‘Almost there!’: The end of democratic Constitutionalism in Malaysia?

Clive Kessler, The University of New South Wales, Sydney

Almost there!

Or so some may say.

One does well to be clear that, although he now serves as the current Agong, the recent royal declaration that “the name of Allah” is “exclusive” to Muslims was made by Sultan Abdul Halim Mu’adzam Shah in his capacity as the Sultan of Kedah, at his state-level royal birthday ceremonials.

Interestingly, it was Utusan Malaysia —— which broke this news and which can seldom be accused of underplaying things in this area of “official, national Malay interest” —— that chose to present it as an authoritative pronouncement by him as the Yang di-Pertuan Agong, Tuanku Abdul Halim Mu’adzam Shah.

A royal declaration

One needs to remember that the Sultan of Kedah is just one of nine “traditional” Malay state rulers.

But he is no ordinary one, no “also-ran” royal. He is the first among equals and pre-eminent.

He is the most senior of the state rulers both in years and also in length of royal service in occupancy of the throne. He is, so far uniquely in modern Malaysian history, serving a second term as Agong, the first having come almost half a century ago in the early 1970s.

So his declaration was just one ruler’s affirmation. But a most significant one.

Just one ruler’s view, perhaps. But, not surprisingly, with his strategic acumen and sharp sense of timing, the Perkasa head Ibrahim Ali soon saw the opportunity, seized the moment, and stepped into the inviting gap.

It was now time, he immediately insisted, that all state rulers follow suit with the issuing of similar prohibitive, exclusionary declarations.

Once that begins to happen, once the royal snowball begins to roll, it is not hard to envisage the time, and soon, when, beyond staking their own separate claims, the royal heads of the Malay states will come together in the Council of Rulers to reach a consolidated common stance to the same effect, to be proclaimed by the Agong speaking as the Constitutional monarch —— as the personification of the Federal Constitution and of the principles of Malaysian Constitutionalism.

And with that, whatever its historical merits or accuracy, the royally affirmed position will become authoritatively implanted in national life —— in effect unappealable, undisturbable and irreversible.

And that will be that. It will stand, whatever its merits, because a combination of powerful forces will be determined that it must. That, once formally affirmed, it can never be put aside.

When that happens, the end of the journey will have been reached —— a journey that has been seriously and purposefully under way since the morrow of the 2008 national elections, GE12.

Then, when that happens, people, some people, will be happily able to say “Here at last! Destination reached.”

A journey begun

It is a journey that began in a time of uncertainty, even apprehension —— a largely unwarranted apprehension —— and an “existential” Malay political fearfulness.

The results of the 2008 election came as a shock to some. Certainly to Umno, and also to many whose political fates were tied to it.

Umno was not only dealt a severe setback, it had not taken simply a body blow. More, its political nerve “was shot”, its confidence in its own ability to rule, and maintain the terms of its own domination, was badly shaken.

As it faltered, others boldly stepped forward: most notably, the core of that network of pro-Malay pressure groups —— groups that seek to exercise a hard-line, adamant Malay “veto power” over national politics —— that are centred upon Perkasa.

The component organizations of this ramifying network —— some with apparently large memberships, but many with more “chiefs” than “Indians”, all shielding their meagre numbers behind grandiose titles and ornate display letterheads —— like to describe and portray themselves, misleadingly, not as outright and explicit political organizations but, more reassuringly, simply as NGOs. (NGOs are supposed to be “warm, fuzzy”, and unthreatening —— so who can decently be against them and what they wish to do? It’s a clever and disarming ploy, but, like all ploys, misleading.)

As this network of organizations began to take shape and be “bedded down”, something else also happened.

A parallel exercise in political buttressing and consolidation also began to take place, and be purposefully pursued, at the doctrinal or ideological level.

Attentive observers could see what was beginning to happen, and were disquieted.

A position was now beginning to be developed, and at that stage tacitly suggested more than openly promoted, that would only become fully explicit several years later, with the approach of the next national elections, GE13, in 2013.

Before then the radical new doctrine was promoted and projected almost subliminally. It was only those attentive observers who could see the different parts; who could “connect the dots”; and who could therefore discern, when still offered only in hazy outline at first, the overall shape of the new “ruling doctrine” that was being developed and brought together.

