The Malaysian Concord (Part 3) – The Malay and Bumiputera Special Rights

Recent protest against ICERD – Bernama

One of the functions and roles of the Malay Rulers is to safeguard the interests of the Malay and Bumiputera communities enshrined in the Federal Constitution.  That is what HRH The Sultan of Selangor did when he voiced out against ICERD and liberalism.

In the previous posts (The Malaysian Concord (Part 1) – The Sanctity of Islam and The Malaysian Concord (Part 2) – The National Language) I have shown you why Islam was made the religion of the Federation, and why the Malay language was made into the National Language.  I also explained why the Reid Commission was just a commission and not a party to the discussions and negotiations to the independence of Malaya and whatever put forth by the commission were recommendations for the Constitution, not the hard-and-fast rule.

The Malay precedence had always been the mantle of the British Residents.  Frank Athelstane Swettenham, the first Resident-General of the Federated Malay States, saw himself as the patron to an heir (the Malays) who was in danger of losing his inheritance to the immigrant Chinese and Tamils.  He wrote:

“The position he occupies in the body politic is that of the heir to the inheritance. The land is Malaya and he is the Malay. Let the infidel Chinese and evil-smelling Hindu from southern India toil, but of their work let some profit come to him.” (Sir Frank Swettenham, The Real Malay (London, 1899): pp. 37-40)

The economic situation of the Malays, pushed to the hinterland by the immigrants, became dire that they had to take loans from the chettiars putting their land as collateral.  When even the interest could not be serviced, these lands were taken into possession by the moneylenders.

The Federated Malay States government intervened and introduced a series of legislations to curb the Chettiars’ operations, one of which was the Malay Reservations Enactment, 1913, which objective was “to provide means for preventing the passing of Malay landholdings into the possession of foreigners”(Frederick Belfield, Legal Adviser, FMS, Report for the Secretary of State on the FMS Enactment 15 of 1913).

In 1910, E.W Birch, the 8thResident of Perak, noted the need for such Enactment:

“It will mean that we shall free our peasantry from the clutches of those people who now remit to India the large sums of which they now bleed the people.”(Hastings Rhodes, Objects and Reasons, Malay Reservations Enactment of 1913, quoting a Minute by E.W Birch dated 7 September 1910; in Selangor Secretariat, File 3013/1912, Conf. File 10/1912).

Two constitutional changes were introduced in 1909, the establishment of a Federal Council, and the enactment to change the title Resident-Generalin the FMS to that of Chief Secretary.

The Governor responsible for these introductions, Sir John Anderson, said that the intention of these changes, in his words, was for“the full safeguarding of Malay interests.” (Proceedings of the Federal Council, FMS, 11 December 1909).

Sir Laurence Guillemard, High Commissioner for the Federated Malay States wrote:

“The moral is clear that real danger lies ahead if the Malays do not get their share of the benefit of the development of their own country.”(C.O 273, Vol 539, Laurence Guillemard to Secretary of State, 3 May 1927).

To put things in perspective, not only were the Malays left out economically, they were also already minorities in the Federated Malay States.  According to the census of 1931, the population of the FMS comprised of a Chinese majority (41.5 percent), followed by Malays (34.7 percent), Indians (22.2 percent) while various other ethnic groups made up the remaining 1.6 percent (Loh Fook Seng, Malay Precendence and the Federal Formula in the Federated Malay States, 1909 to 1939, JMBRAS, Vol 45, 1972: p.48).

When the discussions for the independence of Malaya took place, the MCA which represented the interests of the Chinese community in Malaya, agreed for the continuation of Malay special privileges that was already being enjoyed by the Malays under the Federation of Malaya Agreement of 1948 (Straits Times, 28 August 1956).

Even on the issue of making Mandarin a national language at par with Bahasa Melayu, the MCA Central Committee which debated the Alliance memorandum to the Reid Commission put the issue to a vote: 15 votes were against the recommendation that Mandarin be recognised as an official language, 14 voted for, 31 abstained (Straits Times, 28 August 1956).

Reid Commission was required by its terms of reference to “safeguard the special position of the Malays and the legitimate interests of the other communities” (CO 889/6, C.C. 2000/15, Summary record of Commission’s meeting, 27 August 1956).

