kheru2006 (kheru2006) wrote,

Our Constitution's moral and legal essence

THE word “constitution” comes from the Latin word which means “to install” or “to set up”. It is used in the modern sense to justify the independence and the sovereignty of the State.

Thus, nearly all countries in the world are formed and established by a Constitution.

In the modern sense, the Constitution also forms the fundamental principle of democracy.

For Westerners, Britain is considered the homeland of the Constitution and constitutionalism although Britain does not have a codified Constitution.

In Britain, the principles of constitutionalism are seen in some laws passed by the Parliament (Acts), such as the Habeas Corpus Act in 1679 and the Bill of Rights of Act of 1689.

The Constitution and constitutionalism in Britain are said to be products of the Enlightenment, which has been defined as a philosophical or intellectual movement of the seventeenth and eighteenth centuries, marked by a celebration of the powers of human reason.

The Enlightenment is also said to have stressed a keen interest in science, the promotion of religious toleration, and a desire to construct governments free of tyranny.

Some others claim that the Medina Charter is the first Constitution in the world that contained some norms and values of constitutionalism.

The American Continent developed the second phase of the Constitution and constitutionalism in 1776, followed by France in 1791. During the French Revolution, the bourgeoisie fought for civil rights and economic freedoms.

The Constitution then formed a legal document to replace feudal absolutism due to people’s understanding and aspiration to participate in government and to lead the government.

The Constitution functions as a legal document, having the highest legal force and providing the general principles of State functions.

In a Monarchical Constitution it forms a basic law regulating the relationship between the State and the Monarchy, the relationship between the Monarchy and the people, and the relationship between the State and the people.

In the case of the multi-cultural society, the Constitution regulates the relationship among the people, not only in day-to-day social conduct but also in socio-economic matters.

In this respect, the Constitution functions as a guiding instrument having a legal force, but originating from moral principles for maintaining equilibrium among the group members of the society forming the State.

Meanwhile, in the case of a Federal Constitution, the Constitution possesses an extra duty, that is, to regulate the relationship between the states forming the Federation.

The Medina Charter represents the Islamic values and norms of Constitutionalism.

It was developed as a legal document to be respected and followed by all members, including the administrators.

It provided limitations to the powers of the State administrators based on God’s divine revelation.

The Medina Charter also preserved and guaranteed the values of human beings within the ambit as allowed and encouraged by the Divine.

The document thus may be said to represent religious viewpoints on the essence of the Constitution and Constitutionalism.

Religion in Islam is not merely doctrinal Divine aspirations but a way of life.

Thus, religious viewpoints from Islamic perspectives are not limited to the personal relationship of one individual to his God, but at the same time include the way to live life as individuals and as a member of the State. Islamic Constitutionalism shares this view, and thus includes the essence of morality in it.

British philosophers Thomas Hobbes and John Locke for instance, represent the Liberal essence of the Constitution, which considers it to be a legal document. It serves as the highest law of the land.

The Liberal essence of Constitution limits the power of the state and guarantees human rights.

Therefore, the Constitution in their view serves the interest of the whole society.

Meanwhile, German philosopher Ferdinand Lasalle and Russian revolutionary Vladimir Lenin represent the Social-Democratic view. In this view, the Constitution is to serve the State.

The State prevails over individuals. In other words, the essence of the Constitution in the Social-Democratic view is to serve the interest of the States, not the interest of the people.

In the case of Malaysia, our Federal Constitution and State Constitutions share the same functions and some of the essence discussed above.

It is certainly true that some aspects of Malaysian Federal and State Constitutions offer democracy as a process to form and manage the government.

The Constitution also contains some traditional elements and cultural values that must be appreciated and paid great attention to for Malaysians to have a higher morality.

The real quality of justice and balance of the essence of the Malaysian Constitution, especially in the context of multicultural Malaysia, must properly be drawn out and understood in order to make them able to function as legal and moral documents.

Tags: perlembagaan, religion
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