How should the Constitution be interpreted?

Suppose you are not a lawyer. How should you interpret your constitution? Are there any tools available to do that? Read on…

[1] Law 101: How to interpret your constitution

It is easy to interpret the constitution of your country – so long as you are a Democratic one – if you have the tools. And you do not have to be a lawyer to do so.

Here is Law 101 on how to interpret your constitution.

[2] Might is not right

We start with some general ideas.

Our system of rule is based on democracy.

Democracy is based on consensus.

Consensus means the majority gets to select its leaders; and usually the majority gets its wish.

Do not confuse that by thinking,

‘The majority is always right’.

In a democracy, ‘might’ is not ‘right’. The majority cannot, by consent, agree to do evil.

Suppose 90% of the population decides that raping underaged children is lawful.

Does that make it right, or lawful? What do you think?

So, democracy itself is not the answer to our questions. Democracy is only an instrument.

When the wielder of the tool does it right, there is no problem.

But an instrument abused brings nothing but injury, pain, unhappiness, and injustice.

So, a constitutional provision cannot be interpreted like an ordinary Parliamentary Act.

[3] The 5 rules of constitutional interpretation

Certain rules need to be used when interpreting a constitution.

These rules also apply to state constitutional provisions.

The first is that the Constitution itself is not merely a set of words that tell everyone (or ‘declare’) what the law is.

It is more than that.

Second, a Constitution has to be interpreted ‘organically’, and flexibly.

What this could mean is, the law must grow and change with the times: it must become better and better.

Growth means improvement, not a decay.

So, any ‘literal interpretation’ is out of the question.

Third, a Constitution must be interpreted in ‘a broad and liberal spirit’.

No ruler or judge can stretch or pervert the language of the constitution even for the purpose of supplying omissions  or of correcting supposed errors.

Fourthly, the Constitution cannot be construed in a narrow or pedantic sense.

On the other hand, the Constitution cannot be interpreted by using ‘negative tools’: e.g., using tools like irrationality, or arbitrariness.

That would result in a tyranny.

So, when a Constitution – whether of a Nation or that of a State – stipulates that  the Ruler ‘shall appoint a PM or a Menteri Besar’ that does not mean the Ruler has ‘an absolute power’ over such an appointment.

The exercise of such powers must accord with other countervailing powers within the Constitution – and all of that, must, in the end, be consistent with – and abide by – the Rule of Law.

Finally, any constitutional provision – whether of the Federation of Malaysia or of any State – cannot be interpreted to interfere with basic human rights.

[4] May our leaders exercise arbitrary power?

The answer is, ‘No’.

All those vested with power – be they Rulers, Speakers of Parliament or political leaders – are bound by,

first, the Rule of Law,

second, the Federal Constitution, and

then the State’s Constitution.

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