On constitutional nullification

There is a need for strong constitutional literacy to pre-empt the emergence of an authoritarian central government.

“JIKALAU anak cucu Tuanku dahulu mengubahkan perjanjian, anak cucu patik pun mengubahkan ia.”

(If your descendants break your agreements, mine will do the same.)

So reads the climax of the agreement – the wa’ad – between Seri Teri Buana and Demang Lebar Daun as retold in what is popularly known as the Malay Annals, forming the basis of classical Malay government: that if the Ruler is fair, the people will be loyal in exchange. And vice versa, of course.

Agreements made legitimately by our forefathers must be honoured. If today we can simply ignore such agreements, then we set a precedent whereby tomorrow, our successors can ignore the agreements we make today. That would make nation-building across the generations impossible: rule of law would not exist.

While that ancient agreement is no longer in force, the essence of that original social contract (whose meaning is vastly different from the current popular meaning of that phrase) – still applies, expressed primarily through our Federal and State Constitutions.

If those who reign, and those who govern – for the two are no longer the same – abide by what has been agreed, then they can expect the loyalty and affection of the people.

I often quote the first Yang di-Pertuan Agong on how he understood the Federal Constitution. Growing up amidst the adat (tradition) of Negri Sembilan and later trained in law at the Inner Temple, he saw no contradiction between constitutional monarchy and parliamentary democracy (as indeed many of the best democracies in the world continue to prove).

Our Federal Constitution itself is a product of agreements: firstly, the Federation of Malaya Agreement 1957 and secondly, the Malaysia Agreement 1963, which required amendments to the constitution of the Federation of Malaya to become the constitution of Malaysia. The Rulers explicitly signed the first and gave their consent to the second.

Every violation of the Constitution is thus also a violation of these agreements. Unfortunately, constitutional literacy has deteriorated over the decades and, as I have often written, we can find Malaysians who can entirely contradict each other in understanding what the Constitution says or does not say.

That is why I repeat ad nauseam the urgent need to fix this by teaching the Constitution, the rights and responsibilities of citizenship and the functioning of our institutions in our schools. I am glad that some movement, albeit slowly, is being made in this direction.

In the meantime, the government also has to fulfil another agreement: its manifesto, much of which is about restoring the letter and spirit of the Constitution. Approaching one year after it came into effect, we celebrate the progress made in strengthening parliament and the Election Commission.

Hopefully, the new appointments at the top of the judiciary and the police will inspire greater confidence and continue the rehabilitation of our Federal Constitution.

Another aspect of the manifesto concerns rebalancing federal-state relations. At the launch by Ideas of Tricia Yeoh’s paper “Reviving the Spirit of Federalism: Decentralisation Policy Options for a New Malaysia” (whose recommendations should be adopted in their entirety), a healthy debate was had on the thrusts of decentralisation efforts and what impact they could have.

Having just returned from a successful federation with a similar population size to us that does not even have a federal minister of education (Canada), I opined that pursuing decentralisation would not only be commensurate with our history of federalism that began in Negri Sembilan, but also result in better public policymaking in education, transport, housing, welfare and other services.

The Sarawakians, Sabahans and Penangites agreed, but I was saddened by one view that the pursuit of decentralisation was an excuse to seek greater authoritarian powers at the state level.

My response is twofold: firstly, you will find authoritarians at all levels and that is why you need strong constitutional literacy to pre-empt their emergence; secondly, greater decentralisation can in fact protect people from the excesses of an authoritarian central government.

Indeed, it was concerning that the Prime Minister recently wrote that the State Constitutions were “nullified” by the Federal Constitution.

Thankfully, many eminent lawyers have clarified that in fact, the State Constitutions are very much in effect: the fact that the Federal Constitution takes precedence does not amount to “nullification”.

It reflects well on our democracy that the Prime Minister can be publicly corrected, but it provides an opportunity to remember when, as a result of an overcentralised, authoritarian executive in the past, it was our Federal Constitution itself that was practically nullified, with no checks and balances to restrain the Prime Minister.

As much as parables from classical Malay sultanates should be highlighted, so too should lessons be learnt from more recent failures in governance. Agreed?

Tunku Zain Al-‘Abidin is founding president of Ideas. The views expressed here are entirely the writer’s own.