— Azzat Kamaludin (loyarburok.com)
Malaysian Insider
September 20, 2010
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”.
{Yet in 2001 d then PM in his opening address 2 d Gerakan Party’s national delegates conference, said that “Umno wishes to announce loudly that Malaysia is an Islamic country”.}
Gerakan members, with coconuts in their hands, shouted Ya Ya with d lawless PM
UMNO needs Perkasa to help them uphold the provisions of Article 153. It appears that only Ibrahim Ali can shout at the top of his lungs to prevent any discussion on this issue.
Of course Mamakthir knew that the provisions of Article 153 were outdated and were meant to be reviewed. Instead he devised schemes to lower standards to allow more and more Malays to be “seen” to be equal to the non-Malays, and then he would say “see, I have very fair to all”. He was a genius at creating and updating crutches for the Malays. He knew that once the crutch became a part of a Malay’s appendage, the Malay would fight tooth and nail to prevent the crutch from being excised.
We really need more people like you to share their views and even enter politics to save 1Malaysia from the Bankrupsi Negara regime.
Datuk Azzat Kamaludin is a Cambridge trained lawyer in 1960s so I think we are forgiven for not understanding his article, replete with constitutional citations.
The Star on March 18 this year carried an article by a young lawyer “Making the Constitution Mine”. It says “Malaysians in general do not know the Constitution”. The standard argument is: how can we respect the Constitution as supreme law if we do not read, know and understand it?
Well not all of us are lawyers and I suspect even the majority of lawyers also do not understand fully thje Constitution unless on a particular aspect that their work calls upon them to read again and again and do some research.
The fact is our Constitution is arguably the most complicated and difficult to understand in this world.
The reason for this is that our Constitution, at the onset in 1957, and since then especially, tries to harmonise too many discordant, asymmetrical and even conflicting values and systems. Examples: it retains all kinds of British civil liberties and freedoms and yet it authorises the opposite of restrictive laws like ISA because of the then communist threat; it recognizes equality (under Article 8) but it has make exception and concession to Special Privileges (Article 153) for Malays being here earlier as definitive group (earlier than the British). It wants to enshrine parliamentary supremacy but it has to defer to institution & tradition of royalty and rulers. It tries to combine the modern and the feudal in balance. It contains mostly secular aspects in line with common law, yet it has to accommodate the importance of Religion (Islam). So whilst Constitution says Parliament makes secular and civil laws, the States are empowered at liberty to promulgate Sharia so that even on a criminal offence (say rape), questions have been raised whether the offender should be subject to secular Penal Code of standard of proof or syariah requiring 4 male witnesses! Whilst establishing Federal Government, it has to divide – and share- power with the states, especially Malay states with rulers through their state governments. Then it has to accommodate inception of new states like Sabah and Sarawak during information of Malaysia. When they amended ‘the federation’ to include Sabah and Sarawak in one part of the Constitution they forgot to streamline the inclusion in other parts of the Constitution based on the original Malayan states….
So this is why our Constitution is the most complicated in the world : it makes a general rule, then it sets out the carves out and exceptions to the general rule in legal jargon that no one -and possibly even the drafters in AG Chambers – understand. I suspect no other constitutional document anywhere else ever tries this feat of trying to reflect such a complicated society and dare attempt to combine so different systems, values and traditions – often incompatible- as that of our Constitution.
Plus the legal jargon & the complexities of reconciling often the irreconcilable, I think the writer in The Star chastising us for knowing the Constitution should cut us some slack.
Against this backdrop, the relevant question is: what’s next? What do or should we do? Do we despair? I will deal with this later.
It is natural whenever there’s a dispute between groups everyone falls back on the Constitution – to define what’s supposedly agreed. But given what I said in earlier posting, if true, it is not easy to determine whats being agreed when people and their lawyers tend to seek to interpret the provisions and the nuances of the compligated legal technical words according to their interests and to favour their own agendas. And he who get the bigger mandate from majority votes, and the one who has greater political power including the power to appoint judges get his interpretation vindicated as correct over others objections!
So the Constitution alone does not solve our problems. It cannot stop people especially politicians from behaving badly or unfairly. It cannot stop them from skewing the Constitutional words to side their own cause.
