CHAPTER 3: THE CONSTITUTIONAL DEVELOPMENT OF MALAYSIA

The first step in the constitutional development of the country was taken in 1896 when the states of Perak, Selangor, Negri Sembilan and Pahang were united to form the Federated Malay States. Frank Swettenham who had himself planned the political structure of the Federation was appointed Governor-General; this highest office he held till 1901. In the seven years that he was in office, Swettenham organized a new federal administration, centralized at Kuala Lumpur.

Swettenham was promoted to the post of Governor of the Straits Settlements in 1901 and he held the office until 1903 when he retired and left for England. Every­thing seemed to be calm, quiet and prosperous during the period when Swettenham was in office. But soon after his retirement, the federation was faced with a good deal of criticisms. The first open criticism of over-centralization was voiced by Sultan Idris of Perak at the Durbar of Rulers, held in Kuala Lumpur in 1903. As a result of this, a policy of decentralization was introduced.

A number of suggestions were carried out for almost three decades. One of the most realistic was that put forward by Sir Cecil Clementi in the Sri Semanti Durbar in 1931. He suggested the whole country be made into a union under the High Commissioner in Singapore. The post of Chief Secretary in Kuala Lumpur was to be retained. But the plan aroused a good deal of opposition and Clementi had no choice but to withdraw his proposals. Nevertheless, he instituted reforms in other ways and by 1935, the State Councils were reconstituted so that non-Malay interests (Chinese, Indians and Europeans) were given representation. The powers of Chief Secretary were passed to the Residents of the individual states. This was the position when the Japanese attacked in 1941.

BEGINNINGS OF MALAY NATIONALISM

When Clementi put forward his plan for a Malayan Union in 1931, it was criticized severelly. The manner in which this was attacked revealed the lack of unity amongst the Malay States then. The different political units in the country each had their own particular interests and the various races too had no common aim. There was a general lack of Malayan consciousness for the individual regarded himself as a member of a state or a community and not as a citizen of the country as a whole. The Federated States were afraid of incurring financial loss and they were reluctant in supporting the underdeveloped states. The Unfederated States, on the other hand, felt that they would lose their autonomy if they joined the Union. The Malays feared a loss of political power, while the Chinese were afraid of Malay domination. Under such cir­cumstances, there was no feeling of loyalty to Malaya as a whole.

This was one of the main reasons for the lack of a strong nationalist movement in the country before the Second World War. This is because nationalism can only be built on the basis of unity and common interest. These factors were lacking and together with the country's political disunity and plural society they prevented a strong nationalist party from being formed. Nevertheless, it is true that most Indians and Chinese were politically conscious-, the defect was that they were interested in the political changes which were taking place in their countries of origin rather than in Malaya.

As far as the Malays were concerned, though it is true that the majority of them lacked political consciousness in the years before 1941, the seeds of Malay nationalism had already been sown in the years between the two world wars. Under British administration, the Malays, who already shared a common language and cultural heritage, were slowly welded together into one political and social unit. The technological developments introduced by the British, such as the railways and the telegraph cut across geographical barriers, and brought people from different areas into closer contact. Moreover, the British Government provided for the first time, common laws for the whole country.

The first impulse towards nationalism was an indirect result of the desire of Malay religious leaders to reform Islam in the country. This movement was deemed necessary because some of the Malays had been led astray from the true teachings of Islam. It was, therefore, necessary to bring this state of affairs to an end, and enable the Malays to find ways and means of improving their lot. This then was the real situation when the Japanese attacked the country in December 1941 and captured it by mid-February 1942.

Though the Malays were not particularly politically conscious during the pre-war British occupation, their post-war attitude was one of growing nationalism. This was the legacy of the Japanese Occupation. Though they had been harsh on the local people, the Japanese did wake up the peoples of Malaya as to their true political position.

