BY SHAD SALEEM FARUQI
A COLLEAGUE requested me to give a guest talk to her students on “Constitution, Law & Society”. I began by pointing out that as with all laws, the relationship between the constitution and society is one of interdependence. They shape each other in innumerable ways.
More than other fields of law, a constitution reflects the dreams, demands, values and vulnerabilities of the body politic.
A constitution is not just a legal document. It is linked with philosophy and politics. It has as its backdrop the panorama of history, geography, economics and culture. A constitution that will endure must not depart too far from the spirit of the people.
At the same time, a constitution must hitch itself to the ideals and values of the age.
Herein exists a great challenge – a constitution must reflect the existentialist realities of society, and yet, it must be idealistic, aspirational and transformative. It must contain within it seeds of change for a just, new social order. It must balance continuity and stability with the need for social renewal.
The Malaysian Constitution tried to achieve this balance.
Though the 1957 Constitution was drafted by a foreign commission (the Reid Commission) appointed by the British, it worked closely with the then political leaders of Malaya and the multiracial Alliance to incorporate into the basic law some unique and indigenous features of the Malay archipelago, among them:
• the unique system of multiple Malay monarchs united by a Conference of Rulers;
• the system of Malay Reserve Lands;
• Islam as the state religion but freedom of religion for all other religions;
• affirmative action provision to preserve the special position of the majority Malay community (and in 1963, for the natives of Sabah and Sarawak);
• Protection for Malay customs (and in 1963, for native law and custom of Sabah and Sarawak); and
• Bahasa Melayu as the national language;
• weightage for rural areas (which are predominantly Malay) in the drawing-up of electoral boundaries;
• reservation of some top posts in the State executive for Malays, and
• legal restrictions on preaching of other faiths to Muslims and apostasy by Muslims.
However, the Malay-Muslim features are balanced by other provisions suitable for a multiracial and multireligious society.
The Constitution is replete with safeguards for the interest of other communities.
Its overall spirit is one of tolerance, moderation and compassion. It balanced the old with the new, the indigenous with the imported. Many features were imports from abroad and reflected contemporary ideals of constitutionalism, rule of law, social justice and good governance.
On the idealistic and transformative side, it provided for constitutional supremacy in Article 4. The Constitution was entrenched against easy repeal by Articles 2(b), 38, 159 and 161E.
Supremacy of the Constitution was protected by the momentous power of judicial review in Article 121 and 128. Independence of the judiciary was guaranteed by Article 125 and several other provisions.
In response to the age of democracy, an absolute monarchy was converted into a constitutional one. Parliamentary government was established. An electoral system with universal adult franchise and elected legislatures was provided for.
In order to secure liberty and preserve the democratic ideal of “limited government” and yet at the same time to secure order and security, the Constitution guaranteed some human rights, specified the permissible limits that may be imposed by law and provided remedies whenever rights are infringed.
Controlling the government without crippling it was an important goal.
Though Islam was adopted as the religion of the federation, the concept of “law” in Articles 4 and 160(2) reflected the secularism and constitutionalism of the age.
Though the Constitution reflected many indigenous and Malay-Muslim features, it is replete with safeguards for the interests of other communities.
Among these are citizenship rights; right to vote and to seek political office; equal right to the chapter on personal liberties; and right to membership of the judiciary, cabinet, parliament, public services and special Commissions irrespective of race or religion.
Even where the law confers special privileges on the Malays and the natives of Sabah and Sarawak, there is concomitant protection for the interest of other communities. For example, the Syariah courts have no jurisdiction over non-Muslims.
The social engineering that the Constitution sought to herald was to be achieved not by expulsions and expropriations but by peaceful change and evolution.
However, not everything has worked out according to plan. The radiance of the Constitution has not reached all sectors of society. Even within the top echelons of the administration, constitutional literacy is low. Constitutional patriotism is even rarer.
This is not surprising. Unknown laws are ineffective laws and we have not done a good job to promote knowledge of the carefully crafted and compassionate provisions of the Constitution.
The Constitution is not a magic wand. It is not the alchemy that will set everything right. The challenge for Malaysian citizens is to get to know their Constitution, appreciate its moderating influence and bridge the gap between theory and reality.
Emeritus Professor Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya.