Dr M’s constitutional claim a travesty, say legal experts

The constitution does not seek to impose “Malayness” on others or exclude people of different ethnic backgrounds, although it recognised Malay rights and Islam’s special position.

(FMT) – Legal experts say former prime minister Dr Mahathir Mohamad has misunderstood the Federal Constitution by claiming that promoting a multi-ethnic country goes against the constitution.

Constitutional lawyer Bastian Pius Vendargon said Mahathir’s claim was incorrect as Article 8 of the constitution states that all persons are equal before the law and entitled to equal protection.

He also said the constitution does not seek to impose “Malayness” on others or exclude people of different ethnic backgrounds, although it recognised Malay rights and Islam’s special position.

“Just because it doesn’t say anywhere in the Federal Constitution that Malaysia is a multi-ethnic society doesn’t mean it is not,” said Vendargon.

Mahathir has defended his claim, via a Twitter post, against criticism that he was playing with racial sentiments. He said he was only defending the constitution by citing its provisions.

Vendargon said a fundamental principle of parliamentary democracy – that of the separation of powers between the executive, legislature, and the judiciary – was not stated in the constitution.

“If you read it from cover to cover, you will never find it stated there,” he said. “Yet it has repeatedly been said in Federal Court decisions that when you analyse and appreciate the full depth of the Federal Constitution, it is quite clear that the separation of powers is part of Malaysia’s Westminster-modelled constitution,” he told FMT.

He said special privileges did not apply only to the Malays but also to certain other groups of people, namely the Bumiputeras, the natives of Sabah and Sarawak, as well as the aboriginal people in West Malaysia.

“So, if you look at that, you will appreciate that the entire reading of the Federal Constitution and understanding the fabric of the constitution in depth will tell you that Malaysia recognises every one of its citizens and has given them all the various rights.”

Philip Koh, an adjunct professor at Universiti Malaya, described Mahathir’s interpretation of the constitution as a “travesty”.

Koh said the constitution promotes a democracy that is conducive to building a multi-ethnic country, while recognising the role of Islam and the Malay’s rights.

“However, these constitutional recognitions do not negate the fact that, on the whole, the Federal Constitution is meant to protect a liberal democratic (political landscape).

“I’m not saying that valid contestations do not arise in any one instance as to how the constitution is interpreted, but to say that promoting multi-ethnic constitutional order is unconstitutional is a travesty of any interpretive approach (to the constitution).

“The Reid and Cobbold commissions, backdrop of Merdeka and formation of Malaysia, all affirm that we are a liberal democracy and not a race-based autocracy,” he said.

Koh said those espousing a misinterpretation of the constitution could cause unease among the people and be detrimental to the nation’s well-being.