The Evolution of Malaysian Constitutional Tradition*

The Evolution of Malaysian Constitutional Tradition* Abdul Aziz Bari** International Islamic University Malaysia Email: bariaziz@yahoo.com ABSTRACT Although the Federal Constitution of Malaysia was drafted in the Whitehall, its contents and subsequently the developments reflect the indigenous character of the country. While such is not entirely surprising and indeed natural, some of the implications may not be good; especially when it comes to democracy and good governance. This paper seeks to highlight the essential recommendations put forward by the Reid Commission, the final draft and various amendments after 1957. It also seeks to examine various constitutional practices and case law all of which seem to have confirmed the thesis put forward here. I. INTRODUCTION Perhaps it is easier to explain the meaning of constitutional tradition in jurisdictions with written constitution like Malaysia than in the United Kingdom. This is because the laws of the constitution are contained in the provisions. In this writer s view constitutional tradition is comprised of conventions and practices which have influenced or affected the working of the constitutional provisions. To put it differently tradition is comprised of rules and practices other than the laws contained in the constitutional provisions. In a sense constitutional tradition may also be said as practices and values surrounding the constitutional provisions. The paper seeks to argue that although its form may be said as Westminster the spirit of Malaysian Constitution 1 underlines a certain amount of indigenous elements and influences. While this may not the intention of the framers its emergence is something that is natural and inevitable given that the constitution has to operate in an environment that is different from the United Kingdom. II. CONSTITUTION, THE LAW AND TRADITION It goes without saying that a constitution has to be understood against its background which includes the country s history and tradition. And although modern constitutions have democracy and limited government as their foundations they are not entirely a break off from the past; one good example being that of Germany. Although the country s basic law was promulgated in 1949 under the influence of Allied Powers especially the United States, eventually the old German tradition emerged and this has had the effect of creating a different kind of constitutional interpretation and jurisprudence. This is particularly evident in the working of the constitutional court. 1 For a general introduction see, e.g., Abdul Aziz Bari, Malaysian Constitution: A Critical Introduction, Kuala Lumpur: The Other Press, 2003. 181 b2-03 2004/5/19 15:25 page 181 #1

182 ASLI Inaugural Conference 2004 As one could see German constitutional court has a different kind of jurisprudence from that of the United States Supreme Court 2. Similar phenomenon has been evident in Malaysia. But one must not too surprised to find that as the contents of the Constitution of Malaysia today are not entirely unconnected with the past. The provisions pertaining to Islam, definition of Malay as well as that pertaining to the special position of the Malays are all the continuation of the pre-independence provisions. Today although democracy stands as the bedrock of the constitution the Malay Rulers still play a key role; especially in the areas that have been left untouched by the Independence Constitution 1957. One important example is their role and position as heads of the Islamic religion. It is to be pointed out that the role of the Malay rulers is not similar to that of the British monarchs in their position as the Supreme Governor of the Church of England. Many reasons may be advanced here; one of them being the doctrinal differences between Islam and Christianity. Of course the British rule between 1786 and 1957 in Malaya has had some profound implications on the constitutional theory and set up. However it is inaccurate to say that the contents of the constitution today are just the codification of British rules and practices. We would have adopted democratic principles even if the country were not under the British rule; something that is difficult to argue given the case of Thailand. Even though the neighbouring country has never been colonized but today it has a constitutional monarchy with a cabinet system of government. Of course the form and terminologies that one finds in the Malaysian Constitution are strikingly similar with the British ones but that alone does not mean that the former is an out and out British transplant. The constitution did not stop to grow and develop after the independence in 1957. The admission of Sabah and Sarawak in 1963 into the Malaysian federation brought about several provisions which made the federation unique; such as the retention of immigration powers by the two Borneo states. In some situations the development was the end result of a crisis as it was the case with the impasses involving the government and the Rulers and judiciary. The one with Rulers took place in 1983 and 1993 and 1994 while the conflict with the judiciary took place in1988. The amendment to the provisions pertaining to royal assent in 1983 was very important as it underlined the differences between the English and Malaysian political culture. The solution to the conflict between the government and the Malay rulers had to be sought from outside the British tradition. The same appears to be the case with the controversy involving the Rulers immunity in 1993, resulting in the creation of Special Court for the Rulers. As far as the relationship between the judiciary and executive is concerned the amendment which deleted the phrase of judicial power in 1988 signified the tension between the federal government and the judiciary which later followed by the dismissal of former Lord President Salleh Abas from office 3. Not long after that the provision was amended to protect the jurisdiction of syariah courts; an institution that had existed long before the British rule. 2 For more discussions see Abdul Aziz Bari, Interpreting Constitution A Comparative Perspective, paper read at Congress on the Law of the World, World Jurists Association (WJA), Sydney, Australia, 17-23 August 2003. 3 See A.J. Harding, The 1988 Constitutional Crisis in Malaysia [1990] 39 ICLQ 57 b2-03 2004/5/19 15:25 page 182 #2

