Defending our chart and compass
By MARTIN VENGADASAN
Constitutional expert Prof Dr Shad Saleem Faruqi shares his passion for a national treasure that has guided this country’s democratic journey for half a century.
MY book is important because the Constitution is under attack,” says Prof Dr Shad Saleem Faruqi somewhat alarmingly.
The silver-haired gent is fresh from the launch on Thursday ofMalaysia’s Document of Destiny – An Introduction to the Federal Constitution, an epic work dealing with the document that has helped shape our country.
While he is impeccably attired and speaks in cultured tones, his fierce commitment to defending this country’s Constitution is unmistakable, and Shad finds himself an important thinker in an ideological war.
Prof Dr Shad Saleem Faruqi feels that knowledge of the Constitution is a pre-requisite to good citizenship, hence his effort to publish his latest book. – CHUA KOK HWA / The Star“The Constitution is under attack by a number of people who believe that we should move towards the Islamic state. It is under attack by those who feel that the ‘social contract’ must be renegotiated.
“Frankly, it is also undermined by judges and civil servants who apply their own interpretations of the Constitution and allow their personal allegiances to colour the practical application of the laws that govern our country.”
Just why is it important that this document needs to be so fiercely defended?
“In pre-legal or under-developed societies, religion or custom provided the base upon which people lived their lives. However, in a developed system you need political laws to form the nation.
“The Constitution performs a number of functions. It creates the branches of government and confers powers upon these branches.
Importantly, “It also imposes limits on these powers and describes the relationship between the various arms of government, the King and the Prime Minister, the Federal and State Governments, the Dewan Rakyat and Dewan Negara, and so on.”
Shad explains that the Constitution delineates a state’s relationship with its citizens, setting out their rights to life, liberty, property ownership, freedom of speech, and freedom of religion.
Despite his obvious passion for these legal documents, Shad admits that a Constitution is by nature imperfect.
“Life is larger than the law, and there will be many situations in which the law provides no guidance.
“A Constitution is sure to be full of ambiguities and conflicts. It seeks to strike a balance between might and right, to permit liberty, while at the same time enforcing responsibility.”
Checks and balances
The Malayan Constitution was first framed in 1956 and took effect upon Merdeka, on Aug 31, 1957.
It was subsequently revised upon the union of Sabah, Sarawak, and Singapore with Malaya to form Malaysia on Sept 16, 1963.
Since that time, however, it has experienced more than 600 amendments. That works out to an average of 13 changes a year since 1963! It almost seems as if this important document, fundamental to our democracy, has been tampered with willy-nilly....
Considered globally, this is, in fact, an unusual number of changes. They were possible because Malaysia’s ruling coalition (first the Alliance Party, and now the Barisan Nasional) has always commanded a two-thirds majority in Parliament, enabling it to change the Constitution at will.
This situation finally changed following the March 8 General Election – and Shad seems rather pleased about this.
“In any context, it is not good to give overwhelming power to one person or group of people. Power, like wine, goes to the head, and there is no man or woman alive who can be trusted with absolute power.
“The system needs checks and balances, and that is why the current political situation is preferable from the point of view of a Constitutional advocate.
“It means that the Government can function, pass laws, implement policies, but is not so strong as to ride roughshod over dissenting opinions.
“Indeed, the last general elections indicated a large gap between public and Government perception on many issues, which I believe is a result of having a press that is not free. The irony is that the Government wished for and received a compliant media, and then it proceeded to believe its own press!”
One of the more worrying Constitutional issues of late has been freedom of religion, specifically the freedom accorded to a Malay who wishes to change his religion.
“Here we have a classic conflict between freedom of religion and issues of apostasy,” says Shad. “In general Malaysians do have the freedom to profess and worship. But one has to ask, where does one draw the line on freedom of religion?
“Does it include the right to devil worship? The right to blaspheme other religions?
“But I don’t know of any other country in the world where race is as tied so closely to religion as it is in Malaysia for the Malays and Islam.
“In other Muslim countries, race is race, religion is religion. Here, there is no freedom to exit the religion because it is tied to political power.”
In their opinion
Shad’s willingness to discuss such issues openly means that he is open to attacks himself.
“I get a fair amount of feedback on my column in The Star. (Reflecting on the Law appears every fortnight, on Wednesdays, in the Views pages.)
“I would say that 60% are supportive, 30% oppose me, and 10% are abusive! I have learnt to live with it. I want to protect the Constitution but some think I am too liberal and others think I’m too conservative!”
Shad’s new book, Document of Destiny, is a historical and legal analysis of the Malaysian Constitution.However, Shad’s intellectual openness has also won him many friends.
