Why the Federal Constitution still defines Malaysia at 69

SHAH ALAM - Malaysia’s Federal Constitution remains the foundation of the country’s social and political compact, providing a framework for different races, religions and regions to live together despite their differences, says constitutional expert Emeritus Professor Datuk Dr Shad Saleem Faruqi.

Reflecting on the country’s 69 years of independence, Shad said the constitution was built on accommodation, compromise and a shared destiny rather than the domination of one community over another.

He said the founding fathers, particularly the country’s first prime minister, Tunku Abdul Rahman Putra Al-Haj did not envisage the expropriation of one community’s wealth to benefit another.

“Instead, the constitution included a pragmatic affirmative action policy to give every community its share of the economic pie,” he told Sinar Daily.

Shad said the peaceful manner in which Malaysia had pursued social engineering was an outstanding feature of the country, although social justice remained a continuing journey.

He said attention should not only be focused on disparities between ethnic groups but also on widening economic gaps within communities.

However, he warned that Malaysia had also experienced serious backsliding, with the gap between constitutional ideals and political reality growing wider.

Among the concerns he identified were low levels of constitutional literacy and constitutional patriotism, challenges to the supremacy of the Federal Constitution, political and religious extremism, declining national unity and failures of institutions meant to provide checks and balances.

He also pointed to corruption, the mismanagement and pilfering of national resources, unequal enforcement of criminal justice and the misuse of affirmative action policies to benefit those who were already wealthy and powerful.

“Much of the above backsliding since the 1970s is a serious violation of the explicit provisions and implicit ideals of our Constitution,” he said.

Shad said the constitution was designed to provide workable arrangements for a “multi-hued” nation to live together in peace and harmony.

He stressed that this included a delicate balance between the special position of Malays and natives of Sabah and Sarawak and safeguards for the legitimate interests of other communities.

Under Article 153, special provisions were subject to constitutional limitations and did not permit ethnic monopolies.

“The special position of the Malays and natives applies only in four prescribed sectors and services: civil service positions; licences and permits; scholarships; and post-secondary education,” he said, adding that affirmative action was permitted only to the extent that it was “necessary” and “reasonable”.

The constitution also protected existing rights and did not allow any business or profession to be exclusively assigned to one race.

Its broader safeguards reflected the founding compromise between Malaysia’s diverse communities.

Citizenship rights were granted on a non-ethnic and non-religious basis, while citizens of all communities were given the right to vote and seek elected office.

Shad also stressed that although Islam is the religion of the Federation, Malaysia is not a theocratic state and the Constitution remains supreme.

Similarly, Malay is the national language, but the constitutional framework recognises the country’s linguistic diversity.

He said the same spirit of give-and-take should apply to Sabah and Sarawak, although many of their constitutional rights had yet to be fully enforced.

Shad also warned that disputes and distrust in federal-state relations, particularly involving Putrajaya, Sabah and Sarawak, threatened the balance envisaged by the Constitution.

At the same time, he said there were grounds for optimism, particularly with the growing importance of judicial review as a check against unconstitutional exercises of power.

“The constitution appears to be in renaissance,” he said.

Shad has repeatedly called for stronger constitutional literacy, arguing that Malaysians cannot properly defend or uphold a document they do not understand.

For the future, Shad said his hope was for greater constitutional literacy and constitutional patriotism so that the constitution could once again occupy the central place it held when Malaya began its journey towards independence.

“For my children and grandchildren, I dream of a nation that is a mosaic and not a melting pot.

“I pray for a nation defined by unity and inclusive belonging rather than exclusion or division,” he said.

He said Malaysians should be able to work towards common goals despite their different backgrounds — an aspiration that remains central to the constitutional vision of the nation.