Constitutional Supremacy: An Open Letter to Those Who Attack Our Constitution

The recent happenings at the UMNO AGM have seen the leaders of our nation speak out in defence of a particular interpretation of the Constitution. They have spoken out in favour of ketuanan Melayu and a "Malay Agenda", and the ostensible source of these "rights" is, of course, the Constitution. The natural conclusion, of course, is that it is our Constitution which is supreme in this country. The Federal Constitution is the source of our rights, our liberties, and our ideals. The problem, however, is that it is also the ostensible source of lies, misattributions, and delusions. (An additional problem lies in the fact that our Constitution has been amended several hundred times, and been treated effectively like toilet paper - but this is a peripheral problem - none of these amendments can lend support to the lies we have been told about the supreme law of the land.)

The delusion of ketuanan Melayu is perhaps the most obvious one. Has anyone ever managed to locate that clause of the Federal Constitution which proclaims the Malay race as supreme in this land? Has anyone discovered that article spelling out the eternal political superiority of the bumiputra? Is there a single shred of evidence in our Constitution that can conceivably prop up the lie of Malay supremacy? To state the obvious, there is not.

We have been told that the Malays have special "rights" which belong to them under Article 153 of our Constitution. As Azmi Sharom recently noted in the Sun, this is another lie which has been fed to us by deranged, and probably illiterate politicians. Article 153 never uses the term "right" or "rights" to refer to the Malays or the bumiputra. Indeed, the only instances of such a phrase in this article appear where the Article explicitly notes and protects the rights of other Malaysians - such as Article 153(7), and I quote:

Nothing in this Article shall operate to deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him or to authorised a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of a person any permit or licence when the renewal or grant might reasonably be expected in the ordinary course of events.

Rather, what the Malays (or the bumiputra) have is a "special position". Interestingly, our Constitution leaves this "special position" open to interpretation, since it never defines the terms of this special position. Some would like us to think that this special position is effectively ketuanan Melayu - Malay supremacy - granted to the Malays/bumiputra by virtue of their native status in this land. Quoth Azimi Daim, UMNO Youth Information Chief: "In Malaysia, everybody knows that Malays are the masters of this land. We rule this country as provided for in the federal constitution." But is there any supporting evidence for this definition, within or without the Constitution? Again, the answer is an emphatic no.

After independence, the Tunku told Time magazine: "In any other country where aliens try to dominate economic and other fields, eventually there is bitter opposition from the indigenous people. But not with the Malays. Therefore, in return, they must appreciate the position of the Malays." Putting aside the now anachronistic reference to "aliens" - after all, is there any other country that non-Malay Malaysians would call home besides Malaysia? - this clearly indicates that the position of the Malays is precarious, economically - and thus they have been granted a special economic position to prevent them from being excluded from the economic life of our country. If one digs even further, the Reid Commission which drew up our Constitution makes it clear that their intention was for Article 153 to protect those who "would be at a serious and unfair disadvantage compared with other communities". The Commission even originally recommended that Article 153 expire in 1972, 15 years after independence, unless Parliament renewed it. This clause was stricken from the draft of the Constitution before it passed, but it is clear that Article 153 would have been renewed at any rate. After all, even 50 years after independence, it remains clear that the Malays are at a very obvious economic disadvantage to the other communities in this country. It is also clear, if one looks at the Constitution with a neutral and objective lens, that this economic disadvantage does not and should not translate to political supremacy.

Further pursuant to these lies we have been fed about ketuanan Melayu is the idea that the non-Malay communities will forever be indebted to the Malays for the granting of our citizenship. Again, is this idea to be found in our Constitution? Can any objective reading of our Constitution defend this stance? The short and simple answer is "Bloody hell, no." Tell me, where does it say that non-Malays must defer to the political judgement of the Malays? Where does it state that the citizenship of non-Malays is subject to and conditional on the acceptance of Malay supremacy? Where is it suggested that non-Malay citizens are inferior to Malay citizens? Even Article 153, that supposed bastion of ketuanan Melayu, explicitly spells out in Article 153(1) that:

It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.

Article 153 is not just about the special position of the the bumiputra - it is about the legitimate interests of the other communities that make up 40% of Malaysia, an these legitimate interests include those laid out by Article 8(1): "All persons are equal before the law and entitled to the equal protection of the law"; and Article 8(2):

Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

Have you heard and understood that, Azimi Daim, you functional illiterate? "All persons are equal before the law and entitled to the equal protection of the law." That means all Malaysians "rule this country as provided for in the federal constitution." Not just the Malays. It is Malaysians who are "masters of this land", not just the Malays. Unless we are now abrogating kedaulatan perlembagaan, it is clear that our Constitution guarantees political and economic equality for all Malaysians, with the exception of certain economic provisions required for the economic advancement of a community which has in the past been excluded from the economic sphere, and is still hobbled by disadvantages in the realm of education and capital.

Much has been made out of the fact that several multiracial parties, past and present, have called for the political and economic equality spelled out in the Constitution to be recognised by our leaders in the Barisan Nasional government. Interestingly, however, these oft-criticised people and parties have rarely, if ever, opposed the entrenched provisions of our Constitution. In 1971, the portions of the Constitution related to the Malay rulers, the Islamic religion, the Malay language, the affirmative action provisions, and citizenship were entrenched - effectively made unamendable without the consent of the Conference of Rulers. The Sedition Act also criminalised the questioning of these entrenched Articles. It is telling, however, that those who are so quick to shout down those opposing the political marginalisation of non-Malay Malaysians have never put their money where their mouth is - they have never attempted to haul these people in front of a judge and have them tried for sedition. There are some notable exceptions, one of them being when Malaysiakini was shut down for publishing a letter criticising Article 153 - but the big fish, like Karpal Singh and Lim Guan Eng, have been jailed for sedition on other grounds. Even in the infamous Ops Lalang, most of those arrested were detained under the Internal Security Act, not the Sedition Act.

