National integration with constitutional integrity

— Azzat Kamaludin (loyarburok.com)

Malaysian Insider

SEPT 20 — Our lives, attitude and outlook are formed by the encounters we experienced. I shall begin my discussion of this subject, by sharing with you two encounters that have so shaped me.

The first occurred after I passed out from the Royal Military College, then known as the Federation Military College. It was a college set up in 1953 by the then British High Commissioner to Malaya, Sir Gerald Templar. Its Charter was and is “Preparing young Malayans (now Malaysians) to take their places as officers in the Armed Forces, in the higher divisions of the Public Services and as leaders in the professional, commercial and industrial life of the country”. It was the second full boarding school to be established in the country.

The first full boarding school established on 2 January 1905 was the Malay College Kuala Kangsar, originally known as the Malay Residential School of Kuala Kangsar, it was conceived by the then Inspector of Schools for the Federated Malay States who in a letter to the Resident-General in February 1904 wrote about “establishing at a suitable locality in the Federated Malay States a residential school for the education of Malays of good family and for the training of Malay boys for admission to certain branches of Government service.”

I joined the Military College in Form 3, three years after Malaya became independent. After a few months of making friends I came to know Malays from Kota Baru, Besut and Kuala Lumpur; Chinese from Penang, Ipoh and Pontian; Indians, Sikhs and other races from Kuala Pilah, Seremban and Muar. Clearly the composition of students had been carefully constituted — there was not only geographical representation but also racial representation. I understood later that a racial quota was employed for admission to reflect the racial composition of the country then.

My two best friends when I left the College were a Chinese and a Sikh boy. As it happened, all three of us had decided to study law. We knew we could not pursue it without assistance from the State. I found that I had no problem whatsoever in obtaining a scholarship for my purpose. But it was not so for my two friends. Although there were scholarships for non-Malays, there was none for law. I tried to help them.

The mentri besar from the State that we all hailed from was married to my father’s sister. I prevailed on my father to take me to see him so that I could appeal to him to award scholarships to my two friends. I explained to the mentri besar that they came from very poor families. The father of my Chinese friend was not working as he was paralysed; the mother had had to take his place as a lawyer’s clerk. The father of my Sikh friend was a watchman; the mother worked at home. I knew the extent of their plight because we visited and stayed in each other’s house during the holidays. In fact I was in better circumstances than my friends as my father was an officer in the State Religious Department and my mother was a primary school teacher. To clinch my case I informed the mentri besar that they were both from Muar which was also his home town.

It was all to no avail. There was not to be any State assistance for them. They had to work and study their way through law school. They duly did; they became successful lawyers. And they have remained to live and be loyal to this country.

The second encounter occurred during my first Hari Raya in England. I went down to London to join in the celebrations. After the morning prayers at the Malayan High Commission, we had the option to join a coach tour to Woking to visit the mosque and the Muslim cemetery located there. The coach was full with students studying various subjects from different universities and colleges. Of course we were all Malays. I talked to the person seated next to me. In the course of it I said how fortunate that we could get scholarships to enable so many of us to study abroad and in various subjects. I also said that at some point in the future, when all of us graduated and worked we should be able to afford to pay for our own children’s education; that at that point we should consider reviewing the special status with respect to the obtaining of scholarships as such a need would have withered away. Almost as soon as I said that, a student who was sitting behind me and had obviously been listening, came forward and berated me for saying such a thing. I was accused of forgetting my roots, ignorance of the history of the country and the plight of the Malays.

My attempt to argue in reply was to no avail. He could not see how we can talk of doing away with state assistance — it was a right that we are entitled to and must remain for all time. He was duly called to the English Bar and upon returning, practised law in a northern state. He later served, if I am not mistaken, two terms as a member of parliament. Our paths did cross twice but they were not of any moment to the subject that we are about. Suffices it to say, that on both occasions he did not seem to remember the encounter.

The encounters took place about 45/46 years ago. I am sure that many who were born between the second World War and August 31 1957 will have had some such encounters or similar experience. Although I did not know it then, the encounters were enabled by Article 153 of the Federal Constitution. Set out under Part XII headed “General and Miscellaneous” the Article is entitled “Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.”

Because it underlies so much of the debate raging publicly and privately now, especially now, about what this country is and where it is headed, I think it is useful to set it out in full:

(1) It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.

(2) Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.

(3) The Yang di-Pertuan Agong may, in order to ensure in accordance with Clause (2) the reservation to Malays and natives of any of the States of Sabah and Sarawak of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to any Commission to which Part X applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities; and the Commission or authority shall duly comply with the directions.

(4) In exercising his functions under this Constitution and federal law in accordance with Clauses (1) to (3) the Yang di-Pertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.

(5) This Article does not derogate from the provisions of Article 136.

(6) Where by existing federal law a permit or licence is required for the operation of any trade or business the Yang di-Pertuan Agong may exercise his functions under that law in such manner, or give such general directions to any authority charged under that law with the grant of such permits or licences, as may be required to ensure the reservation of such proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions.

