Dr. Khalid Ja’affar (*)

On a sunny morning, August 31 1957, Tunku Abdul Rahman declared Malaya a sovereign independent state. "The time has now arrived when the people of the Persekutuan Tanah Melayu (i.e. the federation of Malay States) will assume the status of a free independent and sovereign nation among the nations of the world". And, he added, "A constitution for the Government of the Persekutuan Tanah Melayu has been established as the supreme law thereof."

Within the constitution, "provision is made to safeguard the rights and prerogatives of Their Highness and Rulers and the fundamental rights and liberties of the people and to provide for the peaceful and orderly advancement of the Persekutuan Tanah Melayu as a constitutional monarchy based on Parliamentary democracy."

One can search in vain in the declaration for high faluting expressions such as "inalienable rights" or "life, liberty and the pursuit of happiness", or a "tryst with destiny." The author of the declaration may not have had the talent of a Jefferson or a Nehru to pen equivalent utterances. Nonetheless, the intention, albeit expressed prosaically, is captured at the conclusion of the document that the new federation "with God's blessing shall be forever a sovereign democratic and independent State founded upon the principles of liberty and justice and ever seeking the welfare and happiness of its people and the maintenance of a just peace among all nations."

I was barely two years old when the first prime minister read the declaration. Strangely enough, I never read the document until just a few years ago. I did not read it in school as it was never taught in schools or colleges. As such, one should not be surprised that most Malaysian of my generation hardly knew the document ever existed.

I have also never heard the declaration argued out in courts or cited by scholars in the course of interpreting the constitution. I believe what is contained in the text of the declaration constitute the "original intent" of the framers of the Federal constitution. However, the good thing is that some younger lawyers are excavating this document from collective historical amnesia for a vigorous re-interpretation of the constitution. Without that act of re-interpretation, a procedure that is anchored in the spirit of the declaration, the constitution will only survive as mere black letters, or as "a scrap of useless paper."

Like many Malaysians, I know that the constitution is a pivotal document. Nevertheless, it is only the concern of lawyers and judges. Thus it is refreshing to read in the declaration that it was made to safeguard "the fundamental rights and liberties of the people." If it is so, the constitution is too important for the citizen to be left for the lawyers and judges alone. It should be the concern of all the rakyat, the people, whose rights and liberties are explicitly acknowledged for the first time. Therefore, the Malaysian constitution is again becoming a living document, not only among lawyers and judges, but also among intellectuals, social and political activists.

What needs to be understood is that the Malaysian supreme law is a negotiated document. It did not come out of vacuum. It is a product of history.  It is a history of the making of a single nation out of several communities; the Malays who are almost without exception Muslim; the Chinese who are Buddhist, Confucians and Christians, the Indians who are predominantly Hindu but with significant Muslim and Christian presence, and other indigenous races. The constitution, its articles and provisions were negotiated amongst the elite, who made a claim -that could not be dismissed lightly- to be representatives of the principal races of Malay, Chinese and Indian. The other partner in the negotiation process, without which the constitution would not have seen the light of day, is the British government.

From the point of view of our modern time, the representation could be criticized. For example the indigenous population was not represented. The radicals of all the racial nationalist groups were also excluded.  Nonetheless, the constitution was overall a success as this negotiated document has kept Malaya together, and expanded the nation with the inclusion of Sabah and Sarawak in 1963 into Malaysia, as a peaceful and prosperous country. There were tensions and once riot broke out. The racial riots of 1969 remain a painful scar in our memory and often keep some people from crossing the boundary of discussions.

Judging from the political debates during the years leading to independence, citizenship was perhaps the most contentious issue to be negotiated. Among the Malays, there was a strong undercurrent to oppose the principle of "jus soli", or automatic citizenship by birth. There was a strong sense of insecurity among the Malays then, that after losing economic power to the immigrant races, a term now frowned by the Chinese and Indians, they, the Malays, were in danger of losing political power as well. After the influx of Chinese and Indians brought by the colonial powers, the numerical strength of the Malays was eclipsed, at one time being less than 50 per cent of the total population. Thus, in return for jus soli, the Malay leaders negotiated for a "special position", or preferential treatment for their community that now appears in Article 153.

This article laid the constitutional foundation for affirmative action originally intended to reduce the economic gap between the Malays and the more prosperous and hard working Chinese. The implementation of the preferential treatment became more vigorous after the 1969 racial riots. The New Economic Policy was instituted to eliminate what was deemed as the economic roots of the racial strife namely poverty and identification of the races with economic functions namely: the Malays - farmers; the Chinese - traders; and the Indians - laborers.

No other article in the constitution and no other policies of the government of Malaysia have aroused more political passion among the citizenry than Article 183 and the New Economic Policy (NEP). They arrayed political parties and civil society groups into opposite camps. When preferential treatments for the Malays (later extended to indigenous minorities) was negotiated in London at the roundtable talk that gave birth to the Federal Constitution, the understanding was that it was meant for a period of fifteen years. This "gentlemen's agreement" on the time frame was largely forgotten and rendered irrelevant before the fifteen-year term expired through the racial riots. The NEP later extended preferential policy for 20 years. When that term ended in the early 1990s, Umno leaders, who hold supremely dominant position in Malaysian power games and who are the greatest beneficiary of the preferential policies, successfully negotiated a further extension. The NEP will remain an important component of Malaysian political and economic architecture unless radical change happens in Malaysian politics.