Malay post-war attitude was stimulated by the slogan, "Malaya for the Malays". They felt that they had the proprietory right to the country and the responsibility to hold office. As for the non-Malay communities, the Malays acknowledged they had a kind of tenant interest and may be represented in state councils. This was not a right but a privilege granted to them. There was no doubt that Malay attitude towards the Chinese community was not very cordial. The Malays feared the presence of economic power in the hands of the Chinese, afnd that the latter could use this to gain political power in the nation. As far as the Indians went, the Malays possessed a high degree of tolerance.

The British Military Administration, which had taken over the administration since the reoccupation of the country, came to an end on 1st April, 1946. A Union was established in its place with Sir Edward Gent as Governor. There were protests all over the country as Malay members boycotted the Advisory Councils. The Sultans kept away from the swearing-in ceremony of the new Governor.

It did not take the new Governor long to realise that the Malayan Union was a failure and that without Malay support, if could not work. As far as the Chinese and Indians were concerned, the proposals were in their favour. But their loaders did not give the Union the backing that the Government might have expected from them. All they were interested in was citizenship which was promised to them. The only supporters of the Malayan Union were the members of the Malayan Nationalist Party, which contained Communist reactionary elements. Thus, the British Government had no option but to withdraw the Malayan Union proposal in favour of a Federation as proposed by Datuk Onn.

As far as the Constitutional Development of the country is concerned, two significant events took place in 1948. The first was the creation of the Federation of Malaya. One of the more significant provisions was that which provided for the acquisition of Federal citizenship by operation of law and by application. Though the provisions in this section were complicated and favoured the Malays, nevertheless non Malays were able to acquire citizenship.

The second important event was the outbreak of guerilla warfare when the communists tried to take over the government of the country. The Emergency had begun. Thus, there was a temporary suspension in the growth of political parties. The British Government felt that a war between a colonial administration and the communists was a bad time for political controversy in the country.

A significant trend during this period was the easing of provisions for federal citizenship. For example, in 1951, an extension in time to apply for citizenship was granted. The following year, the 1952 Enactment liberalized the provisions of citizen­ship by operation of law.

One notable feature of the Emergency was that it did not curb but, in fact, promoted the desire for independence. But it soon became apparent to the leaders that independence could only be achieved through some merger of the communal parties. It was in the face of this that the Alliance, made up of U.M.N.O., M.C.A. and M.I.C. was formed in 1952. It was this political coalition which was to sweep through the State and Federal elections in due course. In 1954, the British Government decided to initiate an unofficial majority in the Federal Legislative Council. In the first election, held in July 1955, the Alliance captured 51 of the 52 elected seats.

In August, 1955, discussions were held between the British Government, the Rulers and the Alliance Government as to the next steps that were to be taken. It was a result of this that the Federation of Malay Constitutional Conference met in London in January and February 1956. Agreement was reached on full self-government and independence within the Commonwealth.

It was agreed to appoint a Commonwealth Constitutional Commission with specific terms of- reference as follows:

1.The establishment of a strong central government with some autonomy in the States,

2.Safeguarding the positions and prestige of the Rulers.

3.Providing for a Constitutional Head of State.

4.Creating a common nationality.

5.Safeguarding the special position of the Malays and the legitimate interests of other communities.

It may be noted here that the Commission was under the Chairmanship of Lord Read and had four other members on it: two Englishmen, one Indian and one Pakistani. No Malayan served on this Commission. The Commission met in Malaya 1956, soliciting memoranda from organizations and individuals. It received 131 such memoranda. It visited each State and Settlement and conferred with officials and private persons. The Commission went to Rome to prepare its report. A final draft was accepted by the Federal Legislative Council in July, 1957.

A new Constitution came into being with the emergence of the new nation on August 31, 1957 — Merdeka Day.

TOWARDS MALAYSIA

When the Federation of Malaya emerged as a new nation on August 31, 1957, one would have expected the union of Singapore with the rest of the Peninsula. But events showed that the separation created by the Malayan Union was to be of a permanent rather than a temporary nature. Malay leaders were unwilling to have Singapore included in the Federation due to its predominant Chinese population. The leaders of the Alliance were not only unhappy but in fact feared the leftist political views widely held in Singapore.

