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Constitution made easy

Constitution made easy
by Tan Yi Liang

Bar council Constitutional Law Committee chairman Edmund Bon and his two deputies tell TAN YI LIANG how they will take the constitution to the people. What prompted the Bar Council to form this committee?
Bon: After March 8, 2008 elections, it was clear that there were a lot of questions about the federal and state constitutions. The Bar Council has also been often asked about the effect of certain provisions in the federal and state constitutions, such as the sacking of Perak Mentri Besar Datuk Seri Nizar Jamaluddin and the appointment of Datuk Zambry Abdul Kadir. Other questions asked were about basic liberties and federal and state relations, and I think the Bar Council decided that the time was right to start this committee.

How did you get involved with constitutional law issues? Maha: I recognised there was a gap where information on the constitution is concerned and if I could play any role in getting the information out there, it would be fantastic.
Bon: For me, it is a duty that we have to do under the Legal Profession Act. We are supposed to uphold justice without fear or favour and assist the public and inform them on all matters of the law. We should not be neglecting this when we are part of an organisation that picks up the constitution almost daily.
Syah: I was prompted when I saw interest in the constitution increasing. Although people are interested, they do not know what the constitution really means. We need to bridge that gap.
There will be people who will question the impartiality of this committee. For example, Edmund, you are part of the team of lawyers representing Nizar, and you are also in the team defending Datuk Seri Anwar Ibrahim and you head this committee. How will you reassure the public that there won’t be a Pakatan Rakyat bias, and that the information presented is neutral?
Bon: You must remember that this depends on our understanding of the legal profession and the maturity of the public. Lawyers should not be associated with the causes of their clients. It is a basic principle.
Criminal lawyers defend alleged murderers in court, but it doesn’t mean they condone their clients’ actions. They ensure their client receives a fair trial. People must be more mature in setting apart the personalities from the issues.
This campaign is an awareness- building and education campaign, and political partisanship doesn’t feature at all. You can judge the campaign after two years by seeing if we have achieved our goals.
I can say that an educational campaign is something that a Barisan government or a Pakatan government must support, because it is their duty to educate the rakyat. It is not our duty, but we are doing this public service because we feel that both coalitions are not doing enough.
Syah: This is a committee under the Bar Council, and the Bar Council is apolitical, and that should be sufficient to state clearly that we are impartial.
In the past, the Bar Council has come up with statements supporting, for example, Teoh Beng Hock or Nizar. These statements might seem pro-Opposition?
Bon: These statements are not pro-Opposition. They are pro-justice and pro-rights, the rule of law and what the constitution demands. I don’t see anything wrong in saying that you must investigate Teoh’s death. I don’t see anything wrong in asking for the decision (on the Perak MB) to be made by the rakyat.
It is not about Nizar or Teoh per se, but the issues. The people have to start looking at the content of the statements and the issues and not which coalition the people are from. If Tun Mahathir or Pak Lah was detained under the ISA tomorrow, we would be the first to file a habeas corpus for them and seek access to see them.
People have to start looking at the issues, and this is something we have been doing since the Bar Council was conceived and this is something that Parliament has asked us to do.
What would you say is the level of awareness of the constitution among Malaysians?
Maha: It is difficult to identify the level, but it appears from issues that have come up in the last year or so that the public view of constitutional issues depends very much on what experts say. I think that there is little personal knowledge as to the actual provisions. It has also become clear that there is a lack of public understanding on the impact of the constitution. A lot of people don’t see that their daily life is impacted in some way by the Federal Constitution. We want to change that.
How does it impact us?
Maha: A simple example would be the provision for freedom of movement between the states. Your movement from Selangor to Kuala Lumpur is a right guaranteed to you under the Federal Constitution. It might not seem like much but the freedom of movement is guaranteed to you under the constitution.

How does the committee aim to increase awareness?
Syah: There are a few main thrusts. First, by publishing eight booklets and making them accessible to everyone.
The second part is to come up with videos. Hopefully, these videos will be shown on the Internet. If we can get the broadcasters to come on board, we might even show it on television.
What will the booklets cover?
Maha: The first booklet will give an overview of the constitution and explain why the constitution is important for everyone. Other booklets will target specific areas of the constitution. We will start with the institutions in the Federal Constitution, the executive, Parliament, the judiciary and also the Public Services Commission, the Police Commission and others.
We will also be looking at the fundamental liberties, of course, but briefly, and we will also talk about the role and function of government, Parliament, elections and rights of the electorate.

