His book analysing the Malaysian Constitution has been creating quite the buzz. And that's because, says Prof Andrew Harding, citizens are more engaged than ever in discussing this country's laws.
MALAYSIA is often referred to as an experiment. And like all such experiments, it can so easily go wrong if the Constitutional framework for the experiment is ignored.
This year, it will be 54 years since Malaya achieved independence and 50 years since Malaysia came into being.
Are the people's aspirations today the same as those in 1957 or 1963? Or is it time for a new framework to chart a new destiny?
Before Malaysians can make an informed a decision, they should be better informed – many arguments heard these days are based on little knowledge of the social contract or the Constitution or a skewed version of the people's contributions to the country.
A framework for the harmonious existence of a multi-ethnic, multi-religious society was set out first in the Federal Constitution of 1957 and later, of 1963. And yet, it's only in the last two decades that the rakyat have awakened and begun claiming the Constitution as theirs.
They are breathing life into Constitutionalism by giving it its place as the supreme law of the land, by demanding their fundamental rights, and by insisting on the separation of powers. It's not surprising then that Prof Dr Andrew Harding's latest book, The Constitution Of Malaysia: A Contextual Analysis, is drawing attention.
In it, he charts and analyses the key historical, political and legal events that have shaped Malaysia's Constitutional landscape and sets out how Constitutionalism has been interpreted, applied and developed.
An interesting feature of the book are the Malay proverbs with translations that head each chapter and section, as on pages 82 and 160 respectively – Hujan mas perak negeri orang / hujan keris lembing negeri kita (Though it rains gold and silver there, it is still a foreign land / though it rains swords and daggers, it is still our land); Adakah pernah telaga yang keroh mengalir ayer-nya jerneh? (Will you ever get clear water from a dirty well?).
The book is part of Britain-based Hart Publishing's "Constitutional Systems Of The World" series and was written for a foreign audience with no knowledge of Malaysia. Prof Harding, the co-founding editor of the series, is happy, though, that the book "has had so much resonance in Malaysia".
Why are more citizens filing legal cases on Constitutional points?
In the early 1990s, even feisty lawyers like Karpal Singh, eager to take up a Constitutional point in an appeal, would drop that ground if they could win on a non-Constitutional ground. From what he told me when I asked, it was a vicious cycle. Many judges were not interested in hearing Indian or Australian case law in support of a Constitutional argument. But local cases were few and far between because very few lawyers wanted to argue a Constitutional ground and gamble with their clients' future if they could win on another point.
Are judges now more open to Constitutional arguments or is a new generation of litigants claiming their Constitutional rights in the courts?
Prof Harding, who is no stranger to Malaysia, notes a psychological shift in Malaysians' ownership of the Constitution, reflected in how people have moved from calling it "the Constitution" to "our Constitution" and even "my Constitution".
"The sense of ownership obviously comes through in the litigation."
While acknowledging the increase in litigation "could be a generational change", he also credits the "revival of the judiciary, the lawyers Walk for Justice in 2007, and changes in 2009 to the appointment of judges".
"The judiciary seems more willing to strike down government actions when they appear to be unlawful."
Prof Harding, who is the director of the Centre for Asian Legal Studies at the National University of Singapore, reckons Malaysia is becoming a "very vibrant democracy".
"It's always been vibrant but there hasn't always been room for as open a discussion as you get now," he says, referring to the one that took place after the launch of his book last month at the Malaysian Centre for Constitutionalism and Human Rights in Kuala Lumpur.
What are Malaysia' challenges in the 21st century?
A key one would be the changing nature of the state and of citizenship, says Prof Harding, in an interview after the launch. He says the state that emerged from the 1969 race riots, the New Economic Policy and the Rukunegara "became progressively a very authoritarian state".
"Maybe I should qualify 'very authoritarian' because by global standards it might not be so," he says, smiling. "But now, there's a lifting of the apparatus. This is terribly interesting because not many countries are doing it."
He welcomes the Government's announcement that it will replace the Sedition Act with a National Harmony Act. In any country, particularly a multi-ethnic, multi-religious one, there has to be some limits to speech, says Prof Harding.
"My personal view is you shouldn't necessarily prevent speech just because some people might be offended because anything you might say, someone could be offended. I don't think we should be dictated to by minorities, by what they think is appropriate speech. On the other hand, you can't allow people to say things so hateful and incendiary that they incite people to violence.
"That's my own benchmark. Apart from that, you should allow the maximum freedom of speech that is practically possible."
Being a "fascinating experiment of how different communities can live together, under a Constitution, under the Rule of Law", he says, what happens in this country is very important not just for Malaysians but everyone because this is a Muslim majority country with large minorities of many religions and ethnic groups.
"How can all this be made to fit together? These are issues we are confronting in Europe and North America, Australasia, Africa, all over the world."
He adds even Japan, the most monolithic country in the world, is confronting multi-culturalism now.
Prof Harding sees an emerging sense of common citizenship in Malaysia. "It's been present in theory but not quite in psychology because people have always tended to think of themselves as, first, a member of a particular group and only secondarily as Malaysian".
