A Non-Autochthonous Constitution?

The process for drafting the 1957 Constitution has of course, notwithstanding the openness of the process adopted and set out above, been criticised on the obvious ground that it was not drafted by Malayans, as one would expect, but by five commonwealth jurists.

It is no doubt true that another method of drafting, such as imitating the Indian constituent assembly, might have produced a better result in some respects, but that is a matter of speculation, not legitimacy. In retrospect it may well have been highly beneficial to have more extensive debates of the kind that have informed Indian constitutional discourse for the last 75 years, because that process has been continuously educational.^[508] Much of constitutional discourse in Malaysia, as observed by this author in the Malaysian media over several decades, reflects inaccurate understandings of the process and debates of 1956/7, and the meaning and intention of the Constitution, and constituent assembly debates might well have engendered more and better public education.

Whatever the rights and wrongs of the process adopted, the fact is that the 1957 Constitution has survived many threats and obstacles, and very few calls for constitutional change seem to demand an entirely new constitution-drafting process, as opposed to constitutional amendment, or merely shifts in interpreta­tion such as can be achieved by judicial decision-making or the practical operation of conventions.^[509] It is universally accepted that, whatever debates there may be about the Constitution, and projects for constitutional reform that are brought forward, these are and must be conducted or considered within the framework laid down by the 1957 Constitution. In a world of persistent and fundamental constitutional challenges this must be recorded as a success story. There may be many constitutional misunderstandings, but they appear to be ‘working misun­derstandings’, not fatal ones.

With this, we can now turn to the aspects of the drafting process of 1956/7 that were, and in fact remain, controversial, and form an assessment of the factors that framed and resolved these controversies. The discussion will focus on three major issues. First, there was the issue of equality before the law and Malay special privi­leges, which had been left vague by the terms of reference. Second, there was the status of Islam as the official religion. Third, there was the definition and entrench­ment of fundamental rights. These were not the only issues raised, but they are the issues that were the principal focus of most of the debates in a situation in which inter-ethnic relations, implicating both religion and fundamental rights, were the major problem for which the constitution-drafting process needed to provide solutions.^[510] These issues also speak to the autochthonous or non-autochthonous nature of the Constitution.

A. Special Position of the Malays

As was fully expected, the Commission was obliged to confront the issue of ethnic relations, and the contradiction between special privileges for Malays and equal citizenship of all Malayans. The Commission responded with equivocation on this issue. The underlying problem was an economic one, in that the Malays had been left behind developmentally, owning only about one per cent of the Malayan economy by 1957, and being therefore subordinated to Chinese and European economic interests, despite their self-perception as the native people of the coun­try. Existing legislative and administrative provision did to some extent favour Malays, in terms mainly of some quotas for admission into the public service, and the granting of business licences and scholarships; land reservation; and positions in the police, the armed forces, and public service. And the FMA itself acknowl­edged this special position.^[511] However the question was how should it be defined and for how long it should be enjoyed, given its essentially transitional, transform­ative nature.^[512]

It was already agreed that special privileges should continue, as part of the agreement between the Alliance parties, under which the non-Malays obtained citizenship and the guarantee of their legitimate interests (that is, vested inter­ests), but the Malays would enjoy, or continue to enjoy, some special privileges. Citizenship was of especial importance, because there had been strong push­back against giving citizenship to non-Malays in the 1940s, and even in 1957 the Chinese for example were 40 per cent of the population but only 11 per cent of voters.^[513] The Commission recommended that these privileges should continue, subject to a parliamentary review after 15 years of operation. This became Article 157 of the draft Constitution (153 in the Constitution itself), which allowed such privileges in spite of Article 8, which guaranteed equality before the law.

