Unenumerated rights

The Almighty Creator granted inalienable rights; government guarantees certain rights; the thinking man invokes unenumerated rights.
– Anon Y Mous

Rights are usually enshrined in a written constitution outlining what you can expect from government. What the government expects from its citizens springs from man-made laws. Be wary.

In Malaysia Fundamental Liberties are listed in nine Articles of the Federal Constitution as enumerated rights. Whether the citizens agree or not is subject to judicial interpretation and/or reform-minded politicians. Be watchful.

Unenumerated rights constitute a bundle of rights that citizens are entitled to, and eligible for, as determined by Natural Law, morals, ethics, and that very uncommon unenumerated right called ‘common sense.

The separation of powers between the executive, legislature and the judiciary are not enumerated in the Malaysian Federal Constitution. It is merely a convention despite judicial pronouncement otherwise.

The basic structure doctrine of a written constitution is a genuine article that came from the common law in the Indian case Sajjan Singh v State of Rajasthan, 1965 AIR 845.

In Sajjan, the Indian Supreme Court declared that Article 368 of the Indian Constitution (Fundamental Rights) is a no-entry zone for the amending power of Parliament. Malaysian courts, not Parliament, have accepted this doctrine in several decided cases.

The independence of the judiciary is a sacrosanct unenumerated right that has baffled and troubled the executive branch of government between 1981 and 2003. The legislature stood impotent while the national rogol began upon this most relevant government institution.

Another unenumerated right may include your right not to vote. So, what happens if nobody decides to vote because of a growing distrust of politicians? No election? No government? Anarchy and chaos rule and reign ? Very doubtful.

The right to education, not compulsory, in Article 12 Federal Constitution does not prohibit home-schooling which makes it an unenumerated right for parents to choose what’s best for their children.

Disappear, Article 12 does not permit government to endorse the mischief of Public Enemy Number One feigning an education model.  It does, sadly, become an unenumerated right for government to do the needless, worthless and useless. This incorrigible Enemy seems unbeatable.

Law reform in Malaysia is a well-rehearsed platitude. It has teased and ceased functionality since 1957. Citizenship has suddenly become a national threat. Debating the Bill has been on hold. Law Minister’s unenumerated right to do nothing?

The real threat created by the concept of unenumerated rights is that of land ownership. The Second Charter of Justice of England, 1826, vested land ownership in Penang, Malacca and Singapore with the British East India Company and subsequently the British Crown!

English common law, operating as a comforter, offered face and grace to local customary laws in Karpen Tandil v Karpen [1895] 3 SSLR 58 (Singapore), and Choa Choon Neo v Spottiswood (1869) 2 Ky 216, 221 (Straits Settlement). But it circumvented customary land law.

Land ownership was ultimately parachuted into the Constitution of the Republic of Singapore, RS (A) No 1 of 1980, Article 160. The Singapore government, now, legally, lawfully and legitimately owns all land, and soil, in the island!

Freedom of thought and conscience also qualify as unenumerated rights. But can the ‘Thought Police’ monitor or watch your thoughts under the pretext of the Freedom of Information Act? A frightening thought. Pun intended.

The freedom to till, tend and care for your land and soil before the advent of government is most certainly another unenumerated right now made awkward at Articles 83 to 91 Federal Constitution. Ask the Orang Asli to interpret Article 8(5)(c) Federal Constitution.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” declares the Ninth Amendment of the Bill of Rights to the US Constitution. Unenumerated rights have the force of the supreme law for Americans.

Will such a constitutional provision help Malaysians in the blast of politics, political party affiliations, unjust laws and discriminatory policies? Political maturity, as a yardstick, begins and ends at Article 153 Federal Constitution.

Our national malaise was encapsulated in the old Malayan political mantra which yours truly grew up with: ‘The wait-and-see policy’ which many have argued is an unenumerated right. Doing nothing will win votes most assuredly.

Perhaps the time is ripe for Malaysians to invoke an unenumerated right to determine, assess and interpret the supreme law of the land, and other laws, based on their nuanced political maturity in the spirit of Pepper v Hart.

If electors do not know the talents, skills and capabilities of candidates they elect, it then becomes an unenumerated right to demand psychological analysis as required under Article 48(1)(a) Federal Constitution.

Party or nation first? Party-hoppers and lawmakers have invoked their unenumerated rights to do as they wish with a partisan Speaker in the Dewan Rakyat. Article 49 Federal Constitution has been skewered beyond recognition by senseless amendments.

The ideal unenumerated right is for all Malaysians to become autodidacts (self-taught) without Public Enemy Number One’s 12-year long tentacles. Releasing the tiger within you is hardly ever mentioned in schools.

Global de facto Indigenous Communities have entrenched a Code of Conduct that portrays the spirit and essence of unenumerated rights while challenging de jure disruptions.

Malaysians must demand a Register of Unenumerated Rights to ensure a superior national identity vis-a-vis ‘national unity.’ The Madani government’s future depends on it.

The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune.