Fundamental Liberties: How it came to be in the Federal Constitution

Friday afternoon turned out to be quite interesting. I was invited by regular commentator flyer168 to attend a talk organised by Arkib Negara at the Tun Hussein Onn Memorial.

I hadn't realised that the Tun Hussein Onn Memorial is situated at the old PM's Department Building adjacent to the Tunku Abdul Rahman Memorial (which used to be called the Residency). This was the old seat of power, so difficult to gain access to in times past. But, here I was stomping on the old corridors of power. Will wonders never cease!

Pix from here.

The talk was given by Professor Emeritus Tan Sri Dato Dr. Khoo Kay Kim. The topic was Tun Tan Cheng Lock and the pre-Merdeka ethos. Prof Khoo took the attendees on a broad conspectus of the aspirations of the Chinese community in the Straits Settlements, the Malay states and the historical concepts of kerajaan, negeri, jajahan and bangsa, the British administration, the context of the Malayan Union proposal and related matters to lend us a flavour and a context with which to examine Tun Tan Cheng Lock's place in our nation's history. Needless to say, the Prof's excursus was done extemporaneously, lucidly and seamlessly. It was masterful, as one would expect of Malaysia's eminent historian. (Update 7.30 a.m.: NST has reported on the talk in a piece entitled, Put history back in expert hands. Do read the piece. The Prof's views are relevant and pertinent especially when there is so much misinformation about the ethnic debate in nation-building.

Read also the NST interview with the Prof on the teaching of History in Malaysia.

By the way, that piece has a very important observation made by Professor Dr Mansor Mohd Noor of Universiti Kebangsaan Malaysia who has been researching inter-ethnic relations for years. His findings suggest that this erroneous presumption is widespread in Malaysian society.

"The Chinese are usually blamed for not being patriotic, but in reality the feelings of patriotism among them are just as high as the Malays," he says.

"Patriotism is not based on ethnicity."

The teaching of history, Mansor says, must be inclusive and move beyond ethnic calculations and toxic assumptions, such as whether one community is more "patriotic" than another).

The talk and, the post-talk tete-a-tete with the Prof, flyer168, Tan Siok Choo and other attendees left me with a revived thirst for Malaysian history.

To flyer168, may I say that it gave me the greatest pleasure to have finally met you in person. And, I look forward to many more meetings with you and, to your continuing tutelage.

And, all the preambles having been laid out, I am re-posting an earlier piece of research I did on Malaysia's constitutional history. This involves an interesting exchange during the Alliance submission to the Reid Commission as part of the process of fact-finding in 1956 before the Reid Commission retreated to Rome to prepare the Reid Report. This exchange is poignant for several reasons:

First, it explains how the Fundamental Liberties provisions came to be included in the Federal Constitution. These provisions on the right to life, liberty, property, equality, education, speech, assembly and religion are still being defined even now and, certainly will continue into the future. In this sense, Malaysia's evolving constitutional ethos puts us in good company with even the likes of the U.S., U.K. and every other nation on earth.

Second, it reveals as a matter of historical fact, the significant contribution made by the Indian community to Malaya and, later, Malaysia's evolving nationhood. This is the greatness of the Malayan Indian Congress's early leaders like KL Devaser who bud-grafted the Indian independence and constitutional experience into the Malayan independence and constitutional process. All Malaysians owe a debt of gratitude to these lesser-known founding fathers.

Third, it reminds us all that in the current swirl of nonsense about ethnic differences, those Malaysians who spew forth hate-filled and divisive opinions are ignorant of our own history and ungrateful to the multi-racial group of leaders who banded together to achieve Merdeka.

So, here's the post:

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.

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.

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. Devaser, in insisting on inserting Fundamental Liberties provisions into the Federal Constitution:-

The Reid Commission

Lord Reid (left) Sir Ivor Jennings (right). Pix from here.

Fundamental Rights

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?

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.

Whether it is democratic, totalitarian, right wing or left wing, they all say they are doing right. I wonder whether that gets you anywhere.

Pix from Nutgraph.

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.

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.

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.

Dato Abdul Razak: That is true. We have given an Appendix.

Sir Ivor Jennings: All those listed on page 10, or do you really mean the list that is worked out in the Appendix?

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.

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].

2 things stood out in the above transcript:-

1. 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.
2. 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.

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.

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.