Politicians can complain and whine all they like about people attacking their non-existent "rights" and their non-existent ketuanan. They can grumble all they like about Bangsa Malaysia, moan all they like about the DAP's "Malaysia For Malaysians" campaign - but until they can present any evidence in a court of law that these people and policies are seditious and contravening the entrenched portions of our Constitution, they can and should be ignored. Those who have been accused of sedition without having charges filed against them may even want to consider legal retaliation. After all, it is a very serious thing to accuse anyone of wanting to overturn our cherished Constitution - accusing someone of commiting a crime is, by any definition, slander. (Although I suppose this would not be realised by some politicians, since they seem to think they can amend the Constitution wantonly, and treat it like any old scrap of paper by passing amendments to it every few years.)

Even the most famous critic of ketuanan Melayu, Lee Kuan Yew, explicitly made clear his support for Article 153. He even defended it, telling an Australian audience that "if the immigrant communities ... do not see the problems, if they can't feel what it is like to be a poor Malay, and don't feel for him, then I can say very soon he will manifest his disaffection in a very decisive way and the whole country will be thrown into turmoil." In our Parliament, he said: "...I am a Malaysian. I am learning Bahasa Kebangsaan and I accept Article 153 of the Constitution." Mind you, he was not being coerced into this by the Sedition Act - Lee spoke these words over six years before it became illegal to question Article 153. These words make it clear that a "Malaysian Malaysia", which Lee fought for, is not a Malaysia that leaves any particular community behind, economically or politically - and that naturally includes the largest community in our nation, the bumiputra. A "Malaysian Malaysia" need not repudiate Article 153 - indeed, it ought to protect it as long as it remains necessary.

One may question Lee's motives. Certainly, he was a political opportunist. Lee was and is rather conniving man, who has no qualms about squelching democratic ideals when it serves his purposes. It can even be justifiably argued that Singapore systemically marginalises the Malays. But if so, criticise Lee on legitimate grounds - not on the blatant lie that he campaigned against a key Article of our Constitution. One may make similar arguments about people like Anwar Ibrahim and the DAP - but if so, oppose Anwar and the DAP on these grounds. Don't further the lie that they are attacking our beloved Constitution. Don't feed us untruths about people attacking non-existent rights, like many people did at the recent UMNO AGM.

Perhaps the most prominent of these people, Hasnoor Hussein, deserves to be heard here: "If they question our rights, then we should question theirs. So far we have not heard the Malays questioning their right to citizenship when they came in droves from other countries." First, note the cop-out! Hasnoor avoids treading on the dangerous ground of slander, by stating "If they question", but his implied meaning remains clear - there are people who "question our rights", so "we should question theirs".

But Hasnoor has made a gigantic mistake here - two wrongs do not make a right, Hasnoor! If there are people questioning the affirmative action provided by Article 153, the appropriate and lawful (although arguably unethical) remedy is to jail them for sedition. It is not to "play with fire" (as another prominent UMNO leader has said) and question the legitimate interests of other communities! Remember, the Sedition Act does not just protect Article 153 - it also protects Part III of the Federal Constitution, which deals with matters of citizenship. Question the citizenship of the non-Malays, and you earn yourself a ticket to His Majesty's hotel in Kamunting (or some other scenic destination).

Furthermore, it may be legal to state that the non-Malays "came in droves from other countries", but it probably isn't ethical at all. Mr. Hasnoor, do you have any non-Malay friends, colleagues, or associates? Perhaps you are familiar with a non-Malay or two in the MCA or MIC, your partners in the government? Have you considered telling them to their face that "they came in droves from other countries"? Have you thought of how they would feel? It is an unjustifiable affront to the patriotism and citizenship of the non-Malays to insinuate any disloyalty on their part by telling them "they came in droves from other countries".

Mr. Hasnoor, I did not come from another country. Okay, maybe I did in a technical sense, since I was born in Japan while my father was studying, and then I stayed in Singapore while my father earned an honest living. But I have my rights. I have my blue IC and my red passport. I have been a Malaysian citizen since that day my father registered me as such in the Malaysian consulate in Japan. I have known no other country as home since my family crossed the causeway in 1996 to finally kembali ke tanah air. I do not owe any loyalty to China, Japan, or Singapore. I did not come here from any other country to steal your rights - I was born a Malaysian, and God willing, will die a Malaysian. So, Encik Hasnoor, Encik Azimi, (or is it Datuk?) I would kindly appreciate it if you and your ilk would do the Malaysian thing, and stop treating me like some pendatang asing. (Well, some Indonesian pendatang asing get better treatment than I do, but let's put that aside, shall we?) I am a Malaysian. So are you. Can we please end the theatrics and the lies, and act dengan jujur dan ikhlas, by standing up for our Constitution? By not treating it like dirt? By pretending it says something that it does not say? By refraining from accusing other Malaysians of opposing it? By defending the rights, privileges and positions of all Malaysians, Malay, Chinese, Indian, bumiputra, or lain-lain?

Keranamu Malaysia,
John Lee