Legal experts: Mahathir’s constitutional claim a travesty

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Mahathir is contradicting himself.


Former prime minister Tun Dr Mahathir Mohamad is contradicting himself with his claim that promoting Malaysia as a multiracial country is against the Federal Constitution, says constitutional lawyer Andrew Khoo.

Khoo said in August 1996, Mahathir had said when opening the Second World Fujian Convention and Malaysia-Fujian Investment and Trade Exhibition in Langkawi that “Malaysians are justly proud their country is a genuinely multiracial nation”.

Mahathir was further reported to have said that “all the various races have not only enjoyed the fruit of stability, but they have also benefitted from the country’s development and prosperity resulting from it.”

When contacted on Tuesday (July 4), Khoo said: “I am genuinely saddened to read media reports of what Dr Mahathir…said.

“If the reports are accurate, then he is contradicting himself.”

Khoo also pointed out that in February 2019, in a Chinese New Year video distributed by the Prime Minister’s Office, Mahathir “reminded Malaysians not to take lightly the nurturing of the relationship among the multiracial, multi-religious and multi-cultural community, saying it is something not easy to preserve.”

He noted that Mahathir even said in the video that Malaysians were fortunate to celebrate the various festivals in peace and harmony but that might not always be the case as there were “those who attempted to disrupt the harmony for a certain purpose”.

Khoo, who is the Bar Council constitutional law committee co-chair, said although the Federal Constitution places the Malays of the peninsula and the natives of Sabah and Sarawak in a special position, it also protects the other races.

“The Constitution under Article 153 places the Malays of Semenanjung and the natives of Sabah and Sarawak in a special position in relation to other races, in order to achieve a fair and equitable balance in education, employment and enterprise.

“The other races are not to be ignored. Also, if one looks at the definition of ‘natives of Sabah and Sarawak’ in the Federal Constitution, it is clear that they encompass many different ethnicities.

“The bumiputra of Sabah and Sarawak embrace different religions as well,” he added.

Meanwhile, other legal experts say Mahathir has misunderstood the Federal Constitution by claiming that promoting a multi-ethnic country goes against the constitution.

Constitutional lawyer Bastian Pius Vendargon said Mahathir’s claim was incorrect as Article 8 of the constitution states that all persons are equal before the law and entitled to equal protection.

He also said the constitution does not seek to impose “Malayness” on others or exclude people of different ethnic backgrounds, although it recognised Malay rights and Islam’s special position.

“Just because it doesn’t say anywhere in the Federal Constitution that Malaysia is a multi-ethnic society doesn’t mean it is not,” said Vendargon.

Philip Koh, an adjunct professor at Universiti Malaya, described Mahathir’s interpretation of the constitution as a “travesty”.

Koh said the constitution promotes a democracy that is conducive to building a multi-ethnic country, while recognising the role of Islam and the Malay’s rights.

“However, these constitutional recognitions do not negate the fact that, on the whole, the Federal Constitution is meant to protect a liberal democratic (political landscape).

“I’m not saying that valid contestations do not arise in any one instance as to how the constitution is interpreted, but to say that promoting multi-ethnic constitutional order is unconstitutional is a travesty of any interpretive approach (to the constitution).

“The Reid and Cobbold commissions, backdrop of Merdeka and formation of Malaysia, all affirm that we are a liberal democracy and not a race-based autocracy,” he said.

Koh said those espousing a misinterpretation of the constitution could cause unease among the people and be detrimental to the nation’s well-being.