Malaysia's constitution was set at the independence of the Federation of Malaya in 1957 along the lines of the Westminster model, embracing federalism and constitutional monarchy. That it has endured is explained in terms of the social contract agreed between the leaders of the three main ethnic groups (Malay, Chinese, Indian) before independence. However, increasing ethnic tension erupted in violence in 1969, after which the social contract was remade in ways that contradicted the basic assumptions underlying the 1957 Constitution. The outcome was an authoritarian state that implemented affirmative action in an attempt to orchestrate rapid economic development and more equitable distribution. In recent years constitutionalism, as enshrined in the 1957 Constitution but severely challenged during the high-authoritarianism of Prime Minister Tun Dr Mahathir Mohamad's developmental state, has become increasingly relevant once again. However, conflict over religion has replaced ethnicity as a source of discord. This book examines the Malaysian approach to constitutional governance in light of authoritarianism and continuing inter-communal strife, and explains the ways in which a supposedly doomed colonial text has come to be known as 'our constitution'.
Andrew Harding is Professor of Law and Director of the Centre for Asian Legal Studies, Faculty of Law, National University of Singapore.
Introduction 1. Historical Background I. Symbolic Malacca II. The Constitution of Malacca and the Malay Concept of Monarchy III. The Colonial Constitutional Experience: the Residential System IV. Federalisation V. The Malayan Union VI. The Federation of Malaya VII. The Reid Commission VIII. The Commission's Report and the Constitutional Debates IX. The Creation of Malaysia X. The May 13 Incident XI. Conclusion Further Reading Websites 2. Executive Power and the Developmental State I. Introduction II. Constitutional Structure of the Executive Power III. Privatisation IV. The Social Contract: Drafted and Amended V. The Social Contract: Specific Performance VI. Conclusion Further Reading Websites 3 Parliamentary Democracy in a Plural Society I. Introduction II. Elections and the Composition of the Dewan Rakyat III. Political Parties and the Political Process IV. Parliamentary Process V. Parliamentary Accountability VI. Parliamentary Committees VII. The Dewan Negara VIII. Conclusion Further Reading Websites 4 Territorial Governance: Monarchy and the State Constitutions I. Introduction II. The Powers and Position of the Rulers III. State Government Formation and the Limits of Royal Powers IV. The Conference of Rulers V. Conclusion Further Reading Websites 5 Territorial Governance: Federal, State and Local Government I. Introduction II. Federal and State Powers: A Measure of Autonomy III. Federal and State Finance IV. Special Position of Sabah and Sarawak V. A Case Study: State Governance in Selangor Post-2008 VI. Local Government VII. Conclusion Further Reading Website 6 Human Rights in an Authoritarian State I. Introduction II. Emergency Powers and National Security Laws III. Individual Liberty and Preventive Detention IV. Suhakam: The Human Rights Commission of Malaysia V. Human Rights: the Indigenous Perspective VI. Conclusion Further Reading Websites 7 The Judiciary and the Defence of Judicial Power I. Introduction II. Judicial Independence and the Constitution III. The Judicial Power IV. Constitutional Interpretation V. The Judicial Crisis of 1988 VI. Judicial Independence: a Downward Slide VII. A Scandal Leads to Better Outcomes: the Lawyers' Walk for Justice VIII. Conclusion Further Reading Websites 8 Religion and the Constitution I. Introduction II. Law and Religion: History and Context III. Islamicisation and the Islamic State IV. Islam as the Official Religion V. Religious Freedom VI. Conversion and the Courts VII. Conclusion Further Reading Websites Conclusion Index