Constitutional Trajectory in Malaysia: Constitutionalism without Consensus?

[This appeared as chapter 10 of M Dowdle and M Wilkinson (eds), Constitutionalism Beyond Liberalism (Cambridge, Cambridge University Press, 2017). It attempts to take a long view of the development of the Malaysian state since 1957. My apologies for the erratic spacing which is due to transcription from an original PDF file].

   I.     Introduction
This chapter takes a long view of the evolution of constitutional ordering in Malaysia, with particular reference to the evolving concept of the state. Th e interest of this case in the context of the present volume is that competing interpretations of, and demands for, constitutional ordering occur here within a multi-cultural context that has stretched debate as far as it conceivably could be stretched within the broad acceptance of a single constitutional order. Something of this kind is true everywhere, even within classically liberal- democratic orders such as those of the United States or Canada; but in Malaysia we can see an especially heady and contested mix of ethnicities, religions, and competing socio-economic interests in one of the world’s most pluralist nation- states. Th is pluralism is reflected in sharply contradictory constitutional ideologies and discourses. In this context the law and the constitution become the rope on which a tug of war takes place. In this chapter, this constitutional conflict is explored by attempting to examine the evolution of the Malaysian State over a period of almost sixty years. (By the ‘the State’, I mean the executive power of the Malayan/Malaysian federation since 1957. Because Malaysia is a federation, I use the uncapitalised word ‘state’ to indicate the sub-jurisdictions of that federation.) W hat I will suggest is that the perpetual pluralist conflict that characterises Malaysia’s surprisingly long history of constitutionalism may itself be a particular form of constitution order –  a kind of conflictual equilibrium, as it were.  1   In other words, in such a highly polarised society as Malaysia, pluralist ‘conflict’ may actually contain stabilising elements. If so, it represents a kind of constitutionalism that is not wholly captured by traditional, liberal models, which invariably locate constitutional stability and order
     1     Cf.    Michael W.   Dowdle  , ‘ On the Public Law Character of Competition Law’: A Lesson from Asian Capitalism ’,  Fordham International Law Journal   38  ( 2015 ):  355 –   359  .
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Constitutional Trajectory in Malaysia 255

in consensus rather than in conflict.  2   On this view, even conflict embraces elements of consensus around implied limits within which conflict can take place. There may, for example, be no meeting of minds on constitutional questions, but still an understanding that physical violence is not acceptable at any level. Malaysia has one of the most diverse societies in the world. Out of a population of approximately 28.4 million people, 60 percent are Muslim and 40 percent are non- Muslim. These non-Muslims include Buddhists (19 percent), Christians (9 percent), Hindus (6.3 percent), and Sikhs (0.4 percent). Th e members of the native tribes of East Malaysia (Sabah and Sarawak) and of the  orang asli  (original inhabitants) of West Malaysia profess animistic religions, although large numbers of Dayaks, Ibans, and Kadazans in East Malaysia have converted to Islam and Christianity. Th e largest ethnic group in Malaysia are the Malays (50 percent), followed by the Chinese (24 percent), the indigenous people (11 percent), and ‘Indians’ (i.e., those of South Asian heritage, 8 percent). Bahasa Malaysia is the official language, but English, Chinese (mainly in Cantonese and Hokkien dialect), Tamil, Telugu, Malayalam, Panjabi, Thai, and several indigenous languages in Eastern Malaysia are also widely spoken in places. 3   This was the challenge presented to constitution- makers in the 1950s and 1960s, and that still makes the discovery of common conceptions of constitutional order elusive and controversial.  Along these lines, the Malaysian constitution is infused with traditional elements, modified according to the perceived needs of a new polity deeply divided by religion and ethnicity, and confronted by terrorism (the so- called Malayan Emergency of 1948– 1960,  4   a persistent communist insurgency that finally ended only with the surrender of the communist party in 1989  5 ) . Although amended frequently, and being the site of continual and intense struggle, the constitution survived to celebrate its fiftieth anniversary on August 31, 2007.  6   Despite its colonial origins and its continually disputed interpretation and relevance, the constitution has achieved, due to its longevity and in spite of its colonial origins, a status quite rare in the
     2   S  ee, e.g., John  Rawls,    A Theory of Justice  ( Cambridge [MA] :  Harvard University Press ,  1971  ).       3     See, generally,    Andrew   Harding  ,  The Constitution of Malaysia: A Contextual Analysis  (Oxford:  Hart Publishing) , 1 .         4     See    Karl   Hacka , ‘The Malayan Emergency as Counter-Insurgency Paradigm’ ,  Journal of Strategic Studies   32  ( 2009 ):  383 –   414  .       5   See K.S. Nathan,   ‘Malaysia in 1989: Communists End Armed Struggle’ ,  Asian Survey  3 0  ( 1990 ):  210 –   220  .       6   See, generally, Andrew J.  Harding   and H.P.  Lee   (eds.),  Constitutional Landmarks in Malaysia: Th e First 50 Years, 1957– 2007  (Kuala Lumpur: LexisNexis,  2 007)  .
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256 Andrew Harding

contemporary world: that of an embedded, and in a sense autochthonous –  no longer colonial –  constitution. In other words, after half a century it is meaningful to refer to ‘Malaysian constitutional traditions’.  7   It is with this story of constitutional continuity along with continued constitutional struggle that Malaysia offers a fascinating glimpse into the possibility of stability within perpetual confl ict. In contemporary Malaysia we find a lively democracy in perpetual motion; authoritarian nationalism; rapid economic development; social change and urbanisation; and ethnic tension heightened by an intense dialogic clash and competition for religious converts. All of these elements have deeply affected the contours of the constitution as it has been contested and interpreted. More than this, the constitution has not just provided a battlefi eld for, but has also shaped continuing political struggle. Malaysian public life oft en resembles a fi erce struggle between diff erent groups over the essence and meaning of the constitution: a struggle in which almost every controversial issue, it seems, is or is capable of being framed as a constitutional issue.  Constitutional change in Malaysia demonstrates what James Tully has called a ‘strange multiplicity’.  8   It is a constitutionalism in constant, pluralist motion. It does not settle or seem likely to settle on any universal set of foundational principles. And yet, it is the oldest constitution in East Asia, and has already survived three times as long as the average life constitutional life span of nineteen years.  9   I n this discussion I focus on competing constitutional claims around religion and ethnicity; developmentalism; and democratic aspiration, as expressed through three processes –  protest, election, and constitutional litigation. I conclude that, rather than being disruptive or destabilising of constitutional order, these forms of contestation may be responsible for preserving that order. Contrary to liberal presumptions, there is in this case no ultimate resolution point of consensus, and therefore a form of constitutional unity arises from the constant jostling and re- jostling of forces –  always changing, but at the same time continuing to defi ne a stable boundary of constitutional practices and sustainability.
     7     See    Andrew   Harding  ,   Law ,  Government and the Constitution in Malaysia   (Kuala Lumpur:  Malayan Law Journal Sdn. Bhd  . ,  1996 ),  271  .       8        James   Tully  ,  Strange Multiplicity: Constitutionalism in an Age of Diversity  ( Cambridge University Press ,  1995  ).       9   S  ee Tom Ginsburg, Zach Elkinsy, and James Meltonz, ‘Th e Lifespan of Written Constitutions’, paper no. 33 presented at the 17th American Law and Economics Association Annual Meeting 2007 (New York: Columbia Law School, May 16– 17, 2008), at 1.
