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?
There is nothing wrong with wanting to be a moderate. Moderation is what is preached in Islam. Moderation is what seems to be eroding by the day not just in Islam, but in other religions and cuts across the racial board as well. And this applies to every single country there is on the face of this Earth. And to have a group of people advocating moderation is a more-than-welcome effort in this young-but-amnesiac country that seems to have lost all institutional memory of the events that had brought about the Federal Constitution of Malaysia.
Reading the The Star’s interview with Tan Sri Alwi Jantan (Torchbearers for founding fathers – Sunday, 4th September 2016) I cannot help but agree to some of his points, but at the same time feel as if there is some form of misguidance, or misinterpretation of the Federal Constitution, and a deliberate misleading on the respected Tan Sri’s part.
I agree that rather than focusing on petty issues such as whether or not the Langkawi statue is haram, the religious councils as well as JAKIM should focus more on the development of correct as well as balanced knowledge on Islamic subjects such as Tauhid, Fardhus Ain and Kifayah. This is important to counter the influence of deviationists especially that of the Da’esh. However, religious as well as racial extremism is not confined to Islam alone. In the name of pluralism as advocated by the G25, there should only be single-stream schools. Children who do not grow up together will grow up apart. We can never talk about unity and understanding if we do not understand each other. Preserving the mother-tongue can be done after formal classes are over and this can be done at the school itself, perhaps after lunch. So could the Islamic religious classes. In the latter category, this would ensure that correct teachings are being imparted to the children rather than by private religious schools whose curriculum are not being monitored effectively by the religious councils. Also that way working parents do not need to worry about the whereabouts of their children and can pick them up at school after work, or a similar arrangement could be made.
In a plural society such as ours, the need for our children to grow up together for the sake of unity is paramount. Sending children to separate schools based on mother tongue rather than a common national language is against the spirit of the Constitution. When the Constitution was being drafted for it to be in operation by Merdeka Day 1957, the Reid Commission adopted the Alliance’s (UMNO, MCA and MIC) proposal to establish Malay as the official language of the Federation. However, there were differences on how to go about with this. Ng Ek Teong, the MCA representative submitted that English should be allowed to be used for official purposes for a minimum of 10 years. MIC was in support of this. Both MCA and MIC also proposed for Mandarin and Tamil be allowed to be used in the legislatures for a minimum period of 10 years. UMNO however proposed that English be allowed to be used for a maximum period of ten years after independence. Ng Ek Tong told the Commission that this would only serve as a temporary measure(Colonial Office CO 889/6, Minutes of Alliance hearing before the Reid Commission, 27 September 1956, pp 290-294). Tunku Abdul Rahman however said:
“At the end of 10 years, the general trend will be that people will still demand for it and the people who propose it now are not sure that they would be there to guarantee it. It is bound to cause a lot of debate later on.”(Ibid.)
Even Lord William Reid himself was not in favour of the proposal by MCA and MIC saying that it would cause practical difficulties (Ibid/Making of the Malayan Constitution, Joseph M Fernando, pp 128-129). It was for this reason that the Tunku promoted the Rumi script for the Malay language at the expense of the Jawi script to enable the non-Malays to learn the national language rapidly (Tunku Abdul Rahman (1984), op. cit., pp. 112-114). This has been enshrined in Article 152 of the Federal Constitution as well as in the National Language Act, 1963/1967.
The reality of it now is that the migrant workers from Bangladesh, Pakistan and Myanmar are more able to grasp the Malay language than many of our own Identity Card-wielding citizens. Mind you, they also stood still at Dataran Merdeka while the NegaraKu was being played. Our own citizens refuse to stand up when the NegaraKu was being played in the cinemas, extinguishing the very torch of our founding fathers.
The Constitution is secular only up to a certain point. The Reid Commission, commissioned by both Her Majesty The Queen of England and the Malay Rulers had initially omitted a proposal by the Malay Rulers to have Islam as the religion of the Federation. Reid saw it fit that matters of religion be handled only by the Ruler of the respective States, and that the special position of the Malays be reviewed after 15 years.
When the report was published, the strongest objections came from the man revered by Malaysians now as the father of multiracialism – Dato Onn Jaafar, who as the leader of Parti Negara said that the Malays had been let down. PAS claimed that the Malay interests had been cast aside (von Vorys (1975), op. cit., p.132). Hence, the Tunku later submitted that Islam be made the religion of the Federation with two provisos added: first that it would not affect the position of the Rulers as head of religion in their respective States; second, the practice and propagation of other religions to the non-Malays in the Federation would be assured under the Constitution (UMNO/SUA 154/56, Minutes of Alliance ad-hoc political sub-committee meeting, 2 April 1957).
