Living together in peace and harmony

National Day and Malaysia Day allow us to reflect on how to restore our original vision of a shared destiny, strengthen our social fabric, dismantle ethnic walls and develop a vision of unity.

AS a student and teacher of constitutional law, I nurture many dreams about our nation’s basic law. The commemoration of our 68th independence anniversary and the approaching 62nd Malaysia Day encourage me to speak about two fervent hopes.

First, I pray that our society’s low level of constitutional literacy could be remedied and the Constitution could be restored to the pedestal on which it was placed when Malaya began her tryst with destiny.

A second hope is that our Rukun Negara could be incorporated into our Federal Constitution as a stirring Preamble to our supreme law.

Constitutional literacy: In the years ahead, the curricula of our institutions of learning, from secondary to tertiary levels, and the training modules at institutes like Intan and Ilkap (Judiciary and Legislation Training Institute) could incorporate a course to disseminate knowledge of the foundational principles of our Constitution. The Certificate in Legal Practice course could, likewise, impart to aspiring lawyers the basic principles of our document of destiny and the significant difference between England’s parliamentary sovereignty and Malaysia’s constitutional supremacy.

I believe that many ethnic and religious misunderstandings pla­guing society today, eg the exaggerated claims of state assemblies to law-making power, are grounded in misunderstanding or ignorance of what our Constitution provides.

Spirit of moderation: Despite some flaws, the Constitution supplies a solid foundation for moderation, tolerance and harmony. Even in its “ethnic clauses”, it reflects a spirit of compromise and compassion. The forefathers of our Constitution understood that unity does not require uniformity, and unity in diversity means strength. Regrettably, the small number of hate-mongers among us see diversity as a threat.

Indigenous features: Recog­nising the fact that Malaya was historically the land of the Malays, the Merdeka Constitution incorporated a number of features indigenous to the Malay peninsula. Prominent among these are:

> The Malay Sultanate: Articles 32, 33, 35, 38, 41, 70, 71 and 181;

> Islam as the religion of the Federation: Articles 3, 11(4) and 12(2);

> Syariah courts and Syariah laws in 25 areas enumerated in Schedule 9, List II;

> Malay special position in Article 153;

> Malay reservations: Article 89;

> Malay language as the national language: Article 152;

> Protection for Malay and native customs: Article 150(6A); and

> Weightage for rural areas in drawing up electoral constituencies: Thirteenth Schedule.

Safeguards for other communities: The above “Malay ethnic features” were balanced by other provisions suitable for our multi-religious and multiracial society’s dazzling diversity.

A secularly drafted written Constitution was adopted as the supreme law of the Federation. Citizenship rights were granted to all persons on a non-ethnic and non-religious basis. The electoral process permits all communities an equal right to vote and to seek elective office.

Except for the provisions on affirmative action and Islam, the Constitution’s chapter on fundamental liberties grants the right to life, liberty and property to all citizens. At the federal level, membership of the judiciary, Cabinet, Parliament, public services and the special commissions is open to all.

Islam has an exalted position, but there is religious freedom for all. 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. In some areas, however, like propagation of religion to others, unilateral conversion of children and apostasy, periodic controversies mar the calm.

Though Malay is the national language, there is protection for the formal study in all schools of vernacular languages if 15 or more students so desire. There is statutory protection for the existence of vernacular schools and legal permission to use other languages for non-official purposes.

Education is free at the primary and secondary levels, and is open to all. Though public university education is subject to strict quotas under Article 153, private universities under the Private Higher Educational Institutions Act 1996 have opened educational opportunities for non-Malays.

Foreign education is available to whoever wishes to seek it. Eligibility for educational scholarships is open to all.

The spirit of give and take between the races, regions and religions is especially applicable to Sabah and Sarawak.

The Constitution confers on these states special legislative, executive, judicial and financial powers not available to the peninsula states. However, non-compliance with some provisions have raised grievances that require attention.

Though the law 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 general alienation.

Article 153 on the special position of Malays is hedged in by limitations. Along with his duty to protect the Malays and natives of Sabah and Sarawak, the King is also required to safeguard the legitimate interests of other communities.

The special position of the Malays applies only in four prescribed sectors – public service employment, licences and permits, post-secondary education, and educational scholarships and facilities.

The Constitution prescribes that no business or profession can be exclusively assigned to any race. No ethnic monopoly is permitted.

Article 153 does not override Article 136, which states 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”.

If we open our eyes and hearts, 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.

It must be admitted, however, that some of the balancing provisions remain unfulfilled due to lack of constitutional literacy and lack of constitutional patriotism in many sectors of society, including the civil service.

Rukun Negara: The Rukun Negara distils the essence of our Constitution. Its principle of “supre­macy of the Constitution” replicates Articles 4(1) and 162(6) of the Constitution. “Belief in God” is honoured in Articles 3 and 11. “Loyalty to King and country” is required by innumerable provisions including Articles 32-38.

“Rule of law” is implied in provisions for judicial review of governmental action in Articles 4, 121 and 128. “Democratic way of life” is promoted by innumerable provisions conferring personal liberties in Articles 5 to 13 and provisions for elected and representative assemblies at both federal and state levels in Articles 44-49, 71-72, and 113-119.

“Rich and varied cultural traditions” are protected by provisions for freedom of religion in Article 11 and freedom of speech, assembly and association in Article 10.

The right to use vernacular and native languages is protected by Article 152. Malay and native customs are safeguarded even in times of emergency under Article 150(6A).

“Morality” is safeguarded by empowering Parliament in Arti­cles 10 and 11 to enact laws to safeguard morality.

The special rights of Sabah and Sarawak in our federal set-up are entrenched in about 30 Articles of the Constitution.

Regrettably, theory and practice show wide divergence.

The National Day and Malaysia Day anniversaries allow us to reflect on how to restore our ori­ginal vision of a shared destiny, strengthen our social fabric, build ethnic bridges, dismantle ethnic walls, heal and reconcile, and develop a vision of unity.

Emeritus Professor Datuk Dr Shad Faruqi is principal research fellow at Universiti Malaya.

The views expressed here are the writer’s own.