59 Years down the Road, Whither Malaysia? — Aidil Khalid

In 1977, a justice of the Federal Court pronounced a judgment that would breathe life along with the true spirit of Merdeka unto the Federal Constitution, and in turn charted the future path of the young nation of barely 20 years off the previously uncharted territory, post-independence.

The judge, who would later become the Chief Justice of the country, and would go on to pen countless judgments, with some destined to be landmark pronouncements to be referred and applied by judges and lawyers for posterity, is none other than the late Royal Highness, Sultan Azlan Shah, the father of the current ruling Sultan of Perak.

In his judgment for the case of Loh Kooi Choon v The Government of Malaysia [1977] 2 MLJ 187, His Lordship (as the Late Royal Highness then was) declared that the Federal Constitution stood in its own right and could never be overridden by extraneous principles of foreign legal ideology. “Whatever may be said of other Constitutions,” held His Lordship, “they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording ‘can never be overridden by the extraneous principles of other Constitutions.’”

This short paragraph marked an important point in the history of our nation, because it awesomely destroyed the oft-repeated myth that the Federal Constitution as the highest law of the Federation, and other enforceable legislations made thereunder, must be interpreted in accordance with the principles that were supposedly ‘inherited’ from the British legal system: that we are condemned for eternity to be tied to this colonial legal system. The judgment of the late Royal Highness however set the record straight, that the meaning of independence covers not only political and physical freedom in the superficial sense, but also declared that our legal narratives are now freed from the shackles of the colonial ideologies. We are to determine our own jurisprudence based on our own local context from the wellsprings of our own traditions, as opposed to mimic some foreign legal framework.

The above Court declaration was thereafter followed by a fortification through procedural amendments a year later, when in 1978, our nation decided to abolish appeals on Constitutional matters to the Privy Council in England, and thus making the local Federal Court as the highest court in the land.

In fact, a careful study of the past judgments of our Courts would show that the judgment quoted above was actually not without precedent, but was a mere reinforcement of a firmly established principle. This could be seen in an earlier case decided only six years post the Malayan independence, in The Government of Kelantan v The Government of the Federation of Malaya and Tunku Abdul Rahman (1963) 29 MLJ 355, wherein on September 14th, 1963 — two days from the scheduled Malaysia Agreement to enjoin Sabah, Sarawak and Singapore to the Federation was to be enforced — our Court was up on task to adjudicate upon a very important dispute between the State of Kelantan and the Federal Government.

Without going too deeply into the complex legal issues — that stood essentially as a challenge against the Federal Government’s power of the then Malaya to enter into the Malaysia Agreement without first consulting and securing approvals from the State of Kelantan — what is relevant to our discussion here is the portion of the judgment by the then Chief Justice Thomson, which was exactly in line with what was to be declared by the late Royal Highness Azlan Shah a decade and a half later:-

“[T]he Constitution,” opined Thomson C.J. in 1963, “is primarily to be interpreted within its own four walls and not in the light of analogies drawn from other countries such as Great Britain, the United States of America or Australia.”

This is a very important constitutional position to be understood and appreciated, and thereafter embraced especially in the task of nation-building involving every levels of the society, from the individual persons to the highest government ranks and entities. It is essential as it provides the true colour and the real meaning to the otherwise soulless state of our nation’s independence. Failure to appreciate this bedrock principle, and we witness today a severe threat to the very narrative of our nationhood when there are segments within the society that odiously militate against locally developed jurisprudence and principles, preferring instead foreign and alien concepts of perverse ideologies that are clearly ill-suited for the local framework.

Take for instance the concept of democracy. While many would agree that our nation is, or at the very least ought to be, a democratic nation, that fact however is as far as to the extent that we could ever agree on. Beyond such general statement that is superficial at best, comes the fundamentally contentious area: what kind of democracy do we mean by democracy?

