Lives are lost. Assets built up over a whole lifetime are wiped away and the dreams of many house buyers continue to turn into nightmares. And the law sleeps.
EVER since the March 2008 general election, interest in constitutional law has grown by leaps and bounds. Not a week passes without some constitutional controversy gripping our imagination.
The last two weeks have been enriched by public discourse on a number of constitutional and legal issues.
Hills of death: The heart-rending stories of deaths and devastation caused by landslides remind us yet again of how callous we are in our relationship with nature. The causes of such repeated tragedies are many.
In the mercantile society we live in, profits override all other considerations, including human lives.
There are weak laws; lax enforcement of the laws’ rudimentary requirements; surreptitious links between big business and political elite; and corrupt practices.
Local authorities are unelected, and care two hoots about citizens’ welfare. Land is a state matter, and except in the federal territories, the Federal Government is not in charge of policy and implementation.
There are legal ways, however, for the Federal Government to stop the senseless way in which our hilly areas are being devastated by development. Under Article 92 there are procedures available for the Yang di-Pertuan Agong to declare any state area to be a “development area”. The definition of “development” includes improvement and conservation. Parliament can then pass laws to give effect to the conservation and improvement plan.
Alternatively, a federal emergency law under Article 150 can be enacted to federalise all gazetted hilly terrains and subject them to stringent regulations like in Hong Kong.
After each tragedy we hear empty platitudes and orders to freeze all development projects on hills. Those who issue the orders often have no jurisdiction to do so. Those who have the jurisdiction maintain a thunderous silence.
If any town and country planners, irrigation and drainage officers, architects, surveyors, engineers and developers have ever been prosecuted for criminal negligence is unknown.
In the matter of civil liability, the court in the Highland Towers case exculpated the local authority concerned. And so the dreams of many house buyers continue to turn into nightmares. Lives are lost. Assets built up over a whole lifetime are wiped away. And the law sleeps.
Facts speak for themselves: 13 major landslides in the Hulu Klang area in 15 years, of which five were in Bukit Antarabangsa alone! When will we wake up?
Vernacular schools: Umno Youth chief aspirant Datuk Mukhriz Mohamad’s views on this matter have kicked up a storm. From experience we can say that the issue is rarely examined as an educational issue. Instead, racial passions get stoked.
The legal position is that Article 152 makes Malay the national language for all “official purposes”. In the Merdeka University case it was held that a university is a public authority existing for a public purpose.
Consequently, it is constitutional to prohibit or prevent teaching or learning in a language other than Malay in a government or public authority institution.
But as part of the pre-Merdeka give and take, Article 152 also states that no one can be prohibited from using a non-Malay language for non-official purposes. No one can be prohibited from teaching or learning a non-Malay language like Chinese or Tamil.
The law distinguishes between “teaching and learning of” and “teaching and learning in”. The latter (i.e. a non-Malay language as a medium of instruction) can be prohibited.
Vernacular schools are not protected by the Constitution but by an ordinary law – the Education Act 1961 (now 1996) – which permits “national-type” schools or institutions to use non-Malay languages as the medium of instruction with the permission of the Education Minister.
Federal fatwa on yoga: In our federal system there is a division of executive, legislative, judicial and financial powers between the federation and the states. Except for the federal territories, Islam is in state hands. The Sultans are the head of Islam within their territories.
A federal fatwa has no legal effect in the states unless adopted by state religious authorities in accordance with procedures laid down by the relevant state legislation. These procedures vary from state to state. The yoga ban must therefore go through the procedures of all 13 states and, if approved, must be gazetted before enforcement.
Parliamentary privilege: Under Article 63, except in relation to seditious speeches, all MPs enjoy absolute immunity for anything said in the course of “parliamentary proceedings”.
The allegedly defamatory statements by a deputy minister about the former VC of UM are, therefore, absolutely protected in the law of defamation. In fact any threat to sue an MP or a minister in respect of his parliamentary words or actions could well be regarded by the House as a punishable contempt.
Ministers and MPs must, however, remember that all that Article 63 implies is that they cannot be sued in court in respect of parliamentary words. If they abuse their privilege by uttering false, defamatory, vulgar, gender-insensitive, or racist statements, they may be disciplined by the House itself and suspended or expelled.
Road signs in Penang: Road signs are definitely an official purpose for which Malay must be used. However, federal and state governments are permitted by Article 152(1) to preserve and sustain use of other languages. The hullabaloo over the Penang decision to use other languages in some heritage areas is, therefore, more political than legal.
Rulers’ immunity: This immunity was abolished in 1993 due to some well publicised cases of abuse. Some Rulers reacted to the loss of immunity with righteous indignation because they lead exemplary lives.
However, the subjection of the Rulers to the rule of law may, in the long range, help the monarchy to maintain the high standards necessary for its survival and popularity.
Restoration of royal veto: Due to constitutional amendments in 1983, 1984 and 1994, the Yang di-Pertuan Agong and the Rulers can be bypassed in the legislative process after a delay of 30 days. Recently there was a proposal that “the royal power to veto Bills” should be restored. This proposal rests on a number of misunderstandings.
First, in the ordinary legislative process Their Majesties never possessed a veto power. Consenting to ordinary Bills was a non-discretionary constitutional function in the exercise of which the King and the Rulers were required to act on advice. The best that Their Majesties could do was to delay, caution and warn. But in the last resort they had to accept the advice of the political executive.
Second, the weakness in the pre-1983 law was that the maximum period of delay was nowhere specified. The matter was left to tradition, convention and good sense. Article 66 and the Eighth Schedule were, therefore, amended to specify that the maximum period of delay is 30 days, after which the Bill becomes law without royal assent.
Third, in the matter of constitutional amendments to 11 topics mentioned in Articles 2(b), 38(4) and 159(5), the Conference of Rulers had, and continues to have, an undoubted veto power. That power is not affected by amendments to Article 66.
Article 66 deals with the ordinary legislative process, not with constitutional amendments. Article 66 and the Eighth Schedule impose time limits on the King and on the State Rulers. These amendments do not in any way affect the powers of the Conference of Rulers in Articles 2(b), 38(4) and 159(5) to delay or veto constitutional amendments on 11 topics.