To look at the constitution as a panacea of our national ills is perhaps barking up the wrong tree because the Constitution is all the time evolving and changing (by amendments) depending on the political will of the day previaling which again depends on changes in social cultural titides of the people, especially the majority group that deliver most votes, on which direction the Constitution goes.
In short, people define what the Constitution is or what it means; the Constitution cannot prescribe how they should behave (right or wrong). This is a fact of life – and a political reality.
The Constitution evolves with society or the politically dominant section of it. Whether that evolution leads to progression or regression again depends on who in power is defining it and the cultural attitudes. For examples, if progress is defined as material and economic measured in terms of material prosperity, then an argument can be made out the Constitution whilst providing privileges for one group does not violate the basic principle of equality of all groups whose diverse talents should be harnessed to improve competitiveness to create national wealth. However to one who thinks the racial dominance of the definitive people is more important and ought to be in perpetuity and is prepared to pay the price of the country’s sliding backward in economic terms to a failed state, then he would interpret the Constitution as sanctioning this. For a fundamentalist believing a theocracy because material prosperity is not defined as progress – spritual advancement is – then he would interpret the part of the Constitution stipulating which is the official religion to support his view…..
In such circumstance neither Constitution nor Law provides the answer. The Constitution alone is but a mere legal shell given substance only by cultural intellectual and social thinking of the dominant group that has power to both interpret and even change the Constitution. There is something more beyond these (constitution or law) on which reliance seems to be too often placed or rather misplaced.
What it is I am not sure but likely it is something that lies out there in the cultural social and intellectual area where competing ideas of different and opposing groups could clash and compare, to influence, educate and change attitudes for the better and the wiser. Hopefully opposing ideas are allowed to be discussed, argued, rationalized, negotiated in civil way in whatever forums (including blogs as well) regarding which direction we should go. Whilst all contending groups should never fear to engage and discuss differences and points, no group, no matter how minority, should be put to fear to discuss or negotiate their positions.
Any Constitution for National Integrity should provide a fair sharing of Rights and Obligations for the People, the Government and the Monarchy such that they are interlinked and interacting on each other. Even privileges to be granted should not be against the fairness of anyone. There is little space for the People in the Malaysian Constitution and too many privileges for the Monarchy. Too many Rigths for the Government but little stipulation on the obligations and enforcement. The Constitution had been made and further amended with the swamps of greediness for power, misplacing Islam as a politcal tools than purely for religion.
The Constitution should be there to develop the strength of those who are hardworking, having contribution to the country and assisting those who need helps. But, not making any people with a mind of being a parasite and jeapardising others’ opportunities.
The scholarship system set-up by the British was to seed more colonial mind and practices in Malaysia with Professional standard to be met. Many people had taken it as gold-plating for a better life, Foreign Moon is better than those in home town!! The belief and practice with classes also make Democracy an empty word for many years in Malaysia. Scholarship did not train those up with the mind of Equality or Humanity or a mind for the nation but thirsty for position and power. Throughout so many years of Government Scholarship to UK had not bring home the British Standard of Professionalism but greediness that had flooded the Political and Professional, same for the legal.
The BAR of today can hardly be in any place than other countries of the previous Common Wealth!!
What kind of contribution to the nation does the author have for the last 47 years? Has he been helping the Professionalism in the legal or jurdiciary system?
A few MP are lawyers. Did they contribute to say what is wrong with the Constitution so that it should have been improved instead of getting worse?
Even with Religion being emphasized in the Constitution, the heart of those in office have not been rightly guided!!
Constitution is always an empty piece when heart and soul for fairness are not there to make it and enforcing it!!
Consitution with Ethnics, please!!
Before the BAR can say anything further on Constitution, they should have at least straighten-up their DB, get rid of many many clots in the Bar. Any law or constitution with the existing Professionalism” of many of the lawyers in town, it will go nowhere!!
Having secular and civil laws in parallel is a laughing stock!!
MMK is a doc, not a loyar, but he is THE expert on our Constitution
Loyars n judges were under his thumb
Every time we talk about the Constitution, we talk as if it is a sacred document that is cast in stone. The fact is that the current Constitution has been amended some 650 times already, such that “the present Federal Constitution bears only a superficial resemblance to its original model”. So what are they really talking about, other than greed and wanting to keep a privilege that was once given to them to catch up with the other races.
