The Federal Constitution: Use it or lose it
THE birth of our naa compromised and tion was accompanied Human Rights politically subservient by a document called judiciary. Much like the Federal Constitu- and the Law the divine battles of tion (FC). I would like by Sunil Lopez the Greek Gods, Zeus to think that in one and Kronos, we had sense, that document before us, circa 1988, is the birth certificate of this the national spectacle of the excountry. Among others, it states ecutive and Parliament versus the name and official religion the judiciary, with the FC as one of this country. However, it is of the weapons of choice. no ordinary birth certificate. It The FC is the highest law is so much more and has to be of the land. The fundamental accorded the attendant rever- rights of citizens and its limits; ence and awe usually reserved the establishment, organisation, for documents of such great functions and powers of the importance. Some have referred three branches of the governto the FC as a “living document”. ment – the executive, Parliament Whenever that term is used, my and judiciary; the limits and the mind fixates on scenes from responsibilities of the governfilms like The Night of the Living ment and even the definition of Dead where corpses, spring to a citizen are among the things life and hunt down humans to contained within it. Without the satiate their hunger. But thank- FC, the machinery that is Mafully, that’s just my twisted laysia would come to a grinding imagination. halt and chaos would ensue. The term “living document” Our country supposedly in reference to the FC, refers to subscribes to the doctrine of the malleability of the FC; its constitutional supremacy. This, ability to evolve according to among other things, means that the changing requirements of our government is supposed society. These changes can be to be subservient to the FC; it good or bad depending on who cannot act as it pleases because is in charge of upholding and its powers are limited by the safeguarding the FC. Our FC has FC. However, as we have seen, undergone countless surgeries, this is not always the case. The cosmetic and otherwise; some- loophole as some may call it, is times justifiably so but at other that Parliament has the power to times, it has been to suit political amend the FC with a two-thirds expediency. One such example majority. This means that Parliaof this was when the powers ment or the party that controls of the judiciary, the traditional Parliament is in effect supreme, guardian of the FC and the not the FC. This stranglehold on rights therein, were diminished the FC is further strengthened by constitutional amendments if the power to interpret the FC, passed by Parliament. This was which resides in the judiciary, is a precursor to the disastrous compromised. So, if we have a events of the 1988 judicial politically compromised judicicrisis, which shamefully led to ary, we are assured of erroneous and unconstitutional interpretations or decisions. In India, their constitution can similarly be amended by their Parliament and many constitutional amendments have indeed been passed. However, the stoic judges of the Indian subcontinent are good examples of independent judges who fearlessly defend the Indian Constitution. There have been instances where when faced with attempts to amend the basic structure of the constitution, the Indian judiciary has resisted and in no uncertain terms informed the Parliament to leave their constitution alone and instead head for the nearest kite maker, pick a kite and fly it. Our judges, however, do not follow the example set by their Indian counterparts and so our FC remains at the mercy of the two-thirds majority of Parliament. The FC is what protects the citizens of this country from abuse of power by those who govern and it guarantees us certain immutable rights. The fact that every law-abiding citizen is free to walk down any street in Malaysia is a right that stems from the FC. The fact that we can reasonably expect that when we are merrily on our way to the nearest kedai kopi for a much deserved kopi ‘O’ and roti bakar, we are not suddenly swept off our feet and held captive by some law enforcement officer because of the colour of our skin or our religious beliefs (although, some of us are for that very reason occasionally rounded up at pubs and clubs and carted off to a lock-up), stems from the FC. It can be said that our FC has been treated badly over the

The FC (Federal Constitution) is what protects the citizens of this country from abuse of power by those who govern and it guarantees us certain immutable rights.

years. It has been abused and misinterpreted. However, the worst treatment it receives is when it is ignored and hidden as if it were a grotesquely disfigured family member. All too often, we hear of fellow citizens whose rights are ignored or denied and often, this is due to the ignorance of both the perpetrator and the victim. This is not to say that those who have a working knowledge of the FC are safeguarded from being denied their rights or are able to confidently speak up for the rights of others. These constitutionally savvy few are too small in number to make any significant difference. When these people cry foul over an infringement of rights, their voices are often equivalent to a mouse squeaking underfoot. The fact is, if a majority of citizens remain ignorant of their guaranteed rights, these rights will remain merely words on a piece of paper, lifeless and wasted.

We should take the time to evaluate our role and our future as citizens of this country. Our collective destiny as Malaysians is in our hands and we need to equip ourselves with the right tools if we are to become a free and strong society instead of remaining ignorant victims. A good first step would be to pick up a copy of the Federal Constitution and have a good long read. If you can’t afford to spare RM15 for a copy, don’t despair. Go to www. pogar.org/publications/other/ constitutions/malaysia-e.pdf Sunil Lopez is a member of the Human Rights Committee, Bar Council Malaysia. For more information, see www.malaysianbar. org.my/human_rights/. The views expressed in this article are personal to the writer and may not necessarily represent the position of the Bar. Complaints of rights violations may be forwarded to oysim@malaysianbar.org.my.