B2 183 In Malaysia, whether the constitution is the product of the prevailing political culture is a moot point. Some would argue the constitution has had an influence over the emergence of our political culture. In any case political culture has been defined as a set of attitudes, beliefs and sentiments which give order and meaning to a political process. Political culture provides the underlying assumptions and rules that govern behaviour in the political system. Such a culture encompasses both the political ideals and the operating norms of a polity. This could be illustrated in relation to the civil liberties; namely right to freedom of expression, assembly and association. To a certain extent Malaysian laws which restrict such rights could be said as the manifestations of the prevailing political culture. However given the opposition to such laws, which in itself indicates that the society does not accept those restrictions, one could say that the laws represent an attempt to impose a new culture which is nonetheless not acceptable to the people. III. THE BACKGROUND OF THE MALAYSIAN CONSTITUTION The Reid Commission, which was charged with the duty to recommend a report and draft constitution for independent Malaya, was created by the Constitutional Conference 1956 in London. The conference was held after the first general elections in 1955 which saw the Alliance party led by Tunku Abdul Rahman (later became the first Prime Minister) won a landslide. In its report 4 the Reid Commission laid down two broad objectives of the constitutional structure; namely (i) to allow the growth of a united, free and democratic nation and (ii) to facilitate the development of resources in the country and the maintenance and improvement of the standard of living of its people. While the first objective was in no doubt typical in most democratic constitution the second objective underline the commission s awareness of the prevailing realities; that they needed to strike a balance between the ideals and the realities. The commission declared that it had to take into account not only history and tradition but also the prevailing social and economic conditions. The foregoing considerations make their present felt when one looks at the terms of reference assigned to the commission which have the following purposes; namely (i) to create a constitutional monarchy although this would take into account their position, dignities and prestige, (ii) to create a federation with strong central government, (iii) to create a common nationality for the entire federation and (iv) to ensure the safeguarding of the special position of the native Malays. It is to be pointed out that the Reid Commission were not quite committed towards a fully-fledge democracy for they did not see the importance of having a bill of rights. Chapter on fundamental liberties was only accepted after several organizations insisted its importance. But unfortunately the Commission felt that the provisions should be left to parliament to regulate, subject to review by the courts. Speaking in hindsight the commission was wrong for the court was unable one might even say unwilling - to protect the rights as provided under the chapter. It is quite curios to see why the commission did not feel the importance of such a chapter given the devastation of World War II and that modern constitutions such as that of the United 4 Colonial Office, Report of the Federation of Malaya Constitutional Commission 1957, No.330, London: Her Majesty s Stationery Office, 1957 b2-03 2004/5/19 15:25 page 183 #3

