22. CONSTITUTIONAL DEMOCRACY AND NATIONAL IDENTITY | The May 13 Tragedy

The Constitution of a nation performs three functions, namely, it expresses the consent by which the people actually establish the nation itself: it sets up a definite form of government; and it grants and at the same lime limits the power which that government possesses. Although a Constitution is a fundamental law of a country, there are some provisions in the Constitution which are more basic than others and. therefore, are "entrenched" in it. As regards the Malaysian Constitution. however, the "entrenched provisions" include:

1. the whole of Part M which are provisions relating to citizenship; and even after the Proclamation of Emergency it is provided in Article 150 (6a) that provisions in this Part shall not be suspended or modified;
2. Article 71 which provides for Federal guarantee of the Constitution of each Suite and the rights and prerogatives of the Malay Rulers;
3. Article 152 which provides for the Malay language to be the National Language and ultimately to be the sole official language;
4. Article 153 which provides for the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and [82] legitimate interests of other communities in accordance with the provisions of that Article;
5. Article 159 which provides inter alia that any amendment to the provisions relating to the Malay Rulers (Articles 38, 70 and 71) and the special position of the Malays (Article 153) shall not be passed without the consent of the Conference of Rulers.

To appreciate the political importance of the entrenched provisions of the Constitution one has to go back to the history and origin of the Constitution.

After the Malays rejected the MacMichael Plan, a Working Committee was appointed in 1946 by agreement between the Governor of the Malayan Union on the one hand and Their Highnesses the Malay Rulers and Representatives of UMNO on the other. It was made known too. and understood by the Working Committee, that the question of citizenship was to be studied on the clear understanding that the Secretary of Stale "has accepted the principle that the special position of the Malays shall be safeguarded". The Committee was also reminded that "the Malays have no alternative homeland whilst the remainder of the population, with few exceptions, retain in varying degrees a connection with their country of origin and in many cases regard that country and not Malaya as the primary object of their loyalty”.

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However, a second Committee was formed in 1946 to look into the draft proposals of the first Working Committee and also to see to it that "all the interested communities in Malaya had full and free opportunity of expressing their views". This Committee held several public meetings and received 81 memoranda in all from the various communities in the country. It is important to note that the majority of the non-Malays, as expressed in their respective memoranda, did not question the special position of the Malays or the sovereignty of the Malay Rulers.

The 1948 Federation of Malaya Agreement for the first time made provision for the acquisition of citizenship by non-Malays in the Malay States. This provision was further widened by an amending ordinance passed in 1952. The next important landmark in the history of citizenship in this country was the Merdeka Constitution. A commission was appointed for this purpose with Lord Reid as Chairman. In all, there were 118 meetings of the Commission in Malaya, in addition to the consideration of representations in a less formal manner. Many of the recommendations of this Commission were embodied in the Merdeka Constitution. A further gap was opened by the introduction of Article 14 (1) (d) which conferred citizenship by operation of law to "every person born within the Federation on or after Merdeka Day". On Malaysia Day this provision was amended to read "every person born within the Federation on or after Merdeka Day and

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before October 1962." These were agreed to by the Malays in return for a reaffirmation of the special position of the Malays and the specific obligation of the Government to safeguard that provision while at the same time protecting die legitimate interests of the other races.

The entrenched provisions in the Constitution are the result of agreement between all the communities in this country. They are the product of consultation and compromise. They represent binding arrangements between the various races in this country, and are the underpinnings on which the constitutional structure such as fundamental liberties, the machinery of government and a score of other detailed provisions are built. If these entrenched provisions are in any way eroded or weakened, the entire constitutional structure is endangered, and with it. the existence of the nation itself. It was the failure to understand, and the irresponsible and cavalier treatment of these entrenched provisions, that constituted one of the primary causes of the disturbances on May 13, 1969. Those who believe in the democratic tradition tend to think in terms of fundamental political liberties, freedom of speech, freedom of assembly and freedom of association. This belief, however, has never accepted the theory that any person can advocate treason or sedition or what comes to the same thing, the abolition or advocating the overthrow of constitutional government by force, fraud or subversion.

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It is considered that this country's racial problems can be met in the following ways. Citizens of this country, especially those who became citizens by virtue of the provisions that started with the Federation of Malaya Agreement, 1948. leading to the Merdeka Constitution, 1957 should understand the significance of the entrenched provisions of the Constitution. Malaysians, despite their ethnic origins, should appreciate the potential and distinctiveness of their country. The guidelines will be provided by the newly-formed Department of National Unity, and the National Operations Council.

Secondly, it will be necessary for the Government to enact laws which will inter alia make it an offence for any person to utter, print or publish words or statements or do any act which questions any matter, right, status, position, privilege, sovereignty or prerogative established or protected in the entrenched provisions of the Federal Constitution, or which has a tendency to promote feelings of ill-will and hostility between the different races.

It may be necessary to consider amending the Federal Constitution itself for the purposes of accommodating the new laws as well as for protecting the provisions of Article 152 (relating to the National Language and the languages of other communities) so that this Article will be placed with equal importance with such provisions as Articles 38 (relating to the Conference of Rulers and

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its functions) 71 (relating to Federal guarantees of State Constitutions) and 153 (relating to position of the Malays and the legitimate interests of the other communities) all of which provisions cannot by virtue of Article 153 (5) of the Federal Constitution be amended or repealed without the consent of the Conference of Rulers. It will also be necessary to protect in the same manner any law providing sanctions in respect of any act or utterance which questions matters contained in the entrenched provisions of the Constitution.

Finally, it may be necessary to consider amending the Federal Constitution to protect Article 159 (5) by providing in the Constitution itself that this clause shall not be amended or repealed without the consent of the Conference of Rulers. The passing of these laws will provide the basis for an assurance that racial feelings will not again be exploited by the operation of normal democratic processes. These measures are tenable in law and are not inconsistent with democracy.

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