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There you go. After 53 years of independence, we hear of some one having a draft of a Constitution that wants the social order in the country drastically changed. No, cannot be, must not be. It’ll create havoc, chaos and disorder. Imagine wanting a Republic and discarding the institution of the Monarchy, the Malay Rulers and the Special Position of the Malays and Islam as the official religion. That some one, and collaborators, if they exist as a group, must be crazy. Let’s tell them to be sensitive to the feelings of the Malays, the majority of the population of the country, help avoid another racial riots like in 1969, and let’s keep on calling for reasonableness and unity in the country.
The Utusan Melayu article below speaks about that kind of people bent on creating anarchy. The excerpts of an article written by a Malaysian, said to be a law lecturer, talk about distortion of law, wrong interpretations of the Constitution, as he sees it. He acknowledges that “the Constitution does give powers to the government to take affirmative action and it does acknowledge the fact that Islam has a special place in the public life of the nation”. But affirmative action is not a Malay right, said he. To our knowledge, he is the only one who says this. And he has been saying this here and there. His objective or motive is not known. But he dislikes the “crazy accusation against a (DAP) Chief Minister whose government has given twice as much money to the Islamic bodies in the state than the previous administration”.
But a Professor Emeritus, who is qualified to be called a Professor for the rest of his life, tells us to count our blessings, be thankful for the good things we have. Our Constitution has endured, he said. “It has provided a rock-solid foundation for our political stability, social harmony and economic prosperity”. He lists out six “sterling achievements of our socio-legal system”.
Let’s discuss these. Your views, however short or long, in English or Bahasa Malaysia are welcomed in here.
Please read the comments and our replies to them below these articles. Our counter-arguments to the unacceptable views expressed in the articles are contained in the replies.
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Perlembagaan digugat?
KENYATAAN Mufti Perak, Harussani Zakaria tentang ada ‘perlembagaan baru’ dibuat oleh pihak tertentu bagi menggantikan Perlembagaan Persekutuan, mengundang perhatian besar.
Beliau yang mempunyai bukti mengenainya mendakwa, perlembagaan baru itu menyisihkan hak orang Melayu dan agama Islam yang dijamin dalam perlembagaan sedia ada. Pendedahan Harussani berhubung perkara itu dianggap mengejutkan tetapi Awang sedikitpun tidak terkejut.
Awang pernah menulis dalam ruangan ini tahun lalu tentang usaha untuk menulis perlembagaan oleh parti politik tertentu. Ia dipercayai ada kaitan dengan persiapan untuk membawa Malaysia akhirnya menjadi negara republik. Selagi perlembagaan tidak ditulis semula, selagi itu sukar untuk merungkai asas kenegaraan, bagi mengikut acuan gagasan parti pembangkang berkenaan.
Tulisan Awang telah mengundang tindak balas pihak berkenaan yang membuat laporan polis mengenainya. Ketika diambil keterangan oleh pegawai polis, Awang tidak berganjak dengan pendirian dalam tulisan itu. Kini satu demi satu terdedah. Yang kuat tersemat sebagai perkara tersirat mulai terbongkar menjadi perkara tersurat. Kalau Harussani mempunyai bukti mengenainya, banyak pihak lagi juga sesungguhnya sudah dapat menghidu gerakan yang sedang dilakukan berkaitan perlembagaan.
Antaranya kempen penerangan yang agresif oleh NGO pro-pembangkang atas nama mengetahui hak dalam perlembagaan tetapi sebenarnya bertujuan mendapatkan input bagi menilai semula perlembagaan. Begitu juga isu-isu berkaitan perlembagaan yang diolah secara tersirat oleh beberapa pihak dan ghairah pula disiarkan oleh akhbar bahasa ibunda dan portal berita tertentu. Malah ada akhbar berbahasa Inggeris turut terikut dengan agenda yang sama. Jika tidak percaya, lakukanlah kajian kandungan akhbar edisi-edisi yang lepas dan amatilah secara tajam apa yang dibaca mulai sekarang.
Ini meliputi isu-isu berkaitan Islam sebagai agama rasmi, kedudukan Raja-raja Melayu, bahasa Melayu, hak keistimewaan Melayu, kontrak sosial dan kepentingan institusi-institusi awam. Kalau dalam sebahagian blog, ia lebih ketara dengan diwarnai kempen dan sentimen Misi Ke Putrajaya iaitu bagi membantu parti sebuah kaum untuk memerintah negara selepas pilihan raya umum ke-13 nanti. Institusi raja, Islam dan kedudukan istimewa Melayu yang terlindung di bawah Perlembagaan negara, diperlekehkan dan dihina. Awang melihat ini semua sebagai ancaman keselamatan dan bimbang akan tiba saat ledakannya.
