Is Promoting A Multiracial Country Contrary to the Federal Constitution?

Is Promoting A Multiracial Country Contrary to the Federal Constitution?

Tun Dr. Mahathir bin Mohamad (“Tun M”), the 4th and 7th Prime Minister of Malaysia, recently courted controversy when he said the following:

“4. Sebaliknya bertentangan perlembagaan ialah mempromosi negara berbilang bangsa.”[1]

(“Impugned Statement”)

My loose translation of the Impugned Statement is as follows:

“4. Conversely [it is] contrary to the constitution [to promote] a multiracial country.”

Other legally trained individuals have provided their opinions in rebuttal to the substance of the Impugned Statement.[2]

With all due respect to Tun M, the Impugned Statement is constitutionally baseless as:

(a) The Federal Constitution expressly envisages Malaysia as a multiracial country;

(b) The Federal Constitution impliedly envisages Malaysia as a multiracial country; and

(c) The Judiciary, in deciding on cases involving constitutional law, has long recognised that Malaysia is a multiracial country.

The Federal Constitution expressly envisages Malaysia as a multiracial country

Article 161A(7) of the Federal Constitution lists out the different races for the purposes of the definition of “native” in Article 161A(6) as being indigenous to Sarawak:

“The races to be treated for the purposes of the definition of “native” in Clause (6) as indigenous to Sarawak are the the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.” (Emphasis mine)

Article 161E(2)(d) of the Federal Constitution provides the following:

“No amendment shall be made to the Constitution without the concurrence of the Yang di-Pertua Negeri of the State of Sabah or Sarawak or each of the States of Sabah and Sarawak concerned, if the amendment is such as to affect the operation of the Constitution as regards any of the following matters:

(d) religion in the State, the use in the State or in Parliament of any language and the special treatment of natives of the State;” (Emphasis mine)

There are other provisions in the Federal Constitution which provide for the natives of Sabah and Sarawak, and distinguish them from the Malays. An example is Article 153 on the “Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.”

The references in the Federal Constitutions to “natives” and Article 161A(7) of the Federal Constitution’s list of races demonstrate that there are individuals of different races and therefore Malaysia is a multiracial country.

The Federal Constitution impliedly envisages Malaysia as a multiracial country.

Article 8(2) of the Federal Constitution provides that:

Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.” (Emphasis mine)

Article 12(1) of the Federal Constitution states the following:

“(1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth—

(a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or

(b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation)” [Emphasis mine]

Article 136 of the Federal Constitution is worded as follows:

All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.” (Emphasis mine)

Section 18 of the Eighth Schedule specifies that:

All persons of whatever race in the same grade of the service of the State, shall, subject to the terms and conditions of their employment, be treated impartially.” (Emphasis mine)

The specific references to ‘race’ in Articles 8(2), 12(1), and 136 of the Federal Constitution, and Section 18 of the Eighth Schedule to the Federal Constitution implies that there are individuals of different races and therefore Malaysia is a multiracial country.

If Malaysia were, say, a homogenous country, there would be no need for any specific reference to ‘race’ since all citizens would be of the same race.

The Judiciary, in deciding on cases involving constitutional law, has long recognised that Malaysia is a multiracial country

In Meor Atiqulrahman bin Ishak (an infant, by his guardian ad litem, Syed Ahmad Johari bin Syed Mohd) & Ors v Fatimah bte Sihi & Ors [2006] 4 MLJ 605, a decision of the Federal Court which involved Articles 5 and 11(1) of the Federal Constitution, Tun Abdul Hamid Mohamad FCJ (later CJ) observed that Malaysia is in fact multiracial:

Whether we like it or not, we have to accept that Malaysia is not the same as a Malay State prior to the coming of the British. She is multi-racial, multi-cultural, multi-lingual and multi-religious.”[3] (Emphasis mine)

In Tan Kah Fatt & Anor v Tan Ying [2023] 2 MLJ 583, a recent decision of the Federal Court which involved Articles 8, 12(4), 160(2), 161A(6)(a) of the Federal Constitution, Mary Lim FCJ pointed out:

“Given that Act 164 still allows for contracting and conducting of marriages according to law, religion, custom or usage, it can only be concluded that such marriages may still take place, especially in cosmopolitan, multi-religious and multi-racial Malaysia.”[4] (Emphasis mine)

Ong Hock Thye CJ (Malaya) in Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs), Malaysia [1969] 2 MLJ 129, a case involving Articles 5, 40, 149, 151 & 162 of the Federal Constitution, mentioned in passing:

“Like my brother Suffian I have the invidious task of electing whether to give more weight to English or Indian decisions in preference to the other. In this appeal we are of the same mind. Broadly speaking, Malaysia has more in common with England than India in so far as problems of preventive detention are concerned. For one thing, like England, Malaysia is compared. However for he lives from Whitehall the average Englishman does not think along parochial or provincial lines on important questions of the day. Multiracial though our society is in Malaysia, there are no two views regarding subversion.” (Emphasis ours)

The Court of Appeal in Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194[5] quoted from HRH Sultan Azlan Shah’s article Evolving a Malaysian Nation published in constitutional Monarchy, Rule of Law and Good Governance [2004] at pp 330–331, whereby HRH stated:

We embarked on a journey as a constitutional democracy with the full realisation that we were a multi-racial people with different languages, cultures and religion. Our inherent differences had to be accommodated into a constitutional framework that recognised the traditional features of Malay society with the Sultanate system at the apex as a distinct feature of the Malaysian Constitution.

Thus there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminister model and built into it the traditional features of Malay society.

