The Constitution of Malaysia

A Contextual Analysis

Andrew Harding

• Publisher: Hart Publishing
• Year: 2012
• ISBN:
  9781847319838
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

Malaysia's constitution was set at the independence of the Federation of Malaya in 1957 along the lines of the Westminster model, embracing federalism and constitutional monarchy. That it has endured is explained in terms of the social contract agreed between the leaders of the three main ethnic groups (Malay, Chinese, Indian) before independence. However, increasing ethnic tension erupted in violence in 1969, after which the social contract was remade in ways that contradicted the basic assumptions underlying the 1957 Constitution. The outcome was an authoritarian state that implemented affirmative action in an attempt to orchestrate rapid economic development and more equitable distribution. In recent years constitutionalism, as enshrined in the 1957 Constitution but severely challenged during the high-authoritarianism of Prime Minister Tun Dr Mahathir Mohamad's developmental state, has become increasingly relevant once again. However, conflict over religion has replaced ethnicity as a source of discord. This book examines the Malaysian approach to constitutional governance in light of authoritarianism and continuing inter-communal strife, and explains the ways in which a supposedly doomed colonial text has come to be known as 'our constitution'.

1

Historical Background

Symbolic Malacca – The Constitution of Malacca and the Malay Concept of Monarchy – The Colonial Constitutional Experience: the Residential System – Federalisation – The Malayan Union – The Federation of Malaya – The Reid Commission – The Commission’s Report and the Constitutional Debates – The Creation of Malaysia – The May 13 Incident – Conclusion

I. SYMBOLIC MALACCA¹

‘Di atas robohan Melaka, Kita dirikan jiwa merdeka, Bersatu padulah segenap baka, Membela hak keadilan pusaka’ (Malay pantun by Burhanuddin Al-Helmy)

(On the ruins of Malacca fort, We build the soul of independence, Be united every race, Defend the right of justice inherited)²

IN A SMALL area of the city of Malacca one can find nestled closely together a Chinese Buddhist temple, a mosque, the tomb of Malacca’s Malay national hero Hang Tuah, a Hindu temple, a Catholic church and a Tamil Wesleyan church. The close proximity of these religious buildings and cultural symbols has never been a source of tension. The author was informed that for several hundred years those responsible for each form of worship or expression of culture have been careful not to harm or irritate the adherents of the others. It would be hard to find a better symbol of the rich and historically deep diversity and mutual tolerance of Malaysian society. These buildings, redolent of several different cultures and religions, have existed in close proximity for centuries, adding colour and variety to a great city where one can also see the beautiful nineteenth-century houses of the culturally mixed Peranakan or ‘Baba Nyonya’ middle class;³ a Dutch Stadthuys and church; a Portuguese fort, church and village; an ancient Chinese cemetery; and a Chinatown of British colonial design.

The Malacca Empire of the fifteenth century is, even today, symbolic in Malaysia as an ideal and glorious Malay civilisation that continues to stand as the benchmark for the Malay community.⁴ It is regarded as an ideal pre-colonial polity for other reasons. It was here that an empire was formed in the fifteenth century that embraced much of what is characteristic of its successor, the Malaysian Federation, in the twenty-first century. Malacca is the Malays’ archetypal kingdom, regarded as the historical fount of Malay culture, literature, and political thought; a necessary myth perhaps in an age of nationalist sensibility. With the exception of Brunei, which controlled what are now Sabah and Sarawak and became Islamic in the fourteenth century, Malacca was also the first Islamic kingdom (1409) in the territories now forming Malaysia. It had a highly developed legal code, the Undang-Undang Melaka,⁵ referred to by Winstedt as the first constitution in Malaya of which we have any adequate record.⁶ Malacca’s constitution influenced the Malay States and the Borneo States in the centuries after Malacca’s destruction by the Portuguese in 1511. The Portuguese victory was followed by that of the Dutch over them in 1641 and Malacca’s cession by the Dutch to the British in 1824. Malacca presents a remarkable 450-year history of diverse colonisation and to this day has Portuguese and Dutch Eurasian communities. Even before 1511 Malacca was home to a great mixture of various communities of Malays (Bugis, Javanese, Boyanese, Minangkabau), Indians, and Chinese (followers of a Chinese princess who married the Malacca Sultan), and was also a successful and well run centre for international trade. Its first Ruler, Parameswara, had been a Hindu King from Singapore who married a Muslim woman and converted to Islam, changing his name to Iskandar Shah. Thus the Sultan was ‘no longer an incarnate Hindu god but the shadow of Allah upon earth’.⁷ During the British period Malacca became the centre of Peranakan culture, developed by a local adaptation of Chinese culture to that of the local Malays, resulting in something that is uniquely sophisticated, owing something to both cultures but also different from either. It is hard to think of anything more typical of Malaysia’s multi-cultural society, which will be a major theme of this book, and which has affected deeply the configuration of its Constitution.