As matters turned out, however, as a result of inter-ethnic rioting in May 1969 the special privileges were, by constitutional amendments in 1971, actually increased, not reduced.^[514] Ironically that juncture was almost exactly 15 years after the Reid Commission had recommended a 15-year ‘sunset’ clause, but the opposite of its intention was what actually occurred. Even today, 65 years after the Constitution came into effect, the social contract as redefined in 1971 still applies, and since then it has been only marginally reduced in scope with regard to the special privileges.^[515] On this issue it can be seen that the Commission took too optimistic a view of both the socio-economic conditions of 1957, and also the possibility of rapid and fundamental change. Although the issue of special privileges was obviously a sensitive one, the sting had been taken out of that sensitivity by the Tunku’s accommodation with the other ethnic parties, and the principle, at least, of special privileges had been accepted across the board, albeit understood in different ways. As matters stand now, it appears that, according to some, the social contract is not a transitional but rather a genu­inely fundamental constitutional arrangement that is expressive of Malaysia’s constitutional identity, reflecting ‘ketuanan Melayu or Malay dominance in the political system.^[516]

B.

Religion presented the Commission with a conundrum. There was a proposal by the Alliance to make Islam the religion of the Federation, but this posed some difficulty. First, Islam was the religion of the Malays, who were not at that time in a majority, making the claim for an official religion debatable in principle. Second, the adherents of other religions might be made nervous at the implications of such a provision: would their freedom of religion be protected in making Islam the official religion? Third, Islam was a state matter under the FMA, not a federal matter, and would have to remain so due to the existing commitment to preserve the powers and privileges of the Rulers, who were the heads of Islam in their states. Making Islam, a state matter, the religion of the Federation was therefore on the one hand somewhat incoherent in this particular context, and on the other, it trod on the sensibilities of the Malay Rulers, for whom their powers as heads of Islam were the main actual, as opposed to symbolic, powers they had retained in the process leading to independence.^[517]

Given the uncertainty, or alleged uncertainty, even now, over the precise scope and meaning of Article 3,^[518] the rationale advanced in the constitution­making process was important and has become increasingly important. The Reid Commission perceived a logical contradiction between espousing a secular state and having an official religion.^[519] This might seem odd given the fact they would have been aware that England itself had no problem living with this very contradic­tion. The majority recommended that the Federation should have a secular state, and that there should be no official religion at this level. However, Abdul Hamid, the sole Muslim member of the Commission, changed his view on this matter late in the process, arguing that to accede to the Alliance position on religion was harmless, since many other constitutions had similar provisions to Article 3, with­out being theocratic states.

Predictably the Alliance leaders were displeased with the outcome of the Commission’s deliberations on this matter, especially as their wishes had been granted on all the other issues they had raised, and they continued to demand a provision on the official religion. This was strongly endorsed by the Tunku and his UMNO party, and the other component parties of the Alliance, the MCA and the MIC, were not disposed to unravel a carefully negotiated compromise that had proved enormously successful at the polls, and worked, in their opinion, to their advantage. The special position of the Malays clearly implicated the status of Islam, which had always been the religion of the Malay states, ever since the fifteenth century. The Tunku himself was in favour of what became Article 3 of the Constitution^[520] on the grounds that the provision would not prevent the state from being regarded as secular in its essential nature; that it was quite similar to provisions in the constitutions of other Muslim countries; that it was already provided for in the constitutions of several of the states forming the federation; and that it had been agreed to unanimously by the three Alliance parties, which of course included non-Muslim parties, not just his own UMNO. The non-Muslims' acceptance of Islam as the official religion was critical, and in essence this was a part of the social contract, from which they obviously derived other benefits such as a guarantee of citizenship for the ethnic communities they represented. It was also clear in statements of the Alliance that the enshrinement of an official religion would not in their view create a theocratic state; nor indeed would it affect the secular nature of the state in its practice of observing freedom of religion for non­Muslims; nor would it alter the rights of the Rulers as heads of Islam.

