One Thing is Certain—There will be More Amendments to the Constitution

By Ooi Kee Beng, Editorial, Penang Monthly, August 2017

As with all agreements, consensus and contracts, a Constitution is a hunt for a balance – and a dynamic one at that, between the expressing on one hand of lofty national aspirations and ambitions, and on the other of compromises meant to be more binding than they usually turn out to be.

It is an act of self-definition and self-control, where rights and duties are laid out in broad generic terms. Thus, one can see it either as a search for common ideals, or as an arena of contestation where the fortunes of different interest groups shift over time. Which parts are carved in stone and which parts are of wet clay? That seems to be the unanswerable question.

Edmund Burke, the famous conservative and vivid scholar of the French Revolution wrote in 1790 in Reflections on the Revolution in France that “A state without the means of some change is without the means of its conservation. Without such means it might even risque the loss of that part of the constitution which it wished the most religiously to preserve.”

The obssession that Malaysian political parties have about the two-thirds majority in parliament is a clear reflection that the country’s Constitution is an arena of contestation rather than an expression of common ideals. Having the means to amend the Constitution is what power seems to be about.

One can certainly argue that the contingencies of the 1950s—the fear of communism, the rush to gain independence on the part of the Malayan leaders, and the need of the British to let its empire fall in a pattern that still left it with serious advantages—made the basic law of the country-to-be a balancing act—a superb act in legal formulation—that allowed most citiziens to feel that they had not been excessively ignored.

As we know, the choice for Malaya of a federation model instead of a union model—a decision reached in the immediate post-war period rather than after the communists had been largely defeated in the mid-50s—was not so much a matter of political principle and academic wisdom than it was the expression of the British need to retain the status quo of having sultanates. After all, the nature of nation building and the uncertainties of the times would have been better managed through the creation of a strong central government that could construct a vibrant economy, unite society, and keep the peace—domestically and against outside forces. And a union model would seem the appropriate one for that.

The ethnic diversity of Malaya—soon to be amplified by integration with Sarawak, Sabah and Singapore (on and then off in the last case)—remained the festering problem that would not leave the Constitution alone. While the federational delineation along sultanate lines reflected the very recent history of British administration over the peninsula, the centralised government under an UMNO-controlled ethnictiy-based coalition grew out of the urgency of British withdrawal and the rush by Malayan leaders to fill the political vacuum that threatened.

Differences had to be put aside, if only for just a little while.

The Malaysian Constitution, assembled under such conditions, was an impressive attempt at turning a rickety sampan into a well-welded steamer that would equip a strong central government with the means to lead the country towards economic growth and political stability.

Amendments to Constitutions are not something unique. Far from it. In the Malaysian case, seen against the backdrop of the country’s complex and contentious historical situation, these were bound to come. And they did come, quick and fast.

The Alliance, and then the Barisan Nasional, in its advocacy of consensus under Malay oversight, developed as the arena in which changes, especially to the Malaysian Constitution (literally, the nature of Malaysia), could be worked out over time. Parliament, then, would be nothing more than a rubber stamp. The real contest, the real arguing, would take place within the ruling coalition.

For this one-coalition system to work, the two-thirds majority rule needed for constitutional amendments became the real battlefront. The BN thus managed always, by hook or crook, to retain a two-thirds majority, all the way until 2008.

That is why Malaysia is now at the crossroads. The overwhelming dominance of UMNO within BN was what caused the BN model itself to begin collapsing through its failure to express the diverse wishes of the population at large.

What is to come will be a renewed contest to construct a model that either reverts to the old consociational system, or to alternatives that allow the spirit of federalism to be properly expressed. Whichever the case, more amendments to the Constitution are to be expected.