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Dignity or Efficiency? - Malaysian Monarchy at the Fringes

By Ho Yi Jian
"The monarchy is extended to Malaysians of all ethnic groups who accept its constitutional identity and live comfortably with its Malay-oriented social dimension," declared His Royal Highness Raja Nazrin Shah in 2004. As a representative of the monarchy, his speech represents the Malaysian sultanates and how they view themselves in larger fabric of Malaysian society. Within the same speech, His Royal Highness rightly claimed that the Malaysian monarchy is not merely symbolic. It has substantively contributed to the stability and harmony of Malaysia. Then he continues by detailing the monarchical system of Malaysia, by explaining the relationship between the states and the federal government, the conference of rulers, the Yang di-Pertuan Agong and the relationship between monarchy and Islam. However, it's not enough to think about the formal structure of any system, and how such a system can be a force for good. There are many instances where the Malaysian monarchy has indeed acted for good. But many constitutional systems and institutions, monarchical or not, all begin with the best of intentions and fail to live up to expectations. For example, the 1997 constitution of Thailand, was hailed by many to be the most democratic constitution of Thailand to date. It did not survive a decade and was thrown out in a 2005 coup. Thus, a more realistic and useful way to think about the Malaysian monarchy as a feature of our constitutions is to examine is how the theory of constitutional monarchy conforms or deviates from the ideal, and objectively find out what kind of results stem from such an institutional design. The 2009 constitutional crisis of Perak serves to highlight one of the few incidences where the monarch plays a controversial role in the life of Malaysian democracy. The last one was after the 2008 election, the sultan of Terengganu refused to recognise the incumbent Mentri Besar as well. Looking back into the history of Malaysia (i.e. since 1964, the federation of 14 states), these cases alone are not isolated. There have been more cases in which the monarchy played a controversial role. It is under these cases that I have begun to think about constitutional monarchy. It is not out of spite or rejection of the monarchy that I begun this endeavour, but instead come as a humble Malaysian trying to find a better Malaysia in which a monarchy can do more for Malaysian integration. With this, I wish to take a look at constitutional monarchies in

comparative perspective and what it means for Malaysia. What are the experiences of other countries with their monarchs, compared to ours? Are we blessed, or are we cursed? How can we predict the preferences of monarchs? What are the strengths and weaknesses of our system of constitutional monarchy? What is the theory of constitutional monarchy? What are the intellectual justifications for it? In my research of the wider history of monarchy there are echoes of similar reasoning between foreign royalists and supporters of royalism. For example: Supporters of absolutism claimed to be interested solely in the larger well-being and security of the territorial state in a world of hostile neighbours. ...[T]hey saw the dramatic enhancement of royal authority as essential to domestic tranquility and international respectability. W. M. Spellman, Monarchies 1000-2000. p 199 More recent theories of monarchy cite the following:

As a fail-safe device when democratic processes fail to produce satisfactory outcomes. Monarchies can effectively break the political deadlock, as in Spain or Thailand in 1992. As a spearhead of reform, citing the King of Bhutan democratizing the country, the emir of Qatar founding al-Jazeera and King Abdullah of Saudi Arabia appointing a woman as Deputy Minister. A symbolic figure that unites figures, like in Malaysia and as the Belgian king in multiracial societies.

While they acknowledge that not all monarchs are benevolent, they give that the constitutional aspect of constitutional monarchy can act as a check between monarch and government. To prevent such excesses by a less-than-admirable monarchy, a constitution should ideally place the monarch only as an actor of "last resort". However, these principles, while benevolent and well-intentioned, are somewhat in contradiction with each other. If a monarch takes the constitutional function as a lastresort "guardian of society" to break political deadlock, then he/she is restricted as a spearhead of reform. Indeed, the examples given of reform-minded monarchs are only applicable to the few absolute monarchies that remain in the contemporary world today. Secondly, the role of the "last resort guardian of society" and the role of symbolic unifier of a nation-state are also contradictory roles. I find Walter Bagehot's theoretical insights extremely useful and relevant to the Malaysian setting. He wrote that "dignified element" or the symbolic unifier function of monarchs was dependent on the "withering-away of its 'efficient functions' of its prerogatives, of its power" (Bogdanor, p37). That is to say, whenever a monarch intervenes in society to allocate political outcomes, the usual outcome is to alienate a section of society. In turn, the monarch becomes less than

unifying in the totality of the nation-state. It has been suspected by academics that the Thai King is not completely objective and has some pro-capitalist biases. In Malaysia, it is indeed true that Malay and non-Malay alike pay their due respects to royalty and the Yang di-Pertuan Agong. This signifies at least a superficial unifying function of the monarchy. In my opinion, I think the situation is more complex: Malay royalists love and respect the king as a symbol of Malay pride and as a symbol of Malay tradition; non-Malays respect the King out of their unique political position as the minority in Malaysia, and is born out of political accommodation. At a cultural level, the pomp and spectacle of the sultanate is not as noticed by the nonMalay communities compared to Malay communities. At the political level, the Malaysian monarchy is prevented from serving its dignified function to a totality of society because they are constitutionally bound to defend Malay rights - possibly at the expense of non-Malay rights. It is also possible that the May 13 riots serve as a historical deterrent as the questioning of Malay special rights and the status of the Malay monarchs by non-Malay opposition could not be tolerated for the royalists. In this sense, the Bersih rally helped legitimize the growth of the opposition's power in Parliament due to the opposition's acknowledgement of the position of the Yang di-Pertuan Agong. In any case, the activism of the Malaysian sultanate as an elevated status symbol with effective state powers can be divisive even beyond of ethnic lines. One example would be the 1977 constitutional crisis in Kelantan. The sultan then attempted to find a new Chief Minister without the need for elections. The sultan's choice would most certainly be an UMNO chief minister instead of a PAS assemblyman, leading to friction between the two political allies then. If we know that the institution of the monarchy is set up by the constitution to only have a limited unifying effect and has different effects on different communities, then what can possibly fall through the cracks of the 'efficient functions' of constitutional monarchy? There are two possible ways to approach the subject of the efficiency of the monarch, or the effectiveness of monarchs to solve political deadlock. One way is to ensure the character of the monarch is always statesman-like. It is then hoped that such a monarch will act to unify and not divide under challenging circumstances. The other way is to look at those circumstances themselves - which will require a comparative study of democratic constitutional crises and make constitutional provisions to prevent monarchs from implementing divisive measures. I shall touch on both briefly, with respect to international and domestic trends. Comparatively, the character of monarchs seems to be a probabilistic issue. For every popular monarch, constitutional or absolute, there seems to be another that is less than respectable. For instance, Queen Victoria restored the prestige of the English throne from her predecessors, George III, George IV, and William IV who had been described as "an imbecile, a profligate and a buffoon" respectively. Even the current King of Thailand cannot guarantee a worthy successor - his eldest son is known to be a womanizer and is

