Broken Promises: The Malaysian Constitution and Multiculturalism


By Dr. Azmi Sharom

In 1835 Malays made up nearly 90% of Malaya’s population. In 1947 this number was closer to 50%. Therefore during a time when Malayan political consciousness was awakening (the 1946 British introduction of the Malayan Union which effectively placed the entire peninsular under direct British rule galvanised what can be described as the Malayan left and the forefathers of the current ruling elite), it could hardly be described as homogenous.

The 1957 Federal Constitution of Malaya reflected this change in the personality of the country. It was and is a strange creature that combines liberal democratic ideals and what can only be described as racially based preferential treatment. It also has elements of religiosity (the establishment of the scripture based Islamic law as the personal law for Muslims for example) which appear to contradict Article 4 of the constitution which reads:

“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”

Race and religion litter the document in a way that scream “different treatment for different people”; a situation, which a mere 12 years after the excesses of Nazi Germany and nine years after the adoption of the Universal Declaration of Human Rights (a United Nations document which Malaysia as a prospective new member would have to respect) would seem out of place with the growing zeitgeist of the time. However, considering the socio political situation at the time, with an indigenous population feeling overwhelmed both in numbers and in economic disparity, the nature of the constitution can be accepted as an understandable compromise.

Yet, if one were to examine the Constitution as a whole and if one were to also study the history behind this seeming paradox, then what can be discovered is that at the heart of this “supreme law” of the country, and arguably at the heart of the founding fathers of the nation, lay a desire to create a pluralistic and equal society.

The question that lies before us is where did it all go wrong, and is there any possibility of repairing the damage done?

This paper will examine the issue on two main grounds that the author believes lie at the crux of the problem facing plurality in Malaysia, race and religion.

Religion

Article 3 of the constitution reads:

“Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation”


Does this phrase mean that Malaya was to be an Islamic state? The answer is clearly in the negative for two main reasons. Firstly one has to look to the Reid Commission Report and it states that the Alliance (this were the three political parties that made up the Malayan government at the time, the United Malay National Organisation, the Malayan Indian Congress and the Malayan Chinese Association, UMNO, MIC and MCA respectively) upon examining the draft constitution had this to say:

“The observance of this principle…shall not imply that the State is not (??) a secular state”
[Report of the Federation of Malaya Constitutional Commission page 73].

It is very clear therefore that Malaya was not to be an Islamic state. This is not an assertion made by the Reid Commission, it is an assertion made by the very people who were to become the government of the newly independent nation. This statement combined with Article 4 which places all laws in the country under the overarching principles of the Constitution means that to claim Malaya was meant to be theocratic in any way is disingenuous.

The contention that Malaya is a secular country is further strengthened by the decision of the Supreme Court (the highest court in the land – now known as the Federal Court) in the case of Che Omar Che Soh [1988] where it was held that secular law governed the nation and Islamic law was confined only to the personal law of Muslims. Article 3 was taken to mean that as far as official ceremonial matters are concerned Islamic form and rituals are to be used.

With regard to religious freedom Article 11 is explicit: “Every person has the right to profess and practice his religion and subject to clause 4 to propagate it”. Clause 4 allows the state governments (and the federal government in the case of the federal territories) to control the propagation of religion to Muslims. This is not limited to non Muslim propagation to Muslims; it includes Muslim to Muslim propagation as well.

Harding suggests that “…the restriction of proselytism has more to do with the preservation of public order than with religious priority” [Law, Government and the Constitution in Malaysia page 201]. He argues that even states like Penang which does not have Islam as its official religion has laws regarding propagating religion to Muslims therefore there can’t be an assumption that Islam is deemed superior in some way. If we were to work on this premise, then it would appear that this limitation, as restrictive as it is, does not actually stop individuals of any faith from choosing their religion.

This can be seen in the Supreme Court decision of Minister of Home Affairs v Jamaluddin Othman [1989]. In this case a Muslim convert was detained under the Internal Security Act. It was held that such a detention has to be made for the purpose of national security. The conversion of this individual does not breach national security and furthermore his detention was in breach of his freedom to choose his religion as enshrined in Article 11. Thus, although the propagation of religion to Muslims is restricted, their freedom to choose their religion would appear to be not.