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Constitutional Trajectory in Malaysia 257
  II.     Th e Post-C olonial Liberal-D emocratic State of 1957–1 971  Understanding the complexity of Malaysia constitutionally and p olitically requires a brief historical introduction. Th e State (the Federation of Malaya 1957– 1963) was conceived in liberal- democratic terms at the point at which it formally attained independence under the infl uence of that arch- constitution- maker Sir Ivor Jennings.  10   Th is version of the State, defi ned in the decolonisation process, was ascendant between 1957 and 1969 under the premiership of the fi rst Prime Minister, Tunku Abdul Rahman (universally known as ‘the Tunku’). Th e federation became the Federation of  Malaysia , with the addition of three new states –  Singapore, Sabah, and Sarawak –  in 1963, but Singapore left  the federation in 1965.  11    Th is evolution from Malaya to Malaysia under the liberal- democratic State, gave way aft er the May 13, 1969 ethnic riots to increased authoritarianism during the ‘ rukunegara’  (national ideology) period that followed that incident.  12   Th is second iteration of the State, which I will call ‘the Developmental State’, was ascendant between 1971 and 2008. Th ese diff erent iterations of the State will be explained and discussed further in the next two parts. Th e fourth part will examine the evolution of the State since 2008 in order to reach some conclusions about its now highly contested constitutional evolution. Th e critical juncture here is the general election of 2008, which appeared to create almost instantaneously a two- party –  and highly polarised –  political system in which two coalitions contest for power at federal and state levels.  13    Th e main tenets of the independence constitution were worked out in an imperial constitutional conference in London in 1956 and were based on a memorandum from the Alliance parties under the Tunku’s leadership.  14   As a result of the terms of reference drawn up by the conference, an independent commission was established, known as the Reid Commission, to
     10   J     oseph M.  F ernando,   ‘S ir Ivor Jennings and the Malayan Constitution’ ,  Th e Journal of Imperial and Commonwealth History   34  ( 2006 ):  577 –   597  .       11     Harding,  Th e Constitution of Malaysia , 42– 45.       12     See, generally,    Andrew   Harding  , ‘ Th e Rukunegara Amendments of 1971 ’, in   Andrew   Harding   and   H. P.   Lee   (eds.),  Constitutional Landmarks in Malaysia: Th e First 50 Years, 1957–2 007  ( Singapore :  LexisNexis ,  2007 ),  115 –   134  .       13   A     ndreas  U fena,   ‘Th  e Transformation of Political Party Opposition in Malaysia and Its Implications for the Electoral Authoritarian Regime ’,  Democratization   16  ( 2009 ):  604 –   627  .       14   S  ee C  olonial Offi  ce [Great Britain],    Report of the Federation of Malaya Constitutional Conference Held in London in January and February, 1956   (L ondon:  H er Majesty’s Stationary Offi  ce ,  1956  ).
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258Andrew Harding draft  the constitution. Th e resulting constitution evinces a Westminster- style structure familiar across the British Empire and Commonwealth during the 1950s and 1960s.  15   It refl ected Anglo- Indian constitutional ideas of the 1950s, adapted in some respects to local traditions such as Islam and Malay monarchy. It embodied Westminster-t ype constitutional ideas and traditions, but also embraced constitutional supremacy, constitutional monarchy, federalism, and a bill of rights, as well as other ideas squarely based on the Indian Constitution of 1950.  16    Nonetheless there were issues relating to the key problems of ethnicity and religion that had specifi cally local resonance. Prior to the London Conference, the three Alliance parties –  the United Malays National Organisation (UMNO), the Malaysian Chinese Association (MCA), and the Malaysian Indian Congress (MIC) –  had over some months negotiated behind the scenes a common position on the future Constitution, resulting in a memorandum being submitted to the commission.  17   Th e memorandum’s most important proposals involved a compromise: Th e rights of non- Malays to citizenship, and their constitutional guarantees, would be strengthened in return for the acceptance of special privileges for the Malays.  18   It also dealt with such issues as the national language and the monarchy. Th is position was destined to become in eff ect the cornerstone of the nation and the  Merdeka  Constitution, and is now oft en referred to in popular discourse as ‘the social contract’  19  : a social contract not in Rousseau’s sense of a notional contract explaining philosophically the relationship between individuals and the state, but rather a politically negotiated contract between ethnic communities, indigenous and
     15   S  ee C  olonial Offi  ce [Great Britain] ,   Report of the Federation of Malaya Constitutional Commission 1957   (L ondon:  H er Majesty’s Stationary Offi  ce ,  1957  ). See, generally,    Rais  Y atim,   ‘Th  e Road to Mardeka’ , in A  ndrew J.  H arding   and H  . P.  L ee   (eds.),  Constitutional Landmarks in Malaysia: Th e First 50 Years, 1957– 2007  (K uala Lumpur:  L exisNexis,  2 007) ,  16 –   20  .       16   S  ee R   . H.  H ickling,   ‘A n Overview of Constitutional Change in Malaysia: 1957– 1977’ , in T  un Mahamed  S uffi  an  ,   H. P.   Lee  , and   F. A.   Trindade   (eds.),  Th e Constitution of Malaysia: Its Development, 1957– 1977  (K uala Lumpur:  O xford University Press,  1 978) , 3 .         17   S  ee ‘A  lliance Memorandum to the Reid Commission’ (Sept. 27, 1956),  reprinted in  British Documents on the End of Empire, Series B Vol. 3: Malaya. Part III –  Th e Alliance Route to Independence 1955– 1957  (ed.,   A. J.   Stockwell  ) ( London :  Her Majesty’s Stationary Offi  ce,   1995 ),  307 –   317  .       18     See also Harding,  Th e Constitution of Malaysia , 30– 31.       19     See    Mavis C.   Puthucheary  , ‘ Malaysia’s “Social Contract”: Th e Invention and Historical Evolution of an Idea’ , in N  orani  O thman,   M  aris C.  P uthucheary,   and C  live  K essler   (eds.),  Sharing the Nation: Faith, Diff erence and Power in the State 50 Years aft er Merdeka  (P etaling Jaya:  S trategic Information and Research Development Centre,  2 008) , 1 – 2   8.  
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Constitutional Trajectory in Malaysia 259 migrant, planning to live under a newly independent state that had not previously existed as a single entity.  20    An inevitable consequence of the Constitutional Commission’s terms of reference was the espousal of a Westminster- style executive based on the British model of constitutional monarchy. Th e new offi  ce of ‘Supreme Head of the Federation’ ( Yang di- Pertuan Agong  in Malay) was given powers resembling those of the British Crown.  21   Given nine existing monarchies within the federation, the rulers (sultans of the states that had protected status during the colonial period) favoured a rotation of offi  ce among them on the basis of fi ve years’ tenure. Th e rulers each were to remain ‘Heads of Islam’ in their respective states, and a Conference of Rulers (in existence already since 1948) was given some special functions, including the right to withhold its consent to the passing of certain laws, for example legislation aff ecting the special position of the Malays and the legitimate interests of the other communities (i.e., the social contract).  22    Th e commission failed to address some rather obvious arguments in favour of entrenchment of fundamental rights. Malaya was a diverse society with many races, religions, and languages –  a condition that required a more positive reassurance, especially to minority groups, that their rights would not be removed, whoever was in power. As a result of the spineless approach adopted by the commission, the government was emboldened aft er 1957 to impose important and far- reaching restrictions on fundamental rights, both by amending the draft  constitution, and subsequent to its passage by frequent, almost routine, legislative amendments –  especially aft er 1971 as the developmental state replaced the liberal- democratic.  23    Th e commission also had to deal with even more thorny questions of ethnicity and religion, and in particular the issue of special privileges. It was obvious to all that the diversity of Malaya presented several constitutional problems. Th e underlying problem was that the Malays, as the majority population, were far behind other communities, especially the Chinese, economically. Colonial rule had given the Malays some special privileges to avoid their being eclipsed economically in their own country by large or even larger numbers of migrant people who controlled most of the economy. For example, most positions in the police and the public service went to Malays, while in 1957 the economy was controlled      20     See also Harding,  Th e Constitution of Malaysia , 69– 82.       21     See Federal Constitution of Malaysia, arts. 39– 40.       22     See also Harding,  Th e Constitution of Malaysia , 116– 123.       23     See id. at 41, 47– 48.
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260Andrew Harding almost entirely by Chinese and British interests.  24   Th e issue was whether the  special privileges should continue, and if so in what form and for how long. At issue was in fact the entire principle of the rule of law and a citizen’s equality before it.  Th e commission recognised the inheritance of an ethnic-managment framework that gave special privileges to Malays with regard to land acquisition, admission into the public service, access to business licences, and state- funded scholarships. Because there was no opposition to these privileges for the time being, the commission recommended their continuance, subject to review by parliament aft er fi ft een years. Th ey clearly viewed the special privileges as ‘sunset legislation’, whose necessity would decline rapidly when the consequent laws and policies took eff ect, and as aspects of government that were essentially incompatible with the overriding principle of equality. But aft er the commission issued its report, the Colonial Offi  ce created a ‘Working Party’, comprising representatives of the British government, the Malay rulers, and the Alliance Coalition, to review its constitutional draft . Disagreeing with the Reid Commission, the Working Party thought that the government should be required to review this issue ‘from time to time’, with no time limitation. It was the Working Party view that prevailed.  25    Th e debates concerning religion in and around the commission’s report are also important to understand. Constitutional interpretation has become the weapon of choice in the struggle over the constitutional position of religion. Given the penumbra of ambiguity, or at least alleged ambiguity, of several provisions, the thinking of those involved in the draft ing process becomes preeminently important. Th e Tunku’s Alliance parties wanted Islam to be the offi  cial religion of the federation. Th e rulers disagreed, reasoning that as Heads of Islam, being the religion of all the Malay States, they could not countenance religion being made in any sense a federal matter, which would be radical and also undermine their position, because being head of Islam was one of the few powers left  in their hands. Moreover at the time Muslims were actually in a minority, so there was no real case for making Islam the offi  cial religion based on it being the majority’s religion. It is no doubt that under Jennings’s guidance, the commission discerned a contradiction between the notion of a secular state and having an offi  cial religion. Th is distinction indicates Jennings’s extreme foresight:
     24     See    Jomo   K. S.   and   Chang   Yii Tan  , ‘ Th e Political Economy of Post-C olonial Transformation’ , in   Jomo   K. S.   and   Wong   Sau Ngan   (eds.),  Law, Institutions and Malaysian Economic Development  ( Singapore :  NUS Press ),  27  .       25   S  ee Harding,  Th e Constitution of Malaysia , 38– 39.
