Autochthony

When 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.