It was a doctrine that would only be made fully explicit, and promoted forthrightly, in the post-GE13 period when, unlike in 2008, Umno emerged once more as the dominant force in national politics, able to dictate terms (or so it seemed) to all other political parties, both on its own side of the political fence and also in the opposition.

The new doctrine

The new political doctrine that was assembled at that moment of what was seen by some as one of “Malay political crisis” —— where the entire “Malay stake in the nation” was suddenly seen to be, or so it was suggested, in jeopardy —— was based upon a very simple and economical exercise in “Constitutional expansionism”.

Expansionism, or “claim inflation” and interpretive “over-reach”, on two points, two key articles of the Federal Constitution.

First, it came to be suggested that Article 3, affirming the status of Islam as the “official religion”, meaning the symbolic and emblematic religion of the state, somehow entailed —— and had always been intended to imply —— that Islam was Constitutionally entitled and even destined to exercise a kind of “religious over-lordship” in Malaysian public, including religious, life, and for all of its citizens, non-Muslim and Muslim alike.

No such thing. That idea was repudiated not only by the Umno’s Alliance Party counterparts in the pre-Independence negotiations, the MCA and MIC, but forthrightly by Umno itself, through Tun Razak’s explicit affirmation of the “secular” (his word!) nature of the new nation-to-be. And, no less strenuously, it was rejected by the “traditional Malay rulers”, who were determined to keep any mention of Islam entirely out of the Constitution, or failing that to an absolute minimum, as a way of protecting their own standing, and basis of social power, as the heads of Islam in their various states.

Yet, even further, for some, notably those of the Syarie Lawyers Association, Article 3 now also means, or is taken to mean, that Islamic law is entitled and even destined to be —— and had always been prospectively and legitimately —— the basis of the national legal system, holding ascendancy over the so-called “Common Law” tradition.

To help advance this claim, legal practitioners and commentators of that “shari’ah-minded” inclination invoke the famous case of Rahmah v. Laton of 1927, in which the relevant judge held that Islamic law was, or was part of, “the law of the land”, meaning an integral part of the nation’s complex and evolving common law tradition.

But they do so (as I have pointed out elsewhere) by adhering to and promoting a perverse reading of Justice Wilson’s judgment and of what it is intended to convey. They read Wilson’s words as a charter for Islamic legal expansionism, of “shari’ah ascendancy” within the nation’s legal traditions, institutions and life. For making the entire Malaysian legal system both “shari’ah compliant” and shari’ah based.

They cling to and rely upon an unsustainable reading of what that judgment means; one that, if they are sound readers and competent construers of legal decisions, they must know is simply wrong. But they have persisted with it all the same. Presumably because, whether their view is in itself right or wrong, it can be used as an effective weapon —— especially against people who do not see or understand what they are doing and who are hence unable to “call their number”, call them to account.

And second, it was similarly suggested in that moment of great Malay political anxiety and fearfulness, and with similarly extravagant expansionist intent, that Article 153, which made —— and had only ever been intended to make —— some quite specific and circumscribed provisions concerning the “special position of the Malays” in state employment and the like, carried within it —— and had always done, and, so some now claimed, had always been recognised as doing —— the seeds and the deeply embedded rationale or justification of the ambitious, and radically “revisionist”, doctrine of “Ketuanan Melayu”: of overall Malay political ascendancy in perpetuity over all the state’s other citizens, all other members of the nation.

Expansionism in action: strategic use of the new doctrine

These two, vastly “inflationary” new readings (of Articles 3 and 153) had not only to be devised. They had also to be subtly and quietly promoted, until they became —— if not yet the standard or general “default” positions for understanding these two articles —— then at least something which people had gradually become habituated to hearing. Habituated, that is to say —— even without accepting them as true —— at least to hearing them without shock, surprise or dismay. These improbable but disquieting new views had to be in some measure “normalized”, made unremarkable.

Once that had been achieved, the new weapon was ready for use. The radical new doctrine could be deployed with strategic purpose.

And it was.

Its champions soon began to suggest —— at first merely by implication and later explicitly, in a defiant challenge to any who might think otherwise —— that whoever refused to accept that Article 3 directly, and by formative intention, provided for Islamic religious ascendancy, even over-lordship, and shari’ah legal centrality and primacy was, for that reason, not just against “the new revisionist doctrine” and its proponents but against and in defiance of the Constitution itself. Whoever disagrees, it was implied and suggested, is in rebellion against the nation’s very foundations.