The Constitutional Bill was then debated in the England’s House of Commons.  Three amendments to the Bill was sought.  The third proposed amendment pushed by Conservative MP Joan Vickers (Devonport) noted that the 15-year limit for Malay special rights recommended in the Reid Report was omitted from the Bill.

However, the majority felt that any eleventh-hour amendment could upset the political compromises embodied in the Constitution (Commons Debates, 19 July 1957, pp. 1590-1591).  The Secretary of State concluded that any accepting of proposed amendments would result in the reopening of all issues on which agreement had already been reached (Ibid., pp. 1592-1594).  Therefore, all the proposed amendments were rejected and the Federal Constitution of Malaya, as part of the Malayan Independence Bill, was adopted unchanged.

These special rights were then extended to the Bumiputeras of Sabah and Sarawak through Paragraph 62 of the Malaysia Agreement, 9 July 1963, pages 43 and 44. But this did not come easy.  Many non-Bumiputera groups were opposed to the idea of according the natives of Sarawak with special rights.

A group from the Sarawak United People’s Party led by Ong Kee Hui had a contempt for the backwardness of the natives and had regarded their leaders as men of no consequences.  This prompted the SUPP’s leader in Sibu Jonathan Bangau, an Iban, to resign.

The Ibans, however, told the Cobbold Commission that they were all for Malaysia and some even emphasised on the need for a speedy arrival of better education and development for the Iban community.  In North Borneo, the only negative views were given by the British officials and expatriates as well as the rich (non-Bumiputera) local businessmen.

Both Donald Stephens (Chairman of the Committee of the North Borneo Alliance) and Stephen Kalong Ningkan (Secretary-General of the Sarawak Alliance) both accepted the Inter-Governmental Committee report.  Sarawak Council Negri voted unanimously to adopt the report on 8 March 1963, while the North Borneo Legislative Council unanimously adopted the report on 13 March 1963.

The special rights of the Malays and the Bumiputeras are there to protect their interests so that they do not get swallowed whole in their own land.  The Fijians learnt this the hard way when the Indo-Fijian (Indian descent) minority which numbered less than 40 percent of the population, dominated everything from government to economy, leaving the ethnic Fijians on the sideline.

If the rights of the Malays and the Bumiputeras that was agreed upon by our forefathers are now being questioned, should they now not ask for a better position for themselves? Perhaps a 70-percent equity and quota in everything from now on, or something even better?

(This article was first published on The Mole)

The Malaysian Concord (Part 2) – The National Language

IN part one (The Malaysian concord (Part 1) – the sanctity of Islam), I wrote about HRH The Sultan of Selangor’s displeasure of the challenge by a certain group against the sanctity of Islam, the National Language, the special rights of the Bumiputera, as well as the function and position of the Malay Rulers that are enshrined in the Federal Constitution.

I read the comments on the issue at the online page of a mainstream newspaper.  What I saw was blatant ignorance on the part of the readers. This ignorance, if gone unchecked, will be dangerous to the future of this nation.

Many commentators mentioned that the Reid Commission had recommended for certain special privileges to be reviewed after 15 years, but was never done.  

I need to put this record straight. In many of my writings, I mentioned that those party to the agreement of the independence of Malaya were the British government, the Malay Rulers, and the Alliance party as the government of the day.

Lord William Reid was tasked to form an independent commission to draft the new constitution for a post-independence Malaya.  

The idea to have an independent, non-Malayan constitutional commission came from Tunku Abdul Rahman himself.

The Malay Rulers were for a commission that consist of local politicians, lawyers and other professionals, just as India and Burma (later Myanmar) had. Ghana, Pakistan and Ceylon (later Sri Lanka) opted for a mix of local and foreign constitutional experts.

Tunku felt that it was important to have a non-Malayan independent commission to draft the Malayan post-independence Constitution as it would be able to avoid local prejudices and perform its task with complete impartiality (PH/A/008/4, MCA Files, Memorandum by Tunku Abdul Rahman, 1 March 1955).

