This article first appeared in Forum, The Edge Malaysia Weekly on January 15, 2018 - January 21, 2018

Any discussion on the Federal Constitution is timely as Malaysia celebrates 60 years of Merdeka, with a system of government rooted in constitutional supremacy.

Within 20 years of the coming into force of the Federal Constitution, numerous amendments were made by Parliament which rendered the original constitution unrecognisable, resulting in scholars describing the original as the “Merdeka Constitution”, to differentiate it from subsequent versions.

The overall effects of these amendments were to strengthen the Executive and provide substantial advantages for majorities, to the detriment of minorities whose democratic space has shrunk considerably. The totality of the changes were not revolutionary in effect because the Federal Constitution was never replaced, but they were sufficiently drastic to alter its basic structure.

The lesson to be drawn from such widespread and extensive amendments so early in the life of the nation is that the two-thirds constitutional threshold never worked as a safeguard against hasty and ill-thought-out amendments.

Constitutionalism conveys the idea of a government whose power is limited by law, with the allocation of powers between the different branches circumscribed. Checks and balances abound. But such legal limitation of power cannot be viewed in isolation. Instead, it is substantially influenced by politics, economics, history, psychology and culture (to name just a few of the important elements). Most importantly, politics. Hence, it is critical for a proper appreciation of any constitution to understand the politics behind it, in other words: the politics of the constitution.

Politics of the constitution

Four pillars have underpinned Malaysia’s political architecture.

• The predominant role played by the ruling coalition, which has continuously governed the country for 60 years, with the result that millions of Malaysians regard it as interchangeable with the state, and challenging it is equivalent to challenging the very nation;

• Centralisation of power in the office of the prime minister, including the right to hire, transfer and fire thousands of key personnel in the three branches of government and hundreds of government-linked companies, which have a massive influence over our financial, economic and business activities;

• The overriding impact of race and ethnicity in a plural society, not just on political, economic and social matters but on nearly every facet of public life, even extending to sports; and

• The huge influence of religion, particularly against a background of the majority race being of one religion — a powerful cocktail indeed.

I therefore propose to deal with the subject assigned to me as a point of departure. Rather than focusing on the evolution of the Federal Constitution, which is manifested by the manifold amendments that have scarred it, I shall consider its genesis and birth. In particular, whether there were structural defects in the Merdeka Constitution which facilitated such an easy amendment process.

This phenomenon is not confined to these shores. It is also a striking feature of the majority of the 52-member Commonwealth. Indeed, one can categorise the older “white” nations of the UK, Canada, Australia and New Zealand, together with India, as belonging to a tiny elite band of truly functioning democracies where peaceful changes of government frequently occur at the conclusion of free and fair elections.

Their constitutions remain intact. The vast majority of Commonwealth countries, however, have had their constitutions abolished (whether by military coups or regime change) or substantially amended. One-party states are littered across the continents which were once under British rule, even if they all began their journey as independent nations adopting the Westminster style of parliamentary democracy. What accounts for this state of affairs?

Decolonisation

If anyone had mentioned in 1938 that the decades that would follow would witness the greatest exercise of decolonisation by the emergence of independent nations across the globe and the end of empire, he or she would have been described as a lunatic. The atrocities of Hitler’s Nazi Germany, the outbreak of World War II, the Atlantic Charter, the heroic non-violent struggle of Mahatma Gandhi, the revolution in China led by Mao Zedong and the establishment of the United Nations in less than a decade absolutely transformed the globe in an unprecedented scale and manner. These truly historic milestones paved the way for self-determination, decolonisation and independence.

The dissolution of the British empire after WWII began in absolute tragedy, with Partition in August 1947, and the hurried creation of India and Pakistan. The end of WWII also tragically resulted in the onset of the Cold War, with Winston Churchill’s provocative “Iron Curtain” speech demonising an apparently monolithic communist threat from Moscow.

The opening of the records and archives by all the major empires establish without a shadow of doubt the pervasive fear of communist revolution being exported throughout the Third World. In consequence, the Cold War looms large when decolonisation is considered. It is therefore through the lens of the Cold War that one must read the history of the making of Commonwealth constitutions, including that of British Malaya.

