OUR CON­STI­TU­TION AND HU­MAN RIGHTS

Its fun­da­men­tal lib­er­ties sec­tion is sim­i­lar to UDHR, which is based on uni­ver­sal prin­ci­ples and val­ues, writes

New Straits Times - - OPINION - DENI­SON JAYASOORIA )

THIS is the sec­ond part of my re­flec­tive re­sponse to Azril Mohd Amin’s ar­ti­cle on “The rights are not uni­ver­sal” (NST Dec 14, 2018). In the first ar­ti­cle, I had fo­cused more on the United Na­tions and the Uni­ver­sal Dec­la­ra­tion of Hu­man Rights (UDHR). In this Part Two ar­ti­cle, I will ad­dress Azril’s ref­er­ence to the Fed­eral Con­sti­tu­tion and the so­cial con­tract agreed by the dif­fer­ent eth­nic com­mu­ni­ties as well as his ap­pli­ca­tion to two mat­ters, namely na­tional lan­guage and on sex­u­al­ity.

I have taken the po­si­tion that the UDHR is not a colo­nial doc­u­ment.

How­ever, in this part two ,I would like to dis­cuss a mat­ter that Azril has not raised, namely that the Fed­eral Con­sti­tu­tion is a colo­nial doc­u­ment. That does not mean we dis­card it as a pro-colo­nial­ist doc­u­ment but we need to note that the Al­liance po­lit­i­cal party with the en­dorse­ment of the Malay sul­tans made the nec­es­sary changes which be­came ac­cept­able to the Malay sul­tans and three ma­jor com­mu­ni­ties as a com­mon build­ing doc­u­ment.

At the end of the sec­ond world war with the shift in global po­si­tions on colo­nial so­ci­eties, the British gov­ern­ment after the failed Malayan Union plans, the Reid Com­mis­sion of five per­sons (all for­eign­ers) was es­tab­lished after the 1956 Lon­don con­fer­ence.

The com­mis­sion re­ceived 131 mem­o­randa and hosted 118 meet­ings and even­tu­ally com­pleted the drafted doc­u­ments which were ac­cepted by the Malay rulers, British Par­lia­ment and the Fed­eral Leg­isla­tive Coun­cil in Malaya.

The Malaysian Fed­eral Con­sti­tu­tion’s fun­da­men­tal lib­er­ties sec­tion is sim­i­lar to the UDHR. Ar­ti­cle 5 on lib­erty of per­son is sim­i­lar to UDHR Ar­ti­cle 3; our Ar­ti­cle 6 and UDHR’s ar­ti­cle 4 on slav­ery or servi­tude are sim­i­lar too. A sig­nif­i­cant clause is the one on equal­ity. Our con­sti­tu­tion’s Ar­ti­cle 8 and UDHR ar­ti­cle 7 are also sim­i­lar: “All are equal be­fore the law.”

On re­li­gious free­dom, the UDHR pro­vides for clear rights to “free­dom of thought, con­science and re­li­gion”. In the FC, too, there is free­dom, namely as in Ar­ti­cle 11: “Ev­ery per­son has the right to pro­fess and prac­tice his re­li­gion…” The re­stric­tion is only on FC Ar­ti­cle 11 clause 4 on con­trol or re­stric­tions to prop­a­ga­tion. All these are uni­ver­sal prin­ci­ples and val­ues aris­ing not just from Western cul­ture but from our com­mon hu­man­ity where we can draw ref­er­ences from other Asian cul­tures and world re­li­gions.

It is also im­por­tant to note that the Malaysian Par­lia­ment for­mally ac­cepted the UDHR when the Hu­man Rights Com­mis­sion of Malaysia Act 1999 was passed. The act calls for re­gard to be had to the UDHR to the ex­tent that it is not in­con­sis­tent with the Fed­eral Con­sti­tu­tion. This is the strong­est for­mal en­dorse­ment on the UDHR by Par­lia­ment.

