Constitution’s path of moderation

IT is Christmas today and the new year is around the corner.

I beseech the Almighty for peace on earth and goodwill towards all humanity.

I implore Him for an end to war and strife in many crucibles of conflict around the world, especially in Gaza where monstrous acts of inhumanity are raging.

I pray for the realisation that in wars, there are no victories but varying degrees of defeats.

For Malaysia, I hope that 2024 will be peaceful and prosperous.

I pray that we will have health and happiness, and love and laughter in our homes and our hearts.

If challenges come our way, I entreat that we have the courage and perseverance to convert adversities into opportunities.

I wish that more could be done to strengthen our social fabric, repair ethnic bridges, dismantle ethnic walls, heal and reconcile and develop a nation of unity.

I pray that in the new year, we recognise our dazzling diversity as an asset rather than a liability, and accept our shared destiny.

I hope that we cease to look at every issue through the lens of race, religion and region.

I recollect that till the 1990s, our nation was recognised as an exemplar for Asia and Africa in successful inter-communal living.

Unlike many nations where citizens are encouraged to give up traditional loyalties and adopt a new “super identity”, the forefathers of our Constitution chartered a bold experiment that unity does not mean uniformity, and a cultural mosaic is better than a melting pot.

They sought unity in diversity.

In recognition of the fact that Malaya was historically the land of the Malays, the Merdeka Constitution incorporated several features indigenous to the Malay Nusantara, among them the Malay Sultanate, Islam as the religion of the Federation, syariah courts and syariah laws in enumerated areas,

Malay special position, Malay reserve lands, Bahasa Melayu as the official language, Malay customs, and weightage for rural areas in drawing up electoral constituencies.

However, these “ethnic features” were balanced with other provisions suitable for a multiracial and multi-religious society.

1. A carefully crafted Constitution was drafted as the supreme law of the Federation.

2. Citizenship rights were granted to all persons on a non-ethnic and non-religious basis.

3. The electoral process permits all communities an equal right to vote and to seek elective office.

4. The Constitution’s chapter on fundamental liberties grants the right to life, liberty and property to all citizens irrespective of race or religion. 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. The syariah does not apply to non-Muslims.

5. Though Bahasa Melayu is the language for all official purposes, there is statutory protection, affirmed by our courts, for the existence of vernacular schools and legal permission to use other languages for non-official purposes.

6. At the federal level, membership of the judiciary, Cabinet of Ministers, Parliament, the federal public services and the special Commissions under the Constitution are open to all irrespective of race, religion or gender. This political and racist talk that the prime minister must be an ethnic Malay has no constitutional basis, though it is the natural outcome of the political reality that 77% of peninsular parliamentary seats (128/166) have a Malay majority.

7. Education is free at the primary and secondary levels and is open to all irrespective of race or religion.

8. The spirit of give and take between the races, regions and religions is especially applicable to Sabah and Sarawak. These states enjoy special legislative, executive, judicial and financial powers in our asymmetrical federation.

9. Though the law reserves some lands for Malays, it is also provided that no non-Malay land shall be appropriated for Malay Reserves. If any land is reserved for Malay reservations, an equivalent amount shall be opened up for general alienation.

10. Article 153 on the special position of the Malays and the Natives of Sabah and Sarawak is hedged in by limitations. First, along with his duty to protect Malays and Natives, the King is also enjoined to safeguard the legitimate interests of other communities. Second, the special position does not apply across the board but only in four prescribed sectors – public service employment, licences and permits, post-secondary education and educational scholarships and facilities. Third, Article 153 does not override Article 136. Quotas and reservations in public services are permitted at entry point, but once a person is in public service, he should be treated equally.

11. We can see that Article 153 was a delicately carved out legal provision of affirmative action that sought to achieve social engineering through the law rather than through compulsory expropriation of property or deprivation of citizenship as happened in many African societies.

All in all, our Constitution creates a rich cultural mosaic. The various communities are allowed to maintain their distinct ethnic identities, cultures, religions, names, languages, lifestyles, dresses, foods, music, vernacular schools, etc. Political parties, business and cultural associations are allowed to be organised on ethnic or religious lines. Secularism and religion live side by side. Mosques and temples and churches dot the landscape.

Despite the prohibitions for Muslims, non-Muslims are not forbidden from taking alcohol, having gambling permits or farming pigs.

In addition, the rainbow coalitions that ruled the country for most of the last 66 plus two years were built on an overwhelming spirit of accommodation between the races, a moderateness of spirit and an absence of the kind of passions, zeal and ideological convictions that have left a heritage of bitterness in other plural societies.Malaysia used the economy to unite the people. Economic opportunities gave everyone a stake in the country. The non-Malay contribution to the building of the economic infrastructure gave the country prosperity as well as stability.

Sadly, there are dark clouds on the horizon. To combat them, what can we do to revive the Constitution’s spirit of tolerance and moderation?

First, we need to improve our constitutional literacy of the carefully crafted ethnic clauses of our Constitution.

Second, we need to recognise our diversity as an asset despite its challenges.

Third, we need to concede that our cultures are intermingled and interdependent. Many of us are in denial that the rivers of our life were refreshed with streams from many valleys of civilisation.

Fourth, we must distinguish between racism (which is hatred for “the other”) and race-consciousness, which is a positive desire to help the upliftment of a community or group, not necessarily our own.

Fifth, we must adopt moderation as a way of life, accept the middle path, abhor violence and prefer evolution over revolution.

Sixth, we must welcome social engagement. Interaction with others will broaden our horizons because most prejudices are born out of ignorance.

Seventh, while venerating our religion, we must not condemn other faiths. Vilifying others is a game that two can play. As a Muslim, I am reminded by Surah An’aam: 108: “Do not revile the faith of others, lest they revile yours.”

Eighth, do not stereotype any race or religion. Distinguish the faith from the faithful. There are good people in all races and religions.

Ninth, speak up against injustice, racism and religious bigotry. Your words may have a ripple effect. And don’t wait for the laws to change. It is not the laws that bring justice. It is people who, through courage and perseverance, bring justice to the law.

Prof Emeritus Datuk Dr Shad Faruqi is Holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya.

He wishes all Christian readers a blessed Christmas.

The views expressed here are entirely the author’s own.