MINORITY RIGHTS IN MALAYSIA

In consequential politics the issue of minority rights is agonizingly aggravating for the political party in power while the Opposition whets it growing appetite for power and authority. When you conduct a pre-judicial review of minority rights by public opinion, you will be alarmed in your conclusion that minority rights orbit uncomfortably in an uncertain constitutional arena. Bertrand Russell says in his Authority and the Individual that “emphasis upon the value of the individual is even more necessary now than at any former time.” If not for individuals where does the government get its democratic votes? Individuals as citizens own the vote banks as creditors. The government is a perpetual debtor since the ballot paper represents IOUs valid until the next general election.

“Individual rights are not subject to a public vote; a majority has no right to vote away the rights of the minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual),” observed Ayn Rand almost echoing Bertrand Russell’s views on the matter. Obviously, Russell and Rand based their observations relevant to democracy. Winston Churchill upended democracy in a House of Commons speech in 1947: “Many forms of Government have been tried and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…”

The British came and went. But they left their legal legacy behind for us Malayans and Malaysians to be somewhat subjugated by British helotism like we are an inferior lot. There is a terrifying declaration by the British Labor government’s Attorney General Sir Hartley Shawcross as reported in The Times, 13 May 1946: Parliament is sovereign; it can make any laws, it could ordain that all blue-eyed babies should be destroyed at birth.” The bizarre influence of an earlier British jurist John Austin (1790-1859) reportedly defined notions of sovereignty thus: “law and right as altogether divorced from morality and ethics.” The culprit who wrought and brought this weird notion into western jurisprudence was Thomas Hobbes who describes in his Leviathan that “law is the command of a sovereign – it does not matter what the content of the law is; if it is decreed, it is by that fact alone that a law is to be obeyed. – it is a word by him that by right has command over others.” That smacks of pure fascism! Caveat: 13th May foreshadowed?

Side bar: Sir Hartley Shawcross participated in the Trial of German War Criminals in Nuremberg where he accused and charged Nazis for killing blue-eyed Jews under superior orders that came from the German legislature under Adolf Hitler which apparently should not have had the power to make or unmake any laws like the British Parliament. What’s good for the goose is not good for the gander!!

It is hoped that Lord Reid and his team did not permeate the Federal Constitution with the Hobbesian or Austinian concepts of law and justice. First, consider Article 8(1) of the Malaysian Federal Constitution that proclaims, claims, assures, ensures, approves and guarantees EQUALITY in that “all persons are equal before the law and entitled to the equal protection of the law.”  There is nothing ambiguous, mysterious or esoteric when the discerning public analyzes those sixteen words contained therein:

“All persons” include and encapsulate Individuals, Corporations, Societies, Non-Governmental Organizations (NGO), Partnerships and Trusts. “are equal before the law” needs only a literal interpretation. “and entitled to equal protection of the law” is another plain-speaking enunciation of the political will of the supreme law of the land. The constitutional text that was drafted and ordained in 1957 by the Reid Commission needs no decoding or deciphering.

“All persons are equal before the law” became uncomfortable post-13 May 1969 for the government. This birthed the 3-R jurisprudence in which race, region and religion became the national pathos well managed and regulated by legislation. Swiftly, the New Economic Policy was unleashed by the second Malaysian prime minister which rendered Article 8 of the Federal Constitution an impotent and impractical parchment promise good on paper only. When you bend, not mend, the rule of law becomes a lethal weapon. 2025 Malaysian politics is another showdown for fighting for minority rights.

“Minority rights are fundamental human rights applied to smaller, non-dominant groups (ethnic, religious, linguistic, etc.) to protect them from discrimination and ensure their inclusion, focusing on equality, cultural expression, and participation in society, as outlined by UN declarations and treaties like the ICCPR (International Convention on Civil and Political Rights of 1966). They aim to protect the existence and identity of minorities, allowing them to enjoy their culture, practice religion, and use their language without fear, fostering justice, diversity, and peace.” This United Nations proclamation is unerringly contained in Articles 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the Federal Constitution. These nine rights include the minority as well. But I disagree with Henrik Ibsen who wryly noted that “the majority is always wrong; the minority is rarely right.” I believe the majority is always wrong; the minority is rarely heard. They minority in Malaysia have the right to remain silent.