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Constitutional Trajectory in Malaysia 261 As he feared, this issue has come to divide Malaysia as no other. Th us the majority of the commission recommended that the federation should have a secular state, and that there should be no offi  cial religion, as was the case in India. Th e commission considered that a secular state did not sit well with an offi  cial religion.  26    Predictably the Alliance leaders were displeased with the outcome and demanded a provision on offi  cial religion. As a result, the stipulation in the current Article 3 of the Constitution that ‘Islam is the religion of the Federation’  27   was inserted during the constitutional review process following the commission’s report. Th e Tunku’s party, UMNO, stuck to its demand for an offi  cial- religion provision, and the other component parties of the Alliance were disposed not to unravel the carefully negotiated Alliance compromise –  no doubt also recognising, in their own interests, the political inexpediency of exposing UMNO to electoral problems. Th e Tunku was in favour of Article 3 on the grounds that the provision was innocuous; would not prevent the state from being secular in nature; was similar to provisions in constitutions of Muslim countries; was found in the constitutions of some of the Malay States; and was agreed to unanimously by the Alliance, which also included non- Muslim parties.  28    Th e non- Muslims’ acceptance of Islam as the offi  cial religion was in essence a part of the social contract, from which they obviously derived other benefi ts. It was also clear in statements of the Alliance position that the enshrinement of Islam as simply ‘the religion of the Federation’ –  as opposed to as a ‘state religion’ –  would not create a theocracy.  29   Nor would it aff ect the secular nature of the state, alter the rights of the rulers as heads of Islam, or abridge the religious rights of non- Muslims. It was therefore in essence symbolic. Th e offi  cial Working Party in reviewing the draft  constitution also went along with the Alliance view. Even Malay opposition parties agreed with the Alliance view on religion and non- Malay opposition parties did not raise the issue, preferring to attempt to safeguard economic, language, and education rights. A ll in all, the Chinese and Indian populations gained some access to the political system through the extension of their citizenship rights and
     26     See, generally, id. at 226– 229.       27     Federal Constitution of Malaysia, art. 3.       28     See, generally,    Joseph M.   Fernando  , ‘ Th e Position of Islam in the Constitution of Malaysia’ ,  Journal of Southeast Asian Studies   37  ( 2006 ):  257 –   260  .       29   S  ee, e.g., C  olonial Offi  ce [Great Britain] ,   Constitutional Proposals for the Federation of Malaya   ( London :  Her Majesty’s Stationary Offi  ce ,  1957 ),  20  . See generally Fernando, ‘Th e Position of Islam’, 260– 265.
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262Andrew Harding their participation in the Alliance victory in the constitutional debates, but at a cost. Th eir property and businesses were protected, and their cultures and languages recognised and tolerated (it was to prove otherwise in Indonesia). But they would not necessarily be equal citizens in all respects: Th e Malays’ had their language serve as the offi  cial language; their status and religion, in contrast to those of the Indians and Chinese, were  constitutionally  recognised and associated with the state; and they were guaranteed an increasing share of the economy. M oreover, by allowing the constitution to be amended simply by approval of two- thirds majority of parliament,  30   the Malaysian constitutionalamendment provision eff ectively gave the Malay-d ominated Alliance Party control over the constitution, given the electoral dominance of that political coalition.  31   Th is gave it extremely wide powers with little accountability for their exercise. Malaysia’s liberal democracy therefore contained the seeds of authoritarianism. Like Banquo in Macbeth, let us now proceed to ‘look into the seeds of time and see which will grow and which will not’.  32  
  III.     Th e Developmental State, 1971–2 008 W ithin twelve years of the coming into being of the  Merdeka  Constitution, internal problems led to a crisis, the ‘May 13’ incident, that narrowly failed to propel Malaysia into either permanent dictatorship or military rule.  33   While the continued relevance of that incident has probably been exaggerated, it remains the most traumatic episode in Malaysia’s history, one that threatened to eclipse completely the constitution and democratic, parliamentary government. Th e incident was sparked by the outcome of particularly tense and racially charged election in Kuala Lumpur.  34   Th e resulting ethnic violence spread rapidly throughout Kuala Lumpur to other urban centres. In response, the State was dramatically redefi ned with changes to the social contract; the emergence of new, discriminatory, policies;
     30     Federal Constitution of Malaysia, art. 159.       31   S  ee L   im  H ong Hai,   ‘E lectoral Politics in Malaysia: “Managing” Elections in a Plural Society’ , in   Aurel   Croissant  ,   Gabriele   Bruns  , and   Marei   John   (eds.),  Electoral Politics in Southeast and East Asia  ( Singapore :  Friedrich Ebert Stift ung,  2 002) , 1 05– 1   13.         32     William Shakespeare,  Macbeth , act. 1, scene 3.       33   S  ee N  ational Operations Council,    Th e May 13 Tragedy: A Report of the National Operations Council   ( Kuala Lumpur :  Government Printer ,  1969  ). See, generally,    Cyrus   Das  , ‘ Th e May 13th Riots and Emergency Rule’ , in A  ndrew  H arding   and H   .P.  L ee   (eds.),  Constitutional Landmarks in Malaysia: Th e First 50 Years, 1957– 2007  ( Singapore :  LexisNexis ,  2007 ),  103 –   114  .       34     See Das, ‘Th e May 13th Riots’, 104– 105.
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Constitutional Trajectory in Malaysia 263 the instigation of emergency rule; and new restrictions on the scope of free expression. On May 15, 1969, a state of emergency was proclaimed under Article 150 of the constitution, extending to the entire federation, on grounds of a threat to national security.  35   Emergency rule continued for twenty-t wo months before parliament was eventually summoned. During this period, the entire executive and legislative power of the federation was vested in a Director of Operations (Tun Abdul Razak, also Deputy Prime Minister and then Prime Minister, 1971– 1976).  36   E lections resumed in 1971, which gave the Alliance Party a two- thirds majority in parliament. Th e administrative structure of emergency rule was dismantled, but the emergency powers it had bestowed on the government still remained. Th e return to some kind of normality was not a return to the pre- 1969 constitution, but to a radically altered version of constitutionality: Th is was the price, in eff ect and in the judgment of UMNO leaders, of a return to any kind of constitutional government. With its two- thirds majority, the Alliance Party was able to push through a number of constitutional amendments –  oft en termed the  ‘Rukunegara  amendments’ (aft er the Malay name for the national ideology  37  ) –  that fundamentally altered the nature of the State.  38    Th e  Rukunegara  amendments took Malaysia a signifi cant step away from several of the key tenets of the  Merdeka  Constitution. Principally, the amendments redefi ned the social contract so as to give more special privileges to the Malays; extended the scope of these privileges to include natives (indigenous peoples) of Sabah and Sarawak; and entrenched those privileges even further than was already the case.  39   Th ey also allowed for legislation that would make the social contract a ‘sensitive issue’ that could not be discussed, except as to policy implementation, in any forum, including even on the fl oors of the federal parliament of Malaysia or of the state legislatures.  40    Th ese changes were the foundation of what was termed the ‘New Economic Policy’ (NEP), designed to secure thirty percent ownership of the economy for what were called the ‘ bumiputera ’ –  that is, the Malays
     35     See id. at 106.       36     See id. at 109– 112.       37   S  ee, generally, M   uhammad Ghazali  b in Shafi e,    Rukunegara: A Testament of Hope  ( Kuala Lumpur :  Creative Entreprise Sdn. Bhd .,  1985  ).       38   S  ee, generally, Harding, ‘Rukunegara Amendments’.       39     See id. at 120– 127.       40   S  ee Federal Constitution of Malaysia, art. 10(4); Sedition Act 1948 (Act 15) s. 3(1)(f) (as amended).