Race: Malay and Sabah & Sarawak native’s special privileges

Article 153(1): “It shall be the responsibility of the Yang Dipertuan Agong (the King) to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.”

At this juncture, it should be pointed out that this power of the King is only to be exercised under advice by the government. Under advice in the Malaysian constitutional context means, he has to act according to that advice. Therefore the responsibility of any such affirmative action can not in any way be placed on the shoulders of the monarch.

The “special position” of the Malays and natives of Sabah and Sarawak (please note that the indigenes of the peninsular, the truly indigenous peoples of the country, are not included), is to be protected by the creation of reasonable reservations of; positions in public service, scholarships, education privileges, permit or license for trade/business.

Article 153 is treated like Holy Scripture by Malay nationalists and zealots. Yet it must be read in the context of the rest of the Constitution. Article 8 which lays down the ideal of equality (All persons are equal before the law and entitled to the equal protection of the law), is not absolute as it allows for such diversions from the basic principle. However, any limits on article 8 have to be expressly stated in the Constitution. One should also note Article 136 which states; “All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially”.

Furthermore, when we examine the Reid Commission report once again, we see that the alliance had this to comment “…in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed…” Such advantages given to the Malays (the Borneo natives were included only in 1963 when Malaya, Sabah, Sarawak and Singapore created Malaysia) were meant to be a stop gap measure to aid the economically disadvantaged Malays. This is further confirmed by the Rulers themselves who said that they “look forward to a time not too remote when it will become possible to eliminate Communalism as a force in the political and economic life of the country” [Report of the Federation of Malaya Constitutional Commission page 71].

In addition Ooi Kee Beng asserts that Tun Dr Ismail, one of the nation’s founding fathers, in his journals likened the special privileges of the Malays to a golf handicap, only to be used until the time comes that such a crutch is no longer needed [The Reluctant Politician]. It is clear therefore that the political elite and the traditional rulers of the country did not envision “special privileges’ to be permanent nor did they envision it to be some sort of special right. In this light, to treat special privileges as though it is some sort of inalienable right is utterly wrong.

It is submitted that ultimately the Constitution was designed to be one that supported fundamental liberal democratic principles. It acknowledges the inequity that existed in Malaya of 1957 and it also made certain that the traditional values of the Malays (the sultanates and religion) were given a special place. The rulers were constitutional monarchs with limited real power but tremendous symbolic strength, and Islam was given special symbolic recognition as well as real authority over the personal laws of Muslims.

This does not in any way take away from the fact that a secular pluralistic system of governance, one that valued fundamental liberties, in particular equality, was the aim of the constitution and also the leaders of the time. How then did we get to a situation where pluralism has become an almost alien concept and where enforced Malay hegemony the norm?

Where did it all go wrong?

Over the past thirty years there has been a growing Islamization of Malaysia. This started with a Muslim Ummah enamoured with the Iranian revolution and it took the form of personal changes, in dress, manner of speech and shifting value systems. It did not however take long for Islam to start playing a larger role in politics and governance.

It would be folly to claim that Islam has never played a role in politics. The Islamic Party PAS for example had been in existence since the fifties and have had a strong influence particularly in the east coast states. But up till the fourth prime minister, the nation’s leaders have been emphatic in their stand with regard to the secular nature of Malaysia.

This changed in the 1980’s when Mahathir Mohammad realising the challenges posed by PAS brought Anwar Ibrahim, the darling of Malaysia’s Islamists, into UMNO to add a certain Muslim credibility to the party. Islamic “values” started to pervade governance, the International Islamic University was opened and soon UMNO was well on its way to battling PAS on its own turf, both seeking to out-Islamises each other.

This battle culminated in Mahathir unilaterally declaring that Malaysia was an Islamic state in the mid nineties. This is of course very wrong on many levels. Firstly it is wrong from the perspective of the Constitution which is secular as can be seen by its text, the preparatory work done on it as well as court decisions. Secondly it is wrong because one person, no matter how powerful he may be, does not have the authority to change the constitutional nature of the country in that way.