The non-bumiputeras, those excluded from preferential treatment, felt the policy rendered them into a position of second-class citizen. However, this sentiment could not be expressed openly because it is a crime to question the special position of the Malays, who together with indigenous minorities are under the policy collectively called the Bumiputeras, the sons of the soil. Equality of citizenship is indeed one of the pillar values of the Federal Constitution, which within its structure spelled out the fundamental liberties of the citizen. Philosophically speaking there is a fundamental contradiction within the constitution. However, contemporary public philosophies are always enmeshed in mutually contradictory objectives, and at the level of practical and pragmatic politics, contradictions are often beyond reconciliation. How does one reconcile liberty with order, the equality of citizenship and the inequality of social and economic conditions?

The most powerful attack against the NEP, galvanized into a political reform movement since 1998, was that the policy bred corruption and abuse of power such as economic nepotism and cronyism. Anwar Ibrahim, the acclaimed leader of this movement, has recently proffered another interesting argument to abolish the near sacrosanct preferential policy. Despite being one of the most successful developing economies, Malaysia was unable to unleash its full economic potential because of the NEP. In the 1960s, Malaysia's per capita income was larger than that of South Korea and Taiwan, and almost equal with Singapore. However, since 1970s, Malaysia has lagged behind these countries and the gap continues to widen progressively. The per capita income of South Korea and Taiwan is today three times that of Malaysia's and Singapore, which was once part of Malaysia and is now enjoying per capita income five times bigger than Malaysia.

Everywhere in the world, designers of affirmative action or preferential treatment always cited honorable intentions with an idealistic rhetoric for their policies. However, what are the empirical results of these discriminatory designs?  Thomas Sowell is perhaps the only economist who has collected data for a world-wide assessment of the performance of these policies. The result of his meticulous study was as that all affirmative action policies ended up with dismal failures. Isolated cases of success, as claimed by their designers, are achieved either at great cost or with negligible achievements. In the case of Malaysia, whose NEP has often been cited as a model of successful affirmative action, the leaders have been honest in announcing its failures. Due to its lack of success, one prominent leader of the government argued that it should be implemented with greater vigor.

A new element is emerging that could further compromise, or require a revision in Malaysians self-understanding of the fullness of citizenship. The Federal constitution of Malaysia, that negotiated document, the supreme law of Malaysia, is tantamount to, if one can use the expression, 'the scripture' of Malaysian body politics. It is the reference that the nation has to return to, when there is a dispute, to check whether the nation has veered from the right path.

Whilst I was in college, I began to hear some people chanting "al-Qur'an dusturuna", or "The Qur'an is our constitution." I think it is still being chanted in the training program for Islamists but it has not entered into serious political discourse. The multicultural nature of Malaysia prevents a sacred text of a particular religious group from becoming a practical and daily reference point of a nation. No matter how deep the Malaysian Muslims' attachment to the Qur'an, it would be too divisive to impose it on others as also being their constitution.

Likewise, it never entered our political discourse to treat the non-Muslims as dhimmis. Not only because the non-Muslims constitute almost one-half of the Malaysian population, but also because several non-Muslim political parties are major partners the ruling coalition. Even the Islamic party, often strident in its advocacy of an Islamic state and implementation of the Shari'a, was one time indirectly and at another time directly partners in the opposition coalition confronting the ruling coalition in general elections.

The fullness of citizenship, if such an expression is permissible, is equality, freedom and just treatment. Has the constitution as declared successfully guaranteed liberty, justice and equality of citizens? Unfortunately, the debate, as framed in this manner, has not been as loud as it should have been and no new argument has been put forward.

However, recent events have, both directly and indirectly, pushed these issues from out of the periphery and caused them to inch their way towards becoming central concerns. For example, the freedom to change religion and the idea that equality is the state and the citizen, have touched raw nerves. These are the two pillars of a modern political system. The Federal Constitution of Malaysia laid down basic rights to its citizenry, and all citizens have equal rights. This constitutional guarantee of equality is spelled out in the Article 5 of the constructions.

Conventional wisdom says that the Federal Constitution is a secular document. It was a product of history and does not have a transcendent character. It was thought out, debated and composed by individuals who believed that religion is a matter of private concern. Islam, despite being the religion of the federation, should not enter the public sphere. Thus, the constitution has been interpreted and argued out in the courts as a secular document.

Be that as it may, at least one scholar has pointed out that the provision that "Islam is the religion of the Federation" nullifies the fact that the constitution is secular. Even earlier, during his last years as prime minister, Dr. Mahathir Mohamad declared that Malaysia is an Islamic state. By doing so, he has opened a Pandora's Box.

It has become fashionable among us to interrogate the claims of the Islamists. What is seldom demanded from the secularists is to undertake self-interrogation because the ruling elite within the Muslim world has inherited a secular way fashion of conducting public affairs in an unreflecting way that is now without defense from intellectual assault. In my own country, the assault against non-confessionalism is not only under attack from the Islamic party. Within the ranks of the establishment, that is among the younger leaders of Umno, there is a growing conviction that the way for the party to remain in power is to project a greater Islamic image. Some are doing this by sheer political pragmatism but a significant number are doing so with deep personal conviction.

What will become of multicuralism, which has been the hallmark of citizenship since Malaysia was born half a century ago?  

 
--------------------------------------------------------------------------------
 (*)  Director of the Institute of Political Studies (IKD), Malaysia.