This chapter tracks the emergence of the Malaysian polity over time through an examination of its pre-colonial, colonial, and post-colonial history, and the formation of the Constitution of 1957. The emphasis will be not so much on general history as on the origins and development of the institutions and constitutional principles which can be seen in the contemporary constitution. It is fitting to begin this history with a reference to the constitution of Malacca, a city that symbolises all the ideas and factors that have influenced the Malaysian Constitution: Malay monarchy, Islam, colonial government, cosmopolitan internationalism, and the diversity of Malaysian society.

II. THE CONSTITUTION OF MALACCA AND THE MALAY CONCEPT OF MONARCHY

‘Raja sa-keadilan, Penghulu sa-undang’

(The King is the fount of justice, but the Headman carries out the law)

Constitutional ideas in the Malay world, as elsewhere in Asia, were not the subject or the outcome of historic, axial, events. Rather, we can see the unobtrusive mingling of various ideas of government drawn from Buddhist, Hindu, Islamic and purely customary roots. These ideas revolved around the person of the Raja. Kerajaan (the condition of having a Raja) is identical in Malay culture and language with government itself – there simply is not historically any concept of republicanism.⁸

The Malacca constitution was therefore based on the idea of kingship.⁹ The Undang-Undang Melaka, which contains a number of clearly constitutional rules, is directed in many ways to the powers of the Sultan and the organisation of the government. The Sultan had power to appoint important officials such as the Bendahara (Prime Minister), the Penghulu Bendahara (Treasurer and Head of the Civil Service), the Temenggong (Chief of Police), the Laksamana (Admiral), and the Syahbandar (Harbour-Master). If one looks closely at the actual legal content of the constitutional rules concerning the Sultan, one finds that they are mainly ceremonial (for example they legislate on issues of language and dress): they give him great dignity but little actual power. Although the Undang-Undang Melaka gives the Sultan extensive powers of appointment, this is so that he will not need to be, and indeed should not be, bothered with the trivialities of government. In fact these official positions, associated as they were with rights of revenue, were often appropriated by district chiefs who exercised considerable political power, passing the office on to their descendants. The Sultan’s main prerogative was the exercise of judicial powers as a final court of appeal; he had the power to pass a sentence of death, as well as the right to grant honours, concessions and revenue monopolies, which were used by him to some political and fiscal effect. This was also true, later, of the Rajas (later usually styled ‘Sultans’) of the Malay States and of the Borneo sultanates that formed what we now know as Malaysia.

Malacca Empire in the sixteenth century dominated the Malay States during Malaya’s brief period of unification. The splintering of the empire led to these States following Malaccan ideas of monarchy. Moreover, being riverine States with quite inaccessible interiors, they were very hard to bring under the control of a central power. This not only hindered the unification of Malaya but resulted in the constant assertion of local chiefly power and the imperative of consultation and consensus, which came to be a constitutional matter. The chiefs tended to resent the power of the Raja and, since the succession depended partly on their choice, the tendency was for a weak rather than a strong Raja to emerge. The Raja did not have the staff or resources to exert a great deal of control over an area beyond his own district, which he ruled much as a chief ruled his. Loyalty was owed to the Raja, but the Raja in turn could not be seen to shame his subjects. The chiefs needed the Raja for security and social advancement, but they would not allow him to exercise absolute power. The actual political functions of the Raja were essentially confined to military, foreign and judicial affairs. This was quite logical in the sense that it was only in these areas that the chiefs really needed a central power. Even here, as with other important matters, the Raja had to consult his chiefs and achieve a consensus (muafakat) before acting, otherwise his decisions would not be implemented: this was of course a useful buttress against erratic or arbitrary acts.¹⁰ When several chiefs of Perak refused to sign the Pangkor Engagement of 1874, which introduced an obligation to follow the advice of a British Resident, its legitimacy was doubtful. This point was brought home even more forcibly when the British Government attempted to unify Malaya in the Malayan Union Plan of 1946, getting the Sultans one by one to sign away their powers. This provoked a dramatic response, the Malays mobilising as never before to resist unification, citing their ancient governance traditions and the profound unconstitutionality (some even accused the Sultans of derhaka – treason) of literally signing away the Malay States without consulting the chiefs.¹¹ Malay monarchy was fundamental but not absolute, the Raja being held in check by the chiefs and by his duty to observe Islam and adhere to adat (Malay custom).¹²

We will see in the course of this book, especially in chapter four, that the monarchy has been a source of great controversy and its powers even under a system of constitutional monarchy have been restricted in some respects but increased in others. Not the least of the restrictions was the abolition of sovereign immunity in 1993,¹³ a reform which runs very much counter to Malay tradition in which the Raja cannot be questioned. Nonetheless, it is to the continued cultural relevance of Malay constitutional traditions that Malaysia owes its federal structure.¹⁴ Deep disaffection from the Rulers in the 1980s and 1990s, resulting in executive loss of patience, might, all else being equal, have signalled the end of the monarchy: it did not. The abolition of this ancient institution (accomplished with relative ease in India and Indonesia) was, in Malaysia, unthinkable, even at the institution’s lowest ebb. In the twenty-first century the monarchy remains more relevant than at any time since the 1940s.

