Drafting of the Constitution

NST. 17 NOVEMBER 2014 @ 8:08 AM

Excerpt from the Attorney General of Malaysia  Tan Sri Abdul Gani Patail's speech at the ILKAP National Law Conference 2014 on Nov 11, 2014 [read here ]

In The Colour of Inequality – Ethnicity, Class, Income and Wealth in Malaysia, at pages 7-8, Muhammed Abdul Khalid summarised the events leading up to the communal riots in 1969 as follows:

“The mutual resentment of Malays and Chinese on the disparity of economic and political representations reached its peak in 1969 after the third general election. The Malays felt that they were not enjoying the fruits of Independence, especially in terms of economic uplifting. The socio-economic status of the Malays had not changed; poverty among the Malays was still rampant …

IN drafting the Constitution we have had to consider a very large number of questions. Many of these questions have been the subject of representations, formal and informal, from various organisations and individuals. In reaching our decisions, we have tried to give full weight to the various views expressed to us and we shall give our reasons for making these decisions.

Almarhum Sultan Azlan Shah succinctly narrated this historical background to the social contract in his opening speech at the 12th Malaysian Law Conference in 2003 as follows:

“We embarked on a journey as a constitutional democracy with the full realisation that we were a multi-racial people with different languages, cultures and religions. Our inherent differences had to be accommodated into a constitutional framework that recognised the traditional features of Malay society with the Sultanate system at the apex as a distinct feature of the Malaysian Constitution.

“Thus, there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminster model and built it into the traditional features of Malay society.

“This Constitution reflected a social contract between the multi-racial peoples of our country. Thus, matters of citizenship for the non-Malays, the Malay language, and the special privileges for the Malays and the indigenous peoples of Malaysia were safeguarded and given the added protection of requiring the consent of the Conference of Rulers before change could be effected to them.

“It is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm (basic norm) to which all the other laws are subject. This essential feature of the Federal Constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever enures to the Malaysian people as a whole, for their benefit.”

In this regard, the value of the “social contract” elements we have inherited should never be underestimated or undermined. It must be appreciated that these elements in the Federal Constitution were engineered by the Alliance in consultation with the Malay Rulers as the best solution to protect the interest of the groups concerned.

This, in particular, includes the trade-off between the granting of citizenship for the Chinese and Indian migrants for recognition of the special Malay rights. Similarly, the protections for the customary aboriginal rights of the indigenous peoples consciously entrenched in the Federal Constitution.

For the states, the sacrifice of their sovereignty was set-off by retention of certain economic rights. Thus, the relevant provisions of the Federal Constitution reflect the difficult compromises and sacrifices made by the component states as well as the various peoples of Malaysia.

As in the Australian constitutional approach, it should also be recognised that there are two sides to the coin — the guarantees afforded to one group would be seen from the other groups’ perspective as a restriction or prohibition on their rights, even though there may be no actual detriment or loss; merely the perception of deprivation. In other words, affirmative action is recognised and is being implemented in other countries as well. It also acknowledges that what is given to one group is often seen as deprivation to another side even if it may not be so. In most cases it is actually more a matter of imagination.

May 13, 1969 and its aftermath

In Nation Before Self and Values That Do Not Die, at page 417, Tan Sri Yuen Yuet Leng captured post-independence multiracialism as follows:

“The emotions and practice of Malayan multiracialism were striking in the jubilation of our early independence years and without any obvious prejudice to the emotions or sensitivity of any community.

… Then sometime and somewhere along the course of further national, economic and social development and for various reasons, we have taken a turn towards graduating racial and religious polarisation. I had sometimes even asked myself if it was because we had solved the threat of communism too fast and this had made some politicians and the country to forget it so fast and so soon. …”

In The Colour of Inequality – Ethnicity, Class, Income and Wealth in Malaysia, at pages 7-8, Muhammed Abdul Khalid summarised the events leading up to the communal riots in 1969 as follows:

“The mutual resentment of Malays and Chinese on the disparity of economic and political representations reached its peak in 1969 after the third general election. The Malays felt that they were not enjoying the fruits of Independence, especially in terms of economic uplifting. The socio-economic status of the Malays had not changed; poverty among the Malays was still rampant …

“Not unexpectedly, in the third general election in 1969, almost half of the Malays voted for the opposition, … and a majority of the non-Malays voted for the Chinese opposition parties. … After the election, the city of Kuala Lumpur was engulfed in racial riots – primarily due to culturally offensive behaviour by jubilant opposition party supporters, according to official records.”

Immediate measures were taken by the National Operations Council, an ad hoc Cabinet, set up to govern the country while Parliament was suspended. This included the drafting of the five principles of the Rukun Negara (Articles of Faith of the State) and the introduction of the New Economic Policy.

The Rukun Negara was proclaimed by the Yang di-Pertuan Agong on Aug 31 1970 (13th Independence Day) to be a national ideology and philosophy. The five principles of the Rukun Negara were supposed to be the key to national harmony and unity, for the success and stability of Malaysia’s multicultural society.

TOMORROW: Part 3 - The New Economic Policy

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