We all recog­nise that there are some spe­cific fea­tures of the Fed­eral Con­sti­tu­tion which is uniquely Malaysian. One ma­jor ex­am­ple is the bal­anc­ing fea­ture. On re­li­gion in Ar­ti­cle 3, “Is­lam is the re­li­gion of the Fed­er­a­tion but other re­li­gions may be prac­tised”; on lan­guages, Ar­ti­cle 152, where the na­tional lan­guage will be the Malay lan­guage but other com­mu­nity lan­guages are not pro­hib­ited or pre­vented. In the case of the spe­cial po­si­tion of the Malays and na­tives as found in Ar­ti­cle 153, it is also the duty of the Yang di-Per­tuan Agong to pro­tect the le­git­i­mate in­ter­ests of other com­mu­ni­ties.

Azril draws ref­er­ence to the Malay lan­guage as the sole lan­guage of the na­tion with ref­er­ence to Ar­ti­cle 152 of the Fed­eral Con­sti­tu­tion. In his ar­gu­ments, he goes fur­ther by stat­ing that ver­nac­u­lar schools are “the root of seg­re­ga­tion” and also in­di­cate that they “have no ba­sis for their ex­is­tence in Malaysia”. On this mat­ter, Azril has got it to­tally wrong.

Ar­ti­cle 152 (1) states that “the na­tional lan­guage shall be the Malay lan­guage”. No one in Malaysia dis­putes this is a prin­ci­ple ac­cepted in the found­ing of Malaya and Malaysia. How­ever, in Ar­ti­cle 152 part (a) and (b), it notes that there is no pro­hi­bi­tion or pre­ven­tion from the teach­ing or learn­ing of any other lan­guage, in­clud­ing the pro­vi­sion of fed­eral and state funds for this.

The Con­sti­tu­tion makes it clear that while the Malay lan­guage is the na­tional and of­fi­cial lan­guage, there is no ob­jec­tions to com­mu­nity lan­guages. While it does not state what the other lan­guages are, one can make a clear ref­er­ence to Man­darin, Tamil, subeth­nic lan­guages and other lan­guages of the na­tives of Sabah and Sarawak.

Azril also does not write that part of the his­tor­i­cal ed­u­ca­tional de­vel­op­ment is the po­si­tion not just of ver­nac­u­lar schools but also re­li­gious Is­lamic schools and schools run by Chris­tian churches. Both the Razak Ed­u­ca­tion Com­mit­tee’s Re­port (1956) and the Rahman Talib Re­port (1960) sought to strengthen the na­tional char­ac­ter of the ed­u­ca­tion in­sti­tu­tions with the Malay lan­guage as the medium of in­struc­tion. They also recog­nised the place of ver­nac­u­lar schools. It is there­fore wrong to con­clude that the ver­nac­u­lar lan­guage schools “have no ba­sis for ex­is­tence in Malaysia”. These ver­nac­u­lar schools are also our na­tional her­itage and re­flec­tive of mul­ti­cul­tural Malaysia.

There is a need for more pub­lic dis­cus­sions on these hu­man rights themes in Malaysian so­ci­ety. Of­ten we all seem to be in po­larised sides hold­ing on to our con­vic­tions. How­ever, as Malaysia is a mul­ti­eth­nic, mul­ti­cul­tural, mul­ti­lin­gual and mul­tire­li­gious so­ci­ety, there must be greater open­ness to di­a­logue with mu­tual re­spect for views and ideas. We can agree to dis­agree but in so do­ing we can­not dis­miss or throw out hu­man rights al­to­gether.

(Part 1 of this ar­ti­cle ti­tled ‘UDHR is not colo­nial’ was pub­lished on Dec 31.

There is a need for more pub­lic dis­cus­sions on these hu­man rights themes in Malaysian so­ci­ety.

The writer is the prin­ci­pal re­search fel­low at the UKM In­sti­tute of Eth­nic Stud­ies and co-chair of the Malaysian CSO-SDG Al­liance

FILE PIC

Peo­ple recit­ing the RukunNe­gara at a Na­tional Day cel­e­bra­tion. There must be greater open­ness to di­a­logue with mu­tual re­spect for views and ideas.

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