Tuesday, 8 October 2013

Policies and the Constitution

Brave New World (The Star)
2 October 2013

A case can be made for policies, and not just laws, to be subject to constitutional requirements. An examination of the new Bumiputra Economic Empowerment Agenda gives an example of the grounds by which policies can be viewed as contravening the Constitution.


LET’S talk about the new Bumiputra Economic Empowerment Agenda (BEEA). From my understanding of the BEEA, it is a policy where the Government will actively direct business opportunities to bumiputra interests as well as a host of other endeavours, all with the purpose of boosting bumiputra economic presence.
I do not want to discuss the economic pros and cons of this new policy; I will leave that to the economists. Instead, I wish to examine this from the viewpoint of the Constitution. Specifically, I want to discuss if this policy can be deemed to be constitutional.
Before we begin, I wish to state here that I am in no way an economic liberal. I believe very strongly in affirmative action.
However, I believe that such affirmative action has to be properly justified, namely that it is designed to help those who are in need the most, specifically the poorer sections of a community.
Furthermore, any such action must be reviewable in an open and democratic manner in order to ensure that it is reaching its objective and that it is not abused nor implemented in such a way as to cause too great an imbalance to the principle of equality.
These basic guidelines are necessary because affirmative action is a type of policy which undoubtedly goes against the basic ideals of equality.
If we take equality as an ideal, then any deviation from it has to be done most carefully and for jolly good reasons.
Incidentally, I did not pluck these principles from out of my ear; they are found in a decision of the International Court of Justice in what is known as the Belgian Linguistic case.
Now, I am absolutely convinced that the founding fathers of this country understood and appreciated the ideal of equality.
They also understood the reality of Malaya in 1957, which is to say there was a massive economic divide in the country and that the majority of the populace, the Malays, were miles behind in terms of economic development.
It was unfortunate, but necessary therefore to take measures to correct that imbalance, although it was not something that was to be done in a blasé or light-hearted way.
In fact, the Sultans at the time stated in their comments to the Reid Commission that ultimately they envisaged a time when race did not enter the equation for governance.
This being the case, there was a delicate balancing act to be done and this balancing act can be found in the way the Constitution was drafted.
Firstly, the principle of Equality is enshrined in Article 8.
However, Article 8 also notes that there can be unequal treatment in the country, but, and this is a big but, such unequal treatment has to be specifically allowed for by the Consti-tution.
Don’t take my word for it; here is that provision in full: “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the grounds only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employments under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishment or carrying of any trade, business, profession, vocation or employment.”
And there is plenty of unequal treatment “expressly allowed by this Constitution”.
They include things like the treatment of the orang asli, the holding of positions in religious institutions, personal law, membership of the Malay Regiment, and so on and so forth.
However, we are not interested in that here.
We want to see what it says about treating people unequally in economic terms.
For that we have to look at Article 153, which says there could be reserved for Malays and natives of Sabah and Sarawak a reasonable portion of permits and licences for the operation of trade or business as required by federal law.
Permits and licences: is that what the BEEA is all about?
If it is not, then surely such unequal treatment does not fall under the exception provided for in the Constitution, which says that breaching Article 8 can only happen if it is “expressly allowed by this Constitution”.
The next question that arises is the nature of the BEEA. It is a policy and not a law.
An argument has been made therefore that policies are not subject to the Constitution.
Well, if that is the case then if we have an irresponsible government, we may very well find ourselves with all sorts of strange policies which cannot be challenged on constitutional grounds.
A government policy is something which the Executive has the power to create and enforce.
It is something which can affect the lives of the citizens. One of the purposes of having a Constitution is to check the power of the Executive so that it will not abuse that power.
It makes no sense whatsoever if they can flout the Constitution with the excuse that they are making policy, not law.
If that is the case, why have the Constitution at all since it won’t be able to protect us against policies, only laws?
For example, in August, an American court held that the policy of New York police to racially profile people when conducting stop-and-frisk exercises was unconstitutional.
This shows that challenging executive power on constitutional grounds is not limited only to laws but also policy. As it should be.

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