And they also similarly began to suggest that anybody who did not accept that Article 153 provides, and had always been intended to provide, the deeply and authentically embedded foundations for Ketuanan Melayu was similarly against the Constitution.

That is to say: the champions of the new revisionist doctrine now claimed, and were prepared to assert explicitly and defiantly, that to be against Islamic religious domination, a sharia’h-centred state and Ketuanan Melayu was not simply to misunderstand Articles 3 and 153 of the Constitution. It was to reject, to be at odds and even at war, with the Constitution itself.

More, since the Malay rulers had an acknowledged Constitutional role as the heads of the Islamic religion in their states and to protect Islam —— and since, at any time, one of their number has a similar role and obligation as Agong at the national level, as well as to safeguard Malay interests and the Malay “stake” in the country generally —— to oppose the new doctrine, with its extravagantly expansionist constructions of Article 3 and 153, was to be against not just the Constitution as a whole but, most reprehensibly, against the Malay rulers with their important Constitutional responsibilities, and against the position of the Malay rulers themselves, or the “royal institution” as some call it.

It was to be radically and grievously at odds with the Constitution and its foundations. It was to be “at war” against the Malay rulers and (as some now claimed, in a bizarre further elaboration of the new doctrine of “modern Malay monarchy”) against the supposedly uninterrupted “sovereignty” which the Malay rulers had exercised, unbroken throughout the colonial period, over national society from the time of the Malacca sultanate to the present.

Daulat and kedaulatan: An aside

An aside, but a crucially important one. The argument is too complex to put in detail here. But, in short, “daulat”, or royal sanctity —— as was enjoyed under the rubric of sakti by the pre-Islamic Hindu-Buddhist “god-kings” or dewa raja of Southeast Asia, and later by their Islamic successors —— is one thing, “sovereignty” in the modern technical, jurisprudential sense is another.

No end of confusion has arisen from the combination of two facts, or linguistic “elisions.”

First, the rendering of the sakti of the dewa raja, when the Malay rulers became Muslims and their states Islamic polities, with the derivatively Arabic term daulat.

And second, and perhaps even more fatefully and confusingly, the more recent choice of rendering the modern notion of “sovereignty” in Malay as —— or the practice of “glossing” it with —— the abstract noun kedaulatan, formed as a secondary derivative construction upon the term daulat.

Just because the Malay rulers of the past had daulat (or an aura of cultural authority grounded in supernatural, cosmic forces), and though they continued to enjoy a measure of mystical and social and political “prestige” under British colonial rule, does not mean that they continued to exercise effective “sovereignty” in the modern sense.

Clearly they did not.

The sovereign power lay with the state, with the colonial regime and state structure, and with those in decisive control of it.

The daulat of the Malay rulers may have survived the colonial interlude. But not their kedaulatan, their overall effective political sovereignty —— or whatever formal, technical sovereignty that they had previously managed to exercise.

To confuse the two is to create uncertainty and invite chaos. But, for some, doing so is not just a “fudge” but a politically useful, a very serviceable, fudge.

The new ‘expansionism’ and ‘The Social Contract’

An important part of the story how this new Constitutional revisionism was advanced, “bedded down” and “normalized” has to do with the powerfully promoted notion of “the Malaysian Social Contract.”

Much has been said on this subject, and needs no repeating here.

Only two points need be made.

First, while the idea of “the social contract” here in Malaysia goes back to the landmark address given in Singapore by Abdullah Ahmad in 1986, it took a while to mature and take hold.

It was only in the Badawi years and after, as efforts to promote the idea of Ketuanan Melayu became more assertive (and also problematic, notably with the florid symbolic unsheathing and brandishing of the Malay keris at Umno Youth Assemblies), that the idea of the “social contract” and debate over it became central in Malaysian political life.

The matter became central because of the ideas of Ketuanan Melayu and the “social contract” were twins, born together in that same Singapore address by Abdullah Ahmad. They go and will always be yoked together because the idea of the “social contract” is an artful device for suggesting that the principle or doctrine of Ketuanan Melayu is, and has always been, integral to the Malaysian state and Malaysian public life; that it was a part, even a key part, of the pre-Independence “Merdeka negotiations and agreements” that became embedded in the Federal Constitution.