184 ASLI Inaugural Conference 2004 States has put those basic rights beyond the reach of the legislature. Apart from these inherent weaknesses the Commission also allowed both the government and parliament power, not only to deny fundamental liberties, but also the virtual power to suspend the constitution in the face of emergency and subversion. In the preparation of the report and draft constitution the Reid Commission actually sought the views of the people: they went around to receive written and oral memoranda from various organizations and individuals. The commission submitted their report and draft constitution sometime in early 1957 to the British Government, the Malay Rulers and the Government of the Federation of Malaya. A working party was then formed to study the report, resulting in a report entitled the White Paper 5. Although the paper suggested various amendments and changes to the Reid Commission the working party made it clear that the paper must be read together with the commission s report. Given that one could say that the people of the then Malaya contrary to the view in some quarters essentially took part in the drafting of the constitution. In other words the constitution today is not something that is imposed on us by the departing British power. Be that as it may the constitution has been equipped with mechanism for change and the court has eventually ruled that Malaysian constitution unlike the Indian one - has no basic structure 6. However before a change can take place the society must possess the necessary pre-requisites. Unfortunately this is certainly not the case with Malaysia where the society is largely feudal in the sense that it is still tied to the Eastern values which put emphasis on society and loyalty to its leaders. Civil society which is important before the community could assert its independence and self-sufficience - is also not in existence. IV. SUBSEQUENT DEVELOPMENTS AND LOCAL VALUES Under this heading we will see various developments including the amendments and judgments handed down by the court, all of which signify the difference and departure from the British practice and standard. It should be noted that in the revised version of the constitution the Conference of Rulers consisted of the Rulers and appointed heads of state was put into the structure and given several key roles including power to veto certain amendments to the constitution. This mechanism and power structure obviously underlines some of the differences between the local version of Westminster polity and the one prevailed in the United Kingdom. Eventually some crises - such as the one pertaining to royal assent to bills in 1983 - highlighted the need to go beyond the Westminster formula 7. Although the notion of constitutional monarchy has been influenced by the British convention the nature and history of Malaysian monarchy as well as the prevalent 5 Colonial Office, Constitutional Proposals for the Federation of Malaya, London: Her Majesty s Stationery Office, Cmnd.210, 1957 6 See Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 and Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70 7 See H.F. Rawlings, The Malaysian Constitutional Crisis of 1983 [1986] 35 ICLQ 237 b2-03 2004/5/19 15:25 page 184 #4

B2 185 political culture required a variation or even departure from the British conventions. In 1994, the constitution was amended and it was basically to incorporate what the government wanted as far as the idea of acting on advice was concerned. Other examples include the constitutional provisions on cabinet government 8. Even though most of the principles originated from the British conventions they have become legal rules under the Malaysian Constitution. Those which are not written in the provisions have been explained by the case law which has transformed them into the strict legal rules. They are no longer political conventions which could be ignored. One needs to remember that without these rules it is difficult to see how the idea of responsible government at both federal and state levels which is central in parliamentary democracy - could be enforced. As far as the amendments are concerned there are several examples which underlined the emergence of trends contrary to what the framers had in mind. Under this one may cite the provisions concerning subversion and emergency in arts.149 and 150. What one finds in the constitution today is certainly not the one envisaged by the framers. What is particularly worrying about these provisions is that they could be invoked even when there is no real danger exists. While this may be defended on ground of pre-emptive measure one must not forget that such a provision is open to abuse and indeed criticisms have become louder and more convincing over the years. At the same time incidents of abuse have also taken place Such is apparently a bad news for democracy. To make the matter worse important factors such as press freedom which is indispensable in a functioning democracy - does not exist for the authorities has the absolute power to grant and deny permit to publish. Other vehicles of change and democracy such as freedom of expression, assembly and association are residual in character and virtually considered as handouts from the powers that be. V. THE ATTITUDE OF THE JUDICIARY Without doubt judiciary plays a key role in ensuring that the system works and that the balance of power exists. This is important to ensure that the mechanism of check and balances work It is fair to say that thus far the way the court has been assuming the role has yet to reach the expected level. And actually such was the situation even before the judiciary crisis in 1988. It was evident as one comes across cases such as Karam Singh 9 where the court upheld the executive power to detain people without trial. In doing so the court seems to have ruled that such power was justifiable simply because the government was popularly-elected. Effectively such was akin to the notion of 8 For more on this see, e.g., Abdul Aziz Bari, Cabinet Principles in Malaysia: The Law and Practice, Kuala Lumpur: The Other Press, 2 nd edition, 2002. 9 Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ129. See Abdul Aziz Bari & R. H. Hickling, The Doctrine of Separation of Powers and the Ghost of Karam Singh [2001] 1 MLJ xxi b2-03 2004/5/19 15:25 page 185 #5