Midnight bus ban not
I REFER to Transport Minister Datuk Ong Tee Keat’s announcement of the proposal to ban express buses from roads after midnight because there are too many accidents, especially after 2am. If citing bus drivers’ mental and physical fatigue is the rationale, then what about lorry, trailer and commercial van drivers. They too fall under the same category. Are we also going to later ban cars, since accidents involving cars also occur past midnight? I think it is an unwise idea for the simple reason that traffic accidents on highways and trunk roads will increase if the proposal is enforced. To ban a vehicle from using the roads a reasonable time for the road journey must be given. If the ban is to be in force between midnight and say 6am, assuming an average time of four to five hours is taken to complete a journey from Kuala Lumpur to either Johor Baru or Penang, then the journey must start before 7pm or 8pm. Otherwise the driver will not be able to complete the journey by midnight and thus will be in violation of the ban. Looking at this scenario, vehicles that are subjected to such a ban can only be on the roads for 13 hours a day after deducting 11 hours (7pm to 6am). Can one imagine the kind of traffic congestion that will take place on the highways and trunk roads once such a ban is enforced?

Is Obama ready
comment by Lim Kok Wing ANYONE who harbours hopes of US President Barack Hussein Obama breaking with America’s pro-Israeli policies doesn’t need to hold his breath. Like all his predecessors in the White House since the creation of the Jewish state in 1948, Obama will give Israel nothing less than unconditional support. Some analysts already fear that the Obama administration may tilt even more towards the Israelis than previous administrations. For proof, they point to Obama’s decision to pick Rahm Israel Emanuel as his White House chief of staff, a post often labelled the second most powerful office in the executive branch after the president. Emanuel, who was Obama’s first high-level appointment after the November 2008 election, once worked for the American Israel Public Affairs Committee, has served in the Israeli army, and allegedly holds dual US and Israeli citizenship. The Israeli newspaper Ma’ariv hailed his appointment by calling him “our man in the White House”. Assisting Emanuel as senior adviser to the president will be his close friend David Axelrod, Obama’s presidential campaign chief strategist and a Jew. Elected on a platform of “Change” to replace the unpopular Bush administration, Obama is entering the White House with a great deal of international goodwill. Much is made of his personal story, which has captivated people around the world, in particular the Muslims. Although a Christian, Obama is the son of a white American woman and a Kenyan man who was born a Muslim. He also spent part of his childhood living in Indonesia after his mother’s divorce and second marriage to an Indonesian Muslim man. These are experiences that might have shaped a more openminded worldview in the new president, but the early indications of the likely course of his foreign priorities are not promising. Apart from his appointments to his inner circle, Obama has remained silent on Israel’s invasion of Gaza on the excuse that he was deferring to President Bush as the sitting head of the US government. He chose not to comment on the 1,100 deaths in Gaza, nearly half of them women and children, and the massive destruction of Palestinian homes and properties. Instead, he thought it urgent enough to say he believed al-Qaeda and its leader Osama bin Laden remained the biggest threat to the security of the US. Surely, Obama and his advisers must be aware that the Middle East

Handle cost cutting with care

I REFER to the picketing at a factory in Penang on Monday. The reasons for the picketing have been reported to be as being: Local employees forced to go on unpaid leave from Jan 23 to Feb 9; Foreign workers allowed to work during the period; Employees salary cut by 15%. It is important that companies comply with the provisions of the Code of Conduct for Industrial Harmony and take the following steps: Get employees to take annual leave, as a first step, and not force them to take unpaid leave. Unpaid leave is only to be taken if the annual leave has been exhausted. Since this is just the beginning of the year, the employees could not have exhausted their annual leave. I have received calls saying that companies prefer employees to take unpaid leave, as it is another form of cost cutting. This is wrong, unacceptable and bad in law. So let employees exhaust their annual leave. There must not be any discrimination between local and foreign

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workers. The law applies to ALL employees. The law is that companies cannot cut salaries without the consent of the employees and where there is a union, without the agreement of the union. Otherwise the employees have the right to leave and sue for constructive dismissal. When dealing with unionised employees companies must deal with national unions for official purposes. They can discuss issues with branch officials but the law only recognises the national union, ie the union that is a party/signatory to the collective agreement. Stop overtime, stop working on rest days and public holidays, reduce hours of work, have shut downs and only if the situation still does not improve, carry out voluntary separation schemes and as a last resort retrenchment. The above steps will ensure that the company has been fair and reasonable in dealing with its employees. Please do not forget, while the companies and management are faced with problems, so too are your employees. They have families to support and commitments to meet. They were your main asset during good times, so let us treat them with concern and due respect. Explain to them the issues and avoid acting arbitrarily and in a




high-handed manner. Remember that since the law does not allow an employer to cut salaries or force employees to take unpaid leave the company would be in breach of labour laws. So employers should “sell” or “market” these moves through persuasion, so that they can have a “win-win” situation by obtaining their workers’ consent. The top management must also show a good example by taking a pay cut themselves and reducing their perks. This will be more convincing, rather than insisting on the management’s rights and prerogatives. Bad times are not going to last forever, so let us try and overcome the bad times together, with our employees. The law is clear. The final decision to reduce the number of employees or shut down lies with the employer. However, as a good citizen and caring employer, the management must take steps to mitigate the impact on the employees, their families and the economy. In the event the matter is referred to the Industrial Court, the court will see if the employer had acted fairly and reasonably. Ajit Singh Jessy Chairman Penang State Human Resources Liaison Committee

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