The Working Party, consisting principally of Malay/ Muslim leaders, in review­ing the draft Constitution, agreed with the Alliance view. Even Malay opposition parties agreed with the Alliance view on religion and non-Malay opposition parties did not raise the issue strongly, preferring to attempt to safeguard their commu­nities' economic, language, and education rights. Thus, the stipulation in the current Article 3 of the Constitution, that ‘Islam is the religion of the Federation but that other religions may be practised in peace and harmony in any part of the Federation', was inserted during the review process following the Commission's Report, as a result of the insistence of the Working Party.

Article 3 therefore had in its favour a solid political consensus, and the Rulers were mollified by the assurance that their rights as heads of Islam would remain unaffected. The rest (that is, those represented by non-Muslim parties) were assured that the entrenching of Islam as the religion of the federation was only a symbolic measure, which left unaffected the religious rights of non-Muslims to profess and practise their religions, as set out in Article 11 of the Constitution. The only restriction on those rights entailed by this agreed position was that, as a public order issue, the criminalisation, by state religious laws, of the propagation of non-Muslim religions amongst Muslims, would be constitutionally valid in spite of the obvious element of discrimination such laws involved. This was provided in Article 11(4). Article 3 also contributed some meaning to the recognition of Malays as the sons and daughters of the soil, given that virtually all Malays were Muslims and most, though by no means all, Muslims were Malay. It is also perhaps pertinent to point out that the federal territory itself (then Kuala Lumpur, but now including also Putrajaya and Labuan) obviously contained Muslims, and was by Article 3 given an official religion, the Yang di-Pertuan Agong being made head of Islam for the federal territories.

As matters have turned out, Article 3 has become a site of constitutional struggle for those who see the Constitution as a colonial imposition obscuring Malay traditions as well as those who seek shelter from a secular state. Article 3 has become even more important after a constitutional amendment in 1988 (Article 121(1A)) that precluded the ordinary civil courts from deciding matters within the remit of the Syariah Courts.^[521] Protracted and continuing court battles over jurisdiction have not finally resolved this matter, and currently there are demands to amend the Constitution again to make the syariah (shari'a) courts equal to the civil courts.^[522]

If we properly contextualise these debates as well as taking account of all the documentation and speeches that made the Article 3 proposal unthreatening to non-Muslims, we can see that the Constitution in a sense merely entrenched the position which had applied in practice under British rule in the Malay states, namely, that within the federal political system provision for Islam was a matter of state jurisdiction, and was dealt with by the Ruler in consulta­tion with the state's Majlis Agama Islam, or Islamic religious council.^[523] Under Article 3, Islam at the federal level was regarded as having only a ceremonial or symbolic role, and this was the only new element resulting from the process of constitution-making. Malaya was therefore considered an Islamic state only in the sense that Islam was established and enjoyed a special position, but this had no impact on religious freedom, nor did it establish anything resembling a theocratic state.^[524] We may note also that no proposal was placed before the Reid Commission or the Working Party that the matter of religion be taken any further than Article 3 provided. Again, therefore, the Constitution did not establish anything really new.

C. Fundamental Rights

Despite the Universal Declaration of Human Rights in 1948 and the Indian Constitution of 1950, providing for fundamental rights in new constitutions was not, in the 1950s, an obvious measure. In fact, in the 1950s Jennings had gener­ally been opposed to constitutional bills of rights, including in India, and the other members of the Commission appear to have been less than wholly enthu­siastic. The British ‘white dominions' of Australia, Canada and New Zealand, not to mention the United Kingdom itself, had not been given the benefit of a bill of rights. Interestingly enough, it was the South Asian members, Justices Malik and Abdul Hamid, who were keenest on providing a bill of rights, in light of debates and experience in India and Pakistan. The lack of resonance of this issue in the Reid Commission’s deliberations is reflected in the fact that the Commission’s Report devoted only two of its 194 paragraphs to it. The argument was that fundamental rights were firmly established in the existing law, and even the conclusion that there was no objection to recommending their inclusion in the Constitution was based on the extraordinarily narrow consideration that ‘in some quarters there [were] vague and unfounded apprehensions about the future’.