Bar Council Human Rights Committee chairman Edmund Bon says, “I applaud Shad because he is one of the few scholars who will speak freely about religious freedom in this country. He is also very active in promoting Constitutional awareness.
“His column is an excellent forum to expose Constitutional and human rights issues, and is useful to the lay person because it is written in a way that is easy to understand without detracting from the importance of the issues at hand.”
Dr Sarjit S. Gill, professor of Social Anthropology at Universiti Putra Malaysia, agrees.
“I think he’s doing a very good job. Shad is known as a man of principle, who is critical with his work and who is not afraid to be critical of the Government in defence of the Constitution.
“That is something that is lacking in Malaysia, the ability to have healthy debate on important issues and take the opposite view if need be – we have many ‘yes men’ professors in Malaysia.
“The younger generation should take their cue from Shad, whose work is well-known internationally not just in Malaysia.”
Guided by moderation
Still, Shad acknowledges that, ultimately, the Constitution is only a guide to how a society should run.
“It is not enough to merely have a well-framed Constitution.
“One of the most beautiful Constitutions I have ever read was that of the old USSR. However, it was clearly not a functioning one. In other cases, such as India and the Philippines, there are wonderful freedoms promised in the Constitutions but they are paper rights because so many are engaged in a struggle for survival.
“In certain countries like France, Switzerland, and Sweden, there is less of a dissonance between the promise and the performance of the Constitution.
“However, the dissonance is very large in the United States, particularly if one looks at the African-American community.
“In Malaysia, the society that has evolved is one that has a strong economic base but is lacking in civil and political rights.
“Despite wastage and corruption, we were given a head start because we had a globalised economy before globalisation.
(Malaysia was integrated into the world economy from as far back as colonial times thanks to worldwide demand for our rubber and tin, among other resources.)
“Malaysia is not a failure by any means, but in terms of rights we are still in the era of the Emergency.
(The Emergency was declared by the British in June 1948 to battle a communist insurgency.)
“If we look at the Internal Security Act (enacted in 1960), it is not the most barbaric preventive detention clause in the world, nor am I opposed to preventive detention on principle, but it is the indefinite detention without charge that is so alarming.
“In such cases, the executive is the accuser, the adjudicator, and the executioner, which is simply unconscionable.
“Greater freedom must be given to civil society if we are to evolve.”
Shad believes that Constitutional literacy is an absolutely essential tool if Malaysians are to develop a keen political and civil consciousness.
“The Constitution is our chart and compass. I think knowledge of the Constitution is a pre-requisite to good citizenship.
“The Constitution is the guardian of our rights and the source of our freedoms. Yet it is not even taught in universities except to those studying law.
“Members of Parliament and senior civil servants can be blissfully unaware of the provisions of the Constitution.
“The youth are terribly ignorant of the painstaking process under which it was forged by leaders who had to battle extremism from within and without their respective communities.
“The Malaysian Constitution was not framed by ideological passion, but guided by the spirit of moderation.
“It has reconciled the seemingly irreconcilable conflict of interest between ethnic and religious groups in a way that has few parallels in the modern world.”
Landmarks
JAN 18, 1956: The Reid Commission was formed to carry out a Constitutional conference held in London.
Aug 31, 1957: The Constitution takes effect upon Malaya’s independence.
February 1962: The Cobbold Commission begins its study to incorporate the needs of Sabah and Sarawak into the Constitution of the proposed new nation, Malaysia, to be made up of Malaya, Singapore, Sabah, and Sarawak.
July 9, 1963: The Malaysia Agreement is signed by Malaya, Singapore, Sabah, and Sarawak.
Sept 10, 1963: The Kelantan State Government begins action against the Federal Government in protest against the Malaysia Agreement.
Sept 16, 1963: Malaysia is formed, and a revised Constitution takes effect.
Sept 23, 1966: A crisis erupts in Sarawak when Chief Minister Stephen Kalong Ningkan is unconstitutionally sacked by the state’s Governor.
May 17, 1969: The Constitution is effectively suspended under a state of emergency following racial riots on May 13.
Aug 31, 1970: The Rukun Negara (National Principles) amendments are made to the Constitution.
Nov 8, 1977: Emergency rule lasting three months is proclaimed in Kelantan after a vote of no confidence is passed against the then Menteri Besar, Datuk Mohamad Nasir.
Aug 3, 1983: A Constitution Amendment Bill is passed by Parliament but not agreed to by the Malay Rulers.
1988: The year of the judicial crisis when then Lord President Salleh Abbas and five senior judges were either removed or suspended from office.
1992: Following an assault allegedly committed by the Sultan of Johor, Constitutional amendments were proposed to remove the immunity against prosecution enjoyed by Malay rulers.