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264Andrew Harding and other scheduled populations who enjoyed to special status under the c onstitution –  within twenty years.  41   At a stroke, the  Rukunegara  amendments redefi ned ethnic relations and the political economy of Malaysia, in the process greatly increasing the powers of government and the restrictions on freedom of expression. Th ey had in eff ect converted a liberal democracy observing basic rights into an authoritarian State that subjected those rights to a large range of exceptions.  Th e Malaysian State that resulted from the  Rukunegara  period and the NEP exhibited the principal features of what have been called the ‘developmental states’ of East Asia.  42   Accordingly, the term ‘Malaysian Developmental State’ will be used here to indicate that the State under the post- 1971 model has peculiarly Malaysian but also strongly developmental characteristics.  43   Th is Malaysian Developmental State proved both stable and successful in orchestrating Malaysia’s economic development.  44   Four decades on, it cries out for renovation and in some respects it has been reformed. But there is no real agreement as to the type or extent of renovation that is needed.  45   Th is issue has been the source of an acute form of political polarisation since 2008 between the Barisan Nasional (BN), Malaysia’s ruling coalition and the successor to the Alliance Party, and the opposition Pakatan Rakyat (PR) coalition.  46   M alaysia’s second prime minister, Tun Abdul Razak (who also had managed the emergency situation as Director of Operations) died in offi  ce in 1976, by which time he had redesigned the State, and laid the foundations for the new social contract under the NEP and the modern developmental state. However, the Malaysian Developmental State evolved to its fullest extent under the twenty- two years of the premiership of its fourth prime minister, Tun Dr Mahathir Mohamad (1981– 2003), who imposed his personal and controversial stamp on the polity as no other prime minister did, not even the Tunku.  47   He launched Malaysia on a path towards striking economic growth. He survived many political crises, taking Malaysia much further towards authoritarian government than any of his predecessors or successors. As with ‘Th atcherism’ in the United Kingdom and
     41     See, generally, Jomo and Tan, ‘Political Economy’, 27– 30.       42   C  f. M   ark  B eeson,   ‘M ahathir and the Markets: Globalisation and the Pursuit of Economic Autonomy in Malaysia ’,  Pacifi c Aff airs   73  ( 2000 ):  326 –   348  .       43     See also Jomo and Tan, ‘Political Economy’, 30– 34.       44     See id. at 39.       45     See id. at 39– 41.       46   S  ee A   bdul Rashid  M oten,   ‘2 008 General Elections in Malaysia: Democracy at Work’ ,  Japanese Journal of Political Science   10  ( 2009 ):  35  .       47     Cf. Jomo and Tan, ‘Political Economy’, 30– 52.
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Constitutional Trajectory in Malaysia 265 ‘Reaganomics’ in the United States, ‘Mahathirism’ defi ned the Malaysia of the 1980s and 1990s. Its main features were nationalism, developmentalism, and authoritarian government.  48    Mahathir’s premiership expanded even the already extensive power of the prime minister. Unlike his predecessors he was not a lawyer, and perhaps for this reason proved more impatient than his predecessors with regard to constitutional checks and balances. In particular he challenged the power of the judiciary in 1988, the rulers in 1983 and 1993, and dissent within UMNO in 1987 and 1998 –  and got his way in all of these instances. He also held important ministerial portfolios during his premiership, taking over Finance, Home Aff airs, and Defence during the period from 1998 to 2003. He not only had virtually unlimited power, but exercised it extensively and personally, playing a signifi cant role even in planning and executing major projects such as the Multimedia Super Corridor, Kuala Lumpur International Airport, the Petronas Twin Towers, and the new administrative capital of Putrajaya. He also orchestrated Malaysia’s response to the fi nancial crisis of 1997– 1998, successfully resisting international criticism and demands.  49   Mahathir stepped down as prime minister in 2003 but remains a caustic critic of anything that deviates from his legacy. In 2016, he established a new party opposed to Prime Minister Najib Razak. P ursuing the theme of the Malaysian Developmental State, we can note how even today large numbers of federal agencies, and even state agencies, are described as having an explicitly development- related function. To take the example of information and communications technology, which is regarded as a critical aspect of Malaysia’s development,  50   no less than fi ft een agencies have signifi cant regulatory jurisdiction over this sector. Th ey range from the Ministry of Information and Communications to the Malaysian Communications and Multimedia Commission, the Malaysian Technology Development Corporation, the Multimedia Development Corporation, and the Multimedia Super Corridor. Th ey involve a federal ministry and statutory agencies as well as a government-l inked company. One obvious feature of all of these agencies is their lack of independence.
     48     See, generally,    Khoo   Boo Teik  ,  Paradoxes of Mahathirism: An Intellectual Biography of Mahathir Mohamad  (K uala Lumpur:  O xford University Press,  1 995)  .       49     See    R. S.   Milne   and   Diane K.   Mauzy  ,  Malaysian Politics under Mahathir  (L ondon:  R outledge,   1999 ),  67– 8 ,  75 –   76 ,  175 –   178  .       50   S  ee A   bu Bakar  M unir,   ‘P rivatisation in Malaysia: A Case Study of the Telecommunications Department’ , in E  uston  Q uah   and W  illiam  N eilson   (eds.),  Law and Economic Development: Cases and Materials from South East Asia  (S ingapore:  L ongman,  1 993) ,  169 –   176  .
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266Andrew Harding All are under the control of the federal government either directly through lines of responsibility leading to a minister and the Cabinet, or else through the government’s power to appoint their members or executives. Th is is true even of government-l inked companies.  51   In practice the operation of ministerial responsibility insulates administrative agencies from parliamentary criticism. Even agencies that are formally independent of the government are oft en nonetheless treated as if the minister has to answer for them in parliament.  52   Th e Malaysian Developmental State resists power slipping away to statutory and privatised agencies.  53   I ronically, however, Mahathir’s fi erce political contest with his popular Deputy Prime Minister Datuk Seri Anwar Ibrahim during the Asian Economic Crisis of the late 1990s, and his unsuccessful attempts to destroy Anwar’s political career (at least until 2015 when Anwar was fi nally convicted and jailed on a charge of sodomy) by having questionable criminal charges be brought against him, ultimately led to a sea change in Malaysian politics.  54   Aft er being removed from UMNO and the BN, Anwar set up a new political party –  the National Justice Party ( Parti Keadilan Nasional ) –  which was able for the fi rst time to form a viable opposition coalition capable of winning elections. Th e narrowness of the BN’s victory in the 2008 and 2013 general elections, with the loss of several state governments by the BN and its drastically reduced parliamentary majority, has made the government signifi cantly more responsive to public opinion than previously; and the loss of the two- thirds parliamentary majority has taken constitutional amendments out of the equation: It is now impossible to increase the constitutional powers of the State, but it is also impossible to decrease them.  Hence the legal foundations of the State, although deeply contested, have not altered much since 2008, except in that some reforms have reduced the State’s armoury of legal weaponry to a certain degree. Nonetheless the political system has been shaken to its foundations in a manner that opens up the possibility of the emergence of a new kind of State. Before we rush to the conclusion that the original liberal- democratic State is being dusted
     51     See    Michael B.   Likosky  ,  Th e Silicon Empire: Law, Culture and Commerce  (A ldershot, UK :  Ashgate ,  2005 ),  169  .       52     See also    Mavis   Puthucheary  , ‘ Ministerial Responsibility in Malaysia ’, in   Tun Mahamed  S uffi  an  ,   H. P.   Lee  , and   F. A.   Trindade   (eds.),  Th e Constitution of Malaysia: Its Development, 1957–1 977  (K uala Lumpur:  O xford University Press,  1 978) , 1 23– 1   35.         53     See also Harding,  Th e Constitution of Malaysia , 64.       54   S  ee, generally, J   ames  C hin   and W  ang  C hin Huat,   “M alaysia’s Electoral Upheaval’ ,  Journal of Democracy   20 . 3  ( 2009 ):  73 –   76  .
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Constitutional Trajectory in Malaysia 267 off  and revived, it would be well to see how the issues of religion and the role of Islam in the constitutional identity of the State have divided society equally deeply but along somewhat diff erent lines from the ethnic cleavages described in the preceding text.
  IV.     Th e Evolving Social Contract  Since 1971 the making and implementation of Malaysia’s social contract through the NEP was the State’s all-c onsuming task, involving the creation of prosperity, the reduction of poverty, and the providing of opportunity to the Malay/M uslim majority.  55   We have seen earlier the general rationale for its creation. But what exactly are its terms? Who are its parties? How is it implemented? Can it be changed? Confusion surrounds these issues. Th e lack of any real freedom to address these issues (being deemed ‘sensitive issues’, discussing them gives rise to possibly seditious speech  56  ) has proved not so much a necessity of pluralism as a dysfunctional form of political process. Th e social contract is not contained in any particular document, and has to be construed mainly from the provisions of the constitution and the circumstances surrounding their adoption.  57    Th e original terms of the social contract, crystallised in the  Merdeka  Constitution in 1957, were reasonably clear. Th e contract was concluded between leaders representing the three communities in their capacity as leaders of the three main political parties in the Alliance (UMNO, MCA, and MIC). Th ey could fairly claim to negotiate on behalf of their respective ethnic communities because they had demonstrated that, collectively, they had the overwhelming support of the electorate. Th is was an electorate to which the idea of being represented communally but in a manner that embraced accommodation and compromise was perennially appealing.  58    Th e social contract has to be understood as a response to the deep fears of all communities that existed in the early decades of Malaysia and that still persist today. In 1957 the Malays owned about 1 percent of Malaysia’s corporate equity. By 1969, that fi gure had risen to just 2.5 percent.  59   In 1957, and even, one might argue, in 1969, the Malays were in danger
     55     See Jomo and Tan, ‘Political Economy’, 47.       56   S  ee Federal Constitution of Malaysia, art. 10(4); Sedition Act 1948 (Act 15) s. 3(1)(f) (as amended).       57     See, generally, Puthucheary, ‘Malaysia’s “Social Contract” ’; see, especially, id. at 19, 22– 23.       58   S  ee K   arl  v on Vorys,    Democracy without Consensus: Communalism and Political Stability in Malaysia  ( Princeton University Press ,  1975 ),  105 –   142  .       59     Jomo and Tan, ‘Political Economy’ 27.
