The rule of law – lamentations of Malaysians – Netusha Naidu

    Magna Carta – the great charter of liberties that acts as the bedrock of the rule of law.

    Published: 23 June 2015 7:21 PM

    Magna Carta – the great charter of liberties that acts as the bedrock of the rule of law.

    This year, the Magna Carta celebrates its 800th year of representing the universal birthright of freedom.

    A law student should be no stranger to this ancient text since it basically outlines the spirit of constitutionalism and its principles that define lawmaking today.

    But to be honest, I have not really given much thought to the Magna Carta until recently.

    An Irish friend of mine who resides in England emailed me an article by the magazine “Foreign Policy” that had a rather cynical approach to the Magna Carta, implying the political agenda that underlines the romanticism and how it is just “tosh”.

    Intriguingly, this perspective is a breath of fresh air to me.

    The writer strongly exemplified the charter’s lack of application in modern law and the great irony of the United Kingdom’s mellow spirit of constitutionalism since it does not have a neatly codified constitution.

    In spite of the Human Rights Act 1998, common law remains more supreme and so to say, has inhibited the empowerment of fundamental liberties.

    Even so, the European Convention of Human Rights does not seem to carry enough weight either to overrule previous judgments.

    It is a known fact that judicial precedent is a very prominent characteristic of the English legal system.

    The most compelling argument of all being – the Magna Carta used a tool of disillusioning people into believing that although these shortcomings do exist, they are still protected by the civil rights as history has dictated.

    The continuity of celebrating the charter is a gimmick to reinforce its supremacy and having it not subjected to challenge.

    Although, that didn’t stop this writer from questioning the relevance of the Magna Carta, and riddling it with reasons behind the continuity of the Tories!

    Pondering upon this, I could not help but to be grateful that Malaysia is blessed with a Federal Constitution that has been carefully drafted under the Reid Commission and the leadership during the Tunku’s administration.

    Being the most supreme law of the land, our civil rights were championed in the name of freedom and equality.

    To me, the Constitution is a permanent reminder of the upholding of the principle of the rule of law and the vision of the Tunku to see our nation as a liberal democracy.

    Rather than drawing inspiration of the rule of law from the Magna Carta, perhaps we could look at the Batu Bersurat Terengganu.

    I feel that it is crucial that we make this reference as it makes the philosophy of liberty much closer to our hearts although some others consider them as Western aspirations that are not compatible with our “Asian values” – obviously, the discovery of the Batu Bersurat clearly disputes that.

    With this in mind, I occasionally attend forums organized in conjunction with the Bar Council at the Straits Trading Building, in their auditorium named after one of of its longest serving Presidents, Raja Aziz Addruse.

    Over the years the name echoed in my head and it was only during his passing in 2011, that I had learnt about Raja Aziz’s strong association with upholding the rule of law in our country.

    Admittedly I did not pay attention to this as much as I was at the juncture of my life where I was only at the beginning of considering law school as an option of furthering my studies.

    It was only once I had started college in Kuala Lumpur a couple years later, that I began to scrutinise the legal world even more.

    Further exploration of the subject led me to learning the evolution of the Malaysian judiciary in which obviously, the late Raja Aziz played such a crucial role during his term as President of the Bar Council.

    I still get that same sinking feeling when I recall it – a dark grasp over my heart, just like the first time I learnt about the 1988 constitutional crisis.

    I believe many lawyers of Malaysia can relate to morbidity of having the independence of the judiciary undermined, especially in the vocation of a noble profession. It upsets the ability for check and balance, outwardly blurring the separation of powers.

    What I find most saddening though, is how this was simply the prelude to a medley of more constitutional violations.

    The other thought that overwhelmed me was to imagine the disappointment that would ache Raja Aziz and other visionaries of our country that believed in the rule of law and its ability to ensure progress – an acknowledgement of the importance of effectively administrating justice.

    I would like to hope that their contributions never went to waste (a part of me also wished I was born earlier or at least had the chance to meet these people).

    Unfortunately over the years, these drastic changes were seen to be made to favour certain parties, at the expense of others to derive political gains.

    It is strange because the more this seems prevalent, the more divided civil society has become in our ideals since the erosion of the institution.

    The supremacy of the Constitution does not seem as “supreme” as we claimed it to be.

    Instead, we the rakyat, find ourselves abused by politicised attempts to perverse interpretations of our Federal Constitution.

    The most grotesque of all is the deliberate ignorance of the absolutism of our fundamental liberties by those that we expect leadership from.

    In order to restore the rule of law and the greater exercise of our constitutional rights, I think that it is vital that Malaysians have a better knowledge of the freedoms that belong to us.

    Perhaps it is a pitiful negligence that our national schools do not place greater emphasis on a detailed learning of the Federal Constitution for a more empowered society.

    Nevertheless, it is about time we started to reclaim our understanding of the law for ourselves and fight to preserve the very notions of justice that our nation was built with.

    More importantly, I believe it is the inevitable duty of all members of the legal profession to uphold the rule of law and put an end to these lamentations – for Malaysia. – June 23, 2015.

    * Netusha Naidu reads The Malaysian Insider.

    * This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.