May 30, 2007: The Federal Court dismisses Lina Joy’s appeal to remove the word Islam from her identity card. – Source: ‘Constitutional Landmarks in Malaysia’, edited by Andrew Harding and H.P. Lee (ISBN: 978- 9679628197)
Life beyond the Constitution
SO much of Prof Dr Shad Saleem Faruqi’s life is connected with the study of Constitutional law that one could be forgiven for thinking that it is an all-consuming passion that leaves him time for little else.
But, as the man himself says, “life is larger than the law”, and there is much more to Shad than just the academic.
Born on Nov 17, 1946, in New Delhi just before India’s independence the following year, Shad was raised largely in Dehradun in the hills of Uttar Pradesh state.
His Urdu-speaking family (he has three older sisters and a younger brother) was wealthy enough to send the children to the United States to study, although Shad did well enough to earn his own scholarship at Wesleyan University in Connecticut.
After studying political science, he then made what he calls an easy transition to the study of law. He furthered his studies at the Aligarh Muslim University in India before getting his PhD at Universiti Islam Antarabangsa here.
However, it was not just studies that led him to settle here.
“I came here in 1971 for employment purposes but then I met and married my wife, Abidah Adam, a Malacca-born Malaysian. Since then I have taken up residence and am now a citizen of Malaysia.”
The couple have five children, aged between 34 and 16, and two grandchildren. None of Shad’s children, however, have followed his example.
“Well, my son is a law graduate but he moved into advertising. I think half of the country’s law graduates don’t practice as lawyers, but the training proves useful as many jobs have legal elements to them.”
When he’s not busy writing 800-page legal tomes or columns for newspapers, Shad spends a lot of his time reading.
“I read on all subjects not just the law and Islam. I would say that Khalil Gibran’s The Prophet is a particular favourite.”
While he might come across as the eternally desk-bound academician, Shad is actually quite the gardener: “I like to keep myself busy with walks, and I used to do a lot of gardening, although I’ve been a bit too busy lately. I have planted 15 or 16 trees in my compound and I plan to plant 100 before I move on from this life.”
Despite forming an early and deep affinity for political, legal, and philosophical study, Shad eschews the concept of having heroes.
“All my life, I’ve never believed in heroes. There are heroic ideas and heroic actions, yes, but for me there is no hero worship. Mahatma Gandhi and Winston Churchill, for example, were men who did things I greatly admire, but also other things that I didn’t care for.
“I think if you fall into the trap of hero worship you will eventually find that your hero may have feet of clay and you will be disappointed. Of course, as a Muslim, I know that the Prophets are exemplars of everything good.”
Still, over the course of his legal studies, he found that certain individual stood out.
“The American Chief Justice Earl Warren was one of the greatest judges of the 20th century, and during his tenure many important landmark decisions about desegregation were passed, such as that of Brown vs the Board of Education.
(Desegregation is the process of ending racial segregation, most commonly used in reference to the United States.)
“The British judge Lord Denning, who served for nearly four decades, also gave many brilliant judgements, while India had a string of judges who stand out.”
Shad is keen to add that Malaysia has also had its share of judges who were committed to Constitutional law.
“Tun Mohamed Suffian Hashim is a shining example. He was a true Malaysian hero. Even though he wrote simple judgements, his integrity and dignity were impeccable. He was involved in shaping the Constitution and he remained devoted to it through his life.
“Others include Datuk Karam Chand Vohrah, Tan Sri Ong Hock Thye, Datuk Mahadev Shanker, Tun Salleh Abbas and Tan Sri Dato’ Eusoffe Abdoolcader who wrote fantastic judgements. In fact, right up to Tan Sri Datuk Seri Panglima Richard Malanjum, the Chief Judge of Sabah and Sarawak, we have had judges who fight to uphold the spirit of the Constitution.”
Although Shad has made Malaysia his home, he has been involved with Constitutions around the world, including helping to frame the Constitution of the Republic of the Maldives in the early 1990s.
“I wrote it from A to Z, although it has recently been revised. I was also consulted by the Fijians, when they were re-writing their Constitution after the two coups led by Sitiveni Rabuka (in 1987).
“I was also involved in drafts for Constitutions for Afghanistan and Iraq, sadly, after the recent wars that were conducted in those countries.”
Given that he’s now into his 60s, one could be forgiven for thinking that Shad might want to wind down and take things easy during his twilight years.
“I have many plans beyond planting those trees,” he laughs. “I want to write a few more books. In fact, I want to write one book for each of my children.
“And this may sound a little silly but I also want to learn to build a bookshelf on my own, to house all the books I have.
“Professionally, though, it is my aim to continue to promote Constitutional literacy so that all Malaysians, not just an elite who are involved in the legal profession, are aware of the importance of this beautiful document.” – MARTIN VENGADESAN
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