And, taking grip slowly after its original enunciation in 1986, it was really only in the immediate wake of GE12 in 2008 that a serious reconsideration of the idea of Ketuanan Melayu, and debate about it, began to take shape —— and was then abruptly terminated, under official government pressure following a Bar Council forum, when a number of the new, outspokenly pro-Malay pressure groups objected to the discussion and in effect forced the hand of the Umno-led government to close down any further public consideration.

It is from that time, and not before, that warnings about discussing the “social contract” and authoritative advice about its undisputable and “untouchable” nature, from the government and even the Council of Rulers, became a major feature of Malaysian public life.

The second point is this. Nobody sits down and at the time decides or even suggests, “Let us agree to create and then live by a binding national social contract.”

The view, or judgement, that one has been solemnly agreed to and formed is something that is always decided in retrospect. Anybody with the most elementary familiarity with the work of Hobbes and Locke, which established “social contract theory” in modern political philosophy (not that many people in Malaysia understand what all this is about, even though they are happy to pontificate endlessly on questions of “the social contract”), knows this.

We need to be clear. People everywhere have a need to consider the nature of the political community that they live in and its foundations. As they do, people sit down and subsequently wonder whether, or argue that, such a social contract has been, or must have been, agreed to; and they eventually conclude that —— even if none was agreed, or though there is no way now of knowing for certain that one ever was —— it may still be useful to look at things as if such a social contract had been negotiated. It is a retrospective process. It is how, in the present, the continuing existence of “political society” is explained.

(A small aside: The origins of most modern national political communities and the brokering of their foundational “social contracts”, whether historical or merely notional or imputed, lie shrouded in the mists of remote antiquity. But not those of Malaysia. They took place in a finite recent period between 1955 and 1957, with some supplementary work between 1961 and 1963, and are now made accessible in a substantial archive of historical documents and memoirs and through the scholarly monographs that analyse them. Yet strangely, when the moment came to develop a public notion of “the Malaysian social contract”, those who addressed the task chose to do so not on the basis of those documents and analyses —— or of the historical memory of still living actors and participants in the process —— but altogether independent of them, indifferent to and in defiant disregard of what they might reveal.)

What is clear in the Malaysian case is that there was no agreement to anything like Ketuanan Melayu as any part of the “Merdeka negotiations and agreements” that were to become embodied in the Federal Constitution.

On the contrary.

Those discussions and agreements were about drawing up a Constitution for a nation that was in-the-making and yet to come fully into being. The Federal Constitution was to be the basis for such a nation. It was to be framed as the primary and explicit means, the enabling device, whereby it might come into being; to support its emergence and consolidation, social and political.

And that nation-in-the-making, it was clearly resolved, was to be one grounded neither in Ketuanan Melayu, pure and simple ethnic ascendancy or “ethnocracy”, nor in any Islamically “sacralized” version of the same thing, an Islamic-Malay polity.

The Federal Constitution was, instead, to be the foundation expressly of and for a modern, progressive, democratic, ethnically complex, religiously plural, secular society and nation —— one in which all components might have the right to adhere to and retain their ancestral ways in their own separate lives and social “life-space” yet a society, a national society, that was to be based upon the principles and processes of inter-communal and inter-religious conciliation and rapprochement: upon an acceptance yet management of differences in public life; upon their combination and convergence, where possible, and, where not, their moderation, overcoming and transcendence, not their accentuation, in the political sphere.

Yet Abdullah Ahmad and those who take his lead were radical revisionists, not upholders and expounders of the original “Merdeka Agreements” or national “contract”.

Their wish is to set aside all that history, the real history of the nation and its origins, and instead, by a conscious act of modern revisionist political “myth-making”, to retrofit the idea of Ketuanan Melayu —— via the notion of the “social contract” (or their own strangely fabricated notion of it) —— into the very processes and discussions and history through which the Constitution, as the foundation of Malaysian national life, was produced.

These basic facts are clear, and should be well-known to and understood by any serious student or scholar of the Malaysian Constitution and its historical foundations.

It is a great pity that they are not much spoken of publicly these days, admitted, or taught to students in schools and universities. But that is another matter .. ..

And what follows from that

From those clear, basic facts something very important follows.

It is this.

You can argue that the Federal Constitution, as the product of the pre-Merdeka discussions and negotiations, is in effect a “national social contract.”

But if you do so, you cannot have Ketuanan Melayu. That idea was no part of the deal, of that foundational Constitutional charter of national life.

It is not part of those ideas, that process, that history.