not seen to be a suitable heir. With no great pride, Roger Kershaw, in his book Monarchy in South-East Asia, documents the election of one of the Yang di-Pertuan Agong, who had a besmirched record and questionable personal standing amongst the other royalty at the time (Kershaw, 104-105). Even though it is possible to remove from royalty those who display a lifestyle not fitting royalty, it seems rare to do so and not particularly sufficient to guarantee an enlightened monarch. On the other hand, if there was a way to guarantee some integrity of character, it probably would be the Conference of Rulers. Nevertheless, the conference of Rulers as a conference could be a potential location for moderation and rational discussion -- which better garners legitimacy in their rulings. Their power to remove a Yang di-Pertuan Agong shows that that royal office is not completely unaccountable and therefore more suited to the 'efficient' element of royal functions. However, it also seems that most constitutional crises in Malaysia occur not at the federal level, due to Barisan Nasional's dominance in Parliament, but at the state. Therefore, in terms of need, we need a truly symbolic Agong who speaks up for all Malaysians regardless of race or ethnicity, and monarchs who can be trusted to act righteously (and such actions are delineated by constitutional safeguards on royal intervention) in dire situations. The other approach entails looking at constitutional crises in Malaysia and other constitutional crises in other countries as well. It is often the case that the crisis would be an inability to create or dissolve government due to the loss of support or legitimacy in the current Parliament. It has happened in South Africa and the UK, where the prime minister could not dissolve parliament after losing majority support. Bogdanor rightly points out that it is not the case that "whether the sovereign is entitled to refuse a dissolution, but rather under what conditions he or she is entitled to refuse one" (Bogdanor, p 80-81). This is clearly the case in the Constitutional Crisis of Perak 2009, and many opposition sympathizers claim that had the Sultan of Perak called for the dissolution of government the current quagmire would not have happened. Similarly, the same logic of reasoning appears for the earlier 1977 Kelantan Crisis as well. All in all, I have endeavoured to discuss Malaysian royalism under the lens of Bagehot's "dignified" and "efficient" elements of constitutional monarchy, especially at their limits of power. In order for Malaysian royalism to be truly unifying, the monarchy must be truly apolitical. However, demands placed on the institution of royalism place pressures on it to intervene and create political outcomes, thus weakening its unifying function. We can alleviate such demands by either creating more constitutional sanctions for monarchs to resolve crises, or through mechanisms which anticipate such political loopholes and resolve them before the need for royal intervention, especially for the cases of dissolution of government. In retrospect, there are many facets of the Malaysian monarchy that I have largely ignored: conspicuously absent is their dramatic relationship between the monarchy and Mahathir and the actual prerogatives of the Malaysian monarch that render their office beyond symbolism. We also do not have a sound theory of motivation for monarchs: when and why do constitutional monarchs act? What are their political considerations?

Upon researching and coming to my own conclusions about the Malaysian monarchy, I feel like I have alienated both my intended audiences of republicans and royalists. I have come to take into account the weaknesses of the Malaysian monarchy and yet defended the state of constitutional monarchy by proposing methods to improve upon it. To me, as a Malaysian who happens to fall in the non-Malay segment of society, the support of monarchy represents political accommodation. I hope I have sufficiently understood my Malay brothers and sisters in their support for the nature of the Malay sultanate as a stronghold of the Malay way of life and the upholding of Islam and balanced that with the needs of those living in the fringes of Malaysian royalism.

Bibliography Bodganor,Vernon, 1995. The Monarchy and the Constitution. Oxford: Clarendon Press. Kershaw, Roger, 2001. Monarchy in South-East Asia : the faces of tradition in transition. New York : Routledge, 2001. Raja Nazrin Shah, 2004. The monarchy in contemporary Malaysia. Singapore: Institute of Southeast Asian Studies, 2004. Spellman, W.M., 2001. Monarchies 1000-2000. London: Reaktion Books.

Ho Yi Jian is a Political Science graduate from the National University of Singapore. He writes at Kent Ridge Common on Malaysia, Singapore and campus issues. Share on facebook Share on email Share on favorites Share on print More Sharing Services Back - text size + text size Share on email Share on print

Refashioning the Westminster System to Malaysia

By Rajan Rishyakaran
Somnath Chatterjee, the previous Speaker of India's lower house, the Lok Sabha (House of the People) suggested that the Speaker should resign from political affiliations while assuming the post of Speaker. "It is better if a person occupying the Speaker's post resigns from his or her party post during the tenure so that there is no conflict of interest," he said. While the unanimously-elected Speaker, the "Dalit Queen" Meira Kumar shot down the idea (citing the lack of need to ensure impartiality and the lack of convention in India to that effect), Mr Chatterjee did have a point. In the United Kingdom, where India's (and Malaysia's) parliamentary traditions were imported from, Speakers already are subjected to the convention of resigning from their parties upon being elected Speaker. To be fair to Mrs Kumar, resigning from party affiliation really does nothing to ensure impartiality - if Speakers in Malaysia could act impartial despite the constitutional imperative to be impartial, resigning from their party affiliation will merely be whitewash. Like most other former British colonies, Malaysia follows a brand of parliamentary democracy fashioned more or less on the Westminster system (so named after the Westminster Palace which houses Parliament). The Westminster system developed over centuries of reforms, is often piecemeal in nature. On the legislative side, the main, original purpose of Parliament is to ensure the aristocracy and bourgeoisie's power in relation to the King and the Church - which explains conventions and rules such as parliamentary immunity. Eventually, with liberal reforms and universal suffrage, the Westminster system evolved to become a representative democratic system. The point about bringing up the history of the Westminster system is simple: the Westminster system isn't very easily exported. While the system has, for the most part, been working in India - and Mr Chatterjee and Mrs Kumar, and the Speakers preceding them, have kept to their constitutional role of Speaker with impartiality. For most Commonwealth countries, the same doesn't apply. Save for exceptions like India, and countries with strong cultural ties with the United Kingdom (such as New Zealand, Australia, Ireland and Canada), the Westminster-type parliamentary system hasn't fared so well elsewhere.The key reason is that such a constitutional arrangement depends on the adherence to a large body of unwritten conventions (so much so, that in New Zealand and the United Kingdom, there isn't a codified constitution). Going back to the position of the Speaker, its easy to see how the lack of similar conventions in Malaysia had contributed to the decline of representative democracy. The

