The Malay-Muslim features of theConstitution are balanced by provision suitable for ourdazzlingly diverse society.
AS we bask in the after-glow of our independence day celebrations, it is appropriate to view afresh the beautiful constitutional canopy that provided the legal, political and social framework for our nascent democracy.
Like all constitutions, our basic law was chiselled by competing considerations. Historical realities, economic imperatives, the emerging democratic idealism of the post-war era, and ethnic, religious, cultural, linguistic, geopolitical and anti-colonial sentiments all contributed to produce a balanced, workable and pragmatic blueprint.
The document of destiny that was adopted as the Federal Constitution was a masterpiece of compromise, compassion and moderation. It provided a rock-solid foundation for our society’s hitherto exemplary political stability, economic prosperity and inter-communal peace and harmony.
> Indigenous features: In recognition of the fact that Malaya was historically the land of the Malays, the Merdeka Constitution incorporated a number of features indigenous to the Malay archipelago, among them the Malay Sultanate, Islam as the religion of the Federation, legal restrictions on preaching of other faiths to Muslims, the grant of special position to the Malays, Malay reserve land, Bahasa Malaysia as the official language, special protection for Malay customs, weightage for rural areas (which are predominantly Malay) in the drawing up of electoral boundaries and the reserving of some top State posts like Mentri Besar in the Malay States for Malay-Muslims.
> Protection for non-Malays: The Malay-Muslim features of the Constitution are balanced by many provisions suitable for our dazzlingly diverse, multi-racial and multi-religious society.
At the stroke of midnight on Aug 31, 1957, citizenship was granted to nearly 1.3 million non-Malays. This was a remarkable act of accommodation for the age. Part III of the Constitution on citizenship does not impose race or religious prerequisites.
The electoral process permits all communities an equal right to vote and to seek elective office at both federal and state levels.
Subject to some exceptions, the chapter on fundamental liberties grants the fundamental right to speech, assembly, association, religion, education and property to all citizens.
At the federal level, membership of the judiciary, the Cabinet, Parliament, the public services and the special Commissions under the Constitution are open to all citizens.
Education is free at the primary and secondary levels and is open to all.
University education is subjected to Article 153 quotas. However to open up educational opportunities for non-Malays, local and foreign private schools, colleges and universities are allowed. Education abroad is available to whoever wishes to seek it. Government education scholarships are given to many non-Malays though this is an area where a large discontent has developed over the proportions allocated.
Even during a state of emergency under Article 150, some rights like citizenship, religion and language are protected by Article 150(6A) against easy repeal.
Though Islam is the religion of the Federation, Malaysia is not an Islamic state. The syariah does not apply to non-Muslims. All religious communities are allowed to profess and practice their faiths in peace and harmony. State support by way of funds and grant of land is often given to other religions.
Missionaries and foreign priests are allowed. Every religious group has the right to establish and maintain religious institutions for the education of its children.
Though Bahasa Malaysia is the national language for all official purposes there is protection for the formal study in all schools of other languages if 15 or more pupils so desire. There is a right to use other languages for unofficial purposes. Under the Education Act, there is legal protection for the existence of vernacular schools.
Though Article 89 reserves some lands for Malays, it is also provided that no non-Malay land shall be appropriated for Malay reserves and that if any land is reserved for Malay reservation, an equivalent amount of land shall be opened up for non-Malays.
Article 153 on the special position of Malays is hedged in by limitations. First, along with his duty to protect the Malays and natives of Sabah and Sarawak, the King is enjoined to safeguard the legitimate interests of other communities.
Second, the special position of the Malays applies only in the public sector. Third, it extends to only four prescribed sectors and services.
Fourth, no non-Malay or his heir should be deprived of what he already has. Fifth, no business or profession can be exclusively assigned to any race.
Sixth, Article 153 does not override Article 136. Quotas and reservations are permitted at entry point but once a person is in the public service he should be treated equally.
The spirit of give and take between the races, regions and religions is especially applicable in relation to Sabah and Sarawak. In 1963, the Federal Constitution was significantly rewritten to grant considerable autonomy to the former Borneo States in the federal structure. There is protection for native law and conferment of special position on the natives of Sabah and Sarawak akin to the position of the Malays in the peninsula.
> Accommodative politics: In addition to the above legal provisions, the rainbow coalition that has ruled the country for the last 2+57 years is built on an overwhelming spirit of accommodation between
the races, a moderateness of spirit and an absence of the kind of passions and zeal and ideological convictions that in other plural societies have left a heritage of bitterness.
> Market economy: In the commercial sector, there is right to property, freedom of trade and commerce, a relatively open, globalised economy, encouragement to the non-Malay dominated private sector to invest in the economy, freedom to import and export, to transfer funds to and from abroad.
Economic opportunities have given to everyone a stake in the country. The non-Malay contribution to the building of the economic infrastructure of the country has given the country prosperity as well as stability.
> Cultural mosaic: Culturally the country is a rich cultural mosaic. Secularism and religion live side by side. Mosques, temples and churches dot the landscape. Non-Muslims are not forbidden alcohol, gambling or the rearing of pigs.
> Regression: Sadly dark clouds loom over the horizon. Let us not play the role of a gutter inspector to outline all that ails us but just say that a wide chasm has developed between the law of the Constitution and the realities on the ground. The painful problems of divided and fragmented societies seem to have caught up with us.
> Resolution: Forging a durable unity is not something that can come about spontaneously. We have to work on it.
There are no final destinations, only continuing journeys. We need to rekindle the spirit of accommodation of 1957.
We need more intercultural dialogue to understand the differences and share the commonalities. What divides us pales in comparison with what unites us.
Education must be reformulated. Constitutional literacy, especially of the much misunderstood social contract, needs to be improved so that extremism, resulting from ignorance, can be moderated.
In their formative years we need to teach our kids that if God had wanted He would have made us all into one community. But He did not.
There is beauty and strength in diversity. Unity without uniformity and diversity without fragmentation lie at the core of our religions. Living together in tolerance and harmony is the noblest attainment of civilisation.
Here and everywhere, nation-building is never an easy task. But it is attainable.
After all, our forefathers left a solid constitutional foundation. It is our job to ensure that the imperatives of the Constitution become the aspirations of the people.
> Shad Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and teacher of the law who aspires to make difficult things look simple and simple things look rich. Through this column, he seeks to inspire change for the better as every political, social and economic issue ultimately has constitutional law implications. He can be reached at email@example.com. The views expressed here are entirely his own.
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