Another bastion of minority rights is firmly anchored in Article 153 Federal Constitution where the Yang di- Pertuan Agong is responsible for the “. . . legitimate interests of other communities . . .” Therefore, constitutionally, minority rights are required to be protected, preserved and propagated. I am unable to find any record of minority Malaysians marching peacefully to Istana Negara to hand over a petition to the Yang di-Pertuan Agong concerning the violation, restraint or prevention of their rights as guaranteed under the Federal Constitution.

Colonial England naively thought and believed that they had unerringly delivered a bundle of rights courtesy the Magna Carta of 1215. But in in 1957 Malaya, this was purely an European assault upon our thousand-year-old adat belief systems of customs and usage generously applied, accepted, acknowledged, endorsed and referred to in Article 160 of the Malaysian Federal Constitution thus:

“Law includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom and usage having the force of law in the Federation or any part thereof.” Not only is adat relevant to minority rights, but the intent, extent, content, scope, scale and effect of the Reid Commission is indisputable. Custom and usage must develop into a strong force in Native courts because the minority rights of the Original Peoples of Malaya and Malaysia – the Indigenous Communities termed “Aborigines” and hundreds of Native Tribes in Sabah and Sarawak - are well protected in Article 8(5)(c) and Article 153 of the Federal Constitution.

Adat has rendered consequential court decisions in several cases starting with Ramah v Laton (1927) where the Privy Council declared that where local custom and usage (adat) prevailed it would be futile to apply imported English common law or any other legislation local or imported.

The dominant race in Malaysia is represented by the Malays while the dominant religion is Islam as practised by Malays who make up 58% of the Malaysian population. In essence the remaining non-Malay population of 42% can hardly be referred to as a minority if we are to think in terms of one nation, one identity. one citizenship for all Malaysians. Governments since 1957 have constantly referred to national unity as a level playing field while the ground is politically made uneven with politically correct interpretations of the special position constitutional status reserved for Malays and the Indigenous Communities of Malaysia – Article 153 Federal Constitution. The “legitimate interests of all other communities,” as mentioned in this Article unreservedly maintains that everyone has reasons, purposes, rights and equal opportunities under the Malaysian sun despite the special position status when you factor in Article 8 (Equality) of the Federal Constitution.

Notions of national unity will obviously prevent anyone from complaining about the supreme law’s edicts and commands, but the negative textual construction of Article 8(2) of the Federal Constitution stipulating that discrimination must be expressly authorized by the Federal Constitution is disturbing and disconcerting to the very notion of equality. The Aristotelian classification doctrine of granting equality only to persons in the same class and as such, “… recognises that all persons by nature, attainment, circumstances and the varying needs of different classes of persons often require separate treatment.” Isn’t that a rarefied form of discrimination creating its own vaccum?

Article 8(2) Federal Constitution must be jettisoned as a measure of basic human dignity if and when sitting judges invoke their constitutionally guaranteed judicial rights to adapt, modify, amend or repeal any law that is unconstitutional - Article 162(6) and 162(7) Federal Constitution. I love my country too much to witness and experience the flagrant and forced constitutional suicide of minority rights. We will have a genuine democracy if Article 8(2) is repealed.

Wonder if the Malaysian Bar Council is aware that Article 8(2) prohibits discrimination in “… the establishing or carrying on of any trade, business, profession, vocation or employment.” So, why are law graduates facing wanton discrimination by insisting that they pass the rote-rated regressive CLP examinations in order to be “admitted” to the Roll of Advocates and Solicitors? What does the Malaysian Bar understand by the phrase “qualified lawyers admitted to the High Court of Malaya”? Is one a “qualified lawyer” if he or she passes the CLP examinations after passing examinations in a rigorous 3-4 year LLB Course without any law practice experience? Perhaps some kind soul will shed light on this enigma wrapped as a puzzle and presented like a mystery.

Here's something I gleaned from reliable sources that the Malaysian Bar should chew on:

While most countries have some form of licensing for lawyers, some jurisdictions, like certain Canadian provinces (BC, PEI, Alberta, Manitoba, Saskatchewan, Nova Scotia, Nunavut) are moving away from traditional bar exams towards practical training, and countries like Finland, Belgium, and even Australia  emphasize deep legal education over a single big exam, with some EU nations also having different systems for foreign lawyers, meaning the concept of no bar exam is evolving, focusing more on practical skills assessment than rote testing. 

Email the writer: chiefjudge@secamtektektribe.org