Commonwealth constitutions

Gandhi and Jawaharlal Nehru were very conscious of their leading roles in the founding of a united modern India, and were inspired by the Founding Fathers of the US Constitution. They saw no role for the British in the making of the Indian Constitution. It was going to be purely Indian in origin and production. Hence, both the US and Indian constitutions were the products of totally homegrown talent representing diverse classes and interests. Additionally, Constituent Assemblies in both countries were dominated by personalities who were going to be leaders in the new nation. Thus, George Washington, James Madison, Alexander Hamilton and Benjamin Franklin in the US and Nehru, Sardar Patel, Rajendra Prasad and B R Ambedkar in India played crucial roles in drafting their constitutions, and then acted as their protectors and guardians. They set the tone for future generations.

Unfortunately, the vast majority of Commonwealth nations had their constitutions drafted by the British, the retreating colonial power, whose interests often diverged from those of the independent countries. So frequently were the British asked to perform the grave responsibility of drafting constitutions that a core group of draftsmen, usually academics like Professors Kenneth Wheare and Ivor Jennings, drafted constitutions for numerous countries.

Reid Commission

Tunku Abdul Rahman’s decisive victory in the 1955 elections was the clarion call for Merdeka, with Tunku insisting very soon after he assumed the office of chief minister that independence would come on Aug 31, 1957. But Tunku was adamant that the draftsmen must all be foreign because he stated that no local person would be impartial or would be able to withstand local pressure or influence.

The Rulers, on the other hand, wished to have local personalities in the drafting committee. The British had the final say, and by this time, had substantial experience in selecting “suitable” candidates. They nominated the chairman: Lord Reid, a Scottish law lord, and Jennings. Tunku wanted representation from some Commonwealth countries. Australia nominated its former governor-general, Sir William McKell, India nominated B Malik, the Chief Justice of Allahabad, and Pakistan proposed Abdul Hamid from its High Court. Canada’s representation came in very late, and therefore did not participate.

The striking feature of the five-member Constitutional Commission (or the Reid Commission), apart from the fact that they were foreigners with no previous links to Malaya, was that they were all legally trained. Three were judges, one was an administrator and the last, an academic. Thus, the Reid Commission was composed solely of lawyers; a dangerous recipe for nation building. Although lawyers are required for their technical drafting skills, they are often narrow in outlook and pedantic in expression. A monopoly of lawyers is not healthy for any body politic.

With the benefit of hindsight, the following omissions from the membership of the Reid Commission are remarkable: 

(i) no member with any previous knowledge of any aspect of Malaya; (ii) no historian of Malaya or of empire and decolonisation; (iii) no political thinker or political scientist; (iv) no politician; (v) no economist or social scientist; and (vi) no member from Malaya.

With such omissions, it is not surprising that the Reid Commission Report, which formed the intellectual background to the draft Constitution, is not a nuanced or sophisticated political document heralding the birth of a new sovereign nation, but is very much a lawyer’s document for an audience of lawyers. This may amount to a criticism of style and presentation.

The critical substantive charge against the Reid Commission is its failure to appreciate that the constitution that they were drafting (intended to be durable, enduring and lasting for centuries) did not provide real and effective safeguards for the individual when confronted with the might of the state.

Articles 5 to 13 in Part II of the Federal Constitution provide for the fundamental rights of life, liberty, movement, equality, speech, association, assembly, religion, education and property. The struggle for these rights provided the impetus for the French and American Revolutions of the 18th Century. These rights were accepted into public international law by the Universal Declaration of Human Rights in 1948. Hence, they had become the norm for any society aspiring to be democratic in 1955. Indeed, the provisions in Part II were modelled on Part III of the Indian Constitution, which Malik was very familiar with. In this vital aspect of protection of civil liberties, the Reid Commission was merely treading on well-established areas and not breaking new ground.

Amendments predictable

Anyone familiar with history or politics would realise that the greatest threat to the enjoyment of civil liberties is the Executive branch of government. This was as predictable and foreseeable in 1955 as it is in 2018. The only protection that would have stood the test of time (in the constitutional universe, time means decades and centuries) would have been to entrench these human rights, making them absolutely unalterable. Thus, Parliament, which itself is a creature of the Federal Constitution, should not have been allowed to legislate by a simple Act of Parliament to infringe such rights.

Furthermore the two-thirds majority would never be an adequate safeguard because it is absolutely foreseeable in a Westminster style parliamentary democracy, based on a first past the post system of elections, that securing 67% of the seats in the lower house is easily attainable for a political party. And that is exactly what happened, not just in Malaya, but elsewhere in the Commonwealth.