Meanwhile, by the Singapore Constitution (1958), the State had achieved internal self-government. But the State Government had no control over the defence, external affairs and internal security.

Almost from the beginning, the leaders in Singapore were aware of the fact that the island state was not economically viable. They considered that merger with the Federation would be a logical development. It was up to Singapore to convince the government and people of the Federtion that merger with Singapore would not lead to Chinese domination or the communist conquest of Malaya, and the overthrow of the Federal Constitution.

It was at this stage (late 1961 and early 1962) that signs began to appear which indicated that the Peoples Action Party was losing its hold on the government of Singapore and a likelihood that a leftist party would take over. The Prime Minister of the Federation was peevishh about the matter. He mooted the idea of a merger between the Federation and Singapore. Going one step further, it was deemed necessary to include the British Territories of Borneo into the plan. It was felt that with the merger the population would be equally balanced.

The idea found immediate favour with both the British and Singapore governments. In July 1961, the Malaysia Solidarity Consultative Committee was set up with two main objectives.

Firstly, to collect information regarding the response of the people of the territories concerned towards the formation of Malaysia. Secondly, to propagate the idea of Malaysia by the use of all the mass media available. After four meetings the Committee produced a memorandum which supported Malaysia and made recommendations for various aspects of the constitutional arrangements.

In August, 1961, the Prime Ministers of the Federation and Singapore had reached general agreement for the merger of the two territories. On 18th October, the Federal Parliament expressed its approval of the merger. Discussions were held in London from November 20th—22nd, 1961, and this was followed by an announcement that a commission would be set up to ascertain the views of the peoples of North Borneo and Sarawak. The views of the Sultan of Brunei were also to be sought. On 6th January, 1962, the Cobbold Commission was announced. In addition to the Chairman, twomembers each were appointed from Britain and Malaya.

The Commission worked in Borneo from 19th February to 1st August, 1962. The Commission unanimously agreed to the formation of Malaysia and urged an early decision in principle. Meetings were held in London in July and it was decided that Malaysia would be formed by 31st August, 1963. It was agreed that a Inter- Governmental Committee be set up to work out the future constitutional arrange­ments. Those were to include safeguards for the special interests of North Borneo and Sarawak in religious freedom, education, representation in the Federal Parliament, the position of the indigenous races, control of immigration, citizenship and the State Constitutions.

Meanwhile, such activity was going on regarding the merger question in Singapore. Ultimately, a Referendum was set for 1st September, 1962, on the merger issue. The outcome was a decisive verdict in favour of merger. In Brunei, the leader of the largest political party, A.M. Azahari, began a campaign against Malaysia.. But he stopped his campaign when the Sultan announced the acceptance of the Malaysia plan in principle. Following the Singapore Referendum, the North Borneo Legislative Council and the Sarawak Council Negeri, both gave their unanimous approval to the establishment of Malaysia.

While, internally, everything was moving smoothly towards a merger in Malaysia, opposition to the plan came from Indonesia and the Philippines. In early 1962, the Communist Party of Indonesia opposed the creation of Malaysia. In September, 1962, the Foreign Minister declared that Indonesia was not indifferent to the formation of Malaysia. Meanwhile, the Philippines, in 1962, began to press a claim to North Borneo. This claim was based on the former Sultan of Sulu's 19th Century sovereignty over a portion of the territory. As a result of the above, relations between the three countries began to deteriorate rapidly in 1962.

Meanwhile, in Brunei, opposition increased. The Sultan made it clear that he had only agreed in principle, but was not committed to Malaysia. In spite of this, a revolution broke out against the Sulan on 8th December, 1962. But it was short-lived and unsuccessful and was put down with British help. However, many of the revels escaped into Sarawak to begin guerilla activities on their own. It soon became clear that the revolt had the support of Indonesia.