This Constitution reflected a social contract between the multi-racial people of our country.

It is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm to which all other laws are subject. The essential feature of the Federal Constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever ensures to the Malaysian people as a whole for their benefits.” (Emphasis mine)

As the Federal Constitution expressly and impliedly envisages Malaysia as a multiracial country, and the Judiciary has long recognised the same, promoting a multiracial country would not be contrary to the Federal Constitution.

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PAS and its proposed vote of confidence

Datuk Seri Tuan Ibrahim Tuan Man, deputy president of the Malaysian Islamic Party (PAS), has openly stated that PAS intends to table a vote of confidence in the lower house of Parliament.[1]

According to PAS’ secretary general, Dato’ Takiyuddin Hassan, the proposal to table a vote of confidence arose as a result of rumours that certain quarters were not happy with Tun Dr Mahathir.[2]

It would be reasonable to assume that the dissatisfaction (if true), has to do with inter alia Tun Dr Mahathir’s non-committal vis-a-vis the promised handover of premiership to Datuk Seri Anwar Ibrahim.[3]

Commanding the confidence of the majority

A Prime Minister has to, in the Yang di-Pertuan Agong (YDPA)’s judgement, “command the confidence of the majority of the members of [the Dewan Rakyat].”[4]

In the event the Prime Minister “… ceases to command the confidence of the majority of the members of the [Dewan Rakyat], then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.”[5]

Such constitutional provisions, not uncommon in other countries,[6] have led to the creation of a parliamentary mechanism known as the ‘vote of no confidence.’[7]

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A True Malaysian

It saddens me to know that our beloved Tun Dr Mahathir Mohamed (henceforth Dr M) is of the opinion that there will never be a true Malaysian. After 51 years of being an independent nation, is it cockamamie to think that true Malaysians exist? Is it really something unachievable?

Dr M’s opines as such because the people (you and i) continue to hang on to our own identity, culture and language. Our former premier further elaborates that such obstacles would not only hinder unity but also block the government’s efforts to create a new Malaysian race

He added that unless Malaysians of different race, language, and culture embrace ONE identity for the sake of our future and nation (like in the Philippines and Thailand), there will never be a true Malaysian.

Dr M clearly regards our different races, cultures and languages as a stumbling block rather than a stepping stone. That is disappointing because ever since my schooling days, I have been thought to take pride in the fact that i live in a multi-racial and multi-religious country (negara berbilang kaum dan agama)

Malaysia has always played that fact to our advantage (e.g. on websites, brochures, etc). We often promote ourselves to the world as a unique country whereby citizens of different races & religions live in harmony with one another (evidenced in the Malaysia Tourism Guide)

Furthermore, tourism.gov.my states that the “Malays, Chinese, Indians and many other ethnic groups have lived together in Malaysia for generations. All these cultures have influenced each other, creating a truly Malaysian culture.”

By virtue of “hanging on to our own culture,” we have developed a Malaysian culture. Should we all now abandon our own culture and embrace a common identity? No! If we do so, what would make us any different compared to our neighboring countries?

The truth of the matter is that we dont all need to have one identity in order to be a true Malaysian. A true Malaysian is one who:

1. Knows the cultures of different races
– During Chinese New Year, red packets (angpows) are given out by those married to their younger relatives,
– Malay children are brought up to shake and kiss the hands of their parents/elders,
– Henna body art is an essential part of the Indian culture,
– Kadazandusuns in Sabah celebrate the Kaamatan (harvest) festival while the Dayaks in Sarawak celebrate Gawai Dayak

2. Speaks a little of every language
– Tamil: Dei/Deyh, Thambi, Anne, Tani/Thani
– Cantonese: Tabao, Leng Lui, Leng Zai
– Mandarin: Wo Ai Ni, Lao Shi, Ni Hao Ma
– Hokkien: Wa, Lu, Toh Long,
– BM saints: Kantoi, Lepak, Awek, Cun

3. Supports national athletes & national teams
– Datuk Lee Chong Wei (badminton),
– Harimau Malaya (football),
– Pandalela Rinong (diving),
– Azizulhasni Awang (cycling),
– Datuk Nicol Ann David (squash)
– Sazali Samad (bodybuilding)

4. Refuses to racially abuse his/her fellow brothers and sisters
– The quote “We may have different religions, different languages, different colored skin, but we all belong to one human race” by Kofi Atta Annan has become somewhat of a platitude
– However, there is so much truth in it!

5. Knows key historical events
– 31st August 1957 marks the independence of Malaya
– Sarawak achieved independence on the 22nd of July in 1963 while 31st August 1963 was when Sabah became a sovereign state
– Malaysia was formed in 1963, on the 16th of September, comprising of Malaya, Singapore, Sabah, and Sarawak

6. Knows the national anthem (Negaraku) by heart
– Though those of us out of public school no longer sing it every Monday, we live out the words everyday!
– On top of that, we temporarily have the honor and privilege (no, I’m not being sarcastic) of singing it collectively in the cinema prior to any movie

The list is not exhaustive. Take some time to think what else should be a touchstone to being a true Malaysian. Embracing a common identity is definitely not one of it!

The 40th President of the United States (i.e. Ronald Reagan) once said, “If we love our country, we should also love our countrymen.” It clearly makes no sense to say that you love your country but don’t love your countrymen!

Simply put, a true Malaysian is one who places his fellow brothers and sisters first. By loving our fellow Malaysians, we can forge an indestructible unity! It all begins with love!

*This awesome article appeared in The Malaysian Insider