You mentioned that fundamental liberties will be touched only briefly. Why?
Maha: Our intent with the booklets was to be as brief, factual and succinct. Fundamental liberties, although they form one part of the constitution have a wealth of issues surrounding them. We will try to be brief on this. There is enough literature on fundamental liberties, and if there is one section of the constitution that the public are most aware of, it is fundamental liberties.
So you feel that the public are less aware about the organs of state?
Maha: Yes, I do. I think that they are less aware of how it all works, who reports to whom, for example. Of course, fundamental liberties are an important point because they deal with the lives of the average Malaysian. We will touch on it, but we will present it as factually as possible.
What we are trying to show is that the constitution is not just about certain areas that are always talked about. There are other areas of the constitution that are important, so we want to raise awareness in that sense.
The constitution is a complex subject, how are you going to simplify it for the target audience?
Maha: We will try to keep it as simple as possible so that you don’t need a legal education to comprehend the Federal Constitution.
Bon: The target group will be anyone from the age of 13.
How would you define “constitutionalism” to a young adult?
Bon: Rule book.
Maha: It is essentially a rule book for how this country is supposed to operate.
Bon: Take for example, our Rukun Negara. What do you mean by “Keluhuran perlembagaan” ? People say it, but what does it mean? Have they ever seen it?
Syah: I think that in school, we raised our hands and recited the Rukun Negara. But do our students really know what the constitution is?
Would you be conducting surveys in schools to get statistics?
Maha: In time to come. Is there a timeline?
Bon: In an awareness-building campaign, it is difficult to get statistics. What you can do is to look at several indicators in society. You have, for example, more people from different sections of society speaking about the constitution, or by seeing the understanding of the constitution on the blogs, as more people are asking online about it. There is also the media. You have the media spinning stories which dilute constitutional protection.
Syah: I can think of one example, although it does not relate directly to the media. A while ago, there was a suggestion that a certain university open its doors to non-Malays. There was an outcry. Some of the arguments said that this contravenes Article 153 of the constitution. This is not the case, but when someone says it, and there is no awareness, people are going to take it as the truth.
These are some of the issues which we will address. We aren’t saying a particular view is wrong; we are trying to create awareness so that people can make their own decisions.
Bon: Another example is freedom of assembly. People see the Police Act as the governing law; you need a permit to assemble and sometimes it is reported that way. In fact, freedom of assembly is a constitutional right.

Will you be working with the Education Ministry to get this into schools?
Maha: We would love to work with the Education Ministry as we believe that constitutional education should start with the young. We are happy to work with anybody such as federal or state governments because that is the best way to disseminate the information.
Syah: At the soft launch of our campaign, we invited all interested parties to work with us and this includes the federal and state governments, the media, academic institutions, associations. We are open to anyone willing to work with us and who shares our vision.
Were there any challenges in setting up the committee?
Bon: The Bar Council has over 30 committees every term. It is challenging for a new committee as you have to get the members. Your committee is only as good as your members, and you need members who can work. We had to go down to the ground and identify energetic, enthusiastic intellectuals to join the committee and move towards a common vision.
We have over 60 members, and for the first time the Bar Council has such a diverse group. You have members of the Bar and non-members of the Bar. We have academics, such as Prof Shad Saleem Faruqi, Prof Aziz Bari and others. We also have lay persons, students and members of the media. A key thing about this campaign is that it can’t be a legalistic campaign or a purely lawyers’ initiative. The campaign must run through every area of society because the constitution is the bedrock of our country.
Syah: At the end of the day, the constitution does not belong just to lawyers or academicians or even law students, and that is what we are trying to achieve.