Undismayed by the Brunei revolt and the opposition from Indonesia and the Philippines, Tunku Abdul Rahman announced in December, 1962, that Malaysia would be inaugurated on 31st August, 1963. Things began to get hot after this. Not only did the opposition parties in the States begin anti-Malaysia campaigns, but Indonesia's confrontation took to acts of violence. Legal trade between the Federation and Indonesia came to a virtual stop.

Tuanku Abdul Rahman was aware of the serious dangers that faced the formation of Malaysia. So he left no stone unturned in his efforts to bring calm to the area. Talks at ministerial level, the invitations to United Nations officials to come and see for themselves, meeting with President Sukarno in Tokyo, talks with the Philippines President, are only a part of what took place. There was some very hard bargaining but progress was being made. At the end of June 1963, Brunei announced its rejection of the terms offered to it for merger. The shock of this was, however, offset a bit by the signing of the Malaysia Agreement between the Federation and Singapore. But opposition to the Malaysia Agreement came from many sources. Ultimately, it was agreed to request the United Nations to ascertain the wishes of the Borneo people as to merger, prior to the establishment of Malaysia.

The United Nations teams arrived in mid-August and were later joined by the Indonesian and Philippine observers. After about 3 weeks, the Mission reported to the United Nations Secretary-General. On 15th September, 1963, the latter announced that the majority of the peoples of the two territories supported merger.

Then began a series of events in which accusations and counter-accustations were hurled at each other. The cause of this was the announcement that Malaysia would come into effect on 16th September, 1963. Finally, inspite of all the opposition and the hue and cry from Indonesia and the Philippines, Malaysia came into being on 16th September, 1963.

Preserve our Federal Constitution

WE are a group of Malaysians deeply concerned about the state of our nation. Never before in this country's history have such stresses and strains been made to bear upon the founda­tional principles of nationhood which now threaten to subvert the bonds that have held all Malaysians together and kept the nation com­prising the territorial components of Peninsular Malaysia, Sabah and Sarawak intact.

Constructed when Malaya achieved inde­pendence in 1957 under the Merdeka Constitu­tion, the basic structure was re-examined and re-established when the Federation of Malaysia came into being in 1963 with the concerns of the Borneo states taken into consideration.

Malaysia's constitutional history records the fact that this country is a secular nation with Islam as the religion of the federation.

As a rainbow nation of many peoples with diverse religions, we charted our destiny upon a civil and non-religious national legal order resting firmly on the twin principles of the Su­premacy of the Constitution and the Rule of Law.

In 1982, the government introduced a policy to inculcate universal Islamic values that all Malaysians have little difficulty in supporting. Of these 10 values - trust, responsibility, hon­esty, dedication, moderation, diligence, disci­pline, cooperation, honourable behaviour and thanksgiving - what remains of the policy today is the single value of moderation under the concept of Islam Wasatiyah.

Even that value of moderation is ignored by certain quarters including political leaders who espouse sectarian views to suit their audienc­es.

It is unfortunate that the policy of promoting these 10 values has become a platform for "Islamisation" by religious bureaucrats.

There is mounting disquiet on bureaucracy- driven "Islamisation" of Malaysia and the Ma­laysian way of life by the expanding and increas­ingly assertive religious bureaucracies both at the federal and constituent state levels and the posturing of extremist individuals and groups capitalising on this trend.

We reiterate that we have a civil national legal order which is religion neutral. We are not a theocratic state with religious law being pre­scribed as the supreme law of the land. Neither should we be forced to live by the rule of reli­gious diktats where decrees of religious bureau­crats have legal and punitive effect.

Lip service and pious platitudes acknowledge the supremacy of the Constitution as the nation's supreme law. At the same time diktats of the religious bureaucrats are given an overarching significance over the Constitution. This has eroded public confidence in the national legal order and in the administrators and the adjudi­cators of this order.