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268Andrew Harding of losing not just political status, their  ketuanan Melayu , but even their a spirations for development. Th e non-M alays stood to lose their own economic position, their cultural and language rights, and even possibly their membership in the country. Th e memory of post- war ethnic reprisals was also still fresh. Th e social contract was not seen as a dangerously discriminatory new order, but rather as a mercy –  the best compromise that could be expected in fraught circumstances in a deeply fractured society. Whatever the objections, it was thought better for those disadvantaged to live within its constraints than risk losing all.  Th e social contract is a compromise that  balances  the rights and interests of diff erent communities, and the constitution, while preserving some traditional elements and special privileges, does not in essence embody Malay dominance but a pluralist democracy.  60   Th e concessions given by all sides are signifi cant. Malays accepted the possibility of becoming a political minority in their own country in exchange for constitutional acknowledgment that their position was special. Non- Malays conceded the special constitutional status of Malays in exchange for being able to enjoy citizenship themselves. Beyond that, it was clear from the retention of the States and their Malay monarchies in a federal structure, the designation of  Bahasa Melayu  (the Malay language) as the national language, and the establishment of Islam as the offi  cial religion, that the State as a pluralist artefact was nevertheless underpinned by a substratum of Malay culture.  61    Th e social contract was refl ected principally in Article 153 of the constitution. Article 153 established and protected the ‘special position’ of the Malays. But the practices that constituted the social contract pre- date that amendment –  such as reserving for Malays positions in the public service, certain scholarships and licences, and ownership of certain kinds of land –  actually commenced during the immediate post- war period under the English colonial government.  62   Th e principal eff ect of Article 153 was to clarify and extend these practices, and most importantly give them constitutional legitimacy and through that constitutional- political embeddedness.
     60   S  ee J   aclyn  L ing-C hien Neo,   ‘M alay Nationalism, Islamic Supremacy and the Constitutional Bargain in the Multi- ethnic Composition of Malaysia ’,  International Journal on Minority and Group Rights  1 3  (2 006) : 9 5– 1   18;   but see Puthucheary, ‘Malaysia’s “Social Contract” ’, 13–1 4.       61   A     bdul Aziz  B ari,    Malaysian Constitution: A Critical Introduction  (K uala Lumpur:  Th  e Other Press ,  2003 ),  43 –   50  .       62     See    Gordon P.   Means  , ‘ Malaysia: Islam in a Pluralist Society ’, in   Carlo   Caldarola   (ed.),  Religions and Societies: Asia and the Middle East  ( Berlin :  Walter de Gruyter ,  1983 ),  474  .
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Constitutional Trajectory in Malaysia 269
  A.     Th e Social Contract Amended  Th e political settlement of 1971, which brought some degree of political  stability following ethnic violence stemming from the May 13 incident, made changes to the terms of the social contract, which had the eff ect a remaking it along somewhat diff erent terms. Principally, it expanded the scope of its protections to include the indigenous populations of Sabah and Sarawak (which together with the Malays are now referred to as the  bumiputera ); it added admission to tertiary education to its list of quotas reserved for protected classes.  63   As we saw previously, it also entrenched the social contract by essentially immunising it from political debate using the threat of bringing sedition charges.  64   Th ese changes confi gured a Developmental State that was largely typical of Asian developmental states in subordinating all elements of the State to the demands of development, while at the same time being one that, by restricting criticism of its use of ethnic quotas, was particular to Malaysia’s multi- cultural society. I t is important to understand, however, that Article 153 is not a licence to ignore the constitution or the rights of citizens, or to indulge generally in offi cial or institutionalised discrimination. Article 153 represents a signifi cant but nevertheless balanced exception to equality before the law. It authorises the use of quotas in specifi ed areas of public decision making aff ecting individual opportunities. But at the same time, it forbids unequal treatment of federal employees based on race. For example, it forbids the government and parliament from ‘depriv[ing] or authoris[ing] the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him’  65  ; it forbids parliament from restricting ‘business or trade solely for the purpose of [quota] reservations’.  66    As noted in the preceding text, with the application of Article 153 to ‘natives of Sabah and Sarawak’, these communities too were made parties to the social contract, and the communities protected by Article 153 are now routinely referred to in Malaysia as ‘ bumiputera ’ (although not in Article 153 itself). Although the meaning of this term fl uctuates somewhat in common usage, from an offi  cial perspective it includes Malays –  who are in turn defi ned by the constitution as Muslims habitually using the Malay language and Malay customs and domiciled in Malaysia, and anyone
     63     See Harding, ‘Rukunegara Amendments’, 121– 122.       64   S  ee also id. at 122–1 27.       65     Federal Constitution of Malaysia, art. 153 (7).       66     Federal Constitution of Malaysia, art. 153 (9).
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270Andrew Harding with one Malay parent;  67   and natives of Sarawak and Sabah belonging to a scheduled list of indigenous groups, or whose parent belonged thereto. Essentially it is for the particular department overseeing some particular quota to decide if a given applicant is a  bumiputera  or not, and they have little incentive to fi nd against inclusion. Given the indelibly mixed nature of Malaysia’s diverse society, this issue is clearly an offi  cial headache embodying little in the way of social or economic logic. But the essential point is that through this broadening of the  bumiputera  class, that class is now able to constitute a clear majority of the Malaysian population, especially give Singapore’s departure from the federation in 1965. A s we have seen, there was no agreement among the Alliance parties in 1956– 1957 as to the duration of the special privileges under the provision that became Article 153. Th e draft ing commission had proposed that parliament reconsider these special privileges aft er fi ft een years, but that proposal was rejected, and so no duration was fi xed. Given that this proposal would have demanded parliamentary reconsideration in 1972, its rejection was probably fortunate, as parliament during that time was expanding and entrenching these privileges, through the NEP, rather than shepherding them towards their sunset. No particular duration was set for the NEP (although its targets were set to be achieved by 1990). Moreover, parliament made all potential amendments to the  Rukunegara  amendments subject not simply to the usual two- thirds parliamentary majority required for ordinary constitutional amendments, but requiring also the consent of the Conference of Rulers.  68   Th is makes the revision of the post- 1971 social contract extremely diffi  cult.  Th ere is another dark side to the remodelled social contract. Its initial remodelling took place under the cloud of emergency rule, with parliamentary democracy suspended, elections uncompleted, and citizens preventively detained without trial under the Internal Security Act. Agreements reached behind the closed doors of inter- party meetings were placed beyond public debate. Th e foundations were laid for an authoritarian style of government that contradicted many of the basic tenets or assumptions of the liberal- democratic order under the  Merdeka  Constitution. All this establish precedent for the construction of a Developmental State that denied basic civil liberties and entrenched the Alliance Party, later to become the BN, in power.  69  
     67     Federal Constitution of Malaysia, art. 160 (2).       68   A  rt. 159 (5).       69   S  ee also Das, ‘Th e May 13th Riots’, 112– 113.