present 2009 Perak constitutional crisis is telling - the Perak Assembly suspending the Barisan Nasional mentri besar (chief minister) and his appointed exco for contempt of the Assembly.Granted, with all other institutions in severe decay and under the sway of the federal government, Pakatan Rakyat's range of options were limited in Perak, necessitating this course of action, in their opinion. More telling, is the seeming abuse wrought by Barisan Nasional speakers. For example, Speaker Pandikar Amin Mulia's suspension of YB Gobind Singh Deo for 12 months without pay for accusing Prime Minister Datuk Sri Najib Razak of murder of a certain illfated Mongolian model. YB Deo wasn't given a chance to defend himself in the House, and similar accusations made in public has yet to be the cause of any slander and libel charges, rubbishing the Speaker's claim of abuse of privilege. More recently on the federal level was YB Pua Kiam Wee (Tony Pua)'s half-day suspension for daring to do what is done in every Westminster-type parliament on a regular basis: standing to interject, and refusing to sit until accepted or rejected. The Deputy Speaker meting out this suspension didn't bother with similar infractions across the House. In Sarawak last May, DAP assemblyman YB Wong Ho Leng was suspended for 12 months for a "camouflage" remark in a debate about a supplementary bill last November. Such expression (the repetition of the word "camouflage") will not be too strange or unacceptable in more liberal Westminster legislatures. The denigration of the Speaker's position to be that of a partisan post is, unfortunately, merely systematic of our current parliamentary system. After decades of dominant party rule by Barisan Nasional, and its predecessor the Alliance, not only have prevented various conventions from taking root in Malaysia, but also perverted our constitutional system to accommodate a authoritarian regime. Presently, the opposition alliance, Pakatan Rakyat, has set eyes merely on reversing these institutional decays - making the courts independent, giving independence and prosecutorial powers to an anti-corruption commission, reforming the police force, and so on. While all these reforms are essential, they are insufficient and worse still, difficult to implement in Malaysia today. Institutional reform of the courts, for example, will take years at least while partisan, biased and corrupt judges are weeded out. The immediate step is to simply reform the cornerstone of our democracy - the Parliament (and at state level, Legislative Assemblies). The election of our legislators require deep reform in itself - the present first-past-the-post system favours large party alliances over smaller parties and independents, and necessitate such party alliances to ensure some level of minority representation. Moving to a mixed-member or alternative vote system similar to Germany and New Zealand will increase the representative nature of our legislatures without sacrificing stability. The system is quite simple - voters vote for a party list as well as candidates for their local constituency. The Parliament's membership will draw from the party lists to ensure each party is represented more or less proportional to the party's popular vote. Another method is to divide Malaysia into several multiple member constituencies, where candidates are elected on a basis of proportional representation - much like in Switzerland. Even adopting the Australian election system of instant runoff vote in Malaysia, solving the need to prevent vote-

splitting and reducing the incentives for overarching inter-party alliances on both side of the aisle. A legislator should also always remain answerable to his constituency, instead of merely during election time. Various measures should be allowed, such as allowing for recall elections via petitions, anti-hopping laws and the like. Having fixed constituency delineation or delineation done by a non-partisan body insulated from politics will only help increase representativeness at the expense of party power. With anti-hopping laws, it will make it easier for legislators to seek a new mandate after following their conscience - and it will also make it possible for their electors to demand their recall. The freedom of association is never in question as legislators in Malaysia are, de facto, being elected as members of a certain party.The upper house, the Dewan Negara, on the federal level also needs to be revamped to be of use. Nominally to provide legislative input from society's leading authorities (Senators appointed by the YDP Agong) and representation for the states (Senators elected by the states).With the manner the Senate is appointed, it is little surprise it does little in the way of reviewing bills sent to it by the Dewan Rakyat. Instead, the upper house could be an important instrument to counteract any tyranny of the majority. When individual Senators to be appointed or elected for long periods of time (or for life) from a non-partisan ticket, the tendency of Senators to bow to populist sentiments that violate minority rights or common sense, or to partisan politics, will reduce considerably. As seen in recent years in Malaysia, Speakers under a Westminster-type system have a significant amount of reserve powers, albeit little conventions to limit it. Therefore, a new system of electing a Speaker (or in the case of the Senate, a President) is of upmost importance in any constitutional reform. Presently, a simple majority is only required to elect a Speaker - and in a environment of bitter partisanship, the appointment tends to be a particularly partisan one. By increasing the standard for election to near-unanimity, and requiring a Deputy Speaker to come from the Opposition, will reduce the chances of a biased, abusive Speaker. Furthermore, unlike developed parliamentary democracies where a system of well-followed rules and conventions are in place, the need for a judicial review in legislative proceedings is important. Under the strict reading of our present Constitution, the courts cannot question YB Gobind Singh Deo's suspension from parliament, despite the fact he wasn't allowed to enter a defence. Without a judicial recourse, such legislators can have their rights and privileges abrogated or violated at will by a Speaker. The separation of Parliament and Courts was merely to ensure parliamentary supremacy and privilege. In the former, parliament has never been supreme - instead, the Constitution is the highest authority. On the latter, the Constitution can still protect legislators from civil suits. To ensure our reformed parliamentary system works and the Constitution is adhered to, the judiciary we inherited from the British isn't enough. Based on the British tradition where statutes aren't questioned, merely interpreted, our courts - even before they lost their independence - had taken a decidedly conservative approach in developing constitutional law. More so than ever, a Constitutional court is needed - one whose only

purpose and intention is to ensure the constitutionality of laws and government actions, and therefore responsible to develop constitutional case law. In South Africa, where the African National Congress had dominated legislature and government since universal suffrage, the constitution and the democratic institutions under it suffer very little decay. The Constitutional Court, I believe, will be strong enough to counteract the authoritarian tendencies of the new president, Jacob Zuma - and likewise a Malaysian version of the Constitutional Court. Since March 2008, the realization of a dream shared by many Malaysians of a country that is democratic and recognizes and upholds human rights and liberties had become more and more a question of when rather than if. Reformers must look beyond small-picture institutional reform, however, and consider reforming the very Constitution of our country.

Rajan Rishyakaran is 23. He is due to graduate from Singapore's third oldest university, the Singapore Management University with a BSc in Economics (foisted on him) and Political Science (his choice), with a yearning to do Law after graduation against all advice and that pesky bond in Singapore. Share on facebook Share on email Share on favorites Share on print More Sharing Services Back

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Broken Promises: The Malaysian Constitution and Multiculturalism

