It’s all in the Constitution


  • Nation
  • Sunday, 07 Aug 2011

Nation building is a daunting task because it depends on a desire for moderation, a belief that all humans are equal, the practice of inclusivity and a huge dose of common sense. But the guidelines are all there.

MUCH care went into the creation of a promising new country called Malaya in 1957 and then Malaysia in 1963.

Nation building and the setting up of democratic institutions were then entrusted to those governing the country, especially after the May1969 riots.

But nation building is not something to be left in the hands of a few regardless of their political philosophy.

Since 1969, the largely race-based political parties have tried to keep their hold by instilling distrust with their chants, “this is our land don't trust them or give them a chance or they'll take everything from us” or “they're lazy, they want everything but don't want to work for it like the rest of us.”

But each of us is just as guilty. Every time we allow one person in local or federal authority to get away with a bigoted act or words or gender/religious discrimination, we pave the way for such actions and thoughts to be institutionalised.

For example, Article 153 of the Constitution allows for the establishment of quotas for entry into the civil service but before long, they came into play even during promotions.

Dark clouds have been looming over the past two decades, said UiTM Emeritus Professor of Law Dr Shad Faruqi.

They have manifested as problems in either planning permission for places of worship or their forced relocation, disputes over the child in a non-Muslim marriage where one party converts to Islam, the ban (now lifted) on Malay Bibles, the use of Allah by Christians, apostasy and the Islamic state.

Others relate to the “overzealous enforcement of Article 153 quotas, acts of incitement to religious and racial hatred in public speeches and Internet discussions”, said Dr Shad at a recent closed-door discussion themed “Fostering the Spirit of Moderation in Nation Building”.

Held at Universiti Malaya's Law Faculty, it was organised by Proham, a non-governmental body comprising former commissioners of Suhakam and the Royal Commission on the Police.

Other speakers were Asean Human Rights Commissioner Datuk Seri Muhammad Shafee Abdullah and Minister in the Prime Minister's Department Tan Sri Dr Koh Tsu Koon who oversees National Unity and Performance Management.

Fostering moderation in nation building is a daunting task because it depends on a desire for moderation, a belief that all humans are equal, the practice of inclusivity and a huge dose of common sense.

But the guidelines are all there in the Constitution, which Dr Shad calls a “masterpiece of compromise and compassion”.

Shafee described the constitutional definition of Malay as one such compromise.

Noting only the Jews and Malays linked ethnicity to religion, he said the definition here linked also to Malay traditions and culture and language was a compromise.

“It is a fantastic formula that included the Arabs, Indian Muslims and Indonesians spread throughout the states,” Shafee said.

Understand the Constitution

It's crucial for us now to study the history of our land, learn our rights and responsibilities as citizens and know that moderation is the bedrock of our Constitution, and to counter those who say otherwise.

“(Datuk) Ibrahim Ali (Perkasa president) says the Government can't help non-Malays. I don't know which Federal Constitution he is reading,” said Dr Shad.

“Instigators rely on ignorance. We need to use the Constitution to rebut the false and dangerous interpretations we hear.”

There is no better guide than the nine “Rakyat Guides” distributed by the Bar Council's Constitutional Law Committee's during its two-year MyConsti campaign.

Launched on Sept 13, 2009, by deputy minister in the PM's Department Datuk Liew Vui Keong, the RG's explanation in simple layman's terms are clearly effective because they drew the attention of those who would rather the public remain in the dark.

Can early education in the Constitution lead to moderation?

Maybe, if we learnt as children that the Constitution guarantees equality before the law for all. There would be no need to feel marginalised because we are different, or have the desire to discriminate against someone who is different. Then, if we saw people being marginalised or discriminated against, we would have the courage to stand up for them.

But Dr Shad felt the Government was not keen on this. He had tried to help Suhakam draw up a syllabus for schools some years ago.

He was told there was “no need” for it because pupils “did it in Civics”, which was a fallacy because Muslim students attend religious classes during civics/moral studies.

