The ‘Three RS’ in Malaysia’s Struggle for Constitutional Democracy

Date01 June 2022
AuthorDian Shah
Published date01 June 2022
Special Issue (Part 1): Constitutional Struggles in Asia
Federal Law Review
2022, Vol. 50(2) 137155
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/0067205X221087460‌lr
The Three RSin Malaysias Struggle
for Constitutional Democracy
Dian Shah*
Race, religion and royalty (the Three Rs) have been salient aspects of Malaysias constitutional
struggle. These elements have def‌ined the countrys constitutional settlements during the pre-
independence constitution-making process, generated constitutional crises and continued to
f‌igure into day-to-day governance and constitutional practice. There have been instances where
operation of and compromises around the Three Rs have facilitated constitution-building. Yet,
more often than not, as this article illustrates, the constellation of these three forces have
challenged the building and sustaining of a constitutional democracy. Since the historic political
change in May 2018 in particular, the Three Rs have become even more signif‌icant in shaping the
critical junctures in Malaysias constitutional journey. To illuminate a more comprehensive
understanding of the role of race, religion and royalty in Malaysias struggle for constitutional
democracy, this article explains how these elements have def‌ined(andcontinuedtodef‌ine)
controversies relating to the distribution of political power and the protection of fundamental
rights. Fundamentally, these aspects implicate checks and balances and constraints on political
power. This article also demonstrates the ways in which the struggle for constitutional democracy
implicates a range of actors and interests: aside from individual citizens, there are the monarchy,
the elected government, the courts and group (ethnic) interests. This article then draws on
institutional and political explanations in accounting for Malaysias constitutional struggle. In
particular, aside from changing political fundamentals, it argues that the Constitution provides the
opportunity structure and institutional resources for the Three Rs to shape Malaysias struggle for
constitutional democracy.
Received 31 July 2021
When the Pakatan Harapan (PH) government collapsed in February 2020, much attention was
focused on the internal political battles that led to the unravelling of Malaysiasf‌irst ever change of
government. In the week that followed the fall of the PH government, debates continued to revolve
around political personalities and coalition-building to form government. Amidst questions about
*Assistant Professor, Faculty of Law, National University of Singapore, Singapore. The author may be contacted at
the appointment of an interim Prime Minister, determining who commanded the co nf‌idence of the
House of Representatives, and the role of the Head of State,
it seemed as if fundamental con-
stitutional values and the Federal Constitution (Malaysia) (Constitution) paled in signif‌icance
compared to the political game of numbers in determining the future of Malaysias democratic
breakthrough. To be sure, the Constitution itself would not have been able to prevent the disin-
tegration of governing coalitions or shifting political alliances. This in some ways highlights the
signif‌icance of political culture and political disposition in building and sustaining a constitutional
democracy. However, understanding Malaysias short-lived democratic transition and its inability to
sustain the democratisation momentum requires us to look beyond the gap between constitutional
law on paper and in practice, as well as the discrepancies in interpreting the Constitution. It requires
a careful appreciation and evaluation of the broader, underlying forces that have shaped the
countrys constitutional history and struggle for constitutional democracy.
This article locates such forces in what is commonly known as the Three Rs’—race, religion
and royalty. It provides an analyticalframework for thinking about how Malaysias constitutional
democracy waxes and wanes over time as it interacts with the Three Rs. The constitutional
struggles around the Three Rs, as we shall see, involve not only questions about the scope of
inf‌luence, privilege or authority; they also embody fundamental disagreements about the norms
and values underpinning the constitutional order. By extension, these struggles have signif‌icant
bearing on the notion of checks and balances (including counter-majoritarian checks) and
constraints on political power, both of which are crucial aspects of a constitutional democracy.
be sure, the Three Rs do not operate in a vacuum. Indeed, as this article demonstrates, even as the
Constitution spells out the rules of the gamewith regard to exercises of state power, it also
provides institutional resources to facilitate and legitimise the role and inf‌luenceof the Three Rs in
Malaysias constitutional governance. As I will also illustrate in this contribution, the Three Rs do
not always work in ways that undermine constitutional democracy in Malaysia. But they could,
under certain conditions, do so. In this respect, three fundamental points are worth noting at the
First, as a matter of constitutional history, for many decades, even dating back to the colonial
period, some of Malaysias most salient constitutional and political debates have revolved around
the Three Rs. Indeed, during the pre-independence constitution-making processes, the Three Rs
were at the forefront of debates on constitutional arrangements for the country. For instance, the
decision to recognise Islam (the majority religion) as the religion of the Federationwas animated
by complex discussions about the preservation of Malay-Muslim identity and interests, as well as
the traditional role of the Malay Rulers (sultans) as the heads of Islam in their respective states.
There was also the question as to whether the Constitution ought to contain provisions protecting
certain special privileges (such as preferential admission to the civil service and quotas for business
1. See generally Dian AH Shah and Andrew Harding, Constitutional Quantum Mechanics and a Change of Government in
Malaysia,Blog of the International Journal of Constitutional Law (Blog Post, 8 April 2020) http://www.iconnectblog.
2. Elkins posits that the most pressing concerns for constitutional democracies revolve around executive transgressions of
legal constraints, and thus, a meaningful democracy has to include some element of executive constraint. Zachary Elkins,
Is the Sky Falling? Constitutional Crises in Historical Perspectivein Mark A Graber, Sanford Levinson and Mark
Tushnet (eds), Constitutional Democracy in Crisis? (Oxford University Press 2018) 49, 52-3.
3. See Joseph M Fernando, The Position of Islam in the Constitution of Malaysia(2006) 37(2) Journal of Southeast Asian
Studies 249 (The Position of Islam); Dian AH Shah, Constitutions, Religion and Politics in Asia: Indonesia, Malaysia
and Sri Lanka (Cambridge University Press, 2017) 33-4, 45 (Constitutions, Religion and Politics in Asia).
138 Federal Law Review 50(2)

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