(7) Nothing in this Article shall operate to deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him or to authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of a person any permit or licence when the renewal or grant might reasonably be expected in the ordinary course of events.

(8) Notwithstanding anything in this Constitution, where by any Federal law any permit or licence is required for the operation of any trade or business, that law may provide for the reservation of a proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak; but no such law shall for the purpose of ensuring such a reservation:

(a) deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him; or

(b) authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of any person any permit or licence when the renewal or grant might in accordance with the other provisions of the law reasonably be expected in the ordinary course of events, or prevent any person from transferring together with his business any transferable licence to operate that business; or

(c) where no permit or licence was previously required for the operation of the trade or business, authorise a refusal to grant a permit or licence to any person for the operation of any trade or business which immediately before the coming into force of the law he had been bona fide carrying on, or authorise a refusal subsequently to renew to any such person any permit or licence, or a refusal to grant to the heirs, successors or assigns of any such person any such permit or licence when the renewal or grant might in accordance with the other provisions of that law reasonably be expected in the ordinary course of events.

(8A) Notwithstanding anything in this Constitution, where in any University, College and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the University, College or such educational institution to candidates for any course of study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions.

(9) Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays and natives of any of the States of Sabah and Sarawak.

(9A) In this Article the expression “natives” in relation to the State of Sabah or Sarawak shall have the meaning assigned to it in Article 161A.

(10) The Constitution of the State of any Ruler may make provision corresponding (with the necessary modifications) to the provisions of this Article.

The other provisions of the Constitution relevant to Article 153 are:

*Article 136 (as provided in Clause 5 of Article 153). Headed “Impartial treatment of Federal employees”, it stipulates 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.”

*Clause 4 of Article 10. In providing for the “Freedom of speech, assembly and association” Article 10 also provides that Parliament may by law impose restrictions on the rights conferred; in respect of the right to freedom of speech and expression, Clause 4 allows Parliament, in the interest of the security of the Federation of any part thereof or of public order, to pass laws “prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, Article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law.”

*Clauses (3) and (5) of Article 159 which entrenches Article 153 and Clause (4) of Article 10 by requiring two-thirds of both Houses of Parliament and consent of the Conference of Rulers for any law to amend them.

*Article 40 is referred to in Clause (2) but since it is merely to provide for the Yang di-Pertuan Agong to act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet in the exercise of his functions under the Article, it seems to be little consequence. But if one takes the view, as judges are wont to do, that every word, phrase in a law, must be intended by the framers to mean something, then the qualification “but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet” should mean something. I would think that at the least it should mean that the Yang di-Pertuan Agong would be entitled to ask for the basis – the facts and figures – upon which recommendations by the Cabinet for directions, instructions or authorisations in pursuance of the “special provisions” contemplated by Article 153 are founded so as to satisfy himself that both “the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities are safeguarded.”

Save for the amendment to include the “natives of any of the States of Sabah and Sarawak” on the formation of Malaysia, the Article in the main, remains as it was when the Constitution came into force. It is an acknowledged fact that the provision of Article 153 was the principal quid pro quo for the Articles under Chapter 1 headed “Acquisition of Citizenship”. The constitutions of countries with diverse ethnic, tribal or geographical groups, are invariably the result of compromise. There is therefore nothing special in the fact that our Federal Constitution embodies the compact of the people of Malaya at that time.

As Constitution, it is more than just the supreme law of Malaysia. It is also more than just the framework for the organisation of the Government of Malaysia and for the relationship of the federal government with the states, citizens, and all people within Malaysia. As Tunku Abdul Rahman, the chief minister then and the first prime minister, in his speech delivered to the Federal legislative Council on 10th July 1957 to adopt the Constitutions said (and I have taken this as quoted by Tommy Thomas in his article in 2005):

“…there can, I consider, be no doubt whatsoever that these Constitutions will provide the independent Federation of Malaya with a firm foundation on which the people of this country can build a great and prosperous nation.”

The fact that we meet today and I to discuss a topic entitled “National Integration with Constitutional Integrity”; that today we have to speak of 1Malaysia, even as some speak of ketuanan Melayu, that today one citizen can tell another that he is a pendatang or to balik cina, speak volumes of our failure to build upon that firm foundation so proudly planted 53 years ago and extended 47 years ago. The failure is not in the provisions but in their interpretation and in the abuse of their application by those on the fringes of the political parties that we have – be the political parties be organised and based on communal lines or otherwise.

As if the ever widening racial divide is not enough, the political leaders and parties have added to it the element of religion. As I see it, religion, although of course important to the citizens of Malaysia diverse as we are in faith as we are in race, was not much of an issue until September 2001. True we have a political party based on the Islamic religion with an avowed aim of making of Malaysia an Islamic state. But given the composition of the population even the PAS knew that it was an aim to win votes than an achievable objective. It is also true that Clause (1) of Article 3 Part I of the Constitution states that:

“Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”

But it is also true that if the proviso is not clear, Clause (4) of the Article states:

“Nothing in this Article derogates from any other provision of this Constitution.”