There are two objections to this reasoning.

First, if the stated fears about the future were ‘unfounded’, one might ask why fundamental rights were included at all, and indeed why exactly these fears, which in fact in retrospect might appear not just reasonable but actually justified by events, were unfounded.

Second, the notion that fundamental rights were already protected was not convincing in view of the extensive restrictions on and denials of those rights during the emergency, which lasted from 1948 to I960.^[525]

Altogether, the Commission’s reasoning reflects, it seems, a notion of constitution-making in which the entrenchment of fundamental rights is intended only to reassure citizens as to the preservation of rights already known and provided by the common-law, a theory that Lord Diplock in the Privy Council later used to explain the idea that no one could be deprived of life or personal liberty ‘save in accordance with law’.^[526] It did not appear to occur to the commission that fundamental rights, in addition to being preservative of current legal provi­sion, could also be deployed more positively to discover and enforce new rights by way of reinterpretation of existing ones.^[527] To some extent this latter approach has found some favour with the judiciary in recent years. Given their general scepti­cism on this issue, it is hardly surprising the Commission did not look that far ahead. As a result, the Malaysian judiciary, despite being endowed with power to strike down legislation that contradicted the Constitution, for many years gener­ally adopted a narrow and backward-looking view of fundamental rights, and were unwilling to strike down a statute that appeared to be in contradiction with such rights, thereby adopting a mode of interpretation that hardly differed at all from parliamentary sovereignty.^[528] The rights actually provided, moreover, are hedged about with exceptions and invitations to enact restrictive legislation. Although most of the text is similar to that found in the Indian Constitution, it is very much less extensive.

The alternative reasoning, which is found in the reports of debates follow­ing the publication of the Commission’s Report, seems far more convincing than the reasoning adopted by the Commission. In a diverse society, it was argued, with many races, religions and languages, positive reassurance was required for minorities in particular that their rights would not be trampled upon. It was also argued that the provision for a strong central Government required institu­tional restraints, especially a firm separation of powers, so that executive powers would not be abused. It was also argued that it was important to recognise rights already recognised as fundamental human rights in international instruments.^[529] As a result of the Commission’s neglect of this issue, the Alliance Government was emboldened after 1957 to impose important and far-reaching restrictions on fundamental rights, especially after 1969, both in amending the draft Constitution, and later by legislative changes that restricted constitutional rights even further.^[530] In retrospect the critique of the Commission’s report proved correct on every single point.

Another issue that arose in relation to fundamental rights was the scope of judicial review, especially relating to Article 10, which provides for freedom of speech, assembly and association.^[531] These rights, it was provided, could be restricted on numerous grounds, such as that the restriction is deemed

necessary or expedient in the interest of the security of the Federation, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament to provide against contempt of court, defamation, or incite­ment to any offence.^[532]

Significantly, the draft did not say, as the Indian Constitution did at Article 19, that any such restriction must be reasonable. This has been an anxious issue in litigation in recent years,^[533] and the result is to confer legislative power which tilts against the ideas of proportionality or what is necessary in a democratic society.^[534] In other words, if legislation restricting an Article 10 right simply conforms analytically with one of the permitted types of restriction, it may be constitutionally valid even if it is unreasonable or disproportionate. While the more restrictive view might be seen as a recent innovation, it was passionately warned in 1957 that this approach was a mistake. Indeed Abdul Hamid dissented from the Report on this ground. The Tunku, however, despite his legal training, and as a sitting executive head, took the view that the new government should not be ‘impeded by too much legal propriety’.^[535]

However, the glass was nonetheless at least half full. Kumarasingham concludes that,

[w]hile the Malayan Bill of Rights was not as strong as scholars such as Parkinson and Harding would understandably prefer it to be, it was nevertheless an improvement on Jennings' previous attitude and approach. It was also an advance on contemporary legal mechanisms in practice across the British Empire and Commonwealth.^[536]

V.