I WOULD like to thank the organisers for inviting me to deliver the closing remarks to this conference, which I regard as a singular honour.

After one and a half days of hearing intellectual discussions, it is a pleasant task to give the final speech because expectations will be low, and one can be brief!

Malaysia is happy to host LawAsia’s first ever conference dedicated to constitutionalism and the rule of law. It is remarkable that in its 50 year history, there was no need to have one earlier. These public law discourses are vital and topical, and accordingly praiseworthy.

It is highly appropriate, both from timing and choice of host perspectives, that this inaugural conference is held. As to timing, when well-entrenched values steeped in history are threatened by majoritarianism, authoritarian governments and nationalistic populism across the globe, including in the United States and the United Kingdom, it is timely that first principles and fundamental issues are recalled and applied.

With respect to Malaysia, our foreign delegates and speakers would have become aware in the past 2 days of the historic achievement of the 14th general election, where the true victors were the people of Malaysia. The voters demonstrated their courage at the ballot box in May 2018. The result went against the worldwide trend. We witnessed a peaceful transition of power, which was entirely trouble-free. Foreign observers have thus heralded Malaysia as a model of participatory democracy in action.

Insofar as constitutionalism and the rule of law are concerned (the subjects of your conference), an honest assessment or audit will demonstrate that the actions of the three branches of government in Malaysia over the past 16 months vary.

As for the executive, you heard the prime minister yesterday when he mentioned freedom of speech. Our people know that there is now far more space for the individual to express his or her thoughts, opinions and ideas.

Since GE14, far more democratic space has been enjoyed by critics of the government. There is no doubt that Malaysia has never had this much actual democracy since Merdeka. A thriving social media exists: one that spends much of its time in the past 16 months unceasingly attacking me! Yet, no one has been prosecuted. So that is the best proof of the space you have. As the former lord president of the Federal Court Mohamed Suffian Mohamed Hashim used to quip: “It is not freedom of speech that matters: it is freedom after speech”.

The legislature has not been presented with as many bills as one would have liked. New legislations remain works in progress. It is worth noting that even without a two-thirds majority in Parliament, the constitutional amendment to lower the voting age to 18 was passed unanimously.

Surprisingly, and disappointingly, the amendment to Article 1 of the federal constitution was not passed. It was an amendment that Sabah and Sarawak desires, and yet when the vote was taken, they did not support it.

As for the Anti-Fake News (Repeal) Bill, the Dewan Negara rejected the bill even though it had been passed by Dewan Rakyat. In any event, the one-year time limit has just passed, and the Bill will be re-tabled in the Dewan Rakyat during the coming October parliamentary session. After it is passed by the elected House, it will be sent to the Senate, which cannot reject it a second time.

As for the Judiciary, it is still too early to detect any trends. The subjects that you have considered in this conference form the staple diet of constitutional law.

They include:

• separation of powers
• role of the judiciary
• role of constitutional monarchy
• federalism

Perhaps most significantly: strengthening constitutional structures and institutions. Undoubtedly, these topics form the core and essence of constitutionalism.

But what history records, and what is actually happening in today’s world is that individuals also matter. Systems, structures and institutions taken together are insufficient!

One does not have to subscribe to Thomas Carlyle’s “Great Men in History” theory, at one end of the spectrum, or Karl Marx’s theory that social and economic forces shape history at the other end, to appreciate that the character and personality of leaders matter. Particularly, the heads of the executive branch, and to a lesser extent, the members of the apex or final court.

Why has a country that has produced Thomas Jefferson, James Madison, Abraham Lincoln and Franklin Delano Roosevelt lost its bearing some 240 years after its birth? Why has a nation that gave the world William Shakespeare, John Milton and John Stuart Mill, is the home of parliamentary democracy and exported Westminster style of government to the entire Commonwealth, become incapable of political governance as one enters the third decade of the 21st century?

At a very simplistic level (and I accept there are more profound reasons), the character of the leaders in these two nations is a factor for the decline in standards and morals of their political class and decision-making elite.

When political leaders totally lack integrity and have no fidelity to the truth, however secure a constitutional system may inherently be, it will not work.

If comparison is made of their respective judicial branches, the contrast between a politically appointed system of judges and a truly merits-based one is stark. One can predict with near certainty how the justices of the US Supreme Court would vote in any appeal involving the legality of any action taken by the president.

In marked contrast, the Supreme Court of the UK, formerly the House of Lords (and we sometimes forget the unbroken link of the Supreme Court to the House of Lords) rose to the occasion again last week, with 11 justices holding that the prime minister wrongly advised the Queen to prorogue Parliament.

The Court declared that prorogation was unlawful and void. Having a Lord Atkin, Lord Denning, Lord Bingham, and today’s Lady Hale makes a real difference!

Constitutional scholars and pundits tend to disregard or give insufficient attention to the politics of a nation, the character of its leaders, cultural values of its people and its history when considering constitutional issues.

Constitutional law should not be theoretical or dry. To flesh it out or to give meaning to its contents require an evaluation of man’s actions or omissions. The significant values of constitutionalism cannot be divorced from the people who apply it daily. They inform the subject. – October 8, 2019.

* This was Attorney-General Tommy Thomas’ closing speech at the LawAsia conference.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.