I present an extract of the transcript of the hearing by the Reid Commission of submissions by the Alliance wherein Tunku Abdul Rahman was questioned by Lord Reid regarding the Alliance memorandum on fundamental rights.
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In reply, the Tunku admitted that it was the Malayan Indian Congress (not UMNO or MCA) who insisted on the fundamental rights provisions. The wisdom of the Indian community in Malaya was, no doubt, derived from the Indian constitutional experience.
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This is an interesting and strange piece of constitutional history that shows starkly how remarkable events take place in seemingly mundane settings. Our Fundamental Liberties - such as freedom of speech, equality, rights to education, property and religion - are contained in Part II of the Federal Constitution. Read the following transcript that reveals the pivotal role played by MIC's early leaders, especially K.L. Devasaer (en.wikipedia.org/wiki/K.L._Devaser), in insisting on inserting Fundamental Liberties provisions into the Federal Constitution:-
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Fundamental Rights
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Chairman (Lord Reid): There are two kinds of Fundamental Rights - those that are enforceable by the Court, as set out in page 10, and those which are extremely varied and cannot be enforceable by the Court, but merely guides (sic) the future political parties as to what they should do. Now, you put in here quite a lot of the second class of Fundamental Rights which you really cannot guarantee. I am wondering whether you want them to be put in such great detail or not at all?
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What do they do? They simply tie your hands and your successors? So far as they have any political effect; they have no legal right and, speaking entirely for myself, it seems to me to deflect the argument whether that is a good Bill or a bad Bill, it is a question of words whether it fits in with Article C of the Fundamental Rights in the Constitution which has become a matter of words, because every political party that ever was would say that they are trying to promote a sound social order and the welfare of the people.
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Whether it is democratic, totalitarian, right wing or left wing, they all say they are doing right. I wonder whether that gets you anywhere.
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Tunku Abdul Rahman: All these can be taken out. The main thing is the Fundamental Rights. It was a suggestion from the MIC, and that is why it was put in.
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Mr.Ramanathan: Whatever is not constitutionally enforceable, they could probably be taken out. Whatever rights should be protected by the Courts would appear in the Constitution.
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Chairman: Anything for the Court should be made sufficiently definitive for the Court to enforce. As regards Freedom From Fear, I very much fear that no Court or Government could do that.
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Dato Abdul Razak: That is true. We have given an Appendix.
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Sir Ivor Jennings: All those listed on page 10, or do you really mean the list that is worked out in the Appendix?
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Tunku Abdul Rahman: It was really put in at the suggestion of the Indian community as represented by the MIC. As far as UMNO and MCA are concerned, it is immaterial whether it is in or not - if we have to mention other rights, then there are a million rights.
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And, there you have it! The real heroes of the Malayan community that insisted on the Fundamental Liberties provision in the Federal Constitution were the MIC leaders of the time. The extract can found at: Stockwell, AJ [Editor]; Malaya : Part III : The Alliance Route to Independence 1953-1957; HMSO [London] [1995]; at pp. 317-318; Paper 427 [CO 889/6, ff 281-290].
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2 things stood out in the above transcript:-
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- The Reid Commission was, as Professor Andrew Harding has noted, very legalistic. The eventual Federal Constitution is a very legalistic document, as opposed to aspirational. The Indian Constitution, for example, has aspirations contained in their State Directive Principles which is a guide for Courts. The Indonesian Constitution is aspirational.
- The Indian community in Malaya had been exposed to the Constituent Assembly debates that led to Indian independence in 1947. As a community they were the most aware of the importance of enshrining Fundamental Liberties in the Constitution.
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The present-day MIC is, of course, a completely different entity. But since its roots can be traced to the halcyon days when Merdeka was an unfolding possibility, present-day MIC members should be proud of and, be guided by the high ideals exhibited by early leaders such as K.L Devaser.
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A good description of the ethos and mindfulness of the framers of the Indian Constitution with regard to fundamental rights can be obtained from Saharay, HK; The Constitution of India : An Analytical Approach; Eastern Law House; [Reprint-1998] [Calcutta]; at pp. 32-33.
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