He says the Bersih movement was probably the first time the rakyat stood up not as Malays, Chinese, and Indians, but as Malaysian citizens to air grievances about the electoral system.
"The electoral system is one where everybody is equal, where everybody has the vote, or should have, and where everybody's vote should be counted and counted equally."
While noting it would take more than one cycle to get the electoral system to be as accurate and as fair as possible, he is appalled only 10.7 million Malaysians voted in 2008 – "That's less than half the population!"
He says the poor turnout could be due to apathy, disbelief that a vote makes a difference because everybody will be corrupt, geographical obstacles, or because people are not on the roll or unable to get on it.
Is the Constitution holding up?
The 1957 Constitution was good for its time, he replies. While he has made his complaints, Prof Harding says it was "an intelligent job and not an off-the-peg Constitution".
While the Constitution is "still alive", he says many things are outdated – our fundamental rights are "very, very basic".
He says that most modern Constitutions have three times the amount of detail as ours. "Gender equality is the only right that's been inserted since independence, all the other rights have been regressed.
"It's all down to how judges interpret things like the right to life and personal liberty."
In recent years, some Sabahans have been arguing that their status is one of three regions in the federation and not one of the 13 states and three federal territories that make up Malaysia.
"My response is a yes and no," says Prof Harding.
"Malaysia is an asymmetric federation. It is a federation of two elements, one of which is already a federation – Malaya. In a sense, they are right. They have special powers that were negotiated in the 20-point Agreement. Some argue the terms have not been honoured and they want to litigate, which would be very interesting."
When Sabah (then North Borneo), Sarawak and Singapore joined Malaya to form Malaysia in 1963, they were given more powers than the 11 other states (Sabah and Sarawak had say over immigration and Singapore had autonomy in labour and education policies). The 20-point Agreement was a proposal of Sabah's terms for incorporation.
Prof Harding says it is a "no" in the sense Sabah has to be seen as part of a federation of 13 states as well. "It's not as though you can divide the cake into three portions."
Would it have been clearer if Singapore had remained in the federation in 1965? Prof Harding reckons Malaysia would have been much more federal; that is, there would be much more state powers, if that had happened.
"Their (Sabah's) other argument is, 'we joined with Singapore and we had no say when it left. When one partner leaves, it alters the nature of the federation but we weren't consulted or given the opportunity to renegotiate the Malaysia Agreement'.
"They do have a point there but at the same time they do have more powers than other states."
A long-standing controversy is the subject of a Royal Commission of Inquiry (RCI).
"It's interesting that Sabah and Sarawak have powers over immigration, since the Federal Government has powers over citizenship. These things contradict each other," Prof Harding points out.
"This is a fundamental issue in the Malaysia Agreement ... and, rightly or wrongly, they feel in Sabah that their autonomy is undermined because the Federal Government can grant citizenship; whether they have done so in a cavalier fashion is being looked at by the RCI.
"They feel very strongly that they have a bad deal as a result of this, or maybe it's just the frustration of particular political parties that feel they can't make headway with the voters because of these issues with immigration.
"I don't know, but it's something that needs to be addressed with a clear understanding of the conditions in the Malaysia Agreement."
Other challenges are the position of religion and the jurisdiction of the syariah and civil courts.
Referring to several cases, Prof Harding stresses the need to resolve the jurisdictional issue because people keep falling into the gap between the two systems.
While noting the syariah courts have improved in terms of delivery of justice to Muslims, he says the issue is how it would apply to non-Muslims.
"I do believe, and I have argued, the civil courts have made some errors in denying freedom of religion."
Currently, there is no way to address these issues except to litigate each one as it comes up in different cases, but then the question of which court to litigate in arises and you get into problems, says Prof Harding.
Which branch of government has moved furthest from the original conception in 1957?
"The executive! It was conceived in a liberal democratic framework subjected to legislative power and judicial power."
He says the division of powers was distorted by the executive, particularly in the 1980s and 1990s. But he notes the balance is being redressed somewhat and it is getting back into more of an equilibrium than previously.
What may surprise some is his view that, from the 1957 perspective, the judiciary was intended to have a limited role. "But that's changed now and I think you can see that in the cases which go to court.
"The role of the judiciary is very, very important. Every interpretation of Articles 3 (religion), 5 (liberty) and 8 (equality) is going to have an important effect."
He gives the Malaysian Bar an A+.
Prof Harding tells his intended foreign readers that one big lesson to be drawn from here is: if you want to preserve human rights, the rule of law, a democratic system of government, and Constitutionalism, you need a strong and independent legal profession. He says the Malaysian Bar has been "rock solid" in supporting the judiciary, criticising it when necessary as well as criticising the Government and maintaining a consistent line on Constitutionalism and the rule of law without any political alignment.
"There aren't many countries where you can say that. They are a precious asset. Emerging countries can learn a lot from the Malaysian Bar."
The Constitution Of Malaysia: A Contextual Analysis by Andrew Harding is available at major bookstores nationwide.
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