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Constitutional Trajectory in Malaysia 271
  B.     Th e Social Contract Questioned  Th e Malaysian Developmental State has indeed achieved development. Since 1970, and especially aft er Mahathir became prime minister in 1981, economic growth rates have been high, albeit not consistently so. Recessions in 1985/ 6 and 2008/ 9, in addition to the Asian currency crisis of 1997/ 8, have held back economic development, but the overall trajectory represents notable achievement.  70   Malaysia no longer appears on most lists of ‘developing countries’, and poverty has been very substantially reduced.  71    At the same time the consequences of the NEP have by no means received universal applause. It is criticised for contributing to growing wealth inequality among the Malay population.  72   Corruption and cronyism in government are other phenomena that have spurred criticism.  73   I ndeed, since the 2000s signs have appeared that the NEP’s star is waning. Th e government is cautiously and by degrees addressing dysfunctional aspects of the  bumiputera  preference policy, no doubt aware of its need to satisfy non-   bumiputera  voters given the splintering of the Malay vote since 1999 between UMNO and opposition parties (PAS and PKR). Th e ‘30 percent bumiputera’ rule in foreign investment approvals was rescinded in 2009, and earlier, for all investments, in the MSC and other special zones. Quotas for university admission were abolished in 2004, and in 2008 the scholarship quota was adjusted from 90 to 10 percent to 55 to 45 percent in favour of  bumiputera .  74   Th ere is clearly widespread belief that the social contract is outdated and changes are required.  75    Central to all of these changes, we have noticed, is Malaysia’s oft en problematical attempt to secure its own vision of development as a stabilising factor for its fraught and fractious pluralism. Here the social contract has been the real test of its success. Clearly there have been positive and negative aspects of this attempt. Malaysia’s unique development trajectory
     70     See Jomo and Tan, ‘Political Economy’, 39.       71     See Anoma Abhayaratne, ‘Economic Growth and Poverty Reduction: Lessons from the Malaysian Experience’, FEA working paper no. 2004– 13 (Kuala Lumpur: University of Malaya Faculty of Economics and Administration, 2004).       72     A. H. Roslan, ‘Income Inequality, Poverty and Development Policy in Malaysia’, paper presented at the conference on  Poverty and Sustainable Development  (Pessac, Fr.: Université Montesquieu- Bordeaux, Nov. 22– 23, 2002), 18– 20.       73     But see Jomo and Tan, ‘Political Economy’, 47.       74   C  enter for Public Policy Studies, ‘CPPS Policy Factsheet: National Unity’, w my/d ownloads/f actsheets/N ational%20unity%20factsheet.pdf  (undated).       75     See id.
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272Andrew Harding remains an excruciatingly important matter but one for implicit not explicit debate. Th is brings us to the fi nal but most important piece of the Malaysia jigsaw puzzle –  religion.
V  .   R  eligion and the State  In recent years Malaysia’s reputation for religious tolerance and cultural diversity has become tarnished by images of an intolerant form of Islamisation and of inter- religious strife. In particular, the tragic case of Muslim apostate Lina Joy in 2007 (discussed in the following text) drew attention to the great hostility towards a woman whose campaign simply to choose her own religion led to rejection by the courts and her fl ight overseas to escape death threats that extended to her Christian fi ancé and even to the Muslim human rights lawyer involved in the case. Debates and controversies around religion and the constitution appear to have intensifi ed signifi cantly since the millennium. Of particular relevance here are the debates concerning Malaysia as an ‘Islamic state’; jurisdictional contradictions between the civil and Syariah courts (‘Syariah’ being the Malay spelling of what in English is normally spelled ‘sharia’); and the related issue of religious freedom. All of these are exemplifi ed by the case of Lina Joy. Some background needs to be sketched.  With the aim of undercutting the Islamist appeal of the opposition Islamic party, the Pan- Malaysian Islamic Party ( Parti Islam Se- Malaysia ) (PAS), the BN- controlled government from the early 1980s mounted its own programme of Islamisation.  76   With regard to the legal system, this involved the harmonisation of Islamic law across the thirteen states, and institutional reform within the Syariah courts and legal profession, and the religious bureaucracy.  77   In 1988, the BN succeeded in amending Article 121 of the constitution, which sets out the jurisdictional competencies of the Syariah courts and the civil courts, by providing that civil courts could not exercise jurisdiction in any case falling under the Syariah courts’ jurisdiction. Article 121 has proved highly problematical in terms of religious freedom, giving rise to endless litigation seeking to test the limits of civil and Syariah court jurisdiction.  78
     76   J     ason P.  A bbott   and S  ophie  G regorios- Pippas,   ‘I slamization in Malaysia: Processes and Dynamics ’,  Contemporary Politics   16  ( 2010 ):  135 –   151  .       77   S  ee, generally, F   arid S.  S huaib,   ‘Th  e Islamic Legal System in Malaysia’ ,  Pacifi c Rim Law and Policy Journal   21  ( 2012 ):  85 –   113  .       78     See    Li- ann   Th io  , ‘ Jurisdictional Imbroglio: Civil and Religious Courts, Turf Wars and Article 121 (1A) of the Federal Constitution ’, in   Andrew   Harding   and   H. P.   Lee   (eds.),  Constitutional
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Constitutional Trajectory in Malaysia 273 Th e PAS’s electoral and legislative successes, particularly in the state legislatures, created a new and controversial environment for the discussion of the role of Islamic law in in Malaysia’s constitutional system. In recent years, for example, there has been public debate about the concept of Malaysia as an Islamic state.  79   Th is started in 1999 and intensifi ed following an announcement by Prime Minister Mahathir in June 2002 that Malaysia indeed was an ‘Islamic state’.  80   Succeeding prime ministers have followed the same line, but have stressed moderation as the characteristic of the Malaysian Islamic state. Th ese statements have sparked great controversy. Catholic bishops and non- Muslim parties, for example, denounced them as creating a climate of fear and discrimination in a society that has always embraced religious and ethnic pluralism, and as being factually and legally incorrect.  81    Th is description of Malaysia as an Islamic state, as well as attempts to mould the common law to Islamic principles (or substitute the common law with Islamic law) have been strenuously resisted by the legal profession, which relies on constitutional history and the foundational nature of the social contract to resist a theocratic state or any deviation from the constitution or the common law.  82    Th e PAS, by contrast, while adhering to the concept if not to an actual concrete policy of creating an Islamic state, has been forced to reach political accommodation with other opposition parties in the interest of gaining power. Th is has caused it to split into an  ulama  faction, which is fundamentalist, and an ‘Erdogan’ faction, which is pragmatic. For this reason, the PAS has refrained from making clear what an Islamic state would look
Landmarks in Malaysia: Th e First 50 Years, 1957– 2007  ( Singapore :  LexisNexis ,  2007 ),  197 –   226  .       79        Andrew J.   Harding  , ‘ Th e Keris, the Crescent and the Blind Goddess: Th e State, Islam and the Constitution in Malaysia ’,  Singapore Journal of International and Comparative Law   6  (2 002) : 1 54– 1   80;   see, generally, A   bdul Razak  B aginda   and P  eter  S chier   (ed.),  Is Malaysia an Islamic State? Secularism and Th eocracy –  A Study of the Malaysian Constitution  ( Kuala Lumpur :  Malaysian Strategic Research Centre and Konrad Adenauer Foundation ,  2002  ).       80   ‘  Mahathir: Malaysia Is “Fundamentalist State” ’, , June 18, 2002, h ttp:// edition. 002/W ORLD/a siapcf/s outheast/0 6/1 8/m alaysia.mahathir/.    See, generally, L   iew Chin   Tong  , ‘ PAS Politics: Defi ning an Islamic State ’, in   Edmund Terence   Gomez   (ed.),  Politics in Malaysia: Th e Malay Dimension  (L ondon:  R outledge,  2 007) , 1 12– 1   13.         81     See    Tommy   Th omas  , ‘ Is Malaysia an Islamic State ’,  Malayan Law Journal   14  ( 2006 ):  15 –   46  .       82     See    Andrew   Harding   and   Amanda   Whiting  , ‘ “ Custodians of Civil Liberties and Justice in Malaysia”: Th e Malaysian Bar and the Moderate State’ , in T  erence C.  H alliday,   L  ucien   Karpik  , and   Malcolm M.   Feeley   (eds.),  Fates of Political Liberalism in the British Post- Colony: Th e Politics of the Legal Complex  ( Cambridge University Press ,  2012 ),  288 –   296  .