By Dr. Azmi Sharom
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. Race: Malay and Sabah & Sarawak native's special privileges Article 153(1): "It shall be the responsibility of the Yang Dipertuan Agong (the King) 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." At this juncture, it should be pointed out that this power of the King is only to be exercised under advice by the government. Under advice in the Malaysian constitutional context means, he has to act according to that advice. Therefore the responsibility of any such affirmative action can not in any way be placed on the shoulders of the monarch. The "special position" of the Malays and natives of Sabah and Sarawak (please note that the indigenes of the peninsular, the truly indigenous peoples of the country, are not included), is to be protected by the creation of reasonable reservations of; positions in public service, scholarships, education privileges, permit or license for trade/business. Article 153 is treated like Holy Scripture by Malay nationalists and zealots. Yet it must be read in the context of the rest of the Constitution. Article 8 which lays down the ideal of equality (All persons are equal before the law and entitled to the equal protection of the law), is not absolute as it allows for such diversions from the basic principle. However, any limits on article 8 have to be expressly stated in the Constitution. One should also note Article 136 which states; "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". Furthermore, when we examine the Reid Commission report once again, we see that the alliance had this to comment "...in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed..." Such advantages given to the Malays (the Borneo natives were included only in 1963 when Malaya, Sabah, Sarawak and Singapore created Malaysia) were meant to be a stop gap measure to aid the economically disadvantaged Malays. This is further confirmed by the Rulers themselves who said that they "look forward to a time not too remote when it will become possible to eliminate Communalism as a force in the political and economic life of the country" [Report of the Federation of Malaya Constitutional Commission page 71]. In addition Ooi Kee Beng asserts that Tun Dr Ismail, one of the nation's founding fathers, in his journals likened the special privileges of the Malays to a golf handicap, only to be used until the time comes that such a crutch is no longer needed [The Reluctant Politician]. It is clear therefore that the political elite and the traditional rulers of the country did not envision "special privileges' to be permanent nor did they envision it to be some sort of special right. In this light, to treat special privileges as though it is some sort of inalienable right is utterly wrong. It is submitted that ultimately the Constitution was designed to be one that supported fundamental liberal democratic principles. It acknowledges the inequity that existed in Malaya of 1957 and it also made certain that the traditional values of the Malays (the sultanates and religion) were given a special place. The rulers were constitutional monarchs with limited real power but tremendous symbolic strength, and Islam was

given special symbolic recognition as well as real authority over the personal laws of Muslims. This does not in any way take away from the fact that a secular pluralistic system of governance, one that valued fundamental liberties, in particular equality, was the aim of the constitution and also the leaders of the time. How then did we get to a situation where pluralism has become an almost alien concept and where enforced Malay hegemony the norm? Where did it all go wrong? Over the past thirty years there has been a growing Islamization of Malaysia. This started with a Muslim Ummah enamoured with the Iranian revolution and it took the form of personal changes, in dress, manner of speech and shifting value systems. It did not however take long for Islam to start playing a larger role in politics and governance. It would be folly to claim that Islam has never played a role in politics. The Islamic Party PAS for example had been in existence since the fifties and have had a strong influence particularly in the east coast states. But up till the fourth prime minister, the nation's leaders have been emphatic in their stand with regard to the secular nature of Malaysia. This changed in the 1980's when Mahathir Mohammad realising the challenges posed by PAS brought Anwar Ibrahim, the darling of Malaysia's Islamists, into UMNO to add a certain Muslim credibility to the party. Islamic "values" started to pervade governance, the International Islamic University was opened and soon UMNO was well on its way to battling PAS on its own turf, both seeking to out-Islamise each other. This battle culminated in Mahathir unilaterally declaring that Malaysia was an Islamic state in the mid nineties. This is of course very wrong on many levels. Firstly it is wrong from the perspective of the Constitution which is secular as can be seen by its text, the preparatory work done on it as well as court decisions. Secondly it is wrong because one person, no matter how powerful he may be, does not have the authority to change the constitutional nature of the country in that way. The effect of Mahathir's action (which was supported after his reign by Abdullah Badawi's Islam Hadhari and Najib Razak's obtuse claim that Malaysia has never been a secular country) was to galvanise the growing emphasis on Islam and all things Islamic. This emboldened the Islamists and their influence can be seen in how even the courts have been cowed by this unseen hand. Thus in recent years we have seen great injustices like non Muslim husbands converting to Islam and then filing for divorce in the Syariah Court (a forum which does not have jurisdiction over the non Muslim spouse); newly Muslim husbands unilaterally converting the children; converts out of Islam being punished and sometimes imprisoned for the "offence" of apostasy; non Muslims banned from using the word "Allah"; the seizing of bibles at customs; the list goes on.

All these events have led to a feeling of great discomfort amongst non Muslims and perhaps amongst many Muslims too for it reflected a growing intolerance as well as a growing ethos of religious superiority. It does not bode well for a multi-ethnic, multireligious secular pluralistic nation. And as pointed out earlier, the courts have behaved in a craven fashion washing their hands of the Constitutional issues involved by being quick to claim that matters like conversion (the Lina Joy case) and divorce and child custody (the Subashini case) belonged in the Syariah court. It is submitted that a profound ignorance of the Constitution and constitutional history is the source of these problems. The prime ministers starting with Mahathir Mohammad have forgotten the legacy of the very men they have lionised and the courts show a lack of constitutional principles which would be cause of concern even in undergraduates. It has already been discussed about the secular nature of Malaysia and this won't be repeated, however it would be useful at this stage to look a little deeper at the court's Pontius Pilate type behaviour. Their excuse is that Article 121A of the Federal Constitution has drawn a clear line between the jurisdiction of the Syariah Court and the Civil Courts. This is true. That line was drawn however with the intention of ensuring that cases heard in the Syariah court will not be appealed in the civil courts. This would in effect undermine the Syariah court's authority over matters which are in their power to rule over. Herein lie the heart of matter. Just what are the areas which the Syariah courts can make judgments on? This is laid out in Schedule 9 of the Constitution. Schedule 9 is the legislative lists for the Federal and state legislatures. The areas where Parliament can make laws and the areas where the state legislative assembly can make laws are clearly stated. Seeing as how Islamic matters are in state hands, the jurisdiction of the Syariah courts and their fields of concern are determined by laws made by the state in accordance with Schedule 9. This list is quite specific and the state legislative assembly has power to make Syariah laws on mainly family matters and matters regarding property. There is however one general provision which states that they can also make laws regarding offences to" precepts" of Islam. This appears to be a broad and undefined power. It is suggested however that such seemingly unlimited power cannot have been the intention of the drafters of the constitution. All laws made must still be within the general limitations and principles established by the Constitution. Therefore if conversion out of Islam is treated as a punishable offence, then surely this would be in direct contradiction with Article 11 and cannot be allowed. Schedule 9 is also very clear on the fact the Syariah court only has jurisdiction over those who "profess the religion of Islam". This being so any case which involves a non Muslim must be heard in the civil court as the Syariah court simply does not have jurisdiction over that individual. On the issue of jurisdiction, although Article 121A separates the jurisdiction of the two court systems, it does not mean that any matter concerning Islam is in the jurisdiction of the Syariah court. Surely if a matter has a constitutional element in it,

