IRAQ is going through the rite of passage of drafting its document of destiny – its Constitution – and it has been suggested by a top US official that “the Malaysian Constitution might be one model the Iraqis would want to look at”.
The compliment is very heartening as it comes from the occupying power in Iraq. The US is also known for its suspicion of the “Asian values” argument and for its belief in the superiority of its way of life, its values and its legal system.
For Malaysia to be viewed as a legal, political and economic model for a nascent democracy and a Muslim society is indeed a great honour.
Having said that, it must be remembered that no two Constitutions can ever be alike. Every Constitution is sui generis – a class by itself.
A country’s basic law is, by necessity, silhouetted against the panorama of history, politics, economics and culture. More than other fields of law, it reflects the dreams, demands, values and vulnerabilities of the body politic.
Malaya did not have a history of ruthless dictatorship that Iraq suffered under Saddam Hussein.
The Iraqi Constitution will have to have an iron-clad system of checks and balances to prevent recurrence of political tyranny.
Human rights will have to be given centrality. Civilian control over the security forces and a balance of power between the police and the army as in Malaysia are most desirable.
At the same time, terrorism and subversion will have to be combated. But not by force of law alone but by understanding and eliminating the root causes of terrorism.
Malaya’s strategy of applying social and economic measures to win over the hearts and minds of the belligerents is worthy of emulation.
No people should ever be pushed to a point where they prefer to die on their feet than to live on their knees.
Malaya’s colonial experience was far less tragic than the brutal military occupation that Iraq is now suffering at the hands of the Allied “liberators”.
Iraq’s national resources are being expropriated by the Allied Governments. The new Constitution will have to address questions of national sovereignty in the economic sphere.
Unlike Iraq where the minority Sunnis ruled the majority Shias and the Kurds were suppressed and brutalised, Malaya was, even before independence, well on the way to the politics of accommodation. The Muslims of Malaya were largely unified under the Shafie school of Islam. The Malays and the non-Malays had forged a common political bond under an Alliance.
Iraqi society is in contrast deeply fractured. Iraq’s Sunnis and Shias are deeply suspicious of each other. A majority of the Sunnis boycotted the Jan 30 polls.
Gaining their confidence and giving them a stake in the country’s political and economic system would have to be matters of highest priority. Redressing the historical wrongs done to the Kurds would also have to be given importance.
Another major difference between Iraq and Malaysia is the manner of drafting the Basic Law.
Malaya’s document of destiny was fashioned by five “neutral” foreigners on the Reid Commission. Their draft was reviewed by a Working Party of distinguished locals and ratified by legislative assemblies in Malaya and the UK. The Constitution was never submitted to the rakyat at a referendum.
In contrast, the Iraqi document is being drafted by a representative assembly (imperfectly elected though it was) and there are plans to submit the Draft to the people at a referendum. Whether this will lead to more populist measures and will hinder delicate and necessary compromises remains to be seen.
Despite the vast differences of legal history and the lack of similarity in drafting techniques, it does appear that Iraq could benefit a great deal from Malaysia’s constitutional experience in a number of areas.
Malaysia has adopted a supreme Constitution, and this supremacy is protected by the power of the courts to review executive and legislative actions on the touchstone of the Constitution.
The federal parliament is very powerful but its legislative competence is limited by constitutional guarantees of human rights and a detailed demarcation of powers between the Centre and the States.
Amendments to the Constitution are permitted but only by complying with the special and often difficult procedural requirements of the Constitution. This is critical to the maintenance of many entrenched provisions of the Constitution.
Malaysia walks the middle path between secularism and theocracy. An enlightened, tolerant and inclusive version of Islam encompasses democracy and a liberal system of values. This has permitted other religions and cultures to flourish within the same society.
Secularism and religion are permitted to exist side by side.
A quasi-federal system accommodates regional aspirations while creating a strong central government.
Iraq is a huge country. Unlike in Malaysia, elected and semi-autonomous local authorities must be provided for by the Iraqi Constitution.
Like Iraq, Malaysia was, during the drafting of its Constitution, facing an insidious threat of subversion from the communists.
The Merdeka Constitution sought to preserve public order and social stability by including provisions to combat subversion and emergency.
These provisions may well be worthy of emulation by Iraq’s legal system but with better safeguards for time limits on emergency and subversion laws and for judicial review of executive discretion.
The Malaysian legal system’s recognition of cultural, religious and linguistic diversity should be emulated by the Iraqi Constitution. The Malay-Muslim features of the Constitution are balanced by other provisions suitable for a multi-racial and multi-religious society.
Accommodation is the only way. Malaysia has done well to build a cultural mosaic rather than a melting pot.
The Constitution reconciles the seemingly irreconcilable conflict of interest between ethnic and religious groups in a way that has few parallels in the modern world.
Malaysia has delivered socio-economic rights to its citizens in the areas of education, women’s liberation and worker’s entitlements. Socio-economic measures are the ultimate safeguards against anarchy.
In the political sphere, Malaysia permits opposition parties to exist and to compete in elections.
The rainbow coalition that has ruled the country since before independence has entrenched a political culture of moderation and compromise. Iraq will do well to institutionalise provisions for power sharing between the Shias, Sunnis and the Kurds.
The first-past-the-post electoral system has served Malaysia well but needs reconsideration in the context of Iraq so that minorities and regions are not marginalised and there is better proportionality between votes cast and seats won.
A hybrid system of sectoral and territorial representation may have to be fashioned.
Malaysia’s economic model has not been shaped by rigid ideology. Pragmatism has been the driving force.
All in all, the Constitution was built on an overwhelming spirit of accommodation between the races, a moderateness of spirit, an absence of the kind of passion, zeal and ideological convictions that in other plural societies have left a heritage of bitterness. Signs are that the Iraqi leadership is also aware of this need for middle paths.
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