Our Constitution recognises our dazzling diversity and provides workable arrangements for the multi-hued nation to live together in peace and harmony.
THE allegation is spreading that it is against the grain of the Constitution to describe Malaysia as a multiethnic, multireligious and multilinguistic nation. Proponents of this view rely on the fact that nowhere in the text of our document of destiny is there any explicit usage of words like multiracial or multicultural Malaysia.
Let them note that the ideals of the rule of law, separation of powers, justice, judicial independence, limited government, human dignity, poverty eradication, environmental responsibility and sustainable development also do not figure anywhere within the glittering generalities of our 1957/1963 Constitution.
Are these ideals then not part of our basic law?
It must be remembered that a constitution is not mere black-letter rules. It has a spirit and a soul and is animated by ideals, purposes, principles and doctrines. These give life and meaning to the Constitution’s static words.
It is the jurist’s duty to make explicit what is implicit in the law and to interpret in a prismatic way the static words nestled within the spirit of the Constitution. As B.R. Ambedkar, the Indian Constitution’s founding father, once said: “A Constitution is not a mere lawyers’ document; it is a vehicle of life. Its spirit is always the spirit of the age.”
Though the Malaysian Constitution has no Preamble, the Rukun Negara of Aug 31, 1970, explicitly mentions the ambition of “ensuring a liberal approach towards the rich and varied cultural traditions” of Malaysia. This is a telling acknowledgement of our heterogeneity.
Coming to the provisions of our Constitution, do they prescribe homogeneity, purity, uniformity and singleness? Or do they recognise our dazzling diversity and provide workable arrangements for our multi-hued nation to live together in peace and harmony? Did our Constitution-makers aspire for a “unity in diversity” or a “unity in uniformity”?
It is submitted that despite some flaws, the 1957 Merdeka Constitution was a masterly piece of reconciliation between conflicting interests. It was inspired by the spirit of moderation, compromise and inclusiveness. Its overriding spirit was one of accommodation.
It sought to provide a delicate balance between the dreams and demands of the Malay majority and the democratic expectations of the non-Malays who, or whose ancestors, had made Malaya their abode during the 116 years of British rule.
In recognition of the fact that Malaya was historically the land of the Malays, the Merdeka Constitution incorporated several features indigenous to the Malay Archipelago, among them:
> The Malay Sultanate with the unique institution of the Conference of Rulers;
> Islam as the religion of the Federation;
> The power of the States to enact Syariah laws in 25 or so areas, mostly of personal law, enumerated in Schedule 9, List II;
> The “special position” of the Malays that permits reservations and quotas in four areas specified in Article 153;
> Malay Reserve lands;
> The Malay language as the national language for all official purposes;
> Malay customary laws in family matters;
> Electoral weightage for rural areas in the drawing up of electoral boundaries;
> Reservation of some top posts in the State Executive of the nine Malay States for Malays, subject to the discretion of the Sultan; and
> Legal restrictions on the preaching of any faith to Muslims.
However, the above Malay-Muslim “ethnic features” are delicately balanced by other provisions suitable for a multi-racial and multi-religious society.
The Constitution recognised our dazzling diversity and incorporated safeguards for the interest of other communities.
Notable guarantees for the large non-Malay population in the Borneo States and West Malaysia are as follows:
Constitutional supremacy: The adoption of Islam in Article 3 as the religion of the Federation did not convert Malaya into a theocratic state. Articles 4(1) and 162(6) declare the supremacy of the Constitution over all post and pre-Merdeka laws. Article 3(4) declares that nothing in Article 3 derogates from any other provision of the Constitution.
Affirmative action: Even where the law confers a “special position” on the Malays and the natives of Sabah and Sarawak, there is concomitant protection for the interests of other communities.
First, along with his duty to protect the Malays and the natives of Sabah and Sarawak, the King is also enjoined to safeguard the “legitimate interests of other communities”. Second, the special position of the Malays applies only in 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. No ethnic monopoly is permitted. Fifth, Article 153 does not override Article 136.
Article 136: Because of Article 153, quotas and reservations in the public services are permitted at entry points, but once a person is in the public service, he should not be discriminated against on the ground of race.
Malay reserves: Though Article 89 reserves land 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 general alienation.
Malay language: Though Malay is the national language for all official purposes, Article 152(1)(b) permits the Federal or State Governments to preserve and sustain the use and study of vernacular languages.
Consequently, under the Education Act 1996 and the National Language Act 1963/67, there is statutory protection for vernacular schools. There is freedom for other communities to preserve their languages and to use them for non-official purposes. There is protection for formal study in all schools of other languages if 15 or more pupils so desire.
Elections: The electoral process permits all communities an equal right to vote and to seek elective office at both federal and state levels. Race and religion are irrelevant in the operation of the electoral process (Article 119).
Fundamental liberties: Subject to some exceptions relating to equality and propagation of any religion to Muslims, the chapter on fundamental liberties in Articles 5-13 gives its shade to all citizens.
Equality: At the federal level, membership of the Judiciary, the Cabinet of Ministers, Parliament, the federal public services and special commissions under the Constitution are open to all irrespective of race, religion or gender.
Religion: Though Article 3(1) gives Islam the exalted position of being “the religion of the Federation”, it is also mandated that “other religions may be practised in peace and harmony”. Freedom to profess and practise any religion is further protected by Article 11.
Every religious group has the right to establish and maintain religious institutions for the education of its children. The Syariah courts have no jurisdiction over non-Muslims.
Though the last two decades have seen the rise of political Islam and the increasingly divisive argument of adopting an Islamic state, the government has handled religious ideologues fairly successfully by adopting many Islamic measures but maintaining the broad secular, capitalistic, democratic and globalised features of Malaysia’s multi-ethnic and multi-religious society.
Education: Education is free at the primary and secondary levels and is open to all irrespective of race or religion.
Emergency: Even during a state of emergency under Article 150, the rights of all citizens to citizenship, religion and language are protected by Article 150(6A) against easy repeal.
Sabah and Sarawak: Religious, racial, cultural and linguistic heterogeneity received a tremendous boost in 1963 when Sabah and Sarawak federated with the Federation of Malaya to constitute a new and larger federation. These Borneo states have very distinct cultural and religious distinctiveness from the Peninsula.
According to the (now repealed) Article 161A(7), Sarawak has 28 native races. Sabah has 33 indigenous groups that communicate in over 50 languages and 80 ethnic dialects. Given these differences, those who describe Malaysia as an Islamic and Malay state are ignoring the dazzling diversity and sensitivities of our sister states across the South China Sea.
These states have executive, legislative, judicial and financial powers far greater than the 11 peninsula states individually.
On matters of religion, language, immigration and native law, Sabah and Sarawak have a large measure of autonomy.
West Malaysians must be careful not to undermine the whole basis on which the Federation of Malaya was transformed into the far larger, richer and immensely more diverse nation in 1963.
In sum, the forefathers of our Constitution of 1957 and 1963 did not intend to mandate a homogeneous society but painstakingly weaved a rich cultural mosaic welding together a multi-ethnic and multi-religious polity into a common nationality.
The plurality of lifestyles this engenders has given rise to an extraordinarily multi-faceted society that was for many decades an exemplar for many other plural nations.
Let us not, for the sake of transient electoral reward, undermine the basis on which our nation is founded.
Emeritus Prof Datuk Dr Shad Faruqi is the Holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya. The views expressed here are the writer’s own.
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