Largely vitriolic and vehement argument ensues as to whether democracy in our local context must also entail liberalism in its foreign political-philosophical framework, espousing the idea of liberty with the many nuances and manifestations, such as unfettered freedom of speech and expression allowing and advocating even for the denigration and negative stereotyping against religion, undeterred free market bordering on corporatism, fiercely and aggressively secular governments, and so on and so forth; or whether our rich local conventions and long traditions ought to provide colour to the system of democracy that we are practising in guiding not only as to how such rights and freedoms ought to be exercised, but also when, if at all, they may be suspended, in the interest of justice at large.

Likewise, the same departing narratives are being witnessed today in every other aspects of nation-building, including that of our national language, and not to mention the ever strenuously-disputed identity of the country.

There are those calling for the aggressive secularisation and barbaric liberalisation of the country from any sort of traditio-religious foundations. The use of the national language in education institutions is seen as retrogressive, and the position of Islam as the religion of the Federation is accused as discriminatory. Ostentatiously citing the Federal Constitution as their point of authority, and the need to keep up in the race for development in the globalised world as justification at whatever cost, they would bark ever so loudly against the slightest trace of any such traditio-religious influence within the government authorities or public spheres, even to the extent of maliciously smearing the requirement for proper attire dress-codes in public offices as their imagined ‘creeping-monster’ of Islamisation.

On the other hand, of course, and thankfully, there are still those calling for the role of religion, in as much as our rich traditions, in all their beauty and exuberance to be given more prominent roles in charting our future course in accordance with the local context. In so calling, they too cite the Federal Constitution for justification, albeit in a more holistic approach, mustering the long legacy and history of the nation before colonisation, in the true spirit of Merdeka.

These overwhelming clashes of fundamental values emanate from the confusion and misguided understanding as to the very nature of our nation, and the failure to appreciate the Federal Constitution in the manner as declared by the late Royal Highness Sultan Azlan Shah that was quoted in the beginning of this writing, that in actuality aims to free us from the chains of colonial ideologies, and to allow us to chart our own paths according to our own terms.

That is why it becomes all the more critical in reading and interpreting the Federal Constitution today, the very pith and substance of this document and the historical backdrop of the fact that it was a binding agreement (and still is binding today), must not be lost in our tendency to regard it merely as the highest law of the Federation in the realm of purely legal terms.

As held by Thomson CJ in The Government of Kelantan’s case cited above, “…although the Constitution forms an important part of the municipal law of the country, it is also part of an Agreement between the previously sovereign States that went to make up the Federation of Malaya… The parties to that Agreement were Her Britannic Majesty, as the Sovereign of the then British Settlements (which later became States) of Penang and Malacca, and the Rulers of the nine Malay States of Johor, Pahang, Negri Sembilan, Selangor, Kedah, Perlis, Kelantan, Terengganu and Perak.”

The key-term above is to be found in the phrase “previously sovereign States”, which necessarily indicates that the Malay States were and have always been ruled by the respective sovereign Rulers as the heads of the States, even prior to Merdeka. The significance of this is the fact that the Courts actually acknowledged that the history and narrative of this nation did not, and should not start with the year 1957, or 1963, but instead the sovereignty of our nation ran for hundreds of years before that, without interruption including during the colonial era, based upon the thrones of the respective Malay Islamic Kingdoms (except, of course, for the States of Malacca and Penang — where the former ended with the coming of the Portugese in 1511, and the latter with the secession to the British in 1786).

This was acknowledged by the British themselves, sixty-four years before we celebrated Merdeka for the first time in 1957. The British Secretary of State for the Colonies in the case of Mighell v Sultan of Johore [1894] 1 Q.B 149, when asked by the bench to clarify on the position and sovereignty of the State of Johore and its Sultan, was reported to have declared in 1893 as follows:-

“[T]hat Johore was an independent state and territory in the Malay peninsula, and that the defendant was the present sovereign ruler thereof; that the relations between the Sultan and Her Majesty the Queen, which were relations of alliance and not of suzerainty and dependence, were regulated by a treaty made on December 11, 1885, of which a copy was enclosed; that the Sultan had raised and maintains armed forces by sea and land, had organised a postal system, dispenses justice through regularly constituted courts, had founded orders of knighthood, confers title of honour; and, generally speaking, exercised without question the usual attributes of a sovereign ruler.”

