Restoring the spirit of independence

  • Reflecting On The Law
  • Thursday, 30 Aug 2018

IN conjunction with our 61st anniversary of independence, a few NGOs organised a forum on Tuesday night on the topic “Malaysia Baru – 61 Years After Merdeka, Do Ethnicity & Religion Matter?”.

I was entrusted with the task of covering the constitutional dimension of the topic. I took the opportunity to point out that the spirit of the Federal Constitution is one of recognition of the dignity of all citizens irrespective of their origin.

The citizenship provisions of Part III have no requirement of race or religion. The chapter on fundamental liberties, containing Articles 5 to 13, enriches the lives of all persons.

Personal liberty; protection against slavery; protection against backdated criminal laws and double jeopardy; freedom of movement; protection against banishment; freedom of speech, assembly and association; freedom of religion; rights in respect of education; and rights to property, are bestowed on all citizens irrespective of race, religion, region or gender.

The electoral process, both as to the right to vote and the right to seek political office, is open to all. Membership of the Dewan Rakyat and Dewan Negara is not based on race or religion.

Article 3(1) provides that Islam is the religion of the Federation but other religions may be practised in peace and harmony in any part of the Federation.

Article 3(4) makes it crystal clear that the country’s adoption of Islam does not prejudice any other provision of the Constitution. It says: “Nothing in this Article derogates from any other provision of this Constitution.”

On the issue of equality or discrimination in the public sector, Article 8(1) is relevant. It provides that “all persons are equal before the law and entitled to the equal protection of the law”.

Article 8(2) states that except as expressly authorised by the Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority.

Further, Article 136 mandates that “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”.

The provision of Article 136 seems to conflict with the “special position” provision of Article 153(2) which allows the Yang di-Pertuan Agong to reserve such proportion as he may deem reasonable of positions in the public service for Malays and the natives of Sabah and Sarawak.

However, Article 153(2) is clarified by Article 153(5), which states that “this article does not derogate from the provisions of Article 136”. Reading 136 and 153 together, the law is that at the point of entry, reservations and quotas are permitted but once in service, public servants must be treated equally.

Articles 43, 43A, 43B, 43C on the appointment of the Prime Minister, Cabinet, Deputy Ministers, Parliamentary Secretaries and Political Secretaries are absolutely free of any race, religion, region or gender bias.

As to the PM, Article 43(2) requires the King to appoint someone who in his judgment commands the confidence of the majority of the members of the Dewan Rakyat.

It is entirely within the realm of possibility that at some time in the future, the political process will catapult a Sabah-Sarawakian, a female or a non-Malay to the top post.

The oft-heard assertion that there is a 61-year old constitutional convention that the PM must be a Malay is based on political and demographic realities. But one must bear in mind that conventions are not law. Conventions provide details for the working of the law but they cannot overthrow the law.

In 1963, when Malaysia was formed, there was no issue on the table that the PM must be a Malay-Muslim. It must be remembered that under Article 153, the natives of Sabah and Sarawak have the same special position as the Malays of Peninsular Malaysia.

This means that the recent criticisms of the appointment of the Attorney-General, the Finance Minister and the Chief Justice on the ground of their race or religion have no basis in our Constitution.

It must be noted, however, that the Constitution does contain significant exceptions to the ideal of equality before the law.

Article 153 provides for reservations and quotas for Malays and the natives of Sabah and Sarawak in four enumerated areas. But as has been pointed out above, Article 153 is qualified by Article 136.

The Yang di-Pertuan Agong and the Sultans must be Malay-Muslims.

Under Article 8(5), the equality requirement does not apply to personal laws.

Any office or employment connected with the affairs of a religion or an institution managed by a religion can be confined to a person professing that religion.

Perhaps that is why lawyer Victoria Jayaseele Martin was sadly forbidden from becoming a Syariah lawyer in a controversial 3-2 decision by the Federal Court. One must note that the Court of Appeal had upheld her right to obtain a certificate to practice in the Syariah courts.

The Malay Regiment is restricted to Malays.

In eight out of nine Malay states with Malay Sultans, the Mentri Besar and State Secretary must be Malays unless the Sultan provides an exception.

All in all, our Constitution is a document of compassion, compromise and moderation.

Sadly, its glittering generalities have not worked their way into the hearts and minds of most Malaysians.

Knowledge of the Constitution, especially its delicate ethnic provisions, is very weak amongst our political leaders, civil servants and captains of industry.

As we commemorate 61 years of independence, we need to return to the spirit of our document of destiny. To go forward as a nation, we need to go back to the spirit of tolerance that animated the forefathers of our Constitution.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is a holder of the Tunku Abdul Rahman Chair at Universiti Malaya. He wishes all citizens the blessings of Merdeka. The views expressed here are entirely the writer’s own.

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