This he intimated to Sir Donald Charles MacGillivray, the last British High Commissioner in Malaya, and told the latter before leaving for the January 1956 Independence Conference in London that the commission should consist of legal experts with sufficient knowledge of constitutional developments in the Commonwealth (CO1030/132(3) MacGillivray to A.M. MacKintosh, Head of the Southeast Asia Department of the Colonial Office, 5 January 1956).

So again, I would like to reiterate that the function of the Reid Commission was only to draft the Constitution with input from all those party to the independence agreement, and make recommendations to those parties.  

The Commission itself was never a party to the discussion, let alone of the agreement.

Going back to the issue of the national language, it was in the Alliance’s manifesto for the 1955 federal elections to have a national language to foster a common nationhood, with plans to upgrade the Malay language as the national language.  

As safeguarding the interests and rights of the Malay and Chinese communities being the key features of its manifesto, protection for the languages of the other communities as well as their growth and development was also guaranteed.

The earlier version of the Alliance’s memorandum to the Reid Commission did state a 15-year time frame for the special position of the Malays and Malay as the national language.  

However, in view of the radicals in both Umno and MCA at the time where the former questioned the principle of jus soli while the latter questioned the need for Malay special rights and a national language, an inter-communal constitutional bargain was made and was conveyed to the Reid Commission orally that the time-frame be omitted (PH/A/008/4, Memorandum by Tunku Abdul Rahman, 1 March 1955).

This was the version that was accepted not just by those within the Alliance, but also by the Malay Rulers as well as the British government.

Five years later, this same subject was brought forth to all who would be affected by the formation of the Federation of Malaysia.

The Malaysia Solidarity Consultative Committee chaired by North Borneo’s Donald Stephens in its memorandum stated the it accepted the view that the Federation of Malaysia should have a national language and placed no objection to the adoption of the National Language of the Federation of Malaya, Singapore and Brunei which is also the lingua franca of the region (Malaysia Solidarity Consultative Committee Memorandum, 3 February 1962: pp. 122).

Even the Cobbold Commission, a Commission of Enquiry set up to gauge the support of the people of North Borneo and Sarawak for the creation of the Federation of Malaysia noted in its report that its Chairman (Lord Cameron Fromanteel Cobbold) felt in view that Malay is the closest to a lingua franca in Borneo than any other language, no derogation from the Federal provision was necessary (Report of the Commission of Enquiry, North Borneo and Sarawak, 21 June 1962: pp. 54).

The Inter-Governmental Committee (a committee that consists of the Federation of Malaya, and Great Britain – looking after the interests of its colonies of North Borneo and Sarawak)  reported that Malay should be the language of the Federation of Malaysia, but Article 152 of the proposed Federal Constitution (based on the Federal Constitution of Malaya) be modified in its application to the Borneo states so as to secure that the English language may be used in an official capacity for a period of ten years after Malaysia Day (Malaysia Report of the Inter-Governmental Committee, 1962: pp. 26).

A national language is an important tool for creating “national” consciousness.  

Hindi is the national language of India, as Mandarin, Thai and Bahasa Indonesia are respectively in the China, Thailand and Indonesia.  

It is difficult to understand why, after 61 years, are we still having this argument about what the national language should be.

What kind of national identity are we to have when we cannot even communicate with each other in one common language?

(This article was first published in The Mole)

The Malaysian Concord (Part 1) – The Sanctity of Islam

Islam is the religion of the Federation of Malaysia as enshrined in its Constitution after being agreed upon by all those party to her establishment (Photo credit: Azirull Amin Aripin/Getty Images)

HRH Sultan Sharafuddin Idris Shah is known to be a private person and rarely voices out.  The only times that he would voice out is when matters pertaining to the Constitution is touched upon, and yesterday was one of those times.

He said that the act of a certain group questioning the sanctity of Islam, the special rights of the Bumiputeras, the national language, and the function and position of the Malay Rulers enshrined in the Federal Constitution need to be immediately addressed and curbed.

I have come across such people, and unfortunately, many are young Malays.  They do not seem to understand that the social contract made between the various races of Malaya prior to 31stAugust, 1957 and Malaysia prior to 9thJuly 1963 are now part of the Federal Constitution.