the only forum where it can be rightly heard s in the civil courts as Schedule 9 does not make any provisions at all for the Syariah courts to decide on matters constitutional. There is also a subversion of the idea of special privileges and an abuse of the constitutional provisions related to it. It may be argued that the real problems started with the introduction of the New Economic Policy (NEP). After the racial riots of May 13 1969, the NEP was introduced. This policy started the aggressive affirmative action meant to eradicate poverty ostensibly but in reality was implemented primarily to increase Malay wealth. The activities conducted under the auspices of the NEP are broad and far reaching. Some elements of these activities and practices may very well be unconstitutional as Article 8 states that any discriminatory practices has to be expressly allowed for in the Constitution. There are no express provisions for special Malay discounts on housing; neither are there any special provisions for preferential treatment of Malays in government service. In fact Article 136 expressly prohibits it. The NEP created a culture of entitlement, where Malays felt entitled to promotions, government subsidies and other forms of aid. Furthermore, the constant eroding of the rights of the other ethnic groups not only goes against the full wording of article 153 which states that the King has to protect the legitimate interests of the non Malays as well, it has led to a sense of alienation amongst the non Malay community and the haemorrhaging of talent as people leave the country of their birth but where they felt unwanted. This has left the nation with crumbling institutions and a dearth of able people. As pointed out earlier, such measures were meant to be temporary. Therefore it would require to be reviewed consistently to see if the desired effects are achieved. As it is the NEP was supposed to have ended in 1991, twenty years after its inception. Instead it has been replaced by the National Vision Policy (NVP) and does not look to be ending at any time "not to remote" or otherwise. Any review of the NEP or NVP is treated not as a means of determining success or failure but as a challenge on Malay hegemony and rights. In 2006, Lim Teck Ghee of the Asian Strategy and Leadership Institute (ASLI)'s Centre for Public Policy Studies coauthored a report that suggested that Malay equity ownership had exceeded the 30% target and was in fact close to 45%. Therefore it was time that the NEP/NVP is stopped. The government's reaction was to dismiss the report claiming faulty analytical method. No public debate was conducted regarding the findings and methodology. Instead the matter was swept under the carpet of "sensitivity" and in fact accusations were hurled at Lim by government figures that he was biased due to his Chinese ethnicity. This attitude is prevalent in Malaysian politics where Malay "privileges" have become inalienable rights that cannot be questioned. A quick perusal of the Constitution shows that any affirmative action has to be done reasonably. It is impossible to determine reasonable without public discussion. Instead of keeping in line with the spirit of the constitution and the wishes of the founding fathers, the government and their supporters have perverted the constitution for their own political agenda.

Things are made worse by UMNO's constant racist posturing. Hishamuddin Hussein, the current Home Affairs Minister was fond of aggressive gestures with bladed weapons when making fiery speeches about "Malay rights". Najib Razak was head of UMNO youth in the 80's when that body organised a rally with banners that were racially incendiary stating things like "We will bathe the keris in Chinese blood". Even today UMNO MPs and state representatives are fond of saying that non Malay citizens are immigrants and should return to where they came from. This kind of thuggish behaviour is found amongst "defenders" of Malay "rights" as well as "defenders of Islam". Mobs of Islamist have broken up peaceful forums discussing constitutional rights and family law all on the pretext that such forums were insulting Islam. Yet, they are rarely punished and in one ludicrous case a reporter who merely reported hate speech by a politician in Penang was detained under the Internal Security Act while the perpetrator who uttered the racist words was left untouched. In such an atmosphere, it is miraculous if even a semblance of a democratic, secular and pluralistic country, could even exist. Conclusion It is the contention of this paper that the Federal Constitution had put in place the necessary foundations to build a secular, pluralistic democracy with provisions to ensure not only equality but equity. During the fifty two years after its creation, these ideals have been perverted for the political mileage of the ruling party. However, an effort to rebuild the nation in the shape that was envisioned in 1957 is still possible if the following are put in place: A truly independent judiciary A Government which understands the Constitution and constitutionalism A people willing to stand up for their rights as guaranteed by the Constitution Any less would make a Constitution, all its ideals and hopes, worth little more than the paper it is printed on This paper was first presented at "Revisiting Pluralism in Malaysia" a seminar organised by the South East Asian Studies programme, National University of Singapore, Singapore, 9 - 10 July 2009.

Dr Azmi Sharom is an Associate Professor at the Faculty of Law, University of Malaya. His teaching and research interests are primarily environmental law and civil liberties. He has published in the Asian Yearbook of International Law, the Singapore Yearbook of International law and the International Journal on Minority and Group Rights, amongst others. He writes a fortnightly current affairs column in The Star entitled "Brave New World". Share on facebook Share on email Share on favorites Share on print More Sharing Services Back - text size + text size Share on email Share on print

Lambs under the Throne - The Myth of Judges as Protectors of Liberty

By Tommy Thomas
In Malaysia's political system, the Federal Constitution is supreme. Fundamental liberties are enshrined in Part II of the Constitution. Under the doctrine of separation of powers, the Executive governs the nation, the Legislature enacts the laws and the Judiciary acts as the arbiter of disputes between citizen and citizen, and State and citizen. The Judiciary, as the third branch of government, is also entrusted with the heavy responsibility of interpreting the Constitution, including deciding whether laws presented by the Executive and passed by Parliament are constitutional. Hence, the celebrated remark by Chief Justice Charles Hughes of the US Supreme Court:"We are under a Consitution, but the Constitution is what the judges say it is." One of the major casualties of the never-ending Perak crisis is the institution of the judiciary. When unprecedented and inexplicable decisions are made by our courts like denying a litigant the right to choose his own lawyer, the leap-frogging of proceedings straight to the Federal Court without a hearing before the High Court and the Court of Appeal, and the disregard of clear provisions in the Constitution, as judicially interpreted in previous Malaysian cases, one can well understand the decline of confidence of the average Malaysian in the judiciary as an independent, neutral arbiter between State and individual. But do Malaysian judges act differently from their brethren in other jurisdictions? After all, even the Indian Supreme Court, which probably enjoys the distinction of being the greatest protector of civil liberties among courts across the globe, only grew in reputation

after the defeat of Indira Gandhi's regime in 1978. In the first two decades after its establishment, its performance was lacklustre, and during the Emergency the judges were sycophantic to Indira Gandhi. Another example is the US Supreme Court which in the Bush v. Gore case in 2000, and in the subsequent 9/11 and Guantanamo cases, decided blatantly in favour of the Bush administration, at the cost of its prestige. The British Experience Professor John Griffith, formerly of the London School of Economics, first published the "Politics of the Judiciary" in 1977 which entered its Fifth Edition in 1997. The book showed how the senior judiciary in Great Britain, constrained by their own self-imposed limitations, frequently fail in their duty as protector of liberties. Griffith argues that the traditional view of judges deciding disputes between individuals and State impartially and with neutrality, is a myth "Neither impartiality nor independence necessarily involves neutrality. Judges are part of the machinery of authority within the State and as such cannot avoid the making of political decisions." Griffith refers to a survey conducted in the United Kingdom in 1994 which revealed that the average age of a Law Lord was 66 years, a Court of Appeal judge 63 years and a High Court judge 57 years. There were no women Law Lords, only one in the Court of Appeal and six in the High Court. Their educational background was 80 percent public school and 87 percent Oxbridge. Judges are thus the product of a class, and share the characteristics and felt necessities of that particular class. This is not the stuff of which reformers are made, still less radicals or non-conformists. According to Griffith, the judges of those three Courts which make up the higher judiciary, have by their education and training and the pursuit of their profession as barristers, acquired a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represent the public interest, "They do not always express it as such. But it is the lodestar by which they navigate," he says. The Griffith thesis is that the judges see themselves as occupying a key position in the struggle to enforce the law, and are always conscious of the dangers which they believe will follow if they do not support the powers of the police. He cites a study in 1994 which analysed 13 appeals from Northern Ireland and showed that the House of Lords found for the government in all but 2 cases. The brevity of the judgments, the small amount of authority cited and the swift dismissal of arguments based on human rights were common features in the 13 appeals. The study concluded: "By consistently upholding governmental action in Northern Ireland, the House of Lords has ruled itself out of playing a role in the conflict".