Maka sebarang pencabulan terhadap Perlembagaan negara perlu ditentang habis-habisan. Kepentingan kaum yang keterlaluan dan berbahaya tidak seharusnya dibiarkan mengatasi keunggulan Perlembagaan. Banyak pemimpin kaum minoriti di luar negara begitu menjunjung perlembagaan. Presiden Amerika Syarikat, Barack Obama misalnya, sejak di awal penglibatan dalam politik berikrar mempertahankan perlembagaan dan tidak pernah tergelincir daripada asas tersebut. Di negara-negara lain juga senarionya begitu.
Maknanya, apa sekalipun aliran dan perbezaan ideologi di kalangan parti-parti politik, perlembagaan sesebuah negara perlu dipertahankan oleh semua pihak tanpa mengira agama mahupun etnik. Tetapi sebahagian pemimpin pembangkang di negara ini tidak begitu. Mereka terlalu rasis dengan berselindung di sebalik demokrasi, kebebasan bersuara dan kononnya atas nama penambahbaikan kaum. Mainan muslihat untuk kaum mereka, begitu dahsyat. Lebih memburukkan keadaan, ada pemimpin pembangkang Melayu yang bersama-sama berkongsi aspirasi itu demi memburu kuasa. Pemimpin Melayu itu hanya berdiam sahaja apabila perlembagaan negara dijadikan sasaran. Siapa pun kita, kita harus menjadi warga negara yang taat dan setia kepada negara. Maka Awang cabar parti-parti pembangkang untuk menyatakan ikrar menjunjung sepenuhnya perlembagaan negara. Jika berani dan bertanggungjawab, sahutlah.
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Thursday August 26, 2010
Stand up and be counted, Malaysia
BRAVE NEW WORLD
By AZMI SHAROM
…..
In this kind of political atmosphere, it is of no surprise that what has been forgotten is that the basis of this nation was one of justice and equality. And the document that is meant to protect that, the Federal Constitution, has been misinterpreted to the extent that there is no longer any trace of this aspiration in the mainstream discourse of the day.
Let us be absolutely clear on this matter, the Constitution does give powers to the government to take affirmative action and it does acknowledge the fact that Islam has a special place in the public life of the nation.
What it does not intend to do however is create a perpetual system of ethnic-based favourable treatment nor does it advocate the idea that all other religious beliefs must be subservient to Islam.
However, instead of this reasonable position, what we have today is the idea that affirmative action for Malays is unquestionable and to be continued in perpetuity becoming the norm.
This cannot be further from the truth as there are no legal justification for it at all.
Article 153 of the Federal Constitution is seen as the holy grail for those who hold this view. However, if we examine the provision closely we will notice two things.
Firstly, affirmative action is not a Malay right. Article 153 does not endow a right. What it does is to merely give government the power to take affirmative action despite the overarching ideal of equality which is enshrined in Article 8 of the Constitution.
To support this contention, we see that Article 8 clearly states that all citizens in this country are equal except for situations specifically provided for in the Constitution. Those “specific provisions” are found in Article 153 and there are not many of them.
They include the power to establish quotas for the civil service, permits and licences, scholarships and education.
Therefore anything other than these areas should not be subjected to affirmative action.
Furthermore, any affirmative action has to be reasonable. The idea of what is reasonable must surely be open to research and debate otherwise there will always be the risk of abuse and wastage of resources.
This being the case, although questioning the existence of such a power to have affirmative action is moot, discussion on the efficacy of affirmative action policies and programmes surely is not.
The way the discourse is today, and not merely by the racialist fringe but by mainstream politicians in power, is that even the implementation of Article 153 is not to be questioned at all.
This is surely wrong based both on the meaning of the Constitution as well as the principle held by the founding fathers that Article 153 was an unfortunate but necessary aberration from the ideals of equality and that it was to be used not in perpetuity.
With these kinds of distortion of law, is it any wonder then that we still get people actually classifying whole swathes of the citizenry as having no right to be here?
Is it any wonder then that a crazy accusation against a Chief Minister whose government has given twice as much money to the Islamic bodies in the state than the previous administration, can give rise to the belief that he is a threat to the faith?
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Wednesday August 25, 2010
Time to count our blessings
REFLECTING ON THE LAW
By SHAD SALEEM FARUQI,
Professor Emeritus of Law, UiTM and Visiting Professor, USM.
Despite the many problems besetting the many-hued society that is Malaysia, the country has by and large been a success story. Still, the imperatives of the Constitution have not yet become the aspirations of the people.
AS we cross the 53rd milestone of our independence, it is befitting to reflect on the state of constitutionalism in the country. Most will agree that though the cup is not full to the brim, it is not empty. There is enough in it to relish and cherish.
The Constitution has survived the vicissitudes of politics. Despite many political and economic crises that could have torn other societies asunder, our Constitution has endured. It has provided a rock-solid foundation for our political stability, social harmony and economic prosperity.
One can count six sterling achievements of our socio-legal system. First is the wondrous durability of political cooperation among the country’s racial and religious groups. The rainbow coalition of political and ethnic parties that has ruled the country for 55 years is built on an overwhelming spirit of accommodation, a moderateness of spirit, an absence of the kind of passions, zeal and ideological convictions that have left a heritage of bitterness and violence in other plural societies.
