Assessment

'1 he question raised in the previous section, ‘A Non-Autochthonous Constitution?' implicitly answered in the constitution-making process described in this chap­ter, was whether all of this amounts to an autochthonous or non-autochthonous constitution.

Writers about Malaysian constitutionalism, including the present author, have generally concluded that the Constitution is neither fully autochthonous nor fully non-autochthonous. As is the case with most constitutions - at least those that endure - it contains both elements that speak to tradition and culture (Islam, Malay monarchy, states' powers, the role of the Malay language, and Malay privi­leges are obvious examples, but there are others) and also to elements that speak of generally current ideas of good governance (parliamentary democracy, the rule of law, judicial independence, federalism, and fundamental rights - again, there are others). Many of its ideas can be traced to Britain's parliamentary democracy and many of its actual texts can be traced to the Indian Constitution of 1950. It therefore presents an unique bricolage,^[538] or metissage,^[539] of different elements, both Malay and Anglo-Indian.^[540] This is not to say that the constitution-making process was wholly excellent or that its outcomes were beyond serious criticism. But it seems likely that a secret of the Constitution's longevity and silent transfor­mation from ‘the' to ‘our' Constitution lies in the fact that it satisfies and moderates so many competing notions. All pressing and reasonable claims are recognised, but they are also limited in their scope and resonance.

The Reid Commission and the constitution-making process of 1957 can be applauded on several fronts but also criticised on several fronts. That they were right about the basic structure of government in the new Federation is established by the test of time. The provisions on vertical division of powers have stood virtu­ally unamended. Controversy surrounds the constitutional status of Sabah and Sarawak, but that was a 1963 problem, not a 1957 problem.^[541] Their recognition of the importance of the social contract was wise, but it can be argued that they fell short in terms of the extent of its significance and its relationship with religion. At the same time it is surprising that they set so little store by fundamental rights and judicial review, and enjoyed so much confidence in the monarchy, parliamentary democracy, and emergency powers. In all these respects, however, their responses were not untypical in the 1950s Commonwealth world of decolonisation. One could also argue that they had little choice in these matters given the situation of Malaya at the time and their terms of reference. The Commission’s preservation of royal powers might be criticised on several fronts. For ethno-nationalists, the 1957 Constitution represents a royal straightjacket of British design, out of which the Rulers have attempted to break in recent years.^[542] On the other hand some would lament the fact that the powers of the Rulers were not more clearly defined and restricted in the Constitution.

However, the main difficulty, which received little in the way of debate or even attention, was a structure of government containing the potential for extreme centralisation of powers in an executive branch under a dominant-party system.

Moving to questions raised by this book as a whole, we may conclude as follows.

The making of a new Constitution was unavoidable and appropriate at the juncture of independence. In this Malaya was no different from other territories that had obtained, or were about to obtain, independence. The process for draft­ing the new Constitution was unusual, but its deficiencies were ameliorated by the process of consultation and the process iterated in critiquing the draft prior to its promulgation. The choice of process was driven by politics that defined the major propositions of the new Constitution, confining the drafting role to one that the word ‘technical’ does not quite capture, but which would at least not be able to ignore the politically negotiated settlement of those major propositions. In this sense the articulation of political as against legal considerations in the drafting process was both usual and, I suggest in light of comparative experience, desirable.

Given the constitution-making process outlined in this chapter, it is difficult to identify clearly who the constitution-makers were. The answer depends on the precise question. To say the constitution-makers were five foreign lawyers is true only in a very limited sense, as we have seen, and ignores the contributions of the Alliance leaders, the Rulers, and the people themselves. All stakeholders had the opportunity over the year and a half that the process occupied, to express their preferences and their fears. The vectors in this process were political, social, and economic. The Commission attempted the very difficult task of balancing conflicting ideas, and its decisions were subjected to debate and review. If, as is argued here, durability is an important measure of success, then its work made the resulting Constitution reasonably fit for purpose, given the times and their consti­tutional manners. It is of course quite possible that a more articulated and extensive process might have produced a Constitution that was less flawed, one that would have suggested more of a sense of being owned, claimed, or even granted by the Malayan people themselves, and therefore enjoying greater support. Then again, it might not have done so. The Constitution of 1957 has of course, as its founders would have recognised, required a certain amount of settling into its foundations, some trimming, and some development. This process of course continues. The Constitution may not be perfect, but it does represent that which was genuinely agreed between all major stakeholders in 1957, and is therefore in a real sense the cornerstone of the nation.