In Griffith's view, judges value stability above all as necessary for the welfare of the people and the well-being of society. Government represents stability and have a very considerable interest in preserving it. Wherever governments or their agencies are acting to preserve that stability - call it the Queen's peace, or law and order, or the rule of law, or whatever - the judges will lend their support and will not be over-concerned if to do so requires the invasion of individual liberty. Griffith argues that on every major social issue which has come before the British courts in the final decades of the 20th Century, the judges have supported the conventional, established and settled interests. And they reacted strongly against challenges to those interests. The result is a "conservative" political philosophy. Judges are concerned to preserve and protect the existing order. Griffith continues, "In the societies of our world today, judges do not stand out as protectors of liberty, of the rights of man, of the unprivileged, nor have they insisted that holders of great economic power, private or public, should use it with moderation." Regardless of whether a society is democratic or otherwise, the judiciary has naturally served the prevailing political and economical forces. Whether it is matter of lacking personal courage or otherwise, judges are certainly not lions under the throne, as Francis Bacon aspired centuries ago. Griffith's final words are an eye-opener: "That this is so is not a matter for recrimination. It is idle to criticize institutions for performing the task they were created to perform and have performed for centuries. The principal function of the judiciary is to support the institutions of government. To expect a judge to advocate radical change is absurd. The confusion arises when it is pretended that judges are somehow neutral in the conflicts between those who challenge existing institutions and those who control those institutions." The Malaysian Judiciary Without even taking into account the performance of the judges in the Perak crisis, it is easy to apply the Griffith thesis to the Malaysian judiciary. The 50-year track record of the courts since Merdeka as the constitutional bulwark between Executive and the citizen has been dismal. The pragmatic conservatism of the judges resulting in a very strict "hands-off" policy has been perceived as them abdicating their constitutional duty in dispute resolution. Whether it is their reluctance to protect detainees under the harsh provisions of the Internal Security Act (1960) and other preventive detention laws, the Salleh Abas and five judges cases, the Ayer Molek case, the Anwar Ibrahim prosecutions or the latest Perak constitutional crisis, both informed opinion of the Bar, international legal bodies and public opinion have been critical of our judges. But we must take comfort from Griffith's study. This is a worldwide phenomenon. As pillars of the establishment, it is a universal principle that judges cannot be trusted with liberties of the citizen!

Since they have life-time appointments through constitutional security of tenure, judges are not concerned with public opinion as members of the two other branches of government are. Members of the Executive who are also members of the Legislatures in democracies have to face the electorate periodically. Thus, even if Malaysia does not enjoy a true and functioning democracy, at least the electorate has an opportunity every four to five years to vote their politicians. In the politically awakened post-March2008-Malaysia, where opinion has significantly changed, perhaps our best hope is in the ballot box of 2012/2013 and not in the Courts. Expectations of the judges should be lowered. The citizen's naive idealism should be replaced by realpolitik. Ambition, elevation to the higher tiers and promotion to the four heads of the Courts - all of which lie in the gift of the Prime Minister and the Conference of Rulers - should be kept in mind when cases that go to the heart of Government are heard by judges with human foibles. The tragedy is that no other branch of government can either properly discharge the judiciary's duty as constitutional arbiters or resolve individual grievances like Courts can, which therefore remain unfulfilled by default.

Tommy Thomas is an advocate and solicitor with a passionate interest in Malaysian public affairs. Share on facebook Share on email Share on favorites Share on print More Sharing Services Back Winning back public confidence Thursday, 12 January 2012 08:52am

The Star (Used by permission) Brave New World By Azmi Sharom It is not enough that our judges must be seen to be independent, we also need to know that the decision to prosecute or not is made without fear or favour. IN the wake of the Anwar Ibrahim verdict, there has been much debate on how this

proves the independence of our judiciary. Praise has been lavished on the transformation plan as though it was this plan that improved the judiciarys freedom. If this is so, then surely the implication is that before the transformation plan there were problems with the Bench. However, it would be too much to ask of anyone in the ruling party to admit to this. After all they have been vehemently denying that there is nothing wrong with our justice system despite damning reports both from home and abroad. So for the past few days, Barisan MPs and supporters have been going around saying: I told you so, nothing wrong with the judiciary. I told you so. Well, to use a well-worn phrase, a swallow does not a summer make. The loss of confidence in the judiciary is too deep to be revived with just one decision. Lets look at this judgment. A cynic would say that this was the best thing to have happened to Barisan. After all, if Anwar was locked up the ruling party would have to deal with a martyr; and Azizah would once again be pushed into the foreground. I am not suggesting for one moment that this is why the judge made his decision; I am not privy to the workings of his mind. I am merely pointing out that it is not so easy to say with just one case that all doubts regarding the relationship of the judiciary and the Executive can be wiped out. To restore faith in the legal system would take years. And it is not merely the Bench I am talking about here. The independence of the Attorney-Generals Chambers and its prosecution service must also be restored. It is not enough that our judges must be seen to be independent, we also need to know with absolute certainty that the decision to prosecute or not is made without any fear or favour. Once trust is lost, it takes years to rebuild. This is true between individuals; it is even truer when it comes to institutions as important as a countrys legal system.

Who knows whats true anymore? Thursday, 10 July 2008 08:29am

The Star (Used by permission) Brave New World by Azmi Sharom The accusations made over the past couple of weeks are merely symptomatic of a justice system on the verge of collapse. We are in desperate need of a revamp of the justice system, and we the people should keep demanding for it. WHAT a messy couple of weeks it has been. First, Datuk Seri Anwar Ibrahim is accused (yet again) of the type of love that dare not speak its name. Then out of nowhere, a private eye comes out with a statutory declaration implying that the Deputy Prime Minister was involved in the murder case of Altantuya Shaariibuu. The very next day, the same fellow retracts his original statutory declaration and replaces it with a new one that completely leaves out any mention of the DPM. Apparently, he was coerced into making the first one. I was asked the other day who I believed. Whose story is true? My answer was How the blinking heck should I know? I am not any of the people mentioned above. I am not their friend or relative, and I was not present at any of the places where all these things were supposed to have happened. And most of us dont know either. That is not to say that the chattering does not stop. In fact, the chattering has got very noisy indeed. Some are so disgusted by all these claims, counter-claims, accusations and counteraccusations that they have withdrawn in a hissy huff. Others relish the new developments, coming up with theories and conspiracies that boggle the mind. The Prime Minister then steps in and says all this must stop. All the second-guessing and rumour mongering is akin to treachery and is bad for the nation. The truth must not be clouded by perceptions. Ah, the truth, the sweet, sweet truth. That is the real issue here, isnt it? While some refuse to give all the dirty political manoeuvrings the time of day and others add grease to its wheels, neither have mentioned the all-so-obvious the reason this kind

