Why I am a Constitutional Malaysian by KJ John

I was born Malaysian and know no other nation as my own. Malaysia is
my home. My parents are migrants from Kerala, India, but because I was
born in Malaya before Merdeka, I am a Malaysian under Article 30 of
the Federal Constitution. I have a document to prove it.

Therefore, I am a Constitutional Malaysian; meaning my Malaysian-ness
is protected and preserved by the constitution of the Federation of
Malaysia. No authority can deny me that privilege, except if I deny
some terms pre-defined by the constitution.

My Malaysian-ness is therefore defined by the constitution and not by
the government or any of its agents. As Malaysians we can all enjoy
the same rights and privileges as guaranteed, protected and preserved
by the constitution. That makes us all Constitutional Malaysians.

My identity card states that I am an Indian by virtue of the race of
my father. But, as I have argued in an earlier column, my parents are
Malayalee by birth and ethnicity and they may have been Indian
nationals before – but not any more.

They are also Malaysians who pre-date the Merdeka Social Contract and
the resultant constitution and therefore are citizens of the
Federation of Malaysia and also Constitutional Malaysians.

Now, why am I arguing the issue of my Constitutional Malaysian-ness? I
was in the Federal Court for the Lina Joy case recently, both as an
ordinary citizen and as a student of the Federal Constitution under
the late Professors Ahmad Ibrahim and Nik Abdul Rashid.

Precisely because of what I heard said in court, I am genuinely
bewildered by the arguments of the senior federal counsel and the
lawyer for the Islamic Development Department (Jakim) who
reinterpreted Malayan socio-political-cultural history, the original
social contract and the resultant constitutional precedent.

This was based entirely upon a non-historical but purely personal
Malay-Muslim and peninsula-biased argument. Admittedly, though, they
cited anecdotal historical facts and related issues.

The Federal Constitutional history of the inclusion of Sabah and
Sarawak and the formation of Malaysia thereby was totally ignored,
even though one of the presiding judges is a bumiputera from Sarawak.

Interpretation ’shocking’

I was utterly shocked, especially by the senior federal counsel
arguing so on behalf of the government. The counsel’s role and
responsibility is based on the sworn promise to uphold the Federal
Constitution as part of the judicial arm of governance of this nation.

In this case, she cannot be partisan in her argument, as she must be
equally concerned for the protection and preservation of the human
rights of all Malaysians under the so-called freedom of religion
provision of Article 11.

Constitutional history dictates understanding and appreciating both
the Federation of Malaya (1957) and then the formation of Malaysia
(1963). If all our international human rights commitments and meaning
of the freedom of religion under the Universal Declaration of Human
Rights have no legal bearing upon case-law in Malaysia, is it not a
matter of national integrity that we resign from sitting in the United
Nations Human Rights Council?

What the senior federal counsel said even sought to nullify and
preclude Malaysia ever becoming a signatory or ratifying related
commitments under the relevant laws of Malaysia. The foreign affairs
minister and government have categorically stated at many public fora
that it is only a matter of time before Malaysia ratifies all the
human rights related laws, after the Attorney-General’s Chambers have
carried out reviews of laws and regulations.

The senior federal counsel’s statement seems to violate even stated
national public policy, at least to my mind. Could the
Attorney-General (AG) please clarify if this is in fact the new policy
of the government with regard to our human rights commitments under
the UN system? If so, all Malaysians need to know this, and equally,
all diplomatic missions in Malaysia need to better understand this new
policy stance.

As a former government officer of 30 years, I know that all senior
government officials are gazetted in their posts and sign the oath of
service to uphold the constitution and to sincerely serve the
government of the day.

The government is a multi-racial, multi-religious, constitutional and
democratically elected one; not a Malay-Muslim one. Moreover, with the
inclusion of the bumiputeras of Sabah and Sarawak, their basic rights
have to be equally protected without a peninsula-Malay-Muslim view of
the world.

That was probably my greatest shock; that a federal officer of such
high rank could blatantly give an interpretive view of the official
public position on Article 11, which appears to go against any
ordinary public servant’s views of historical precedence in this
country.

As with the police chief’s ruling on the Muslim headscarf issue, it
goes against the constitution if public officials can use their
personal and private interpretation of the rules and regulations
without due regard to constitutional guarantees.

Clarify stance

I hope that the AG’s Chambers will clarify if in fact the government
takes such a particular and peculiar view of Article 11, in disregard
of internationally accepted and acceded definitions.

The specific interpretation denies every concept of the dignity of man
and the related freedoms of conscience and personal belief.

If there is no freedom of conscience, I am not sure what it means to
be a human being. Whether it is the Lina Joy case or that of another
Muslim who practises another interpretation of Islam which is not the
mainstream view of Malay-Muslims, surely there must be some basic
freedoms of faith.

If the argument proposed and propounded by the learned lawyers for the
government and Jakim is to be accepted, once born a Malay-Muslim in
Malaysia there can only be one and officially interpreted view of
faith and practice of the Islamic faith amongst Muslims. Is this true?
Really!

To my mind and heart, once a human being loses his privilege of
conscience, there is very little else which gives us the privilege to
distinguish ourselves from the other animals. That and the privilege
of communicating with others about matters of life and death are what
make us human at the most basic level.

If such personal sense and meaning making are removed or forced upon
any of us by whomsoever, it surely does not mean much to being human.
We might as well become robots or be reduced to animals.

I can only pray that good sense and wisdom will prevail. God bless
multi-racial, multi-cultural, and multi-religious Malaysia.

—

KJ John served in public service for 30 years and took optional
retirement to work in his own consulting group. He hopes to see
transparent and open, new governance practiced in Malaysia some day.

Source: Malaysiakini

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Published:
15.07.06 / 4am
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