QUOTE: 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”.
You are damned great! Mahathir is now 85 and should have no need for it but he still needs it! He claims to fight for his race but which race is he talking about? He is a mamak by birth and a Malay only by constitutional definition.
///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/// Raja Azlan Shah FJ in Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187, cited by Azzat Kamaludin.
That is why I said in my earlier posts that “the Constitution alone does not solve our problems. It cannot stop people especially politicians from behaving badly or unfairly….. It cannot stop them from skewing the Constitutional words to side their own cause….People define what the Constitution is or what it means; the Constitution cannot prescribe how they should behave (right or wrong)…”
On of the people most responsible for defining and changing our Constitution is (as readers above said) Tun Dr Mahathir (TDM).boh-liao in #8 is right to say that “MMK is a doc, not a loyar, but he is THE expert on our Constitution”…
Some of the more salient constitutional amendments under his administration and watch were those relating to:-
1. the curbing and restricting of Courts’ inherent discretion to review and check ministerial discretions ie Executive. Before 1988 the Judiciary had “the judicial power” stated in the Constitution. It means Judiciary had equal power with Legislature to check (ie review) Executive. After the UMNO 11 case (due to TDM vs Ku Li contest) where Federal Court under Salleh Abas declared UMNO illegal, TDM got angry : “how could unelected judges tell whats the law when the law was supposed to be made by parliament of which TDM led the majority?”, he would question. So with 2/3 majority he removed by amendment the judicial power of courts to question Ministerial powers whether exercised pursuant to the Internal Security Act 1960, the Printing Presses and Publication Act 1984 or the Dangerous Drugs (Special Preventive Measures) Act!
2. Article 153 on Malay privileges was before TDM’s amendment subject to 15 year review. TDM changed it. He introduced a constitutional amendment to say that any further change to Special Privileges did not depend on effluxion of time whether 15 or 20 years but two-thirds of both Houses of Parliament and consent of the Conference of Rulers! Constitutional expert Dr Thio Su Mein of NUS who did a paper on the amendment opined that it entrenched Malay Privileges on a perpetual basis because by constitutional definition Malay Rulers are supposed to uphold Malay interest – and so to say that Malay Rulers are final arbiters is tantamount to saying that privileges are perpetual unless malays themselves like Azzat Kamaludin want them removed!
3. TDM amended Article 121(1) A to ensure that Civil Courts could not interfere or act as arbiters in matters that involve Sharia : so we have a spate of conversion cases that Non Muslims have no recourse to Civil Courts which admitted that they had no jurisdiction…..
Our forefathers did not read the constitution in detail. If a human being can change the laws, then what’s stopping another human being from also changing the law ? Civil laws, sharia laws and whatever laws except the unwritten laws of God or of nature if you do not believe in God, are men made.
///2. Article 153 on Malay privileges was before TDM’s amendment subject to 15 year review. TDM changed it. He introduced a constitutional amendment to say that any further change to Special Privileges did not depend on effluxion of time whether 15 or 20 years but two-thirds of both Houses of Parliament and consent of the Conference of Rulers! Constitutional expert Dr Thio Su Mein of NUS who did a paper on the amendment opined that it entrenched Malay Privileges on a perpetual basis because by constitutional definition Malay Rulers are supposed to uphold Malay interest – and so to say that Malay Rulers are final arbiters is tantamount to saying that privileges are perpetual unless malays themselves like Azzat Kamaludin want them removed!///– Jeffrey
The amendment to the constitution which now requires the approval of the conference of rulers was made by Tun Razak after May 13. He threatened that the parliament would not be reconvened if the opposition did not agree to support those amendments. He said that when election in Sabah which were suspended after May 13, and at that time Alliance did not have the two-third majority in parliament. The election resumed subsequently in Sabah gave Alliance the two-third majority to effect those constitutional amendments. What is quoted by loyar burok refers to the amended version. Even the online version provided by wikipedia relates to the amended version. I am certain that the 15-year review provision was included in the original version. That was the reason why the opposition appealed for support during the 1969 election campaign to work on such review. The campaign was legitimate but there were others who chose extra-parliamentary means to stop review and made the article an eternal feature. No other articles has there been a requirement for the conference of rulers to agree to constitutional amendment. Even the establishment of a special court to put rulers on trial could not be opposed by the conference of rulers.
