Amend constitution to make it a living document

PASIR Gudang MP Hassan Abdul Karim disagreed with Dewan Rakyat Speaker Azhar Azizan Harun who ruled that former prime minister Najib Razak would remain the Pekan representative until the disposal of the latter’s motion for a Federal Court review of his conviction or a petition for pardon.

In response to Hassan’s assertion that Najib was disqualified as an MP, Joshua Wu argued that Hassan’s “contentions do not hold water”, citing article 48(1) of the Federal Constitution, which begins with the words: “Subject to the provisions of this Article.”

This means that article 48(1)(e) of the Federal Constitution, which Hassan relied on to automatically disqualify Najib as an MP, has to be read together with the other provisions of article 48.

I agree with Joshua. It reminds me that one cannot read the law, particularly the constitution – in bits and parts. One cannot simply read article 48(1)(e) to say that if an MP has been convicted of an offence by a court of law in the Federation and “sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon” he or she is disqualified as an MP. The disqualification in Clause 1(e) must be read together with other provisions in Article 48.

This reminds me also of clause (2) of article 8 (on equality) which reads as follows: “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”

One cannot simply read the above provision as prohibiting discrimination on the ground “only of religion, race, descent, place of birth or gender in any law” – the word “gender” having been inserted by way of amendment in 2001 – and leave out the opening words “Except as expressly authorised by this Constitution”.

The opening words clearly allude to discrimination authorised by the constitution. In other words, the constitution can provide for discrimination which discrimination does not violate the constitution.

It is said that the provisions of a constitution cannot be in conflict with each other. The constitutional provisions must be read harmoniously. A harmonious reading of article 14(1)(b) read with clause 1(b) of part two of the Second Schedule as well as article 8 means that the discrimination against mothers whose children are born outside the federation are not citizens by operation of law is a discrimination “expressly authorised by the Constitution”, notwithstanding the prohibition on ground only of gender.

If the discrimination is to be done away with, the constitution has to be amended to make the constitution a living document, evolving and adapting to new realities and ethos of the time.

That is the motivation behind Pengerang MP Azalina Othman Said’s filing of a motion to table a private member’s bill for a constitutional amendment to grant citizenship to overseas-born children of Malaysian mothers.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.

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