The effect of Mahathir’s action (which was supported after his reign by Abdullah Badawi’s Islam Hadhari and Najib Razak’s obtuse claim that Malaysia has never been a secular country) was to galvanise the growing emphasis on Islam and all things Islamic. This emboldened the Islamists and their influence can be seen in how even the courts have been cowed by this unseen hand. Thus in recent years we have seen great injustices like non Muslim husbands converting to Islam and then filing for divorce in the Syariah Court (a forum which does not have jurisdiction over the non Muslim spouse); newly Muslim husbands unilaterally converting the children; converts out of Islam being punished and sometimes imprisoned for the “offence” of apostasy; non Muslims banned from using the word “Allah”; the seizing of bibles at customs; the list goes on.

All these events have led to a feeling of great discomfort amongst non Muslims and perhaps amongst many Muslims too for it reflected a growing intolerance as well as a growing ethos of religious superiority. It does not bode well for a multi ethnic multi religious secular pluralistic nation. And as pointed out earlier, the courts have behaved in a craven fashion washing their hands of the Constitutional issues involved by being quick to claim that matters like conversion (the Lina Joy case) and divorce and child custody (the Subashini case) belonged in the Syariah court.

It is submitted that a profound ignorance of the Constitution and constitutional history is the source of these problems. The prime ministers starting with Mahathir Mohammad have forgotten the legacy of the very men they have lionised and the courts show a lack of constitutional principles which would be cause of concern even in undergraduates.

It has already been discussed about the secular nature of Malaysia and this won’t be repeated, however it would be useful at this stage to look a little deeper at the court’s Pontius Pilate type behaviour. Their excuse is that Article 121A of the Federal Constitution has drawn a clear line between the jurisdiction of the Syariah Court and the Civil Courts. This is true. That line was drawn however with the intention of ensuring that cases heard in the Syariah court will not be appealed in the civil courts. This would in effect undermine the Syariah court’s authority over matters which are in their power to rule over.

Herein lie the heart of matter. Just what are the areas which the Syariah courts can make judgments on? This is laid out in Schedule 9 of the Constitution. Schedule 9 is the legislative lists for the Federal and state legislatures. The areas where Parliament can make laws and the areas where the state legislative assembly can make laws are clearly stated. Seeing as how Islamic matters are in state hands, the jurisdiction of the Syariah courts and their fields of concern are determined by laws made by the state in accordance with Schedule 9.

This list is quite specific and the state legislative assembly has power to make Syariah laws on mainly family matters and matters regarding property. There is however one general provision which states that they can also make laws regarding offences to” precepts” of Islam. This appears to be a broad and undefined power. It is suggested however that such seemingly unlimited power cannot have been the intention of the drafters of the constitution. All laws made must still be within the general limitations and principles established by the Constitution. Therefore if conversion out of Islam is treated as a punishable offence, then surely this would be in direct contradiction with Article 11 and cannot be allowed.

Schedule 9 is also very clear on the fact the Syariah court only has jurisdiction over those who “profess the religion of Islam”. This being so any case which involves a non Muslim must be heard in the civil court as the Syariah court simply does not have jurisdiction over that individual. On the issue of jurisdiction, although Article 121A separates the jurisdiction of the two court systems, it does not mean that any matter concerning Islam is in the jurisdiction of the Syariah court. Surely if a matter has a constitutional element in it, the only forum where it can be rightly heard s in the civil courts as Schedule 9 does not make any provisions at all for the Syariah courts to decide on matters constitutional.

There is also a subversion of the idea of special privileges and an abuse of the constitutional provisions related to it. It may be argued that the real problems started with the introduction of the New Economic Policy (NEP). After the racial riots of May 13 1969, the NEP was introduced. This policy started the aggressive affirmative action meant to eradicate poverty ostensibly but in reality was implemented primarily to increase Malay wealth. The activities conducted under the auspices of the NEP are broad and far reaching. Some elements of these activities and practices may very well be unconstitutional as Article 8 states that any discriminatory practices has to be expressly allowed for in the Constitution. There are no express provisions for special Malay discounts on housing; neither are there any special provisions for preferential treatment of Malays in government service. In fact Article 136 expressly prohibits it.

