THIS is the second part of my reflective response to Azril Mohd Amin’s article on “The rights are not universal” (NST Dec 14, 2018). In the first article, I had focused more on the United Nations and the Universal Declaration of Human Rights (UDHR). In this Part Two article, I will address Azril’s reference to the Federal Constitution and the social contract agreed by the different ethnic communities as well as his application to two matters, namely national language and on sexuality.
I have taken the position that the UDHR is not a colonial document.
However, in this part two ,I would like to discuss a matter that Azril has not raised, namely that the Federal Constitution is a colonial document. That does not mean we discard it as a pro-colonialist document but we need to note that the Alliance political party with the endorsement of the Malay sultans made the necessary changes which became acceptable to the Malay sultans and three major communities as a common building document.
At the end of the second world war with the shift in global positions on colonial societies, the British government after the failed Malayan Union plans, the Reid Commission of five persons (all foreigners) was established after the 1956 London conference.
The commission received 131 memoranda and hosted 118 meetings and eventually completed the drafted documents which were accepted by the Malay rulers, British Parliament and the Federal Legislative Council in Malaya.
The Malaysian Federal Constitution’s fundamental liberties section is similar to the UDHR. Article 5 on liberty of person is similar to UDHR Article 3; our Article 6 and UDHR’s article 4 on slavery or servitude are similar too. A significant clause is the one on equality. Our constitution’s Article 8 and UDHR article 7 are also similar: “All are equal before the law.”
On religious freedom, the UDHR provides for clear rights to “freedom of thought, conscience and religion”. In the FC, too, there is freedom, namely as in Article 11: “Every person has the right to profess and practice his religion…” The restriction is only on FC Article 11 clause 4 on control or restrictions to propagation. All these are universal principles and values arising not just from Western culture but from our common humanity where we can draw references from other Asian cultures and world religions.
It is also important to note that the Malaysian Parliament formally accepted the UDHR when the Human Rights Commission of Malaysia Act 1999 was passed. The act calls for regard to be had to the UDHR to the extent that it is not inconsistent with the Federal Constitution. This is the strongest formal endorsement on the UDHR by Parliament.
We all recognise that there are some specific features of the Federal Constitution which is uniquely Malaysian. One major example is the balancing feature. On religion in Article 3, “Islam is the religion of the Federation but other religions may be practised”; on languages, Article 152, where the national language will be the Malay language but other community languages are not prohibited or prevented. In the case of the special position of the Malays and natives as found in Article 153, it is also the duty of the Yang di-Pertuan Agong to protect the legitimate interests of other communities.
Azril draws reference to the Malay language as the sole language of the nation with reference to Article 152 of the Federal Constitution. In his arguments, he goes further by stating that vernacular schools are “the root of segregation” and also indicate that they “have no basis for their existence in Malaysia”. On this matter, Azril has got it totally wrong.
Article 152 (1) states that “the national language shall be the Malay language”. No one in Malaysia disputes this is a principle accepted in the founding of Malaya and Malaysia. However, in Article 152 part (a) and (b), it notes that there is no prohibition or prevention from the teaching or learning of any other language, including the provision of federal and state funds for this.
The Constitution makes it clear that while the Malay language is the national and official language, there is no objections to community languages. While it does not state what the other languages are, one can make a clear reference to Mandarin, Tamil, sub-ethnic languages and other languages of the natives of Sabah and Sarawak.
Azril also does not write that part of the historical educational development is the position not just of vernacular schools but also religious Islamic schools and schools run by Christian churches. Both the Razak Education Committee’s Report (1956) and the Rahman Talib Report (1960) sought to strengthen the national character of the education institutions with the Malay language as the medium of instruction. They also recognised the place of vernacular schools. It is therefore wrong to conclude that the vernacular language schools “have no basis for existence in Malaysia”. These vernacular schools are also our national heritage and reflective of multicultural Malaysia.
There is a need for more public discussions on these human rights themes in Malaysian society. Often we all seem to be in polarised sides holding on to our convictions. However, as Malay-sia is a multiethnic, multicultural, multilingual and multireligious society, there must be greater openness to dialogue with mutual respect for views and ideas. We can agree to disagree but in so doing we cannot dismiss or throw out human rights altogether.
( Part 1 of this article titled ‘UDHR is not colonial’ was published on Dec 31. )
Prof Datuk Dr Denison Jayasooria is the principal research fellow at the UKM Institute of Ethnic Studies and co-chair of the Malaysian CSO-SDG Alliance