Or, on the other hand, you can say that you want to have and uphold Ketuanan Melayu.

If people want to do so, that is their choice.

But it is one that has its price, one that comes with a cost.

You can make that choice, affirm that position, but you cannot argue for it on the basis, and with the authority, of the Federal Constitution and those who were its authors.

If you want to have Ketuanan Melayu, you must say —— and say openly and honestly —— that you are against the Federal Constitution, that you consider it a mistake, and that you wish to dismantle and replace it, “root and “branch”, with something else.

The “social contract” or Ketuanan Melayu: you can have one or the other. But not both.

Yet Abdullah Ahmad wants to have his cake and eat it too. More, he has persuaded many Malaysians, including most of those who are in a position to “call the shots” and set the terms of debate nationally on this question, that, with him, they can.

Even so, one or the other but not both: that is the only conclusion that is historically sustainable and reasonably supportable.

Yet recognition of the necessity of that choice goes against what has now become or is rapidly becoming the current orthodoxy, the “default position”.

It is directly contrary to the view that was identified and typified above as the radical revisionist view.

That new view asserts, or tries to, that Article 3 provides for Islamic religious supremacy and over-lordship and for the continuing and irresistible Islamization of the legal system; that Article 153 provides for, and carries deeply embedded within its words from the outset in 1957, the principle of Ketuanan Melayu, or categorical Malay political ascendancy and domination in perpetuity; and that to even question this radical view of the Constitution is to reject the Constitution and to be antagonistically at odds with, even in a state of insurrection or derhaka against, the “traditional” Malay rulers, the nation’s “Malay monarchical principle”, its central “royal institution.”

Well, if that new doctrine, which many these days claim to be the only acceptable view of the Constitution, is so historically dubious, flawed, counter-factual and unwarranted —— such a travesty of the real history of “the Merdeka process” —— how, we must ask, did it come about? How did it gain credibility, acceptability and even its current dominance?

How did it take hold?

A ‘purloined’ Constitutionalism

One can conclude only one thing.

That the Federal Constitution and the key ideas of Malaysian democratic constitutionalism have been “hijacked.”

That there has been, and it has suffered from, what we may call a process of Constitutional “grand larceny”, of illicit appropriation for improper purposes. A process whereby Malaysian citizens, at the mass or “wholesale” level, have been deprived of the Constitutional basis of their “personhood”, or core identity, as citizens of a modern democratic nation.

That is to say, something quite antithetical to the historic understanding of the Federal Constitution and contrary to the agreements that were reached between those who made the Federal Constitution possible, as a living and growing “national social contract”, has been substituted for it —— and is now being promoted and falsely justified in the name of a “purloined” constitutionalism.

Malaysia’s original, founding Constitution is now being dismantled, and its core democratic principles set aside, not by any coalition of avowed, explicit critics but by those who, so to speak, have seized the “title deeds” to the Federal Constitution and who now like to parade in the purloined mantle of its august and majestic authority.

This has been the work and achievement, as I and most of us can only view it from the sidelines —— I do not know what role the Malay rulers and their advisers may have played in this, and I have no interest in groundless, unscholarly speculation —— of those whom we may term the new Malay “political royalists”: the royalist theoreticians and ideologues, the rhetorically agile doctrinal innovators and quasi-jurisprudential proponents, of a post-modern yet still traditionalistic “Malay state”, supported in their cause by the local champions, in local political and cultural terms, of an Islamo-Malay political system.

Of course, it is an achievement of which they are presumably proud and one which they are determined to defend —— since they sincerely believe both that they are right and also in the ultimate justice of the national cause, and especially their own version of it.

But it is an achievement that has done, and threatens to go on doing, grave damage to the foundations and fabric of the Malaysian nation as we have known it for over half a century.

More, it is one whose continuing and unrelenting pursuit threatens to make this nation’s future uncertain, bleak, and painful.

Or, one could alternatively say —— using the three main words that Hobbes bequeathed to us to describe what we, and any nation, are left with if we or they are so foolish as to throw away the basis of the social contract that we really do have —— “nasty, brutish and short.”

That is not a pretty prospect as Malaysia heads, beyond GE14, to its chosen encounter with destiny, as a nation aspiring to functional and successful modernity, in 2020.

* Clive Kessler is Emeritus Professor of Sociology and Anthropology at The University of New South Wales, Sydney.