The written nature of Malacca’s constitution was unusual for fifteenth-century Asia. In many respects the Undang-Undang Melaka did not in any case function as a written constitution in the modern sense. The constitutions of the Malay States were unwritten, even though codes of law were not at all unknown before the arrival of the ever-legalistic Europeans.¹⁵ It was not, however, until 1895 that a Malay State (Johor under Sultan Abu Bakar) adopted a modern written constitution. It was ceremony, precedent, and custom that prevailed in constitutional matters. To say that traditionally the Malay States had unwritten, customary, constitutions, is not to say that they had no rules or any distinction between politics and law; on the contrary Malay political culture emphasised an almost punctilious correctness of procedure, consultation, and appointment. The constant disputes over royal succession in the Malay States, often exploited by the British for their own ends, which have continued somewhat into the post-Merdeka era, tended to emphasise rather than undermine the importance of custom and precedent.

In the case of Negri Sembilan, which based its federal, matrilineal, and democratic constitution – and it still does – on ancient Minangkabau custom known as adat perpatih, the constitution exhibited an almost arcane complexity and formality.¹⁶ From the late eighteenth century it was a federation under the nominal sovereignty of the Yamtuan, a Sumatran Minangkabau prince, and had complex rules of succession. It proved dysfunctional because its democratic principle entailed a requirement for unanimity in elections to office, which was of course hardly ever forthcoming, resulting in permanent constitutional gridlock. At another level it embraced the due-process notion familiar to common lawyers that an accused person could not be tried except by his peers. Its significance for the Merdeka Constitution is that the unique Malaysian system of choosing the federal head of state (the Yang di-Pertuan Agong) by an election amongst the Rulers is taken from Negeri Sembilan’s strange but fascinating constitution.

The concept of derhaka (treason) was also important. If the Raja was tyrannical, as some succeeded in being, there were two remedies: flight to another Raja (allegiance was personal rather than territorial), or running amok (amuck) and committing suicide. Even if, as happened in Johor in 1699, the Raja was a psychopath guilty of the enormity of disembowelling a pregnant woman for stealing a jackfruit, there was no right of rebellion or tyrannicide, which itself would be the crime of derhaka bringing decay on the state itself: the Raja could be punished by God alone. In the Johor case the tyrannicide was punished by the growth of a tree from a wound caused by the Raja stabbing his assailant’s foot, which ultimately killed him; the story expresses the impossibility of tyrannicide and the inviolability of the Raja’s person even in extreme circumstances.¹⁷

III. THE COLONIAL CONSTITUTIONAL EXPERIENCE: THE RESIDENTIAL SYSTEM

‘Seperti Raja dengan menteri’

(Like the King and his minister, ie in complete accord)

As the historian Tim Harper points out, the British did not come to Malaya to catch butterflies. Their intervention was precipitated by a number of commercial and strategic ambitions, and occurred in two stages, moving inexorably towards constitutional structures and eventually independence in 1957.¹⁸

First, in 1786, the Sultan of Kedah ceded to the East India Company Penang (which they then called Prince of Wales Island) and a strip of land known then as Province Wellesley on the Kedah mainland opposite (now called Butterworth). Singapore was ceded to Britain by the Temenggong of Johor in 1819, and Malacca by a treaty with Holland in 1824. These colonies, initially governed from Calcutta, were brought together in 1867 as the Straits Settlements colony under the Colonial Office in London, with their own Governor and a seat of government in Singapore. They were an attempt to establish profitable entrepot trade in a location, between China and India, in proximity to the Straits of Malacca. English law and legal institutions were introduced by a Charter of King George IV in 1826.¹⁹ Although the British left in 1957, the common law, introduced by this Charter, remained.

The second stage of intervention related to the Malay States, beginning in 1874 and ending in 1920. This stage differed from the first in that it involved the establishment of what was, constitutionally speaking, a series of protectorates in which the principle of indirect rule was observed. The traditional Ruler was obliged by treaty to accept the advice of a British Resident, but the local governance structure remained largely intact.²⁰ A contributory factor in this intervention was the unmanageable series of problems confronting the Malay States with progressively alarming results during the course of the nineteenth century. The rules of succession, always the most crucial aspect of Malay constitutional customs, had resulted in numerous civil wars. The feudal Malay constitutions groaned under the weight of dynastic quarrels, mass Chinese immigration for tin mining, and rapid economic and social changes. Perak, for example, had more Chinese residents than Malays, and the constant battles between secret societies pushed law and order outside the government’s control. The Raja requested British assistance and signed a treaty with the Crown, the Pangkor Engagement, at the island of Pangkor in 1874, under which Perak accepted a British Resident, setting a precedent for what became the ‘residential system’ throughout Malaya. The Raja agreed to accept the advice of the Resident on all matters except Malay religion and custom. Residents were accepted in Selangor (1887); Pahang (1887); the various states of Negri Sembilan (the Nine States, 1883–87), but they were unified in 1898. The four northern states were under the aegis of Siam and received British Advisers or Residents only lat...