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).
Fast forward to the present, Article 3 of the Federal Constitution has clearly mentioned Islam as the religion of the Federation with the Rulers being the Head of religion in their respetive States, while the Yang DiPertuan Agong becomes the Head of religion in the States of Pulau Pinang, Melaka, Sabah and Sarawak, as well as in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya. It is not an official religion but the religion of the Federation. The provisos added to safeguard the practice and propagation of other religions are now enshrined in Article 11 with limits to propagate given in Clause 4 of the said Article, to safeguard and honour the position of Islam as the religion of the Federation.
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 jurisdition 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, the respected Tan Sri should be aware that, borrowing the words of Sir Stamford Raffles in a 1815 letter to his cousin mentioned how “Religion and laws are so united” in Muslim dominated areas that the introduction of Christian beliefs will bring about “much mischief, much bitterness of heart and contention”. (Seademon, A Case For God, 1 Jan 2013) .
Even Act 355, the Syariah Courts (Criminal Jurisdiction) Act, 1965 (last revised in 1988) states the following:
1. (1) This Act may be cited as the Syariah Courts (Criminal Jurisdiction), 1965.
1. (2) This Act shall apply to all the States of Peninsular Malaysia.
2. The Syariah Courts duly constituted under any law in a State and invested with jurisdiction over persons professing the religion of Islam and in respect of any of the matters enumerated in List II of the State List of the Ninth Schedule to the Federal Constitution are hereby conferred jurisdiction in respect of offences against precepts of the religion of Islam by persons professing that religion which may be prescribed under any written law:
Provided that such jurisdiction shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding five thousand ringgit or with whipping exceeding six strokes or with any combination thereof.
The Act, clearly says that it first and foremost, applies to all States of the Peninsular Malaysia. It is not applicable to where the Yang DiPertuan Agong is the Head of religion ie. the Federal Territories, Sabah and Sarawak. Second, it applies only to Muslims and any matters in List II of the State List of the Ninth Schedule to the Federal Constitution. Third, it cannot propose any punishment that prescribes any jail term exceeding three years, or with any fine exceeding five thousand ringgit, or with whipping exceeding six strokes or with any combination thereof.
Therefore, there is no question of introducing stoning to death, amputation of limbs etc. Anything above those limitations will be referred to the Criminal Courts.
So, Tan Sri, care to explain how are secularism and pluralism being attacked with examples of provisos of the Federal Constitution or any laws made under it?
Finally, let me quote the interview given by the respected Tan Sri to The Star:
G25 has also expanded its scope to include good governance and tackling corruption. As not only the former head of the PSD but also former secretary-general in the Local Government and Federal Territory Ministry, Health Ministry and Agriculture Ministry, Alwi has focused on good governance, which he calls the precondition for a constitutional democracy: “Those in power must be made accountable for their actions and conduct.”
During his time, civil servants were able to do their jobs without fear or favour, he recalls. “The division of responsibilities between the politicians and civil servants was fairly clear cut.”
But over time good governance has been eroded at an alarming rate, he says.
“This shows the rot in Malaysia, but it is a rot which was started during Mahathir’s 22-year premiership, and by Mahathir himself!
Today, Mahathir is obsessed with the toppling of Najib as Prime Minister, but this is not because he wanted to stop the rot in Malaysia, to restore the independence and integrity of the judiciary and a just rule of law; to end the subversion of the independence and professionalism of national institutions whether the civil service, the police, the elections commission or anti-corruption agency; eradicate rampant corruption; restore ethics and honesty in public life; re-establish a good education system or restore Malaysia’s economic competitiveness.
Mahathir wants Najib out as the Prime Minister for Malaysia, not to stop the rot which was started by him during his premiership, but for an agenda personal to himself.
This is the rot of Hamlet in Malaysia.”
I’m surprised the good Tan Sri had made no mention whatsoever of this episode. And he was a civil servant by definition, under the tutelage of the Pribumi person himself and remained in public service until 16 April 1990, thirteen years before Mahathir steped down.
So, Tan Sri, it is good that you want to become the torchbearer of the founding fathers of this blessed nation. However, please ensure that you are on the right path first before you decide to light that torch and guide others.