Questioning the Traditional Features of the Federal Constitution of Malaysia

In Malaysia, much has been written about the ‘traditional elements’ that are inherent in the constitution such as the features of Malay privileges, Islam, the Malay Rulers and the Malay language, and these have been argued to ‘constitute a character by which the Federation can be recognised’ (Ibid.), and that these features bestow upon the constitution a ‘Malay’ character which is ‘fundamental to the smooth working of the Malaysian Constitution’ (Ibid.). The autochthonous character of the Malaysian Constitution was further elaborated by Aziz Bari, who preferred the term ‘indigenous’ in referring to the elements of sultanates, Islam, Malay language and the special position of the Malays (Abdul Aziz, 2003: 43). This was followed much later by Faiza Tamby Chik. By referring to similar characteristics, he argued that such features form the ‘basic structure’ of the constitution since they were part of the ‘terms of reference’ of the Constitutional Commission that was responsible for the drafting of the Federal Constitution for the Federation of Malaya of 1957. The main problem with this analysisis that it places too much emphasis on the past, without giving due recognition to transformations and changes which do inevitably take place in any society, and it also ignores the constitutive influence that law has on social reality, regarding the elite social groups’ control on institutions that make law.

There is a danger in making a generalisation that such features are monolithic and deeply entrenched as the ‘constitutional identity’ of Malaysia. Reading all the ‘traditional features’ as a whole, they reflect a strain of thought indistinguishable from Malay feudalism. While the relevant provisions on their own could be said to refer to just the historical position of the Malays Rulers, Islam and the Malays in this country, they could also be seen as symbols of the hegemony of the traditional elites.

More pertinently, there is a difference between how the members of the upper class, for example the traditional elites of the aristocracy, view the conceptual significance and scope of ‘Islam, Malay Rulers and Malay’ on one hand and the subalterns on the other. A look at the creation of the 1948 Federation of Malaya Agreement and the 1957 Constitution would reveal that the main local players/actors were the Malay Rulers, the traditional aristocracy and those related to them.