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274Andrew Harding like,  83   and accepts that its proposals need to be negotiated in terms of the existing constitution and political process.  84
  A.     Th e Constitutional Structure of Constitutional Islam in Malaysia  Th is is made diffi  cult by the fact that from a religious perspective, the constitution’s structuring of the State is somewhat ambiguous. Th e state governments (or federal government insofar as the Federal Territories are concerned) are responsible for the regulation of Islam within their respective jurisdictions. Th eir powers and responsibilities in this regard are defi ned exhaustively in Schedule 9 of the constitution. Paraphrased here, they include administering the personal and family laws of Muslims; overseeing charitable and religious endowments and places of Islamic worship; creating and punishing of off ences by Muslims against Islamic law; organising the constitution and procedure of Islamic ( syariah ) courts; overseeing the propagation of Islamic doctrines and beliefs among Malays; and deciding on matters of Islamic law and doctrine and Malay custom. Th e issue of propagation is the item on this list that aff ects non- Muslims most deeply. Each state maintains an extensive religious bureaucracy, which even includes religious police.  85   B eyond the structure of religious jurisdiction, Article 3 of the constitution, while enshrining Islam as ‘the religion of the Federation’ adds that ‘other religions may be practised in peace and harmony’.  86   To understand Article 3 further we need to refer also to Article 11, which guarantees freedom of religion and is discussed further. According to Article 11, ‘Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it’. Clause (4) provides that ‘[s] tate law [and in respect of the Federal Territories, federal law] may control or restrict the
     83   S  ee Liew, ‘PAS Politics’, 113–1 30.       84     See id.       85     Shuaib, ‘Th e Islamic Legal System’, 94– 97.       86   C  ompare J   amila  H ussain,   ‘F reedom of Religion in Malaysia: Th e Muslim Perspective’ , in   Wu Min   Aun   (ed.),  Public Law in Contemporary Malaysia  ( Petaling Jaya :  Longman Malaysia,  1 999) , 1 07–   1 33,   with P   oh- ling  T an,   ‘ Prime Suspect or Potential Witness? Paying the Price for Religious Freedom: A Non- Muslim Perspective ’, in   Wu Min   Aun   (ed.),  Public Law in Contemporary Malaysia  (P etaling Jaya:  L ongman Malaysia,  1 999) , 1 37– 1   77.   See also A   ndrew  H arding,   ‘M alaysia: Religious Pluralism and the Constitution in a Contested Polity’ ,  Middle East Law and Governance   4  ( 2012 ):  356 –   385  ;    Andrew   Harding  , ‘C onstitutionalism, Islam and National Identity in Malaysia’ , in R  ainer  G rote   and T  ilmann  R öder   (eds.),  Constitutionalism in Islamic Countries: Between Upheaval and Continuity  ( Oxford University Press ,  2012 ),  201 –   219  .
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Constitutional Trajectory in Malaysia 275 propagation of any religious doctrine or belief among persons professing the religion of Islam’. Article 11 also attaches religious freedom to religious communities by guaranteeing the rights of religious communities to manage their own aff airs. Under Article 12 discrimination against any citizen on the grounds of religion is prohibited in relation to the administration of public education, and every religious group has the right to establish and maintain institutions for educating children in its own religion. It is, however, lawful under Article 12 for the federal and state governments to maintain Islamic institutions. But no person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his or her own.  Th ese provisions have in practice raised a large number of practical dilemmas with which we cannot here be concerned in any detail, but that go the heart of the State’s very identity. Th ey encompass jurisdictional issues in a bifurcated legal system; the status of Islam under the constitution; the religious rights of both Muslims and non- Muslims; and the nature of Malaysian citizenship.  87   B eyond this there is a sharp division of opinion between those who consider that Article 3 has no eff ect other than symbolic or ceremonial, that is, that the State is essentially secular, and those who consider that Article 3 eff ectively and substantively establishes Malaysia as an Islamic state.  88   Th ere is also a variety of views that sit in between these positions. Resort is oft en had to the draft ing process of the 1950s, discussed at the outset of this chapter.  89   While it might seem odd to examine the minutiae of what are now rather ancient discussions, interpretation of the constitution is critical. Ironically, this constitutional- history debate has the incidental benefi t of entrenching the constitution as an immovable feature of public discourse.  Litigation around Article 3 and Article 121 has been extensive and tightly fought, but without clarifying many general propositions. It can be seen that the courts have moved away from seeing Islamic law as operating in a personal- law- for- Muslims niche towards seeing it as a defi ning element in the polity and the constitution. In one High Court decision,  Meor Atiqulrahman v. Fatimah binte Sihi , the judge even stated that ‘Islam in the Constitution [is] a complete way of life and not just a mere set of rituals . . . [it] is the primary religion which takes precedence over other religions
     87   S  ee, generally, Harding, ‘Th e Keris, the Crescent and the Blind Goddess’.       88   S  ee, e.g., J   aclyn L.  N eo,   ‘C ompeting Imperatives: Confl icts and Convergences in State and Islam in Pluralist Malaysia ,’  Oxford Journal of Law and Religion   4  ( 2015 ):  1 –   25  .       89   S  ee, e.g., Fernando, ‘Th e Position of Islam’.
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276Andrew Harding in Malaysia, and this is the implication of the stipulation of Islam as the  religion of the Federation’.  90  
  B.     A Case Study: Th e Allah Case I n the place of an explication of the complex case law that surrounds the jurisdictional divide between Syariah courts and the civil courts, which is the subject of a large amount of legal literature, we will instead examine the place of Islam and fundamental rights through study of a recent case. I n 2009 objections were made about a Catholic publication, the  Herald , which in its Malay edition used the word ‘Allah’ to indicate the Christian God. It is accepted that for a long time Malay- speaking Christians have used ‘Allah’ in this way. Th e Minister for Home Aff airs, using his powers under the Publications and Printing Presses Act 1984, banned the publication.  91   Th e publishers of the  Herald  applied for judicial review, and the High Court issued a powerful judgment striking down the minister’s ban on the ground that it violated the right to practice religion ‘in peace and harmony’ under Article 3(1), and the right of freedom of expression under Article 10.  92   Th is decision was then overturned by the Federal Court of Malaysia, which emphasised the need for public order in these decisions, and which also adopted a restrictive interpretation of the ‘peace and harmony’ provision, which places both the protection of Islam against proselytisation by other religions, and religious confusion among Muslims, above respect for other religions. Th e Federal Court then by a 4–3  decision refused leave to appeal against this decision, despite the High Court’s decision and a split decision in the Federal Court itself, which went far beyond the legitimate parameters of a leave application to consider the merits of the case.  93    Th e issue was extremely divisive, and resulted in the government issuing an unusual ‘10- point solution’ to guide decisions of executive bodies
     90      Meor Atiqulrahman bin Ishak  v  Fatimah binte Sihi  [2000] 5  MLJ:  375, 381 (High Court of Malaysia); see also Abdul Aziz Bari, ‘Islam in the Federal Constitution: A Commentary on the Decision of Meor Atiqulrahman’ [2000] 2  MLJ  cxxx.       91   S  ee Baradan Kuppusamy, ‘Can Christians Say “Allah”? In Malaysia, Muslims Say No’,  Time , Jan. 8, 2010.       92      Titular Roman Catholic Archbishop of Kuala Lumpur  v  Menteri Dalam Negeri  [2010] 2 MLJ 78 (High Court of Malaysia).       93     See  Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & Ors  [2014] 4 MLJ 765 (Federal Court of Malaysia).
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Constitutional Trajectory in Malaysia 277 on religious matters.  94   (What seems conspicuously lacking from Malaysia’s constitutional/ political system is any constitutionally mandated process whereby the various religious communities can negotiate a mutually acceptable solution to issues such as proselytisation, conversion, doctrinal schisms, religious critiques, and the use of religious texts. Litigation seems to encourage paranoia rather than tolerance.  95  ) Underlying this divisiveness is that there seems to be a real fear among some Muslims that unless there are severe limits on conversion from Islam, very large numbers of people will desert the faith, which accordingly needs protection and doctrinal clarity.  96   In response to some troubling incidents and in an attempt to provide a mechanism for non- confrontational resolution of inter-r eligious diff erences, in 2010 the government set up under the Prime Minister’s Department a ‘Special Committee to Promote Understanding and Harmony Among Religious Adherents’, comprising thirty- fi ve representatives of various religious organisations.  97    Th e case law on Article 121(1A) reached a critical juncture with the decision of the Federal Court (the highest court) in the case of  Lina Joy v. Federal Territory Islamic Council  in May 2007, relating to an attempt by a Muslim woman to change the religious affi  liation listed on her identity card.  98   Lina Joy was brought up as a Muslim (her original name was Azlina Binti Jailani), but as an adult she converted to Christianity, and changed her name to Lina Joy. When she requested that here National Identity Card be changed to show her new religion, the National Registration Department (NRD) refused to accept her statutory declaration that she was now a Christian, saying that she needed to obtain further documentary evidence of conversion, such as a statement of apostasy from the Syariah court saying that she was no longer a Muslim. However, the National Registration Regulations 1990, which governed the issue, made no such requirement,
     94   S  ee Letter from Prime Minister Najib Razak to Bishop Ng. Moon Hing, April 11, 2011, reprinted in ‘Bahasa Malaysia Bibles: Th e Cabinet’s 10-p oint solution’,  Aliran , Jan. 25, 2014,  http:// web- specials/ bahasa- malaysia-b ibles-1 0-p oint-s olution/.          95   C  f. R   obert A.  K agan,    Adversarial Legalism: Th e American Way of Law  (Cambridge, MA:  Harvard University Press ,  2003  ).       96   ‘  See ‘ “Illogical” Th at 250,000 Muslims Have Left  Faith, Says Perlis Muft i’,  Th e Malaysian Insider , Oct. 18, 2011, h ttp:// malaysia/ article/ illogical-t hat-2 50000-m uslims-h ave-l eft -f aith-s ays-p erlis-m uft i .       97      See Debra Chong, ‘Interfaith Panel Back in Saddle Next Month, Says New Chief’,  Th e Malaysian Insider , Oct. 17, 2011, w mobile/ malaysia/ article/ interfaith- panel- back- in- saddle- next- month- says- new- chief/   .       98     See, generally,    Steven   Th iru   and   Ben   Dawson  , ‘ Th e Lina Joy Case and the Future of Religious Freedom in Malaysia ’,  Lawasia Journal  ( 2007) :  151 –   162  .
