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Reviving the constitutional spirit

  • To revive the constitutional spirit, we need to have a preamble. But there is one danger: Who will draft it?

By Azmi Sharom

Last weekend I was speaking at a forum where I was asked how the integrity and original spirit of the Constitution can be revived.

One of the suggestions I made was that perhaps we should have a preamble to the Constitution.

A preamble would lay down the basic ideals and principles which the Constitution hopes to uphold. If these ideals and principles are spelled out, then this ought to help judges make a decision in constitutional cases because then they will not be limited to the actual words of the law, but they will also be mindful of said principles.

Let me give you an example. The Constitution says we have freedom of speech. However the government can restrict those freedoms, for example for national security reasons.

If a judge takes these words literally, then as long as the government makes a law which says it limits our free speech for security reasons, he will just accept it as OK. After all, the Constitution says they can do this.

However, if the judge is guided by a preamble that says that our rights are important and ought to be protected, then the judge may view the problem differently. He may realize that our rights are to be protected and therefore any law which limits those rights have to be justified as being absolutely necessary and any limitations on our rights have to be reasonable and proportionate.

Now if I was to draft a preamble to add to our Constitution, I would make sure it includes the following: that the rights of the citizen are important and must be protected; that the separation of powers between the three branches of government is vital; that the rule of law must be upheld; that democracy must be properly defended and that the plurality of the nation respected.

Now, what I didn't say at the forum is that if we are to have a preamble, there is one danger. Who will draft it? If the drafters of the preamble are not concerned about the principles mentioned above and if they instead wish for a more controlling state, then a preamble could be a disastrous thing indeed; in which case it is best not to have one at all.

(Azmi Sharom is a law lecturer at Universiti Malaya.)

 

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