Nor do they know the parties who signed both agreements for the independence of Malaya, and the formation of Malaysia, and understand why those agreements were made.  I put a partial blame on the education system where we were taught that we were all colonised by Britain when that is not true, except during the Malayan Union period.

Although Islam had been preached in the Malay Archipelago, Indo-China and China as early as the seventh century, it is largely held that Islam arrived in the Malay peninsula in the 12thcentury.  Syariah laws such as the Batu Bersurat of Terengganu, Hukum Kanun Melaka, Undang-Undang 99 Perak became the laws of the land.

In 1908, Richard James Wilkinson, a British colonial administrator who, with the backing of Sultan Idris I, was responsible for the establishment of the Malay College in Kuala Kangsar, and who was also a scholar of Malay and history, wrote on the status of Islamic law in the Malay states:

There can no doubt that Moslem law would have ended up becoming the law of Malaya had not British law stepped in to check it.” (William R. Roff, Patterns of Islamization in Malaysia, 1890s-1990s: Exemplars, Institutions and Vectors, Journal of Islamic Studies Vol. 9, Is. 2 (1998), 210-228, at 211).

This was reinforced by two British judges in the landmark case of Ramah binti Ta’at v Laton binti Malim Sutan 6 FMSLR (1927).

It is due to these facts that the sanctity of Islam was retained in the Federation of Malaya Agreement of 1948, and was introduced into the Federation of Malaya Constitution of 1957.

The English law was only introduced to Pulau Pinang as it was the original British colony.  It was on 25thMarch, 1807 that a Charter of Justice was granted by the Crown establishing a Court of Judicature in Pulau Pinang, with jurisdiction and powers of the Superior Courts in England. This was then introduced to Melaka and Singapore when they became part of the Straits Settlements under British rule.

Only with the arrival of the British residents in the Malay states in the last quarter of the 19thcentury was the English law introduced there in the form of Orders, Regulations and Ordnances, save for the laws and regulations affecting the Malay customs and the administration of Islam.  These laws provided for the administration of justice, the law of contract, sale of goods, bills of exchange, company law, criminal law and procedure, the law of evidence, land law, labour law, and the regulation of many matters of public interest.

The Civil Law Enactment, 1937 (No.3 of 1937, FMS) introduced the whole body of the common law of England and of equity of minor modifications.  It provided always that the common law and rules of equity are “subject to such qualifications as local circumstances render necessary”.  Local laws and custom were made applicable.

Islam was made the religion of the Federation of Malaya.  Although Lord Reid felt it was unnecessary to have such a provision as the Sultans would be the Head of Islam in their states, it was added to the draft of the Federal Constitution at the suggestion of Justice Hakim Halim bin Abdul Hamid of Pakistan, who was a member of the Reid Commission, because he said the suggestion by the Alliance party that represented the people of Malaya to have that proviso added was inoccuous.

Sir Donald Charles MacGillivray personally felt that such a provision would be advantageous because the Yang DiPertuan Agong could at the same time become the head of the faith in the Settlements of Penang and Malacca (CO 1030/524 (10), MacGillivray to Secretary of State, 25 February 1957; See also CO 1030/524 (18), MacGillivray to Secretary of State, 21 March 1957).

This accord was reached between those who were party to the discussion – the Malay Rulers, the British who administered the Rulers’ sovereign states on their behalf, and the multiracial government chosen by the people in 1955 to represent them.

There is even a separation of jurisdiction when it comes to the position of Islam in the Federal Constitution.

The Syariah Law comes under the purview of the respective Rulers, and the Attorney-General of Malaysia, under Article 145(3) does not have the jurisdiction over proceedings before a Syariah court, a native court of a court-martial.

This separation of jurisdiction is also present as provided by Article 121(1A) where both the High Court of Malaya and High Court of Sabah and Sarawak do not have any jurisdiction over Syariah matters.  Therefore, any claim that the Syariah law infringes on the rights of the non-Muslims is fallacious.

The Malaysia Solidarity Consultative Committee chaired by North Borneo’s (later Sabah) Donald Stephens (later Tun Fuad Stephens) stated in its memorandum dated 3rdSeptember 1962 that the acceptance of Islam as the religion of the to-be-formed Federation of Malaysia would not endanger religious freedom within Malaysia nor will it make the country less secular (Malaysia Solidarity Consultative Committee Memorandum on Malaysia, 3 Sep 1962, p.p 120).