Legislation needs only pass the test of con­stitutionality. But these are now subject to the scrutiny of religious bureaucrats who can impede the implementation of such laws.

A case in point is the Domestic Violence Act 1994 which could not be brought into force for almost two years. A similar fate befell the stillborn law reform initiative to preserve the status quo of the rights of parties arising out of one spouse in a civil marriage converting to Islam upon the dissolution of their marriage.

In a democracy, the separation of powers doctrine is the bedrock of good governance. An independent judiciary is essential to ensure a fair and just adjudication of disputes be­tween parties and more importantly, between individuals and the governing authorities.

The 1988 amendments to the Constitution exclude the civil High Courts' jurisdiction over matters within the jurisdiction of the syariah courts. This has unfortunately spawned seri­ous jurisdictional issues and worrying deci­sions where some civil courts decline to ad­judicate constitutional issues and even accede jurisdiction to the syariah court.

At the individual and societal level, there is also grave concern about the attendant negative impact on freedom of religion as well as the religious and civil rights of non- Muslims, for example, the constitutional right of parents to determine the religion and re­ligious upbringing of their children who are minors.

Non-lslamic religions appear to be increas­ingly marginalised amid growing indications of intolerance of non-Muslims, their beliefs and their practices. This development under­mines Malaysia's claim to be a model moder­ate nation where Islam co-exists harmoni­ously with other religions in a multicultural society.

The government's call for moderation is being challenged by loud voices of intolerance and immoderation which if unchecked will tear apart the unity of citizens bound to­gether by a common nationality.

We reassert the concerns raised and en­dorse the recommendations set out in the open letter issued on Dec 8, 2014 by a group of 25 Malaysians.

We consider ourselves duty-bound to call upon the Federal Government and the state governments to give their undivided attention to this grave peril which our nation faces.

Let there be a recommitment to the genuine pursuit of the 10 universal values which will be fully supported by all Malaysians and which will make Malaysia a good and great nation.

Let our leaders, be they from the legisla­tive, executive or judicial arms of governance with the undivided support of all patriotic Malaysians, uphold their oath of office to preserve, protect and defend our Constitu­tion.

We write this letter with deep anguish. Our leaders must act intentionally, deci­sively and authoritatively before irretrievable damage is done to our beloved country.

References:

Datuk Albert Talalla, former high commissioner to Canada, ambassador to China, Germany and the US and former director general of the Institute of Diplomacy and Foreign Relations

Datin Beatrix Vohrah, former professor of Law, UiTM

Bob Teoh, free-lance writer and former general secretary of NUJ and secretary-general of the Confederation of Asean Journalists.

Datuk Choo Siew Kioh, former ambassador to Sweden and the Republic of Mali and high commissioner to India and former commissioner of Suhakam.

TanSri Datuk Clifford Francis Herbert, former secretary-general of the Ministry of Finance

Dr David KL Quek, past president of Malaysian Medical Association

Datuk Dennis Ignatius, former ambassador to Canada, political affairs columnist

Datuk Denison Jayasooria, secretary-general of Proham and former commissioner of Suhakam

Dr Faisal Hamdi Hamzah, medical practitioner

Hartini Zainudin, child activist

Datuk KC Vohrah, former judge of the Court of Appeal and former commissioner of Suhakam

Datuk Ir KJ Abraham, former deputy director general of DID

Dr KJ John, founding director of Oriental Hearts and Mind Study Institute

Datuk Kuthubul Zaman Bukhari, chairman of Proham and past president of the Malaysian Bar

Tan Sri Lai Chand Vohrah, former judge of the High Court, former judge of the UN International Criminal Tribunal for the former Yugoslavia and former judge of the Appeals Chamber of the UN International Criminal Tribunal for Rwanda

Dr Lee Su See, former head of the Forest Health and Conservation Programme FRIM and Vice-President of the International Union of Forest Research Organisations