The second sterling achievement is that despite periodic tensions and racist rhetoric, the country’s enduring and endearing inter-ethnic harmony has few parallels in the world. The various people of Malaysia are like the colours of a rainbow – separate but not apart. No race, religion or region is in a state of war with the government. Street violence is not our way of solving problems.
The third outstanding feature is the peaceful and cooperative manner in which social engineering is being accomplished in the country. Unlike some other societies like Kenya, Uganda and Zimbabwe (with a similar problem of identification of race with economic function), the Government did not expropriate the wealth of one community to bestow it on another.
With the cooperation of all races, it embarked on a pragmatic expansion of opportunities to give to every community its share of the pie.
A fourth remarkable feature of the country is the emancipation of women. In the workplace, in schools and in universities, women are easily outnumbering men.
Fifth, Malaysia as a Muslim country is, or at least was up to now, an exemplar of a moderate, enlightened, progressive and tolerant society that embraces modernity and democracy and yet accommodates the spiritual view of life. Secularism and Islam co-exist in harmony and symbiosis.
Sixth, Malaysia has successfully kept the armed forces under civilian control. There has been no attempted coup d’etat and no “stern warnings” from military generals to the political executive.
The blessings of Allah on Malaysia are many. There is much in Malaysia’s struggles and successes that is worthy of emulation by friends and foes alike.
Of course, the constitutional journey has not always been smooth. A fair number of monumental events tested the relevance and the resilience of the Merdeka Constitution.
The Federation of Malaya was radically transformed when it invited the largely non-Malay territories of Sabah, Sarawak and Singapore to form the Federation of Malaysia in 1963. This led Indonesia to initiate a military confrontation.
In 1965, relations with Singapore broke down and the territory was expelled from the Federation. In 1966, deteriorating relations between Sarawak and the federal government led to the dismissal of Chief Minister Stephen Kalong Ningkan and the proclamation of a state of emergency in Sarawak. A similar emergency was proclaimed in Kelantan in 1977.
On May 13, 1969 racial tensions erupted into serious riots in the Klang Valley, causing loss of hundreds of lives. A national emergency was declared. Parliament and the State Assemblies were prorogued and democracy was suspended for about 21 months.
The breakdown of ethnic relations triggered massive re-adjustments to the political, economic, educational and inter-ethnic life of the country. Many legal and extra-legal changes to constitutional arrangements were made. However, the “social contract” between the communities was largely left untouched.
In 1983 and again in 1993, the country reeled under the confrontation between the political executive and the Malay Rulers over the Mahathir Government’s attempt to amend and curtail the entrenched rights of the Malay Rulers. On both occasions compromises were worked out and the Constitution as well as the institution of the monarchy proved their resilience.
The judiciary came under siege in 1988 and the then Lord President and two Supreme Court judges were dismissed. The dismissals were severely criticised by most independent observers but what is significant is that constitutional procedures were, at least outwardly, complied with.
Since the 80s, political Islam has been in resurgence. Besides the political significance of this phenomenon, many difficult issues have surged up against the Constitution – among them the conflicting jurisdiction of the civil and Syariah courts and the interface between Article 3 (Islam as the religion of the Federation) and Article 4 (the Constitution as the supreme law).
There are also difficult issues about the power of the Syariah authorities to curtail fundamental liberties guaranteed by Articles 5 to 13 of the Constitution.
The 2008 voter revolt against the ruling coalition and the Barisan’s loss of power in Selangor, Kedah, Kelantan, Perak and Penang raised fears in some quarters of political instability but kindled hope in others that a two-party system may be emerging.
Political hopping in Perak in 2009 led to the controversial dismissal of the Mentri Besar and the removal of a government that had secured a clear 55% of the popular vote. The crisis triggered an avalanche of issues whose dust has not yet settled.
After a period of decline, the Conference of Rulers and the Malay Rulers are reasserting themselves on a broad range of issues. In Kelantan an undignified royal succession battle seems to be raging.
Federal-state relations are under severe strain over petroleum earnings and the sale of sand. Some opposition-controlled states are demanding local authority elections. Federal officers seconded to opposition-controlled states are under intense pressure to act with professionalism and impartiality.
Barring a short period of judicial renaissance in the mid-eighties, the courts have a lacklustre performance in the matter of enforcing constitutional supremacy, promoting human rights, curbing arbitrary powers and improving transparency and accountability in government.
The decline of Parliament in the legislative sphere and its inability to play the role of “the grand inquest of the nation” call for remedial action. The continuation of a state of emergency for more than 46 years is surely contrary to the spirit of the Constitution. Public trust in our constitutional institutions remains low.
The imperatives of the Constitution have not yet become the aspirations of the people. As we celebrate 53 years of independence, our laws and institutions, our values and our views cannot remain impervious to the changes and challenges all around us. It is for our human spirit to respond to this beckoning.
Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM.
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Kempen SSS 
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