Likewise, the right of the Executive to declare emergency rule. One accepts that a state must have sufficient reserve legal power to deal with terror or violence where there is a clear and present danger of its occurrence by an objective yardstick. But the acquisition and use of such reserve power must not result in the denial of human rights or a change in the way of life of a society, the exact objective of terrorists.

And finally, it must be temporary, lasting weeks or months. The example of how the UK has dealt with war and terror during and after WWII in repeated crises, whether the Irish problem in the 1970s or today’s ISIS threat, is admirable and worthy of emulation. But the Malaysian experience has been most disappointing. Its abuse in Malaysia has resulted in multiple emergencies in force simultaneously, and the nation under emergency rule for over 50 years of its existence.

Preventive detention has always been a feature of our national life. The Emergency declared in 1948 continued until 1960, thus, when Malaya secured independence and the Federal Constitution came into force in 1957, emergency rule was in place. Preventive detention, that is detention without trial, was part and parcel of emergency rule. In 1960 the dreaded Internal Security Act was passed giving parliamentary authority for such detentions. Even after the repeal of the ISA in recent years, preventive detention lives on under other draconian Acts of Parliament. The Reid Commission Report ought to have prohibited preventive detention altogether, or restricted it in stringent terms and for a short duration. Both these examples of misuse of power could easily have been avoided if the Reid Commission had shown vision.

Basic structure

The Reid Commission ought to have recognised some fundamental aspects of the constitution as being so vital to its entire foundation, structure or framework that under no circumstances could they be amended. The Supreme Court of India in Keshavananda v Kerala A.I.R. 1973 SC 1461 gave a limited meaning to the expression “Amendment to the Constitution” — in consequence, amendments would only be valid if they came within the broad contours of the Indian Constitution, as determined by their courts. The basic structure in India, which includes constitutional fundamentals like supremacy of the constitution, rule of law, separation of powers, fundamental liberties and the secular character of the nation, cannot be abrogated. The basic structure doctrine, which has not found uniform acceptance by Malaysian judges, ought to have been expressly provided for by the Reid Commission.

Alliance dominant

In retrospect, a case can be made that the Reid draft suffered structural defects because of the monopoly enjoyed by the Alliance coalition with regard to access to Reid and the weight given to their views, to the exclusion of all other political parties and interests.

Viewed through the Cold War perspective, the British government was adamant about crushing the “Left”, which was not limited to Chin Peng’s Malayan Communist Party (MCP). The Declaration of Emergency in July 1948 led to not only the banning of the MCP, but also numerous political parties, societies and trade unions deemed to be belonging to the Left, or sympathetic to it.

In 1947, a grand coalition of Malay and Chinese-based political parties under the umbrella of Pusat Tenaga Rakyat (Centre for People’s Force, PUTERA) and the All-Malaya Council for Joint Action (AMCJA) drafted the People’s Constitutional Proposals for Malaya. The Putera-AMCJA Peoples Constitutional Proposals were incredibly advanced for the time, and indeed more liberal than the Reid draft. Unfortunately, there is little in the published records that indicates if the Reid Commission even considered the Putera-AMCJA proposals. They were certainly not accepted in the Reid Commission Report.

The goal of the British government on the eve of decolonisation was not just to secure the collaboration of moderate nationalists like Tunku, to the exclusion of the Left, but to help establish a system or structure that would perpetuate the grip on power of these nationalists after independence. Influence would thus be retained by transferring power to “acceptable” candidates. Nationalism would be channelled into constructing independent nations in harmony with British interests. Perhaps the Reid Commission unwittingly became a pawn to such considerations of the retreating metropolitan power.

When an audit is done on the current status of the Federal Constitution and causes sought for the parlous state of constitutionalism in Malaysia, I accept the conventional wisdom that the principal share of culpability must be attributed to the Executive, Legislature and Judiciary.

It can also, however, be argued that the composition of the Reid Commission — its terms of reference, the manner in which it discharged its duties, its report and recommendations — should also share some responsibility, however small they may be to the overall narrative. Hence, the origins of the Federal Constitution were partly responsible for its evolution.

Tommy Thomas is a well-known lawyer and occasional political commentator. This article is excerpted from the paper he presented at the Symposium on Constitutional Law organised jointly by the Bar Council and Commonwealth Lawyers Association in Kuala Lumpur on Jan 10.

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