And “any other provision of this Constitution” must surely include Part II entitled “Fundamental Liberties under which is Article 11 entitled “Freedom of Religion”, Clause (1) of which provides:

“Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.”

The right includes managing its own religious affairs; establishing and maintaining institutions for religious or charitable purposes; and acquiring and owning property and holding and administering it in accordance with law.

The limitation of the right, if you want to call it that, in clause (4) is that State law or Federal law, as the case may be, may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam – a paternalistic provision intended presumably to protect those professing the religion of Islam from being converted to other faiths or beliefs. But are Muslims of Malaysia so feeble of faith or feeble of mind that they need to be protected?

Those are the salient provisions of the Constitution regarding religion and Islam. Nowhere is there a provision or statement that the Federation is an Islamic State. As far as I understand the representations and deliberations which led to the formulation found in Clause (1) of Article 3, none intended that thereby Malaya is an Islamic State. If at all, all who argued for such a statement to be included were at great pains to point out that they did not intend that Malaya is an Islamic State. The Constitution itself in providing for inter alia, a federation of states, a Westminster-style Parliament, the sovereignty of the Sultans, the fundamental liberties of citizens is not a constitution of an Islamic State. And to be sure the highest judicial body in Malaysia, the body that is entrusted with interpreting the Constitution, has in a number of cases in no uncertain terms, rejected the contention that Malaya or Malaysia is an Islamic State. (As a side note, the irony in most of the cases where the contention was advanced, it was advanced by a defendant trying to escape the stipulations of the penal code.)

Yet in 2001 the then prime minister in his opening address to the Gerakan Party’s national delegates conference, said that “Umno wishes to announce loudly that Malaysia is an Islamic country”. It is a measure of the respect that Umno has for the judiciary that the prime minister went on to say “that this is based on the opinion ofulamaks who had clarified what constituted an Islamic country.” It was just as loudly disputed by the PAS and exhaustively disputed in a 20 page article by Tommy Thomas in the article which I have referred to.

In a mature country whose citizens are aware of their Constitution such an announcement would be clearly seen as an Umno ploy to pull the Islamic state carpet from under PAS. And we probably would not have heard of it any more. But as with all religion there is always those with a holier than thou attitude and in Malaysia Muslims seem to have more than our fair share. The result is that now hardly a week passes without an ulamak or an ustaz declaring that eating this or doing that or dressing like this or wearing that is haram or not Islamic.

And that does not include what is not loudly announced.

The other day I visited a sick friend in hospital. A Malay and a Muslim, he was at the Military College after I had left. He asked me whether I knew that the college bell that had hung next to the dining hall and used to summon students for lunch, dinner and whenever else students were required to assemble had been removed on the advice of an ulamak. It should be easy for you to guess the reasoning of the ulamak. My friend and I did not know whether to laugh or cry.

It is no laughing matter though when the measures taken in the name of religion keep or drive people apart. Acrimony and animosity of religion and race will destroy the firm foundation that our founding fathers built. In recent years they have increased, are increasing and ought to be diminished.

How it may be diminished is what this convention will be discussing. Bickering about what bargain was made, what kind of state are we in, who does this country belong to or who belongs to this country is sterile.

For my part, with the encounters of the past in my mind as if it were yesterday, I believe that we must begin by acknowledging that our Constitution clearly intends, and as the composition of its citizens dictate, that we build a multi racial, multi religious and a multi cultural nation. Education in racial isolation will keep the races apart. I believe that to make this country a nation, we must educate the young together, that they may know one another and learn to trust one another. Our fathers compromised to fashion a common front to face down the colonial power and make this an independent country. We must now fashion a new compromise within the provisions of the Constitution if we are to build a nation. I suggest that it is a hindrance not a help to invoke or apply concepts such as traditional or indigenous elements no matter what they may be, to understand the provisions of the Constitution. I believe we can, with the provisions of the Constitution properly understood, honestly interpreted and applied with the objective of nation building, build “a great and prosperous nation”.

In 1975, in the case of Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187, Raja Azlan Shah FJ (as His Royal Highness then was), (as quoted in the recent 2009 case of Dato’ Seri Ir Hj Mohammad Nizar Jamaludin v Dato’ Dr Zambry Abd Kadir) said in delivering the judgment of the Court:

Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that it is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other Constitutions — see Adegbenro v. Akintola & Anor. Each country frames its constitution according to its genius and for the good of its own society. We look at other Constitutions to learn from their experiences, and from a desire to see how their progress and well-being is ensured by their fundamental law.

Provisions of a law are either amended to better meet the circumstances of the times or repealed because they have served the need and purpose of the times. But it is not always necessary to repeal a provision that has served its purpose. Such a provision should be retained to remind future generations how their forefathers resolved the problems of their time. I suggest that Article 14 (1) (a) of the Federal Constitution if not already, will in time, be one such provision.

And I would like to think that one day the provisions that enabled my encounters would be another such provision, that those who have been served by it will say “I have no need for it”.