to view the whole matrix of the law in arriving at his decision.

My Lords, I believe that the broad definition of “law” in Article 160(2) of the Federal Constitution lends credence to the argument for a holistic view of legal practice.

Thirdly, it is a fact that the law of the Constitution is often so full of ambiguities, gaps and conflicts that the judge has to reach out beyond formal rules to seek a solution to the problem at hand.

Fourth, when the declared law leads to unjust or undesirable results or raises issues of public policy or public interest, judges around the world try to find ways of adding moral colours or public policy shades to the legal canvas. One could note, for instance, the “public interest” interpretation of Article 5(3) of the Federal Constitution in Ooi Ah Phua v Officer Incharge Kedah/Perlis [1975] 2 MLJ 198 in which the constitutional right “to consult and be defended by a legal practitioner of his choice” was judicially interpreted to come alive only after police have completed their investigation.

Fifthly, provisions enacted in one age have to be applied in a time frame of the continuum to problems of another age. A present time-frame interpretation to a past time-frame statute invariably involves the judge in a time-travel from the past to the present. He has to cause the provision to leap-frog decades or centuries in order to apply it to the felt necessities of the times.

In sum even if it is argued that a judge has to interpret the law according to the intention of the legislature (which intention is often not clearly defined), it is nevertheless true that the interpretive task is, in its functioning if not in its form, virtually indistinguishable from the law creating task. As Justice Holmes pointed out: “A word is not a crystal, transparent and unchanged. It is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used. It is for the judge to give meaning to what they legislature has said.”

If one adopts a holistic view of the concept of law, as many legal philosophers urge us to do, that leads to the inevitable conclusion that the judge is free to view the entire spectrum of the law in its full majesty; to subject all statutes to constitutional fundamentals; to read rules of one statute in the light of the related statutes and relevant precedents; to understand law in the background of a wealth of presumptions, principles, doctrines and standards which operate in a democratic society. The judge is entitled to look at the totality of the laws, institutions, moral standards and objectives on which his society is based. He is justified in giving effect to what is implicit in the legal system and to crystallize what is inherent. His task is creative and not passive.

I acknowledge, however, that within the academic and judicial community there are animated disagreements on the proper approach to statutory interpretation and there is no unanimous answer. Ultimately it is a question of political and legal philosophy.

Leaving the issue of statutory interpretation, I wish to comment on the storms that buffeted the judiciary before Tun’s assumption of office and the very dignified and exemplary manner in which Tun has tried to restore the dignity of, and confidence in, the judicial institution. We, as citizens, wish to thank Tun for giving us good leadership in challenging times.

To your brother and sister judges too we have to say that your learned judgments are a learning experience for all of us in the academia and they contribute to the building blocks of our knowledge.

Thank you for protecting our Constitution. Despite its many flaws it is a wise and workable document. It bears the mark of idealism as well as realism. It blended the old and the new, the indigenous and the imported. According to our late and great constitutionalist, Prof Hickling, the ideas of Westminster and the experience of India mingled with those of Malaya to produce a unique form of government.

Fifty years into Merdeka, the Federal Constitution, though amended significantly in many parts, is still the apex of the legal hierarchy. It has endured. It has preserved public order and social stability. It has provided the framework for Malaysia’s spectacular economic prosperity. It has reconciled the seemingly irreconcilable conflict of interest between ethnic and religious groups in a way that has few parallels in the modern world.

Finally I wish to thank The Star for its generosity in organizing this occasion; its community-mindedness in printing this book on constitutional law at a very reasonable price; and its continued opportunity to me through its columns to try to promote constitutional literacy and to bring the Constitution into every home and into every heart. I thank Star’s Soo Ewe Jin, for his expert editing and for his patience in dealing with my erratic ways of long periods of draught and short bursts of deluge in sending chapters to him.

My university, my Vice Chancellor and my Dean have always been supportive of my academic and literary commitments outside the campus and I am deeply grateful.

Yang Amat Arif, My Lords, Ladies and Gentlemen:

Your presence here is a great honour for me and for my publisher, Star Publications.

Your presence is also reflective of your belief in, and your support for, our Constitution – our document of destiny, our chart and compass, our sail and anchor, our armour of defence against the passions, prejudices and vicissitudes of politics. The Constitution is the guardian of our rights and the source of our freedoms.

I hope and pray that its roots will grow deeper; that with the support of the people and the commitment of the judiciary the Constitution’s imperatives will one day become the aspirations of all Malaysians.

Thank you.

Assalamu’alaikum wrht wbkt

Source: The Malaysian Bar

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