Towards a shared destiny

  • Reflecting On The Law
  • Thursday, 01 Mar 2018

THE month of February cradled many landmark events that went largely unnoticed. The most important was the 115th anniversary of the birth, on Feb 8, of the father of our nation, Tunku Abdul Rahman Putra Al-Haj.

It was also on Feb 8, 1956, that Tunku and the then British Secretary of State for the Colonies, Alan Lennox-Boyd, signed the agreement that would ultimately secure Malaya’s freedom from the British.

Another momentous event in February was the official publication of the Reid Commission Report on Feb 20, 1957.

The report drew severe criticisms about the commission’s proposed “ethnic provisions” in the Constitu­tion. It was left to the Tunku to calm frayed nerves and to chisel out workable compromises at the subsequent Tripartite Negotiations (Feb 22-April 27, 1957), the London Conference (May 13-21, 1957) and the Parliamentary Debates (July 9-29, 1957).

The resulting constitutional document, though flawed in some res­pects, was a masterpiece of compromise, compassion and moderation.

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 are the Malay Sultanate; Islam as the religion of the Federation; the grant of a “special position” to the Malays; Malay reserve lands; Bahasa Melayu as the official language; special protection for the customary laws of the Malays; weightage for rural areas (which are predominantly Malay) in the drawing up of electoral boundaries; and legal restrictions on preaching of other faiths to Muslims.

However, the Malay-Muslim features are balanced by other provisions suitable for a multiracial and multireligious society. Tunku was quite clear that though affirmative action for the Malays (and in 1963, for the natives of Sabah and Sarawak) was necessary, this had to be in tandem with the protection for the rights of minorities.

The Constitution Tunku helped to shape is replete with safeguards for the interest of other communities. Some notable features are:

> Citizenship is granted on a non-ethnic and non-religious basis. Over 1.2 million non-Malays benefited from this grant on the eve of Merdeka.

> The electoral process permits all communities an equal right to vote and to seek elective office at both federal and state levels.

> The chapter on fundamental rights (with some exceptions) grants fundamental liberties to all citizens irrespective of race or religion.

> At the federal level, membership of the judiciary, the Cabinet of Ministers, Parliament, the federal public services and the special Commissions under the Constitution are open to all irrespective of race or religion.

> Education is free at the primary and secondary levels and open to all.

> 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.

> Even where the law confers special position on the Malays and the natives of Sabah and Sarawak, there is concomitant protection for the interests of other communities. For example, though Islam is the religion of the Federation, the Syariah does not apply to non-Muslims.

> All religious communities are allowed to profess and practise their faiths in peace and harmony. Every religious group has the right to establish and maintain religious institutions for the education of its children.

> Though Bahasa Melayu is the national language for all official purposes, there is protection for the formal study in schools of other languages and legal permission to use other languages for non-official purposes.

> 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 reservations, 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, the King is also enjoined to safeguard the legitimate interests of other communities.

Second, the special position of the Malays applies only in the public sector and in only four prescribed sectors and services. Third, in the operation of Article 153, no non-Malay or his heir should be deprived of what he already has.

Fourth, no business or profession can be exclusively assigned to any race. Fifth, 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 since 1963.

In addition to the above legal provisions, the rainbow coalition of political parties that was forged by Tunku was built on an overwhelming spirit of accommodation, a moderateness of spirit and an absence of the kind of passions, zeal and ideological convictions that in other plural societies have left a heritage of bitterness.

Malaysia under Tunku and his successors has successfully used the economy to bind its people. In the commercial and economic area, 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; and freedom to import and export, and 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.

Sadly, dark clouds loom over the horizon. Unresolved disputes fester over some religious and racial issues. In some areas, a wide gap has developed between the promise and performance of constitutional institutions. There are issues of integrity in government and strained state-federal relationship in some areas.

However, the spirit of accommodation that has lasted 60 (plus two pre-Merdeka) years can overcome the present problems. What is needed is leadership, patience, moderation and tolerance. Tunku was an exemplar of all this and there are lessons in his life and work that can be emulated in these testing times.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.

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