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278Andrew Harding and she was understandably unwilling to do so because applying to the Syariah court would not only imply that she herself accepted her Muslim identity, but would also raise the possibility of her being prosecuted for apostasy.  Her application for judicial review of the NRD’s decision continuously preoccupied and infl amed public opinion as it proceeded through the courts from 2004 through 2007. A majority of the Federal Court (two to one) ultimately rejected her appeal, deciding that the NRD had acted lawfully.  99   Th e majority judgment proceeded on the basis that if a Muslim wanted to leave Islam this was a question of Islamic law, and Article 121(1A) of the constitution gave Syariah courts, not civil courts, jurisdiction over questions of apostasy. Th e Federal Court also held that the freedom of Malay/ Muslims to leave their religion was qualifi ed by Articles 3 and 160(2) of the Malaysian Constitution. Article 3, as we have seen, makes Islam the ‘religion of the federation’, and this protected status justifi es subjecting decisions by Malays, who are defi ned to be Muslims by Article 160(2), to leave Islam to review by the Syariah Courts, given the negative and contra- constitutional eff ect such decisions might have for Islam. B y so deciding, the Court had in eff ect, by reference to Article 121(1A), elevated Article 3’s recognition of Islam above Article 11’s right to choose one’s religion, something not envisaged when the constitution was draft ed. However, Justice Richard Malanjum (the only non-M uslim judge hearing the appeal) registered a passionate dissent, arguing that the superior civil courts should not decline jurisdiction over apostasy cases, because Article 121(1A) only provided for the jurisdiction of Syariah courts over issues of Islamic law, it did not give those courts authority to interpret constitutional provisions, and where restrictions on fundamental rights are involved, constitutional interpretative authority has to be express, not implied. Th e majority, he argued, failed to grasp that the jurisdiction of Islamic law is conditioned on the constitutional right of an individual, under Article 10, to choose her or his religion.  Th is case created an unprecedented degree of passion among the public. Th e plaintiff , her fi ancé, and a human rights lawyer were the objects of death threats.  100   For many Muslims, the suit threated an attack on Islam that could lead to unrestricted apostasy. For many non- Muslims, the
     99     See  Lina Joy   v. Majlis Agama Islam Wilayah Persekutuan  [2007] 4 MLJ 585 (Federal Court of Malaysia).       100     ‘Once Muslim, Now Christian and Caught in the Courts’,  New York Times , Aug. 24, 2006.
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Constitutional Trajectory in Malaysia 279 decision undermined the secular state and their constitutional right to freedom of religion.  101   Th e outcome of this and other recent cases is that the jurisdiction of the syariah courts has been increased by resolving any doubts in their favour. Th e result is a worrying, deepening polarisation of a society that has generally prided itself on its multi- culturalism and its mutual tolerance.
  VI.     Th e State aft er 2008: Beyond What, Leading to What?  Malaysia remains deeply divided; but it is divided along more than one axis. Th e divisions are political, ethnic, and religious; but they intertwine other divisions over, for example, governance and the electoral system, the federal structure, the political economy of development, national identity, and the constitutional roles of the monarchy. Th e religious divide between Muslims and non- Muslims appears to be deepening, moving from one social arena to another with no eff ective mediatory mechanism apparent other than litigation. To some extent this divide functions as a surrogate for ethnic divisions. But even beyond this, ethnicity is still a very divisive issue, as we have seen. We therefore have to confront the questions whether this situation represents a contest within an accepted range of norms; or a volatile situation that lurches outside this range of norms into new modes of governance –  and what such modes of governance might look like in future. A long these lines, there are some positive signs not oft en recognised by those partaking in this tug- of- war. Th ese confl icts take place for the most part on the assumption that the constitution (despite whatever list of faults it is seen as being guilty of) is the basis for discussion and the confl ict is over its meaning or its reform, not over its legitimacy as such. Indeed, it is revealing that the discourse is so oft en around constitutional history and interpretation, as opposed to the possibility of constitutional revision (or suspension). Th e frequent resort to litigation is, of course, highly divisive, and ultimately threatening to public confi dence in judicial independence. But constitutional litigation does off er the possibility of closure, allowing for constitutional growth as grounds of contestation move from one issue to another overlapping issue. Th e other positive indication is that these confl icts have never (at least since 1969) involved signifi cant      101   S  ee, generally, Y   ang  L ai Fong   and M  d. Sidin  A hmad Ishak,   ‘F raming Religious Disputes: A Comparative Analysis of the Lina Joy Controversy Reported by Malaysian Newspapers ’,  Th e Journal of the South East Asia Research Centre for Communication and Humanities   3 . 2  ( 2011 ):  21 –   37  .
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280Andrew Harding physical violence –  although incidents have sometimes involved damage to  property, in particular church arson.  Indeed, the cognitive and political chaos these confl icts present can itself be seen as a process of generating a new species of constitutional order.  102   It is a process similar to that described by James Tully, one that takes ‘religious law out from under the conceptual framework of modern secular law, [making] it possible to understand it in its own terms and compare it with others’.  103   Th is is clearly a positive move. In the short run, it may heighten political confl ict between the two legal systems. But there may be no clearer way forward on this issue. W hat can be seen in this story is thus a tension between three diff erent conceptions of constitutional order: liberal democracy based on and defending the Westminster constitution; Malay nationalist/ monarchist domination of the institutions of power under a restricted form of developmental constitutionalism; and an ambitious Islamic- state constitutional ideology that attempts to reinterpret the constitution in line with its agenda of desecularising the State. Only in the fi rst case does the conception of ‘constitution’ or ‘constitutionalism’ involve restricting the power of the State.  Th is does not in my view quite represent a pluralist ideology: rather it represents a  pluralism of ideologies  in a relatively stable state of tension. Malaysia is oft en seen as an example of ethnic and religious accommodation –  a ‘moderate’ (according to President Obama and some Malaysian government rhetoric that emphasises ‘moderate’ Islam) State making the best of a diffi  cult situation. Th is is not correct. It is not accommodation but rather a perpetual confl ict in which there are, so far at least, no fi nal winners and no fi nal losers, but only marginal gains, sustainable losses, and the possibility of something better.  Th e question then arises whether this position is sustainable. Few in 1957 or in 1969 would have given much chance of success in dealing with the acute social divisions eff ectively in what has been and still is a deeply fractured society. Fewer still would have envisaged that this could be done within the confi nes (albeit confi nes stretched almost to breaking point on more than one occasion) of a colonially devised constitution. However, the historical basis and practical consequences of inter- ethnic accommodation seem not to be accepted by newer generations of Malaysians.
     102     Cf. Harding, ‘Malaysia: Religious Pluralism and the Constitution in a Contested Polity’.       103   J     ames  T ully,   ‘M iddle East Legal and Governmental Pluralism: A View of the Field from the Demos ’,  Middle East Law and Governance   4  ( 2012 ):  260  .
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Constitutional Trajectory in Malaysia 281 Development, education, and urbanisation have also brought about closer proximity, more religious competition and conversions, and larger numbers of mixed marriages. Th ese factors have also, ironically perhaps, heightened inter- communal tensions. Th e previously docile Indian community, for example, has in recent years started to assert its religious (Hindu) and socio- economic rights.  104   I n the long run, this constant acrimonious, arms- length, intellectual skirmishing may turn out to be simply the way in which Malaysians ‘do’ constitutional evolution. Th is may not be completely apparent, but in examining this process one has to be aware of what opposed forces agree about as well as what they disagree about. Th e agreements can be stated as a belief, even if a purely pragmatic one, that the issues can only be determined constitutionally; that violent direct action other than protest (including illegal protest) is largely impossible; and that democracy is the only avenue by which the state can make change changes in the law and the constitution. Ironically, the post- 2008 period is the only period of Malaysian history in which the constitution could not eff ectively be amended; yet it is also the period in which the most positive and potentially far- reaching changes have taken place. Time alone will tell, but it is probably simply unavoidable that a single notion of constitutionalism is unlikely to be able to prevail.    
     104     See, e.g., Farish A.  Noor, ‘The Hindu Rights Action Force (HINDRAF) of Malaysia: Communitarianism across Borders?’, RSIS Working Paper Series No. 163 (Singapore: Nanyang Technological University, S. Rajaratnam School of International Studies [RSIS], July 2008).


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