BROKEN PROMISES: THE MALAYSIAN CONSTITUTION AND MULTICULTURALISM

An  enlightening  article by By Dr. Azmi Sharom.

“Yet, if one were to examine the Constitution as a whole and if one were to also study the history behind this seeming paradox, then what can be discovered is that at the heart of this “supreme law” of the country, and arguably at the heart of the founding fathers of the nation, lay a desire to create a pluralistic and equal society.”

“The question that lies before us is where did it all go wrong, and is there any possibility of repairing the damage done?”

Malaysia Today –

In 1835 Malays made up nearly 90% of Malaya’s population. In 1947 this number was closer to 50%. Therefore during a time when Malayan political consciousness was awakening (the 1946 British introduction of the Malayan Union which effectively placed the entire peninsular under direct British rule galvanised what can be described as the Malayan left and the forefathers of the current ruling elite), it could hardly be described as homogenous.

The 1957 Federal Constitution of Malaya reflected this change in the personality of the country.  It was and is a strange creature that combines liberal democratic ideals and what can only be described as racially based preferential treatment. It also has elements of religiosity (the establishment of the scripture based Islamic law as the personal law for Muslims for example) which appear to contradict Article 4 of the constitution which reads:

“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”

Race and religion litter the document in a way that scream “different treatment for different people”; a situation, which a mere 12 years after the excesses of Nazi Germany and nine years after the adoption of the Universal Declaration of Human Rights (a United Nations document which Malaysia as a prospective new member would have to respect) would seem out of place with the growing zeitgeist of the time. However, considering the socio political situation at the time, with an indigenous population feeling overwhelmed both in numbers and in economic disparity, the nature of the constitution can be accepted as an understandable compromise.

Yet, if one were to examine the Constitution as a whole and if one were to also study the history behind this seeming paradox, then what can be discovered is that at the heart of this “supreme law” of the country, and arguably at the heart of the founding fathers of the nation, lay a desire to create a pluralistic and equal society.

The question that lies before us is where did it all go wrong, and is there any possibility of repairing the damage done?

This paper will examine the issue on two main grounds that the author believes lie at the crux of the problem facing plurality in Malaysia, race and religion.

Religion

Article 3 of the constitution reads:

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

Does this phrase mean that Malaya was to be an Islamic state? The answer is clearly in the negative for two main reasons. Firstly one has to look to the Reid Commission Report and it states that the Alliance (this were the three political parties that made up the Malayan government at the time, the United Malay National Organisation, the Malayan Indian Congress and the Malayan Chinese Association, UMNO, MIC and MCA respectively) upon examining the draft constitution had this to say:

“The observance of this principle…shall not imply that the State is not a secular state” [Report of the Federation of Malaya Constitutional Commission page 73].

It is very clear therefore that Malaya was not to be an Islamic state. This is not an assertion made by the Reid Commission, it is an assertion made by the very people who were to become the government of the newly independent nation. This statement combined with Article 4 which places all laws in the country under the overarching principles of the Constitution means that to claim Malaya was meant to be theocratic in any way is disingenuous.

The contention that Malaya is a secular country is further strengthened by the decision of the Supreme Court (the highest court in the land – now known as the Federal Court) in the case of Che Omar Che Soh [1988] where it was held that secular law governed the nation and Islamic law was confined only to the personal law of Muslims. Article 3 was taken to mean that as far as official ceremonial matters are concerned Islamic form and rituals are to be used.

With regard to religious freedom Article 11 is explicit: “Every person has the right to profess and practice his religion and subject to clause 4 to propagate it”. Clause 4 allows the state governments (and the federal government in the case of the federal territories) to control the propagation of religion to Muslims. This is not limited to non Muslim propagation to Muslims; it includes Muslim to Muslim propagation as well.

Harding suggests that “…the restriction of proselytism has more to do with the preservation of public order than with religious priority” [Law, Government and the Constitution in Malaysia page 201]. He argues that even states like Penang which does not have Islam as its official religion has laws regarding propagating religion to Muslims therefore there can’t be an assumption that Islam is deemed superior in some way. If we were to work on this premise, then it would appear that this limitation, as restrictive as it is, does not actually stop individuals of any faith from choosing their religion.

This can be seen in the Supreme Court decision of Minister of Home Affairs v Jamaluddin Othman [1989]. In this case a Muslim convert was detained under the Internal Security Act. It was held that such a detention has to be made for the purpose of national security. The conversion of this individual does not breach national security and furthermore his detention was in breach of his freedom to choose his religion as enshrined in Article 11. Thus, although the propagation of religion to Muslims is restricted, their freedom to choose their religion would appear to be not.

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