of garbage can occur and the reason it gets discussed so much is because we dont know whom to trust any more. We are not confident that the truth will ever be uncovered. However, all this hullabaloo surrounding the accusations is merely symptomatic of a justice system on the verge of collapse. If we had a police force whom we knew with almost 100% certainty would serve the law and not the executive; if we could believe that every single judge was utterly independent of any outside influence; if we could place hand on heart and say that the Public Prosecutor would prosecute without fear or favour; then we would have a sound justice system. And if that were the case, all these issues would be sorted out via due process and in good time. And all the conspiracies would be confined to the fringes rather than be in the mainstream of debate. This debacle must not be taken at face value. It must be treated as what it really is a loss of trust in the institutions of justice. So, instead of hiding in the comfort of Astro TV or wallowing in the who-did-what-towhom, we should instead be focused on finding a cure to the real problem. We are in desperate need of a revamp of the justice system. This is something that we the people should keep on demanding. And the Prime Minister should also take heed that it is well and good to tell the people to listen to the truth, but after years of judicial scandal; a police force that appears governed by the executive and not by the rule of law; an Attorney-Generals Chambers that is beholden to the political demands of the nations leaders; and a press muzzled by repressive laws with a government that is not afraid to use them; it is not a simple matter of not wanting to listen to the truth. It is a matter of not ever being confident just what the truth is. Whats in a name? Tuesday, 08 December 2009 01:18pm By Deborah Loh IF there is one enduring debate in Malaysia, it is whether this country is an Islamic or secular state. No less because successive prime ministers keep making declarations that it is an Islamic state to much public confusion. Islam is the official religion of the federation. But what does "official" mean? Are we being made to choose between an Islamic state or a secular one?

At the Bar Council's launch of its Constitutional Law Committee's MyConstitution or PerlembagaanKu campaign on 13 Nov, the public forum that followed the launch saw this issue being raised again with a question from the floor. What is Malaysia? The panel of lawyers and academics were divided. Human rights and constitutional lawyer Malik Imtiaz Sarwar said a secular state was good for Islam to flourish. Universiti Malaya law lecturer Assoc Prof Dr Azmi Sharom said the Federal Constitution was a secular document, from which even the syariah courts derived their powers. The state was secular, he argued, because none of its institutions got their powers from religious authority, but from the constitution. "Any sort of religious system of governance makes democracy difficult. In democracy, one should be able to question everything. But in a religious state, you cannot question because [the argument is stopped by claiming] God says so," Azmi said. His fellow law academician Prof Dr Aziz Bari from the International Islamic University disagreed. If Malaysia were secular, he said, religion would have no role in government administration at all. Whereas, the constitution allows public funds to be used for Islamic purposes, and Islamic rites and prayers are allowed in government events. Malaysia is not secular, Aziz continued, because Islam is the religion of the federation. "This subject is of academic interest and doesn't mean anything to the vast majority," Aziz told the forum. Another prominent constitutional lawyer, Sulaiman Abdullah, agreed with Aziz. "To be technical about it, 'secular' means divorcing religion from the state, from everything, totally. If that is the definition of secular, then Malaysia is not a secular state. And if we are not a secular state, so what? Islam has no requirement that everyone must be Muslim in order to be an Islamic state. "This issue is brought up to divide us," Sulaiman concluded. Constitutional law professor Dr Shad Saleem Faruqi from Universiti Tekonologi Mara said the debate was being reduced to "black or white", when the reality in Malaysia was more complex. We are neither fully secular, nor fully Islamic, he said. "This is all semantics. I personally think that we are a hybrid state," Shad Saleem stated. Speaking for God Audience at the launch of MyConstitutionWhat is for sure is that Malaysia is a Muslim country, which is merely a description of its population. But as a state, where syariah law

exists in parallel to civil law, Malaysia is not a pure Islamic state where syariah is the ideological foundation for political and public institutions. Former PAS president, the late Datuk Fadzil Noor, in 2001 said a prerequisite of an Islamic state is syariah law as the supreme source of all laws. But what should an Islamic state look like? There is no formula in the Quran and hadith on how one should be structured. Rather, there are concepts of what a society based on Islamic values should be like. Hence, the emphasis on justice, plurality, gender equality and rights for minorities, which are in themselves democratic and universal values. "There is no textual blueprint of what is an Islamic state. The whole idea of the state, not just an Islamic state but the political organisation of the state itself, is an invention of the last few centuries. "This idea of the state may well continue to change," Shad Saleem said in a subsequent interview with The Nut Graph. Mohd AsriAn Islamic state also need not be authoritarian, adds Shad Saleem. It can adopt many elements of democratic practice, such as consultation or syura. In theory, the Islamic state works for human rights and equality and an independent judiciary. It denies the idea of a sovereign state which makes its own laws as law can only come from God. But, as with good ideas, the problem lies with fallible human implementers. Can a theocratic state guarantee democracy if its administrators are human? "This is the problem that has happened in Muslim societies. Who decides who speaks for God in a theocratic state? It ends up being a small group that seizes the monopoly to speak in the name of God. "Look at the arrest of [former Perlis mufti] Dr. Mohd Asri Zainul Abidin. That had nothing do with Islam, but with authoritarianism," Shad Saleem observes. Back to the beginning The panellists themselves were divided on whether the Federal Constitution is secular or not. Although there is Article 3 which upholds Islam as the official religion, Shad Saleem says the framework of the constitution and clarifications on the meaning of this article imply that Malaysia is not a theocratic state. References to the effect that Malaysia is a secular state are contained in the reports of the Reid Commission and the Cobbold Commission. These and other interpretations that Malaysia is a secular and not Islamic state are substantive. But whatever these external sources have said, it is not enough to settle the dispute over