There's some discussion of the Constitution in Pengajian Am (General Paper) in Form Six but a 20-something-year-old I asked could only remember Article 153. The fact that Articles 5 (equality) and 11 (freedom of religion) are a vague memory speaks volumes for what she learnt at school.

Touching on the 5% to 15% housing discount for bumiputras, Bar Council Human Rights Committee chairman Andrew Khoo noted: “If a well-off Malay takes up a 7% discount for a RM600,000 new house, he is taking away RM42,000 the equivalent of a low cost house.”

“All that must be in the new version of the Constitution,” was Dr Shad's pithy response.

Can moderation in nation building result in the simultaneous exercise of one's fundamental rights peaceably and respect of others?

Dr Koh saw for himself how difficult it was to manage national unity when he was caught in the riots in Washington DC in 1968 after the assassination of Dr Martin Luther King.

He reckons Malaysia should consider reviving the Vision School concept that was mooted 10 years ago but had been rejected by the Chinese community.

“The issues we face today cut across ethnic/religious divide. If we can overcome them, we have a greater chance of getting rid of bigotry,” he said.

Khoo pointed out that while Najib spoke of a global movement of moderates overseas, there was no action locally.

“There is no dialogue, just diatribe. If the moderates are silenced, we are just leaving more space for the extremists.”

Dr Koh stressed, however, that the “existence of some deviants” did not invalidate the 1Malaysia concept.

Naming the Constitution, Rukunegara and Vision 2020 as his preferred building blocks for moderation in nation building, Dr Koh said that under 1Malaysia, more Chinese and Indians had been recruited into the civil service and promoted.

“Six out of 28 KSUs (secretaries-general) now are non-Malays, despite threats from those like Ibrahim Ali.”

Set standards for moderation

The usual targets for public criticism are policymakers, the legislature and schools, but Shafee feels the judiciary should bear some responsibility too.

“They might have contributed to the disunity today by their decisions in cases involving religion, inter-racial matters and conversion. They have not been courageous enough to make a stand on the law.”

Shafee challenged the courts' interpretation of Article 121(1A) in recent cases, saying they couldn't decide on a matter if it was a jurisdiction of the syariah court.

Citing several older cases where the courts had done so even though one party was non-Muslim, he said they should read Article 121(1A) to mean cases exclusive to Muslims.

In re Moorthy, he said, the civil court could have heard the suit by the Everest climber's widow challenging his conversion to Islam and then reach the same decision as the syariah court that Moorthy was Muslim, so he should be buried as one and the larger population would have accepted it.

Malaysian Gurdwaras Council president Harcharan Singh suggested that “someone has to tell them (the judiciary) differently to focus on justice and not political leaders.”

Lawyer Edwin Rajasooria agreed, saying the judiciary should set standards for moderation. But he felt the media should also be responsible.

Unsubstantiated reports in the traditional media and some blogs recently have shown the damage they can cause. If any media is publishing rubbish, the public should turn its back on it. Media freedom and media responsibility go in tandem.

Proham secretary Datuk Michael Yeoh stressed that moderation was not an option but an imperative.

Apart from reconsidering the proposal for an Equal Opportunities Commission, he said, the best way forward was to support the proposed National Human Rights Action Plan.

Shafee's personal story shows we can live together with compromise and compassion (key components for moderation), and that we just have to build from them and ignore the racists.

In 1981, his fiancee Wai Lan, a fellow lawyer, died in an accident two days before she was to officially convert and two weeks before the wedding. She had already been practising to live according to Islam and the kalimah syahadah (declaration of faith) before him and his mother.

“To me, she was a Muslim although she had not been converted officially and I naturally wanted her buried as a Muslim,” Shafee said.

Realising the possible complications, he quickly had her body cleansed according to Islamic ritual at the hospital.

“I called my former Islamic law professor (the late Tan Sri Dr) Ahmad Ibrahim. He told me, The dead remains in the domain of the dead; how kindly we treat the dead is only comfort for the living. If you insist, you may end up breaking relations with her family whom you cherish.'”

In the end, Wai Lan was buried at the cemetery in Sg Besi.

A harmonious arrangement was reached because both sides acted with compassion and sensitivity to the others' feelings.

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