Autochthony

Egyptian carvingsWhen I first heard the word ‘autochthony’ I thought to myself – WTH?! My vocabulary is pretty extensive and that word was totally foreign to me. I’ve come to realise that studying law is going to extend my vocabulary even further, with the addition of fuzzy terminology used by the humanities.

According to wikitionary, autochthony is: “An aboriginal condition or state.” Thanks a lot. That doesn’t mean a lot does it but when applied to constitution, wikipedia has a much better description for it:

Constitutional autochthony is the process of asserting constitutional nationalism from an external legal or political power. The source of autochthony is the Greek word αὐτόχθων translated as springing from the land. It usually means the assertion of not just the concept of autonomy, but also the concept that the constitution derives from their own native traditions. The autochthony, or home grown nature of constitutions, give them authenticity and effectiveness. It was important in the making and revising of the constitutions of India, Pakistan, Ghana, South Africa, Sierra Leone, Zambia and many other members of the British Commonwealth.

The issue then is whether our Constitution is of an autochthonous nature? (the spell checker is complaining!)

The crux of the argument rests on whether or not our Consti was home-grown or otherwise. For this, we will need to refer back to the history of how our Consti came into being.

Our written Consti was drafted by the Reid Commission, which was an independent commission made up of legal experts from parts of the Commonwealth. So, we can argue that our Consti was not autochthonous as it was not home-grown but written by a bunch of external legal experts.

On the other hand, it was clear that the Commission actually solicited feedback from the ground. In fact, more than 130+ parties were consulted, on record. These parties were from various local groups representing every conceivable part of society from royalty, to the various ethnic groups and all.

So, we can also argue that our Consti was autochthonous as it was drafted with the ideas and input of our own people and the members of the Commission were merely there to moderate and formalise the points based on the discussions. But the key point in the ideas came from the indigenous people.

Unfortunately, the main points of discussion largely dwelt on the issues that concerned the people – citizenships, Malay rights, rulers, etc. There was little contention on the other issues of government, institutions, processes, etc. Most of those parts were largely copied from the Indian constitution.

Therefore, it is hard to assert that our Consti is autochthonous or otherwise. That’s the historical point of view.

But we must then ask what is the point of having an autochthonous constitution if all it affects is who wrote whose ideas down. The key test of an autochthonous constitution is whether the people put their heart and soul into it, are passionate about it and are willing to fight to defend it.

So, with that as a key test, let’s test our Consti again. If someone even suggests the idea of removing Malay rights, certain parties get so riled up and can threaten to bathe keris in blood and all that. If someone suggests that our country is an Islamic state, certain parties get up in arms over it as well. With that test, obviously our Consti is of an autochthnous nature.

However, when certain government institutions are raped, robbed of their independence and reduced in power while the balance of power shifts to other state organs, we hardly even bat an eyelid. So, we are clearly not willing to defend the basic structure and separation of powers in our Consti.

There is no solution to this issue unless we decide to one day, redraft the constitution. While this is technically feasible – just look at our neighbour to the north who has rewritten their constitution so many times – it is not a decision that we can take lightly because there are serious repercussions to doing this.

That said, if we were to rewrite the constitution today, in essence writing Consti 2.0, it should then become an autochthonous constitution if and only if, everyone’s views were considered and incorporated into the constitution. While difficult, this has been proven to be doable by the Reid Commission.

So, that’s the only answer that I have to the question of autochthonity of our Consti.

Race Relations Act

Disclaimer: This entry is purely speculative as the law isn’t available for public scrutiny yet.

I do not want to speculate over law that is not yet publicly available in writing. However, it does not bode well for our Race Relations Bill if, according to TheStar article, it is designed as one of the two laws to replace the Internal Security Act.

I applaud the minister for saying that, “Malaysia’s Race Relations Bill would be similar to the British law, including in barring discrimination on the grounds of race, colour, nationality and ethnicity in employment, provision of goods and services, education and public functions.” However, parts of the law would be void in so many ways due to Article 153 of our Consti, which enshrines racial discrimination.

  1. It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.
  2. Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special provision of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.

What I am unable to fathom though, is how the law would be able to replace the ISA. I am afraid that the government is being short-sighted again, and drafting a narrowly focused law that is designed to only tackle one situation or scenario only – that of people inciting racial tensions.

I’m beginning to appreciate how law can be constructive and destructive. My hope is that the law will be designed to promote inter-racial relations but from the way things have been going in Malaysia, it does not seem likely to happen. The law will most likely be used against people who incite racial tensions instead of promoting further integration.

You see, the law could be made to encourage the races to come together such as providing tax incentives for inter-racial marriages, further education opportunities for children of mixed parentage, housing discounts for mixed families, etc. However, I highly doubt that this is ever going to see the light of day.

I’m guessing that the law will seek to regulate behaviour. I wouldn’t be surprised to find that there will now be a list of banned words that are considered derogatory and would constitute a race crime if uttered. I wouldn’t even be surprised to find religious elements creeping into the law as we have troubles separating the two in Malaysia.

I’d like to be hopeful but I’m too jaded to be so.

Constitutional Complexity

I have been reading a couple of books on our Consti and the more that I read, the more I’ve come to realise that our Consti is a complex creature, which was conceived from a bed of compromises made in the interest of expedience. That doesn’t make it a bad document, it just makes it a complicated one.

However, what interests me most about reading the Consti is the rich history that has gone into it through the years. I am learning a lot about our country’s history through the years, from our founding fathers through the various crises and their amendments, which results in the state of our federation today.

The big question is whether or not our Consti has been worth more than the paper that it is written on. In certain ways, it has been trampled upon with the concentration of power in the central government and the subjugation of the judiciary, which totally undoes the concept of power separation.

Separation of power is a fundamental part of any working government lest it degenerate into a dictatorship, quasi or otherwise. Regardless of whether our Consti is right or wrong, I still think that it is a document that needs to be respected, especially by members of our legislative.

I do not like that my fundamental freedoms are being trampled over by legislation. I want to be able to gather anywhere, with anyone and at any time without having to obtain informed consent from anyone. Personal liberties are extremely important to me.

I hope that my learning of the Consti is not going to turn me into a grumpy old man.