Malaysia’s experience with its constitution

 

From Philip Koh

The second edition of The Constitution of Malaysia: A Contextual Analysis by Andrew Harding is a very welcome update and represents “a contribution to the understanding of a relentlessly fascinating and complex subject”.

A constitution document is but a written text, its practice and survival uncertain and fragile.

The Proclamation of Independence of Malaya dated Aug 31, 1957, contained the stirring words to the effect that the new nation will advance as a constitutional monarchy based on parliamentary democracy. With this statement, the goal of nationhood was articulated, and that elusive yearning for the realisation of “the imagined community” was launched.

This work is part of the Hart Publishing series on constitutional systems of the world providing a road map for the key historical, political and legal events which have shaped the constitutional landscape of a nation.

Harding’s book is a compendious stock-taking, now updated, of the uncertain journey of our nation’s foundational document. A constitution demarcates the institutions and power relationship within a polity. What is compelling about this work is that it weaves a narrative out of the dry bones of the text.

The survival of the constitution is by no means an assured fact. The Federal Constitution has been subjected to amendments and one emergent “basic structure” doctrine. This update provides a welcome overview of these developments, including those touching on judicial power and independence.

Harding brings his learning to bear on eight major trajectories that confront the Malaysian experience with the Federal Constitution. The learning is worn lightly, however, and concerned citizenry with no legal training will find a sure guide through the structure of the constitutional labyrinth. The historical backdrop is sketched admirably and deftly interweaves each chapter.

As a constitutionalist, Harding examines the reality of a dominant executive that extended its grasp into all levels of governance justified in a developmental state. The office of the prime minister being intolerant of inhibitions, whether judicial or juristic, based on the mantra of development is ably charted. The debate over what is the nature and scope of the Malaysian “social contract” is analysed together with its “ineluctable conundrums”.

The fate of the parliamentary democracy and the tensions of pluralism within a tenuous democratic state is realistic here, whilst maintaining hopefulness.

The issue of proclamation of emergencies is dealt with but, regrettably, there is no in-depth treatment of Covid-19 measures and the rise and fall of the coalition government as a consequence of party hopping.

There are harsh realities of power configurations and competing elites impatient at being circumscribed in their assertions of power interests. Harding draws us a canvas of such competitiveness, including the 1983 Rulers crisis and the 1988 judicial impeachment of the chief justice and the five Supreme Court judges. Post the watershed event of May 13, 1969, Parliament could have been eclipsed completely but the so called Rukunegara amendments of the early 1970s demonstrated that its obituary was premature. However, the amendments since then still cast a long shadow over entrenched rights.

General elections are given a concise treatment in chapter four, charting out the processes that lead to the convening of the Dewan Rakyat.

The analysis of the role of constitutional Rulers is intriguingly placed under the rubric of territorial governance linked to state constitutions. One of the paradoxes of modern constitutionalism is that there is evidence that regimes with a constitutional monarch can have sound democratic practices, and Malaysia’s experience in this is illustrative.

Harding provocatively characterised this as “Nazrinian” citing Sultan Nazrin Muizzuddin Shah of Perak on the revival of the royal role in Malaysian democratic polity.

There are many challenging cases, though, as seen in the 2009 Nizar v Zambry Perak menteri besar case in which the people’s sovereignty as represented by the office of chief minister yielded to a judicial ruling in favour of the ruler’s residual power of dismissal. Harding’s cautionary note on this case is salutary, and his caution that it “is not apparent in the constitutional text or in the general understanding of conventions” gives us reason for critical pause.

Many such comments illuminate the cases discussed in this book, which will be a boon to lawyers and also political scientists. There will be places where one may cavil and perhaps desire a more in-depth treatment.

Conventions and their role in construing the constitution is a pervasive issue (for example the Tun Mustapha v Pairin case in 1985) that raises conflict and argumentation. Here, political morality intersects with constitutional governance, a fertile locus for deeper investigations.

The role of conventions and limits of analogy to the Westminster/Eastminster model is addressed constructively.

Chapter seven on human rights and the authoritarian state hits the right notes, and the intersection of liberal democracy with an emphasis on a rights-based approach with weak institutional support in the face of emergency powers is desultorily described. A hopeful but realistic note is sounded in describing Suhakam’s (Human Rights Commission of Malaysia) work. A section on indigenous people’s rights closes a fascinating chapter.

The concluding chapters on the judiciary and also the role of religion augment the work with analytical finesse. The religious tension over burials, unilateral conversion and custody of children, apostasy and the use of “Allah” in non-Muslim texts are where the deep waters of constitutional interpretation will continue to reverberate.

As Malaysia faces the demands of dominant ethnic-religious elements within the claims of modernity and a liberal-secularism, the fate of our nation will in part be determined by how much the Malaysian Constitution still matters and how it can arbitrate between and reconcile such contestations. If the constitution is not to suffer the fate of the Weimar Constitution or many African constitutions, it will be in part because we readers, as concerned citizenry, have pondered the lessons contained within the pages of this admirable work. Such a task cannot reside on the judiciary alone but on all political actors to also act responsibly and with “positive critical morality”.

This book should find its place in every person’s library; while there are occasions when one can demur, The Constitution of Malaysia: A Contextual Analysis is, nevertheless, a resource for engagement and a vital critical discourse. - FMT

Philip Koh is adjunct professor at Universiti Malaya and Monash University Malaysia.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.