Constitution 101

I am not a teacher of the law, but I have been a student of the federal constitution and the subject of good governance since the day I first set foot in the Parliament in 1968.

In Form 6, we studied a subject called ‘British Government’ and read ‘Modern Organisations’ by Amitai Etzioni.  

In UM, in the late 1960s and early 1970s, I was very fortunate to have two very good law lecturers – the late professors Ahmad Ibrahim and Nik Abdul Rashid. Since graduation, I have worked almost 30 years in public service, but have also observed the federal constitution being abused in many and different ways.

Today, though, I want to ask Tok Guru Nik Abdul Aziz Nik Mat: What is it about the federal constitution that you do not comprehend?

Are you living in a world of your own and purely interpreting it within a context of your confusion at the level of ontology (or theory of reality), or epistemology (theory of science), and therefore the wrong methodology (application of the science of knowledge) in truth-seeking?

Hence the headline of this column.

We have a written federal constitution made up of a federation of states of the Malay world, but within three forms of marriages recorded in our history leading up to Merdeka in 1957. The first two categories were the federated and non-federated states all under the jurisdiction of the Malay sultans then. The two Straits Settlements of Penang and Malacca were under direct British rule.

All 11 states made up the Federation of Malay States we called Malaya. Singapore was another Straits Settlement but which only formed Malaysia in 1963 and then left upon its independence in 1965.

Within this context and lead up to the signing of the relevant documents between the Malay Rulers, the Alliance parties, and the British colonial government, the Malayan federal constitution was drafted and crafted.

The draft applied the framework of the Indian constitution of 1947 as a base-case. The crafting process learnt lessons from India and its monarchs, and more lessons from the political governance of the British Commonwealth, and events leading to the break-up of the British Empire. The written form of the American constitution was also recognised in this crafting process.

Built into all this was very little ambiguity about what is not the federal constitution and all related subsidiary laws, and the relationships between all of them, both at the primary and secondary levels.

If today one is still not sure, the easiest would be to go to Singapore and learn about how it has managed its constitution, which was almost identical at separation but was revised after 1965.

Alternatively, we can always seek reference to India or Pakistan before they both contextualised changes to suit their heritage and culture. Achieving such learning is not too difficult a benchmark.

Document of destiny

This column is to help Tok Guru understand why an Islamic state was not part and parcel within the crafting intent of the drafters.

The constitution was ingeniously crafted to accommodate Rulers of the Malay states, even if following the British model of the royalty (which too has a rather controversial history with the church), and the discarding of the royalty by the Indians.

Our draft included a distinctive royal role for each of the Malay Rulers (with a different ethnic heritage) as the primary custodian of Islam in nine states. There was no clear or specific ecclesiology for a federal-level religion of Islam. Neither can an Islamic state accommodate ruler-ship of humans.

Maybe, even then, within the pre-Merdeka spirit, especially among the non-federated states, there was a serious and sincere spirit and fervour for an ‘Islamic state’, but that was not explicitly included into the crafting of the federation level of the constitution.  In fact, if I am not wrong, it was the Rulers themselves who rejected this at the federal level.

The only conscious and informed concession the crafters made was to allow Islam to be the religion of the federation while allowing for the practice of all other religions. Therefore, for an example, both the Anglican and Methodist churches in Malaysia exist integral to the federal constitutional provisions and do need any other specific legal rights of existence.  

Let me therefore write for one last time and for the benefit of all, as taught to me by the late Professor Ahmad Ibrahim, that the word ‘the’ does not make Islam the official religion or the state religion of the federation.

It only means that, in official protocol – like on the Agong’s birthday (this institution too is an ingenious creation of the constitution) – only one religion and language is used for the formalities. All other religions can still be practised even within the same formal event.

For example, a Punjabi would not be expected to come dressed in Baju Melayu but in his turban within his faith requirements. There is no fixed protocol or culture, for example, of the Terengganu form or the Minangkabau form; there is only one federal Malay culture and religion as defined by the incumbent head of state. The preamble of all this is symbolically the yellow colour.

The crafters knew exactly what they were doing and intended to do when they put the state provisions on Islam in the appendix of the constitution (and called the ‘State List’) but with a clear reference to it in the main constitutive whole, but only in the appropriate section and not others.

Only in the constitutive whole of this document of destiny does it dictate unashamedly that the constitution is the supreme law of this nation.

There is no other more supreme law at the level of the federation. God’s laws do exist and have force but not at the level of the federation as an entity, but practically at the level of the individual and the faith of that individual.  

The same may not true, maybe it can be argued, at the state level, but even that can only be decided by all concerned at the level of that state and under the civil laws of the federation – with or without Article 121(1A). Is that unclear to anyone in any way?

May God bless Malaysia!