The NEP created a culture of entitlement, where Malays felt entitled to promotions, government subsidies and other forms of aid. Furthermore, the constant eroding of the rights of the other ethnic groups not only goes against the full wording of article 153 which states that the King has to protect the legitimate interests of the non Malays as well, it has led to a sense of alienation amongst the non Malay community and the haemorrhaging of talent as people leave the country of their birth but where they felt unwanted. This has left the nation with crumbling institutions and a dearth of able people.

As pointed out earlier, such measures were meant to be temporary. Therefore it would require to be reviewed consistently to see if the desired effects are achieved. As it is the NEP was supposed to have ended in 1991, twenty years after its inception. Instead it has been replaced by the National Vision Policy (NVP) and does not look to be ending at any time “not to remote” or otherwise.

Any review of the NEP or NVP is treated not as a means of determining success or failure but as a challenge on Malay hegemony and rights. In 2006, Lim Teck Ghee of the Asian Strategy and Leadership Institute (ASLI)’s Centre for Public Policy Studies co-authored a report that suggested that Malay equity ownership had exceeded the 30% target and was in fact close to 45%. Therefore it was time that the NEP/NVP is stopped. The government’s reaction was to dismiss the report claiming faulty analytical method. No public debate was conducted regarding the findings and methodology. Instead the matter was swept under the carpet of “sensitivity” and in fact accusations were hurled at Lim by government figures that he was biased due to his Chinese ethnicity.

This attitude is prevalent in Malaysian politics where Malay “privileges” have become inalienable rights that cannot be questioned. A quick perusal of the Constitution shows that any affirmative action has to be done reasonably. It is impossible to determine reasonable without public discussion. Instead of keeping in line with the spirit of the constitution and the wishes of the founding fathers, the government and their supporters have perverted the constitution for their own political agenda.

Things are made worse by UMNO’s constant racist posturing. Hishamuddin Hussein, the current Home Affairs Minister was fond of aggressive gestures with bladed weapons when making fiery speeches about “Malay rights”. Najib Razak was head of UMNO youth in the 80’s when that body organised a rally with banners that were racially incendiary stating things like “we will bathe the keris in Chinese blood”. Even today UMNO MPs and state representatives are fond of saying that non Malay citizens are immigrants and should return to where they came from.

This kind of thuggish behaviour is found amongst “defenders” of Malay “rights” as well as “defenders of Islam”. Mobs of Islamist have broken up peaceful forums discussing constitutional rights and family law all on the pretext that such forums were insulting Islam. Yet, they are rarely punished and in one ludicrous case a reporter who merely reported hate speech by a politician in Penang was detained under the Internal Security Act while the perpetrator who uttered the racist words was left untouched. In such an atmosphere, it is miraculous if even a semblance of a democratic, secular and pluralistic country, could even exist.

Conclusion

It is the contention of this paper that the Federal Constitution had put in place the necessary foundations to build a secular, pluralistic democracy with provisions to ensure not only equality but equity. During the fifty two years after its creation, these ideals have been perverted for the political mileage of the ruling party. However, an effort to rebuild the nation in the shape that was envisioned in 1957 is still possible if the following are put in place:

• A truly independent judiciary
• A Government which understands the Constitution and constitutionalism
• A people willing to stand up for their rights as guaranteed by the Constitution

Any less would make a Constitution, all its ideals and hopes, worth little more than the paper it is printed on

This paper was first presented at “Revisiting Pluralism in Malaysia” a seminar organised by the South East Asian Studies programme, National University of Singapore, Singapore, 9 – 10 July 2009.

Dr Azmi Sharom is an Associate Professor at the Faculty of Law, University of Malaya. His teaching and research interests are primarily environmental law and civil liberties. He has published in the Asian Yearbook of International Law, the Singapore Yearbook of International law and the International Journal on Minority and Group Rights, amongst others. He writes a fortnightly current affairs column in The Star entitled “Brave New World”.

http://www.projectmalaysia.org/2009/...turalism/all/1