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Sunday, February 27, 2011

‘Democracy’ not in our Federal Constitution


The 1946 draft of the People's Constitution was rejected by the British colonial masters who saw it as a threat to their hold of Malaya.

Organised by Ipoh-based Perak Academy, Puthucheary’s talk is part of the “Perak Lectures Series” by speakers of national and international standing on topics of current and historical interest. The Perak Academy is patronised by the Regent of Perak Raja Muda Raja Nazrin Shah Azlan Shah.

Humayun Kabir, Free Malaysia Today

TAIPING: The original drafting of the People’s Constitution (PC) by the All-Malaya Council of Joint Action (AMCJ) on Dec 22, 1946 had suggested that “Melayu” be the term used to describe the citizenship of all the people in the country.

This “Melayu” term with no religious implications whatsoever, carried with it the duty of allegiance to the Federation of Malaya.

This suggestion had come from the Malay leaders of the Malay Nationalist Party (MNP) which was founded in Ipoh before Umno was formed.

This was one of the seven objectives proposed by AMCJ with the participation and advice of MNP. The other objectives are:

  • A united Malaya, inclusive of Singapore;
  • A fully elected central legislature for the whole of Malaya;
  • Equal political rights for all who regard Malaya as their real home and as the object of their loyalty;
  • The sultans to assume the position of full sovereign and constitutional rulers, accepting the advice not of British advisers but of people through democratic institutions;
  • Matters of the Muslim religion and Malay custom to be under the sole control of the Malays; and
  • Special attention to be paid to the advancement of the Malays.

The drafting of this proposed PC was done by three intellectuals – William Kuok, Samad Ismail and John Ebar.

But this proposal was shot down by the British which saw it as a threat to their power in Malaya.

As a result, AMCJ and MNP were banned by the British in 1948 when the Emergency was declared.

The proposed PC has since become a forgotten part of Malaya’s history, said leading Malaysian constitutional lawyer Dominic Puthucheary.

No inspiring preamble

Puthucheary revealed these little known historical facts, which incidentally is in his forthcoming book “Waiting For Democracy”, during his talk on “Democracy and the Constitution” yesterday.

Organised by Ipoh-based Perak Academy, Puthucheary’s talk is part of the “Perak Lectures Series” by speakers of national and international standing on topics of current and historical interest. The Perak Academy is patronised by the Regent of Perak Raja Muda Raja Nazrin Shah Azlan Shah.

According to Puthucheary, the constitution that was later presented to the British for independence was tailored to meet Umno’s political vision of independence, with Umno in power which suited the British, Umno, MCA and MIC.

“The idea of independence and constitution was set in a political system by the British, Umno and MCA, designed to effectively balance democracy of one man-one vote in a racially divided political system that will assure the stability of power to Umno.

“The role of Umno, MCA and MIC was intended not only as political parties but as semi-institutionalised guardians of the status quo of power, a very good example of divide and rule which can enjoy the legitimacy of an election,” the senior lawyer said.

The drafting of the constitution and the political planning were left to the colonial office lawyers like Iver Jennings who played a major role in the formulation of the shape and wording of the constitution termed as the “Westminster model”.

“Our constitution, unlike the Indian and the Indonesian constitutions, does not have an inspiring preamble or statement of vision for nation building with the aspiration of the people written into the constitution as an article,” Puthucheary pointed out.

Foundation of democracy

This omission is due to the fact that the members of the constitutional commission (the Reid Commission) and the drafters were not representatives of the people but part of the colonial apparatus, and the objective was status quo.

During the drafting of the constitution, there were differences between Tunku Abdul Rahman and Iver and one of them was that Tunku wanted the Universal Declaration of the Human Rights resolution of the United Nations to be included but the British lawyer rejected his request.

One glaring omission is that the word “democracy” does not appear in the constitution.

But, Puthucheary said, there were fundamental democratic principles and institutions which were stated in the constitution to make it a democratic constitutional instrument intended to establish democracy and a democratic political way of life.

“The British legal experts and the Malayan representatives did not consider the difficulties of creating the institutions and a political culture that was necessary to prevent the abuse of the constitution.”

The drafters of the constitution had wrongly assumed that the Westminster model of the British experience of democratic culture will find its roots in Malaya, as they failed to see the possibility of the political power abusing the unwritten democratic principles and culture.

Puthucheary said that Tunku had set the foundation of democracy by proclaiming the independence of Malaya by stating:

“And whereas by the Federal Constitution aforesaid provision is made to safeguard the rights and prerogatives of their Highnesses and Rulers and the fundamental rights and liberties of the people and to provide for peaceful and orderly advancement of the Persekutuan Tanah Melayu a constitutional monarchy based on parliamentary democracy.”

This proclamation which encompasses the resolution of the people is the preamble to our constitution and should be used accordingly to interpret the constitution, giving the life and purpose it was intended, when the country became independent, Puthucheary said.

Our preamble states the overriding objectives of the constitution that cannot be ignored, he added. - FMT

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