14 theSun | THURSDAY JANUARY 22 2009

INTERVIEWS VIEWS

The Federal Constitution:

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 disfig-
ured family member.
All too often, we hear of fel-
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

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

Handle cost cutting with care comment by Lim Kok Wing

ANYONE who harbours hopes of US

letters
letters@thesundaily.com
I REFER to the picketing at a fac-
tory in Penang on Monday.
The reasons for the picketing
have been reported to be as be-
ing:
» 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 discrimi-
nation between local and foreign
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 employ-
ees 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/signa-
tory 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 em-
ployees. Please do not forget, while
the companies and management
are faced with problems, so too are
your employees. They have fami-
lies 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 reduc-
ing their perks. This will be more
convincing, rather than insisting
on the management’s rights and
prerogatives. Bad times are not go-
ing 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
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 deci-
sion to pick Rahm Israel Emanuel
as his White House chief of staff,
a post often labelled the second
most powerful office in the execu-
tive 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 en-
tering 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 open-
minded 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 inva-
sion of Gaza on the excuse that he
was deferring to President Bush as
the sitting head of the US govern-
ment.
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