And that is how Islam became the religion of Malaysia.

(This article was first published by The Mole)

Sarawak Repost

SARAWAK

Give enough rope and he will hang himself

That is how the idiom goes.  Muhyiddin was the first one to admit that there was a conspiracy to topple Najib Razak.  Then recently Mahathir himself named the conspirators as former Governor of Bank Negara Zeti Aktar Aziz, former Attorney-General Gani Patail, and former head of the Malaysian Anti-Corruption Commission Abu Kassim.  Mahathir’s favourite news portal Sarawak Report has now joined in and underscored the role of the three in trying to bring down Najib Razak. This time around, the Sarawak Report (SR) has gone overboard by including His Majesty The Yang DiPertuan Agong into the conspiracy.

The SR claims that by middle of 2015, all three conspirators agreed that Najib Razak had embezzled billions from public funds “not only to fund lavish frivolities for the PM and his wife and family, but also influence the outcome of a very tight election.”

First and foremost, the investigation into the 1MDB was far from over in the middle of 2015.  A quick check of SPRM’s press statements archive found no such announcement being made. Furthermore, Najib Razak as the accused had not been called to give his statement regarding the 1MDB, and it was only in December 2015 that Najib Razak was summoned to do so.  How a charge sheet was drafted before investigation was completed is beyond me.  When investigations were completed and submitted to the 20-member Public Accounts Committee, the PAC released its findings on 7th April 2016 that there is absolutely no truth in billions having gone missing, and that the 1MDB issue is solely governance in nature.  This findings was also agreed and signed by six Opposition members of the PAC including Tony Pua himself.

As for influencing a very tight election, the SR’s myopic reporting means that nothing is ever mentioned about journalist Nile Bowie’s report on the millions of USD channeled to the Opposition and/or Opposition-friendly organisations annually to fund activities that would destabilise the ruling government.The National Endowment for Democracy (NED) has channeled millions to beneficiaries such as SUARAM, BERSIH, Merdeka Center for Opinion Research through the National Democratic Institute for International Affairs (NDI) and the International Republican Institute (IRI).  The IRI, said Nile Bowie, received $802,122 in 2010 to work with “state leaders in Penang and Selangor to provide them with public opinion research, training and other resources to enable them to be more effective representatives of their constituents”. IRI claims that it “does not provide direct funding to political parties” in Malaysia, but their lack of transparency, significant budget and emphasis on helping broaden the appeal of political parties in opposition-held states suggests at the very minimum that funding is taking place indirectly.

The SR also claims that Najib Razak is the sole shareholder and decision-maker in the 1MDB and the only man able to sign off investment decisions such as the Joint Ventures with Petrosaudi and Aabar,

Screen Shot 2016-08-24 at 10.36.52

Perhaps, the SR does not know that the Minister of Finance (Incorporated) was passed in an Act of law in 1957 through the Minister of Finance (Incorporation) Act, 1957 that was revised under Mahathir Mohamad’s tenure in September 1987. Its objectives are to ensure sustained and continuous economic growth; to strengthen national competitiveness and economic resilience; to ensure effective and prudent financial management; to pursue a more equitable sharing of national wealth; and to improve quality of life and well being of society. It is headed by one Encik Asri of Bahagian Menteri Kewangan (Diperbadankan). And mind you, Najib Razak is not the only Minister of Finance. There is a dedicated Minister of Finance whose time is 100 percent there unlike Najib Razak. He is NOT a Deputy Minister, he is a FULL Finance Minister.

Of course, according to the SR, the conspirators then had no choice but to bring the matters to His Majesty Yang DiPertuan Agong, and the Yang DiPertuan Agong agreed that Najib Razak should step down “while prosecution took its course.”  Like I mentioned above, how was it possible for prosecution to proceed when Najib Razak himself had not been questioned on his involvement by the very agencies claimed by SR to have decided to prosecute? Furthermore, what Constitutional powers does the Yang DiPertuan Agong have to tell Najib Razak to step down?  Even Lim Guan Eng, already investigated and charged in court on two counts of corruption, has not left office to let prosecution take its course!