Based upon the above declaration, the British judge that was hearing the dispute in the case held that the British Courts had no jurisdiction to hear the case, since it involves a Sovereign Ruler of the Sovereign Throne of Johore.

In another case, also decided before the Malayan independence and during the colonial administration, the Plaintiff in Duff Development Company Limited v Government of Kelantan and Another [1924] A.C. 797 tried to sue the Government of Kelantan in the British Courts in the 1920s, but the House of Lords again held that the British Courts had no jurisdiction to hear the matter, since the defendant was a Sovereign Government of Kelantan. It cannot be stressed enough that these were all declarations and pronouncements on the sovereignty of the respective Malay Islamic thrones made way before we celebrated our first Merdeka in the year 1957, and even in the face of the colonial era.

Indeed, this is a very important fact for us to acknowledge because it would determine the very nature and basis of our nationhood, upon which our collective actions on other fundamental issues would be dependent: that the thrones and sovereignty of the Malay Rulers had continued from time immemorial down to the present day, uninterrupted even in the face of the colonial administrations; that the legitimacy of the Federal Constitution that we all accept as the highest law of the Federation emanates from the sovereignty of the respective thrones of the Malay Islamic Rulers who agreed to come together and form the Federation and thus gave birth to the highest law of the Federation; and that the Federation that was formed by the Malay Islamic Rulers in 1957 was thereafter strengthened in the year 1963 with the inclusion of Sabah and Sarawak (and Singapore, which later left the Federation), to become the Malaysia that we know today.

Thus, appreciating and embracing these, it would be timely on this 59th year of the nation’s anniversary, for us to recall and remember the clear aspirations that our forefathers had when our nation first celebrated Merdeka on the 31st August 1957. Just as the seven shouts of “Merdeka” by the first Malayan Prime Minister Tunku Abdul Rahman was followed by the Muslim call to prayer — the azan — by Datuk Hassan Azhari (now Tan Sri), the spirit and pursuit of nation-building was best expressed in the prayer read out aloud by the late Syeikh Haji Ahmad bin Muhammad Said, following the cry of Merdeka and the azan on that august day during that august event:-

“O, Allah! Bestow upon the public servants, the cabinet ministers, the sultans and rajas, and the leadership of this country the guidance to protect the Islamic injunctions, as well as the special privileges of the people, to uphold justice and the rule of law, and to remain steadfast within the beauty of the religion of Islam.

“O, Allah! Make them the agent of change for the state of the Malay people, so that this nation could achieve the development that is so aspired for. O, Allah! Help the Malay nation, and guide us in our pursuit in becoming the best of mankind. Guide us to the straight path, the path of those upon whom You have bestowed favour, and not of those who have evoked Your anger or of those who went astray.

“O, Allah! Protect us from difficulties, and provide us with Your blessings in the face of challenging situations, and save us from the evil things, and grant us Your blessings upon our prayers. Harmonise the people of the different races so that we could all live in peace and security. Free us from unpleasantness and difficulties with Your Mercy, O Lord the most beneficent and the most merciful.

“O, Allah! Make the Malay people, as well as the other communities and this nation the protectors against disasters, so as to defend ourselves from invasions and aggressions. Help us defeat all of our enemy and those spiteful people. Direct Your disdain and wrath against those extremists and who causes damage. O, Allah with Your all-seeing attribute, watch us and fortify us with Your protection.” (Loosely translated from the Malay translation of the prayer from the original Arabic).

* Aidil Khalid is a lawyer practising in Kota Damansara, Selangor, and is the current campaign coordinator of the Concerned Lawyers for Justice (CLJ).

**First published in The Malay Mail Online, 30th August 2016.

***Featured photo taken from http://mamapumpkin.com/2012/malaysia-day-weekend/

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