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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