186 ASLI Inaugural Conference 2004 parliamentary supremacy. Given that Malaysia has a constitution which is the supreme law of the land such a notion was obviously incorrect. One may have the impression that Malaysian judges subscribe to the English judicial thinking given their educational background in England. However such was not consistent; e.g. the judges refused to follow the English law on contempt of court saying that our sensitivity etc, are different 10. This is what one could say given the rulings in Manjeet Singh 11 or Arthur Lee Meng Kuang 12. And the inconsistencies became confusion in cases such as Sukma Darmawan 13 where the court blindly followed the English principle despite the fact that the existing system is different from that in the United Kingdom. In their oath of office the judges swear to defend the constitution 14. However one does not get this impression and quite often one sees judges put ordinary statutes above the constitution. This is one of the reasons why lately esp. after the financial crisis in 1998 the people have become skeptical and no longer convinced that fundamental liberties in the constitution have practical significant. This is because the provisions are subject to the provisions in ordinary laws passed by parliament most of which have had the impact of curtailing civil liberties. VI. CONCLUDING REMARKS The contents and subsequent developments of the Malaysian Constitution were the reflections of the nature and character of this country. Some of them were obviously quite natural and thus acceptable. However some were indeed contrary and not in line with democracy. Included in the latter category are restrictions on freedom of speech and expression as well as the provisions which give the executive and parliament various powers which may not be justifiable within the dictates of democracy and constitutionalism. As such it is quite clear that the tradition that has been developing thus far is not entirely positive esp. when it comes to restrictions on fundamental liberties. Of course liberty and freedom are not without limits but exceptions should be made in such a way that it serves certain legitimate purposes. More importantly this should not be left to the executive alone to decide. However this is difficult to happen if the judiciary is reluctant to assume an activist role. This is not to say that Malaysian judiciary has been docile throughout for occasionally it does assert its role but invariably it has chosen to abdicate itself when it has to confront the federal government. 10 A. J. Harding, Law, Government and the Constitution in Malaysia, Kuala Lumpur: MLJ Sdn. Bhd., 1996, pp.196-197. 11 Attorney-General v Manjeet Singh Dhillon [1991] 1 MLJ 167. 12 Attorney-General v Arthur Lee Meng Kuang [1987] 1 MLJ 206 13 Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia [1999] 2 MLJ 241. For more insights on this point see, e.g., Farid Sufian Shuaib, Powers and Jurisdiction of Syariah Courts in Malaysia, Kuala Lumpur: Malayan Law Journal Sdn. Bhd., 2003. 14 See Federal Constitution, Sixth Schedule, s.1 b2-03 2004/5/19 15:25 page 186 #6

B2 187 Be that as it may the fact that our constitutional tradition has somewhat deviated from the consistent practice in the United Kingdom is not entirely unique to this country. One may point out the development of United States Constitutions. Some of the ideas which formed the bases for its provisions obviously came from elsewhere but eventually they brought about a distinct sort of jurisprudence; something that underlines the American history, culture, needs and circumstances. * Paper presented at the Asian Law Institute Inaugural Conference organized Asian Law Institute (ASLI), Singapore on 27-28 May 2004. ** Professor of Law, International Islamic University Malaysia. He is also the editor of IIUM Law Journal and may be contacted at bariaziz@yahoo.com b2-03 2004/5/19 15:25 page 187 #7