Saturday, September 6, 2014

Rekindle the spirit of Merdeka by Prof Shad Saleem Faruqi - The STAR

The Malay-Muslim features of theConstitution are balanced by provision suitable for ourdazzlingly diverse society.
AS we bask in the after-glow of our independence day celebrations, it is appropriate to view afresh the beautiful constitutional canopy that provided the legal, political and social framework for our nascent democracy.
Like all constitutions, our basic law was chiselled by competing considerations. Historical realities, economic imperatives, the emerging democratic idealism of the post-war era, and ethnic, religious, cultural, linguistic, geopolitical and anti-colonial sentiments all contributed to produce a balanced, workable and pragmatic blueprint.
The document of destiny that was adopted as the Federal Constitution was a masterpiece of compromise, compassion and moderation. It provided a rock-solid foundation for our society’s hitherto exemplary political stability, economic prosperity and inter-communal peace and harmony.
> Indigenous features: In recognition of the fact that Malaya was historically the land of the Malays, the Merdeka Constitution incorporated a number of features indigenous to the Malay archipelago, among them the Malay Sultanate, Islam as the religion of the Federation, legal restrictions on preaching of other faiths to Muslims, the grant of special position to the Malays, Malay reserve land, Bahasa Malaysia as the official language, special protection for Malay customs, weightage for rural areas (which are predominantly Malay) in the drawing up of electoral boundaries and the reserving of some top State posts like Mentri Besar in the Malay States for Malay-Muslims.
> Protection for non-Malays: The Malay-Muslim features of the Constitution are balanced by many provisions suitable for our dazzlingly diverse, multi-racial and multi-religious society.
At the stroke of midnight on Aug 31, 1957, citizenship was granted to nearly 1.3 million non-Malays. This was a remarkable act of accommodation for the age. Part III of the Constitution on citizenship does not impose race or religious prerequisites.
The electoral process permits all communities an equal right to vote and to seek elective office at both federal and state levels.
Subject to some exceptions, the chapter on fundamental liberties grants the fundamental right to speech, assembly, association, religion, education and property to all citizens.
At the federal level, membership of the judiciary, the Cabinet, Parliament, the public services and the special Commissions under the Constitution are open to all citizens.
Education is free at the primary and secondary levels and is open to all.
University education is subjected to Article 153 quotas. However to open up educational opportunities for non-Malays, local and foreign private schools, colleges and universities are allowed. Education abroad is available to whoever wishes to seek it. Government education scholarships are given to many non-Malays though this is an area where a large discontent has developed over the proportions allocated.
Even during a state of emergency under Article 150, some rights like citizenship, religion and language are protected by Article 150(6A) against easy repeal.
Though Islam is the religion of the Federation, Malaysia is not an Islamic state. The syariah does not apply to non-Muslims. All religious communities are allowed to profess and practice their faiths in peace and harmony. State support by way of funds and grant of land is often given to other religions.
Missionaries and foreign priests are allowed. Every religious group has the right to establish and maintain religious institutions for the education of its children.
Though Bahasa Malaysia is the national language for all official purposes there is protection for the formal study in all schools of other languages if 15 or more pupils so desire. There is a right to use other languages for unofficial purposes. Under the Education Act, there is legal protection for the existence of vernacular schools.
Though Article 89 reserves some lands for Malays, it is also provided that no non-Malay land shall be appropriated for Malay reserves and that if any land is reserved for Malay reservation, an equivalent amount of land shall be opened up for non-Malays.
Article 153 on the special position of Malays is hedged in by limitations. First, along with his duty to protect the Malays and natives of Sabah and Sarawak, the King is enjoined to safeguard the legitimate interests of other communities.
Second, the special position of the Malays applies only in the public sector. Third, it extends to only four prescribed sectors and services.
Fourth, no non-Malay or his heir should be deprived of what he already has. Fifth, no business or profession can be exclusively assigned to any race.
Sixth, Article 153 does not override Article 136. Quotas and reservations are permitted at entry point but once a person is in the public service he should be treated equally.
The spirit of give and take between the races, regions and religions is especially applicable in relation to Sabah and Sarawak. In 1963, the Federal Constitution was significantly rewritten to grant considerable autonomy to the former Borneo States in the federal structure. There is protection for native law and conferment of special position on the natives of Sabah and Sarawak akin to the position of the Malays in the peninsula.
> Accommodative politics: In addition to the above legal provisions, the rainbow coalition that has ruled the country for the last 2+57 years is built on an overwhelming spirit of accommodation between

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