Datuk Leong Yoke Faie, former chief executive BP Malaysia Sdn Bhd

Dr Lee Kam Hing, former professor of History, University of Malaya

Datuk Lew Sip Hon, former ambassador to the United States

Lim Heng Seng, former chairman of the Industrial Court and head of arbitration and deputy head of civil litigation. Attorney General's Chambers

Datuk Lily Zachariah, former ambassador to the Republic of Italy, Chile and Senegal

Dr Lyana Khairuddin, educator and scientist

Datuk Mahadev Shanker, former Court of Appeal judge and former commissioner of Suhakam

Mano Maniam, actor, teacher and scholar, recipient of the Fulbright Distinguished Artiste Award in 2000

Dr Mulkit Singh, former professor in Department of Microbiology, National Medicine, University of Notre Dame Australia

Datuk Patrick Sindu, former president of the Consumers Association of Sabah

Philip Koh, co-editor of Sheridan & Groves The Constitution of Malaysia

Datuk Ramesh Chander, former chief statistician of Malaysia and senior statistical adviser to the World Bank

Rose Ismail, former journalist and trainer

Dr Saw Leng Guan, director of the Forest Biodiversity Division of FRIM and fellow of the Academy of Sciences Malaysia

Sharifah Zuriah Aljeffri, artist and social activist

Tan Sri Simon Sipaun, former Sabah state secretary and former vice-chairman of Suhakam

Datuk Stanley Isaacs, former head of prosecution, commissioner of law revision and parliamentary draftsman of Attorney General's Chambers

Datuk Stephen Foo Kiat Shin, former state attorney general of Sabah

Tan Siok Choo, lawyer and columnist

Prof Terence Gomez, professor. Faculty of Economics, University of Malaya

Tan Sri Datuk V. C. George, past president of the Bar Council of Malaya and former Court of Appeal Judge

Datuk Dr V. Thuraisingham, past president of the Malaysian Medical Association and past Master of the Academy of Medicine

Datuk Wilfred Lingham, former permanent secretary of the Ministry of Tourism and Environmental Development, Sabah

Yip Pit Wong, former director of Malaysian Anti-Corruption Agency Sarawak and chief senior assistant commissioner, MACC Selangor.

Moderation is our asset

THE recent statement by the UN Resident Coordinator for Malaysia, Michelle Gyles- McDonnough, that Malay­sia's moderation approach can help resolve, even end conflicts is both pertinent and timely.

Malaysia had the honour of being elected for a two- year term, from Jan 1,as one of the 10 non-permanent members of the UN Security Council - the fourth time in half a century.

Malaysia's international agenda is expected to form the cornerstone of its inter­ventions and contributions to the work of the security council: advancing modera­tion, mediation in conflict resolution, peacekeeping and peace-building in strife- torn environments and se­curity council reforms.

These are both necessary and useful aims to pursue and ones which would pro­vide Malaysia the opportu­nity to play a leadership role, given its experience, and that could attract consensus and support in the interna­tional forum.

It should be recognised, however, that the global threat to international peace and security is, more often than not, rooted in social and economic insecurity. And,

that constitutes an overrid­ing need that must be ad­dressed in our globalised world if we want safer and more harmonious relations between and among people everywhere.

If one analyses the root causes of much of the world's discontent and conflict, past and present, between and among peoples and nations, almost always it is not simply political. It is much more the people's cherished aspira­tion to enjoy: basic freedoms; the right over their lands and resources; the right to par­ticipate in and benefit from the process of governance; and the opportunity to pursue their wellbeing and development and the means to progress and prosper without impediment.

Malaysia, by advancing its moderation approach, can indeed play a crucial role in drawing attention to these challenges; providing a framework and plan for achieving meaningful inter­national peace and security; and facilitating reaching objective consensus on the necessary reforms in the security council towards achieving these goals.

Rueben Dudley, Petaling Jaya
Adapted from TheSun/Monday/20 April 2015.