On the 28th July 2015, Gani Patail was removed as the Attorney-General and was replaced by Mohamed Apandi Ali.  SR pointed that the act of removing the AG was unconstitutional.  Allow me to go slightly deep into the Federal Constitution of Malaysia to comment on this claim.

The Federation of Malaya was born on 31st August 1957, adopting a new Constitution that replaced the Federated Malay States Constitution of 1948.  During that time, the Attorney-General was Cecil Majella Sheridan, a practicing solicitor who joined the Colonial Legal Service to help reopen the courts in 1946 after World War Two.  He was posted to Kelantan and Terengganu to become the States’ Legal Adviser and Deputy Public Prosecutor. In 1955, he became the Legal Draftsman for the Federation. Upon Indepence, Sheridan was made the Solicitor-General and subsequently the Attorney-General in 1959. Sheridan then began to prepare for the enlargement of Malaya into Malaysia (with the accession in 1963 of Singapore, Sabah and Sarawak). In the process, he worked closely with Tunku Abdul Rahman, Tun Razak, and Lee Kuan Yew, of Singapore.

During this time, Article 145 of the Federal Constitution was limited to five clauses only.  Article 145(5) then provided that “the Attorney-General shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.”  This Article was drafted by the Reid Commission and subsequently passed to be included in the Federal Constitution of 1957.  A Government White Paper explained the need for Article 145(5):

It is essential that , in discharging his duties, the Attorney-General should act in an impartial and quasi-judicial spirit. A clause has therefore been included to safeguard the Attorney-General’s position by providing that he shall not be removed from office except on the like grounds and in the like manner as a Judge of the Supreme Court.

This is still maintained in Articles 105(3) for the Auditor-General and 125(3) for the Judges.

With the imminent formtion of the Federation of Malaysia, Sheridan amended Clause 5 of Article 145 and added Clause 6 to facilitate his eventual removal from the AG’s position.  Article 145(6) of the Federation of Malaysia Constitution, 1963 reads:

The person holding the office of the Attorney-General immediately prior to the coming into operation of this Article (note: specific reference to Sheridan) shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and the like manner as a judge of the Federal Court.

And Clause 5 of the Article was changed to the following:

Subject to Clause (6), the Attorney-General shall hold office during the pleasure of the Yang DiPertuan Agong and may at any time resign his office and, unless he is a member of the Cabinet, shall receive such remuneration as the Yang DiPertuan Agong may determine.

Article 145 was amended for two reasons according to Sheridan’s successor, Abdul Cadir Yusoff: one is the desire to have “the most suitable person available for the performance of the onerous tasks” of the AG’s office regardless whether the person was from the pubic service or not, and secondly the impartiality of a political appointee could be assured by conferring on him “untrammelled constitutional discretion.” Bear in mind that Abdul Cadir was both a lawyer and a politician and could not have been appointed under the previous version of the Constitution.  Nowhere in the Constitution, in its present form, requires for the formation of a tribunal to remove or replace an Attorney-General as applicable to the Auditor-General and Judges via Articles 105(3) and 125(3).

Therefore, Gani Patail’s removal was not unconstitutional.

I refuse to comment on the rest of the fairy tale that Clare Rewcastle Brown had conjured because she seemed excited plucking these stories from a very low sky that her nipples probably scrape the ground giving her that pleasure. Like the story about the fire that had occured at the Royal Malaysian Police Headquarters in Bukit Aman, as she claimed “destroyed evidence of money laundering” when the division that was investigating the 1MDB issue is housed in a different building in a different part of the Bukit Aman complex.  Also on the murder of DPP Kevin Morais whom she said was the one who had drafted the charge against Najib Razak when the poor sod was confirmed by his own brother and by authorities not investigating 1MDB.

You can choose to believe Sarawak Report if you wish to.  All Clare Rewcastle Brown does is to repost trash and expands on it, grabbing more invisible low hanging fruits while her nipples harden at being scraped against the asphalt. Must make her wet teling lies. But it’s funny how the white trash seem to have conveniently omitted Justo from the equation.

Nothing to hide? I don’t think so.