EVERY year as our National Day approaches, we say many of the same things. We speak about patriotism, unity, sacrifice, diversity, the struggles of our forefathers and the need to love our country. All these remain important.
Instead, as a lawyer, I want to look at the day from a perspective that we perhaps do not discuss often enough: what did ‘Merdeka’ – or Malaya’s independence from the United Kingdom of Great Britain and Northern Ireland – actually mean in law?
The answer goes beyond simply saying that the British left and we became independent. Merdeka transformed the legal basis of power, replacing the colonial framework with our own sovereign constitutional order. It was therefore not merely a historical event, but a constitutional one.
Article 4(1) of our Federal Constitution is especially significant. It declares that the Constitution is the supreme law of the Federation and that any law passed after Aug 31, 1957, which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.
Think about the significance of those words. The Constitution itself uses the Merdeka Day as a legal dividing line. On one side lies our colonial past.
On the other lies a constitutional order in which public power is limited by the Constitution. This is where I think we sometimes misunderstand independence.
More than just independence
Merdeka did not mean that unlimited power simply passed from foreign to local hands. Its greater promise was self-government under law – something leaders and citizens have yet to fully appreciate. Our parliament, executive, courts and political leaders are Malaysian, but none possesses unlimited power merely because they are Malaysian.
A minister does not own ministerial power. A government does not own governmental power. A Member of Parliament does not own public office. These are powers entrusted temporarily and must be exercised within the Constitution and for lawful public purposes.
In that sense, Independence was not simply about obtaining power. It was about establishing the terms upon which power would thereafter be exercised.
That is also why fundamental liberties matter to Merdeka.
Part II of our Federal Constitution protects, among others, life and personal liberty, equality before the law, freedom of speech, assembly and association, freedom of religion, and rights relating to education and property.
We sometimes discuss these rights as though they are technical matters for lawyers and judges. They are not. They concern the relationship between the individual and the State.
They raise one of the most important questions in any independent country: now that we govern ourselves, how much power should those who govern have over the governed? That is a Merdeka question.
There is an important distinction between rule by law and the rule of law. Almost any government can make laws, create offences and confer enforcement powers.
Law of the land and literacy
The harder question is: is the government itself subject to law?
Can its decisions be challenged? Can executive action be examined by independent courts? Are constitutional rights respected even when inconvenient to those in power?
These are not anti-government questions. They are constitutional questions. Questioning the lawful exercise of governmental power is not disloyalty.
The government and the country are not the same thing. Governments change. Ministers change. Political parties come and go. Malaysia remains.
Defending constitutional institutions and insisting upon lawful government can therefore itself be an expression of patriotism.
We also often speak as though independence was something completed in 1957. Historically, of course, it was. Constitutionally, however, Merdeka created responsibilities which continue every day. Every generation inherits the constitutional system and must decide what it will do with it.
Will we defend judicial independence only when judgments favour us? Will we defend freedom of expression only when we agree with what is being said? Will we demand accountability only from politicians whom we oppose? Will we object to abuse of power regardless of who happens to be in government?
If constitutional principles change according to which political party we support, they are no longer principles. They become political conveniences.
This is why constitutional literacy should be part of our understanding of Merdeka. A mature citizen should know not only the history of independence but also the constitutional system that independence gave us.
Most importantly, we should understand that Merdeka belongs to the people, not to politicians.
Independence was not achieved so that a local political class could simply inherit the authority once exercised by colonial rulers. It was to enable a people to govern themselves within a constitutional order of their own.
So this National Day, perhaps we should ask more than whether we love our country.
Are our institutions strong? Is public power exercised responsibly? Is everyone equal before the law? Are constitutional liberties meaningfully protected? Are those entrusted with power properly accountable?
These questions do not make us less patriotic. They make our understanding of Merdeka more mature.
The generation of 1957 achieved independence. Our responsibility is to preserve the constitutional conditions that make that independence worth having. Foreign rule has ended, but the danger of arbitrary power has not. That is why the Constitution, our institutions, fundamental liberties and the rule of law continue to matter.
To me, this is the enduring legal meaning of Merdeka: not merely the freedom to govern ourselves, but the responsibility to ensure that, in governing ourselves, we remain governed by law.
Senior lawyer Datuk Seri Dr Jahaberdeen Mohamed Yunoos is the founder and chairman of Yayasan Rapera, an NGO that promotes community-based learning activities and compassionate thinking among Malaysians. The views expressed here are entirely his own.