Why is the council led by three relatively junior lawyers?
Maha: Well, we hope to feature these eminent persons in our lecture series, where they can impart their expert knowledge to the public.
What was the response of constitutional veterans such as Datuk Dominic Puthucheary and Tommy Thomas to this committee?
Bon: Our role is to simplify and facilitate the campaign. All our committees are open to all 12,000 members of the Bar. So the veterans are more than welcome to join. I have not asked them but I am sure that all of them are supportive of a committee that is embarking on educating and creating awareness of constitutional provisions.
Syah: We hope that they will feature, perhaps in our lecture series to get their opinion. We hope to get them on our committee as well.
The My Constitution Campaign. When do you intend to see results?
Maha: I think we will see the results from the responses to the public service ads, the booklets and the lecture series. We are not expecting anything tangible, and I don’t think you can because this is a free public service. I suppose the best gauge would be if there is more discussion by the public on these issues, and if people are looking at the booklets, commenting on the public ads and attending our lectures.
Bon: We are looking at a month or two to come up with the first booklet. As we finish the booklets, we will launch them over the two years. The booklets will be periodicals, and the first will be on the overview of the constitution, what it entails and why people should follow it and live by it, and why without it we have no country, and to dissect the principle of the rule of law, and the meaning of the rule of just law.
How would you define it?
Bon: There is good law and bad law, and it is misleading to say that because something is stated in a law, it must be followed. We must do a test to see whether the law is just.
The Bar Council is clear on its position that the spirit of the law as laid down in the Reid Commission should be followed, and that we have diverted somewhat.
For example, the Internal Security Act?
Bon: Yes, the Internal Security Act, Emergency laws, the Police Act. We have digressed, so let us go back to the spirit of the Reid Commission of 1957.
Maha: But we won’t presume to tell the public how it should be. We are just presenting it to them, and they need to decide. It is difficult if you know of the existence of the Police Act in a vacuum without knowing that there is a provision in the Federal Constitution behind it by which the Police Act ought to be subservient. If you don’t know that, you don’t know whether the Police Act is just or not.
We are just presenting the public with the information, and they can make up their minds.
Syah: It is not our aim to tell the public what their position should be. We are just going to tell them what the constitution says, and if you want to form an opinion, it is up to you. But make an informed decision. Don’t make an opinion without knowing what is there.

So, the public should not jump to conclusions?
Maha: Yes. At the moment, people are deriving information on the constitution from expert opinions. But that is a fallacy because these are opinions. We want to arm the public with the core facts and the background to the opinions.
Syah: And those are the expert opinions. Sometimes people get their knowledge from blogs and politicians which might not necessarily be the best source.
Bon: Nobody wants to pick up the constitution and read it because it is so difficult to read. Even lawyers find that constitutional law was one of the most difficult subjects in university. We want to make that subject easy, exciting and accessible not only for lawyers but also the people.

How far has the committee come?
Bon: We just had the soft launch. We want to get the core materials going. We are studying drafts, getting quotes for the booklets and public ads, getting the teams assigned to their tasks and trying to identify what needs to be done.
The work has started and as it goes on, we will be approaching the federal and state governments for their support.

Which institution will you approach first?
Bon: We will be approaching at the same time academic institutions, the media, NGOs, the federal and state governments. One of our aims is that each household should at least have one booklet, and each household has one viewing of at least one public ad. We have about six million households in Malaysia and we cannot be successful if the governments do not provide their support.
What next, after the booklets and the ads?
Bon: Let’s start off with that first, and see where we go in the first two years. We may fail, but we think we won’t and the excitement that is starting to build is scary as the expectations are growing by the day. Some embassies have been calling and the public have been calling for the booklets. We will try and be as fast as possible, and look at it after two years.
You said failure and success. What will be your criteria for either?
Syah: I suppose failure would mean that after the two years none of the booklets or videos come out, but apart from that it is difficult to gauge success or failure. Can we do a survey now, and then another later to determine the impact of our campaign? It is difficult, and we feel that this is something that should be done.
Just because you cannot do a survey, I do not think that it will be impossible to gauge if the campaign is a success or failure.
Bon: If we are able to touch or preach to the “unconverted” , it would be a form of success. If we are speaking to the same people who already know about the constitution, that wouldn’t be a good use of our resources.
If we can go to the rural areas and get the booklets across in their language, and we see that the rakyat are more empowered, that will be a sign of success.

Updated: 11:57PM Wed, 04 Nov 2009

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