Something like more than 3½ decades ago years ago when TDM was a visiting speaker in a university’s forum outside the country, TDM, then a senator still, gave a talk and said that article 153 had to be perpetuated because the haves (defined as Non-Malays) must transfer their wealth to the haves not (defined to be Malays) which would not be harsh to the former in an expanding economic cake.
As one of the audience, I asked him on what basis he defined Non Malays as “the haves” without regard to the stake foreigners especially the British had in the economy (That time Guthries & harrison & Crosfield still controlled by British). He did not answer.
I specifically asked him if the “have nots” stood to benefit from the transfer of wealth – and the arbiter/referree having political power to determine when the transfer should end when equilibrum was attained was himself a “have not”, what was there, having regard to inherent greed of human nature, to ensure that the arbiter/referee would be fair (when he had a personal interest in such a transfer) to say that the transfer should now stop because parity had been achieved???
I said that he was wrong to compare cake to country’s assets and wealth because when we ate cake too much it would get “jelak” due to surfeit and satiation but the same did not apply to things like wealth and privileges which was the more the merrier, consistent with human avarice. I also said the premise of an economic cake forever expanding as a cushion for those whose wealth were to be transferred was wrong because this could not be ensured all the time.
So I pressed him on what guarantees and assuarances (constitutional or otherwise) for fairness on the referee/arbiter’s part would be there so that the transfer would not be so perpetual that far beyond parity the “haves” would become the “haves not” and vice versa???
He answered (with the characteristic sneer of supercilious condescension) in just one brief sentence: “There’s no guarantee. One can’t find it in Malaysia or elsewhere.”
I want to reiterate this central point – that when the Constitution sought at the very beginning to cover every concern and interest, whether racial or religious, historical or contemporary, of the different disparate groups in this country, to infuse and marry local feudal elements and institutions to modern British/Common wealth traditions, then in the course of trying to reconcile these asymmetrical and often opposing features, the Constitution will become difficult to read and hard to divine as to intent and meaning if one wants to look for a consistent philosophy and value system underpinning it with which to interpret its provisions.
The upshot then is ambiguity and uncertainty: a general rule with exceptions could be interprted to become an exception itself with the original exception becoming then the general rule!
Such a state of constitutional affairs encourages all kinds of people to try interpreting constitutional provisions according to their respective special and vested interests – and he who could summon political power will then have his way and say of what the Constitution based on might and not right!
In summary I also said that the Constitution cannot therefore solve our problems. The only way is constructive engagement in our national discourse arena to influence the intellectual and cultural direction. For ultimately it is the equation of persuading the maximum number for maximum votes to effect change.
The Constitution is no more immutable as the people who define it are.
Therefore to shape and frame the Constitution to go the right direction one has to first frame and shape the minds and attititudes of the majority voters to the right course or else we’re all done for!
Wot constitution? Huh? Like UK we now go by an unwritten constitution. And that unwritten constitution rather curiously is named “PRINSIP PRINSIP EKONOMI POKOK RAMBUTAN” or “Pekpotan”.
And cintanagera is our expert on Pekpotan.
Taking the cue from the author’s punchline “I have no need for it” we shall all ready ourselves for a new malaysia in which “We have no need for umno” absolutely.
What integrity?
Go throu’ IO Ahmad Nazri Zainal’s statements in d court n judge 4 yourself his integrity n professionalism
TBH has 2 go after him as well lah
The constitution is not worth the piece of paper it was printed.
NEP is unconstitutional yet it has been implemented as if it is.
It is unconstitutional for the government to set different prices of the same item for different citizens based on race. But home prices differ from buyers based on race, and yet the government continues to enforce it knowing that it is against the constitution.
So what good is the constitution. Constitution is only good if the citizens respect, preserve and enforce it. When the constitution becomes worthless. parliamentary contest becomes meaningless. Those Victimized have no recourse in parliamentary system.
Sometime before he died, Tunku expressed the view that the Malays had not kept their word to the Non-Malays. He saw One-Malaysia being broken into pieces by the likes of Razak and Mahatir. Now Najib is trying to glue the broken vase together. I hope he succeeds, Perkasa and the Malaysian Dilemma (Dr. M) not withstanding.