Vision of a shared destiny

Building a harmonious nation is not the responsibility of the government alone. Parents, teachers, public officials, politicians and leaders of the Judiciary have a role to play.

AS a student and teacher of constitutional law, what are my hopes and dreams for National Day on Aug 31 and Malaysia Day on Sept 16?My fervent hope is that in the years ahead, the curriculum of our institutions of learning, from secondary to tertiary, and the training modules at institutes like Intan (National Institute of Public Administration) and Ilkap (Judicial and Legal Training Institute) could incorporate a compulsory course on constitutional law to disseminate knowledge of the foundational principles of our document of destiny.

If we read about the framing of our Constitution, we will note that Tunku Abdul Rahman and the other forefathers of our Constitution were animated by a remarkable vision and optimism of a shared destiny among the various peoples of this land. Even in its “ethnic provisions”, the Constitution avoided extreme measures and provided for a balance between the interests of the majority and minority communities. Though flawed in some respects, our Constitution is 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 (and in 1963 to the natives of Sabah and Sarawak); Malay reserve land; Bahasa Melayu as the official language; special protection for the customary laws of the Malays and natives of Sabah and Sarawak; weightage for rural areas in the drawing up of electoral boundaries; and legal restrictions on preaching of religion 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 Federal Constitution he helped to chisel out is replete with safeguards for the interests of other communities. Some notable features are:

> Citizenship is granted on a non-ethnic and non-religious basis. Over 1.2 million non-Malays (out of the then population of six and a half million) 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 grants fundamental liberties to all citizens irrespective of race, religion or region;

> At the federal level, membership of the Judiciary, Cabinet, Parliament; public services and the special commissions under the Constitution are open to all irrespective of race, religion or region;

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

> Even during a state of emergency under Article 150, some rights like citizenship, religion, language and native custom are protected by Article 150(6A) against easy repeal;

> 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 Malaysia is the national language for all official purposes, there is protection for the formal study in schools of other languages. All languages may be used for non-official purposes. Article 152(1) empowers the federal and state governments “to preserve and sustain the use and study of the language of any other community”. Article 152(1) is the basis for the Education Act’s provision on “national-type” vernacular schools;

> Though Article 89 reserves some lands for Malays, it also provides that no non-Malay land shall be appropriated for Malay reserves and that if any land is reserved for Malay reservations, an equivalent amount shall be opened up for general alienation;

> The spirit of give and take between the races, regions and religions is especially applicable to Sabah and Sarawak since 1963. Thirty-seven new Articles were inserted in the Constitution to deal with their special rights; and

> Even where the law confers special position on the Malays and natives of Sabah and Sarawak, there is concomitant protection for the interests of other communities. For example, Article 153 on the special position of Malays and natives is hedged in by limitations.

First, along with his duty to protect the Malays and natives, the King is also enjoined to safeguard “the legitimate interests of other communities”.

Second, the special position of the Malays and natives applies only in the public sector and in only four prescribed sectors – positions in the public service; scholarships, educational and training facilities; post-secondary education; and permits or licences.

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 on impartial treatment of public employees. Quotas and reservations are permitted at entry point, but once a person is in the public service he should be treated equally.

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 successfully used the economy to give everyone a stake in the country. The non-Malay contribution to the building of the economic infrastructure has given the country prosperity as well as stability.

For several decades after Merdeka, Malaysia was regarded as an exemplar of an Asian society where democracy and development can go hand in hand, where religion and secularism can co-exist, and where the various races, religions and regions can constitute a beautiful national mosaic.

Sadly, we have regressed. Dark clouds loom over the horizon.

Unresolved disputes fester over some religious and racial issues. Sabah and Sarawak’s grievances are real and need attention.

In many areas, a wide gap has developed between the promises of the Constitution and the performance of public institutions like the civil service, police and some elements in the Judiciary.

But this is not a cause for despair. In all nations, theory and reality diverge. In many areas, politics overrides principles, and emotions displace reason. In some areas, we have fallen down, but falling is not the same thing as failing. What is important is to improve our constitutional literacy and educate ourselves on our constitutional scheme of things. We need to recognise and respect the Constitution’s acceptance of our dazzling diversity and its vision of a shared destiny.

We need to repair our ethnic bridges, dismantle cultural walls and heal and reconcile our real and imagined differences. Building a harmonious nation is not the responsibility of the government alone. Parents, teachers, public officials, politicians and leaders of the Judiciary have a role to play.

We should rededicate ourselves to this task because living together in peace, harmony and mutual respect is one of the qualities of a great civilisation.

The author is Tunku Abdul Rahman Professor at the Faculty of Law, Universiti Malaya. The views expressed here are his own.