the semantics of what "secular" means. As seen from the divided views of eminent lawyers and academics on the panel, those like Sulaiman and Aziz are holding "secular" to its narrower meaning the absence of any religious influence to explain their position that Malaysia's constitution and its state are not secular. The opposing view, however, takes "secular" to mean institutional separation between religious authority and state apparatus. Hijacked Differing interpretations have allowed politicians to move into the vacuum for their advantage. Hence the propaganda war between Umno and PAS in 2001 over whether Malaysia was an Islamic state. Former Prime Minister Tun Dr Mahathir Mohamad in September 2001 declared Malaysia an Islamic state. His justification was not because syariah was the law of the land, but craftily, because non-Muslims had specific rights. This non-compulsion on non-Muslims was in line with Islam, he had said. PAS's reaction, as seen by its late president Fadzil's rebuttal, was to debunk Mahathir's claim and insist that only when syariah law ruled the land supremely could Malaysia be considered an Islamic state. Mahathir's government followed up with the publication of Malaysia adalah sebuah Negara Islam by the Information Ministry. It detailed the duties of an Islamic government and so far seems to be the clearest definition yet by the ruling Barisan Nasional government on how it envisions an Islamic state. Mahathir's successors continued the debate over Islamic-secular semantics. Tun Abdullah Ahmad Badawi said Malaysia was "neither a secular nor theocratic state" in early August 2007, before changing his mind within the same month that Malaysia was indeed an Islamic state. He said Malaysia qualified as an Islamic state because it was administered on Islamic principles. A month before his boss, then Deputy Prime Minister Datuk Seri Najib Razak in July 2007 said Malaysia was not a secular state. To avoid the scholarly definition that syariah had to be the supreme law and ideology of the land, Najib said Malaysia had its own interpretation. In contrast, first Prime Minister Tunku Abdul Rahman of then-Malaya said the constitution was framed on the basis of a secular state, and clarified again one year after independence that this country is not an Islamic state. Islam as the "official religion", to Tunku, meant that it was for ceremonial purposes in government events.

Do semantics matter? Are we being made to choose? Is it even a real choice, when regardless the label, syariah law already governs the personal morals of Muslims and affects the lives of non-Muslims through the conversions of spouses? And even if not law, religious fervour already influences government policy on the use of words like "Allah" by followers of nonMuslim religions. Lawyer Malik Imtiaz, back in 2007, already wrote about why defining labels accurately is important: The rule of law will be undermined because of "attempts to reinterpret law to make it more Islamic compliant. This is wrong in light of the understanding underlying the Federal Constitution". And, it raises the question of who will define Islam "for the purpose of reinterpretation of law and the development of an 'Islamic' policy. The monopoly over Islam potentially hurts Muslims as much as it does non-Muslims." In short, the political reality of an Islamic state comes down to who's in charge, and whether as fallible human beings, they can be trusted not to exploit religion for political power and personal agenda. From the arrest of ex-mufti Asri, it appears as though religious authorities can and do act arbitrarily. Shad Saleem thinks being a hybrid state is a blessing because the balancing act required can protect plurality. "A hybrid state allows us to harmonise different interests. Given the fact that Islam is the defining feature of Malay [Malaysians], the idea of an Islamic state will not go away. But given the fact also that 45% of the population is non-Muslim, being a hybrid state is the best middle path we can take," he says. While some may disagree with Shad Saleem's "hybrid" terminology, he does identify a significant part of the problem: The confusion between ideals and realities. Certainly, the ideal of the Islamic state is premised on justice, accountability and equality, but then so is the ideal of the secular state. The question now is: What has been the reality when modern nation-states have experimented with either the Islamic state or secular state? Have the ideals of either ideology been translated effectively into reality? And based on the reality in Malaysia right now, Malaysians therefore need to decide the best way to foster greater democracy and justice.
Sunday September 17, 2006

Time to tailor Malaysian constitution to present needs

By EMILY DING
MALAYSIA seems impervious to the wave of constitutionalism currently sweeping across Asian countries like Thailand, Cambodia, Vietnam, Taiwan and South Korea. These countries have reviewed their constitutions and made necessary reforms the most notable being the establishment of constitutional courts. Malaysia seems to have taken steps backwards, but only when one compares the constitution today to the original of 1957. Compared to other countries, Malaysia is doing okay, said Professor Dr Andrew Harding.
Harding is one of the foremost experts on law and society in South-East Asia, in particular Malaysia. His Malaysian doctoral students include Culture, Arts and Heritage Minister Datuk Seri Dr Rais Yatim and Universiti Malaya law lecturer Associate Prof Dr Azmi Sharom, who is also an occasional columnist in The Star.

Currently professor of Asia-Pacific Legal Relations at the University of Victoria, Canada, Harding said the reforms that have taken place so far in the developing Asian countries are not exclusively Asian in character, which could prove to be a problem.
Harding: A country shouldnt go 50 years without at least having a body to review the constitution.

And its hard to say what Asian means. What Im saying is, these countries dont have to follow Western models. Whats important is that each country should tailor their constitution to their own local needs while adhering to the main tenets of constitutionalism like the rule of law, the separation of powers and civil and human rights.

As an example, the professor cited a fundamental feature of the Malaysian constitution: the special privileges accorded to the bumiputra. This has worked in Malaysia but it wouldnt necessarily work in another country, he said. The professor explained that Malaysia and Singapore differ from other developing Asian countries in that they have successfully maintained a strong constitutional tradition since independence whereas the other countries are only now finding their feet. Which is why Malaysia is largely concerned with maintaining and defending its original constitution, not making changes to it. I dont think there will be any constitutional changes in Malaysia anytime soon. There isnt the political will necessary to effect change, he said.

The fact that Malaysia is still trying to defend a 50-year-old constitution is in itself discouraging. In any country there is a need to constantly review constitutional values to ensure their relevance to present times. A country shouldnt go 50 years without at least having a body to review the constitution. Moreover, public participation is a big part of new Asian constitutionalism, which Malaysia lacks. Thailand carries out extensive public hearings. In Malaysia, there is not enough public input before a bill is read in parliament, he said. Despite the constitution maintaining that constitutional sovereignty and not parliamentary sovereignty prevails, sometimes the dividing line is blurred. The 1988 amendment to the constitution did away with the concept of judicial power, which means that parliament can define the powers of the judiciary and the latter cannot strike down such legislation. This is an interference with judicial independence, the professor said. However, the recent proposal to absorb magistrates and lower court judges into the judiciary is welcomed. It is in fact the lower level judiciary that actually makes the most decisions affecting the people, so securing their independence is important. Constitutionalism doesnt equate to democracy but it is an expression of democrac y. As the constitution stands now, Malaysia is a limited democracy, the professor said. However, this does not mean that there is no adherence to the rule of law in Malaysia. I would say, without a doubt, that there is, because when the Malaysian government wants to affect changes, it goes through lawful channels. But there is still room for improvement, Harding said. The professors leading work on Malaysian law is Law, Government and the Constitution in Malaysia (1996), for which he promises an updated edition. He is a former Head of Department and Professor of Law at the London School of Oriental and African Studies (SOAS), and Chair of its Centre of South East Asian Studies.
Prof Andrew Harding will deliver the 7th Professor Emeritus Ahmad Ibrahim Memorial Lecture titled The New Asian Constitutionalism - Myth or Reality? at the Crown Princess Hotel in Kuala Lumpur on Tuesday at 9am. The lecture is organised by the International Islamic University. For details, please log on to the IIU website at www.iiu.edu.my.
It would be nice to take politicians down a peg or two every now and then to remind them that they are where they are because of us.