Just a quibble about words? A gift to knaves?
On being shown an early draft of this analysis, a leading Malaysian lawyer responded that he doubted whether giving the term daulat the deep cosmological connection and venerable historical relevance that this present analysis explores may help us to differentiate the two ideas, necessary as that task is.
Politicians, he continued, who want to use the power of the rulers will use whatever they find at their disposal. Proffering this kind of academic analysis, he continued, only gives legitimacy to that modern political appropriation. It endows daulat with greater meaning and a deeper significance than it really has and properly conveys. “Daulat to me,” he maintained, “is no more than an aristocratic fiction that is now totally displaced”.
My reply to this was to say that the point was taken. But then, I continued, I still wonder as a scholar, academic and cultural analyst (which is how I approach this question) what this fiction called daulat is that these people assiduously invoke and are so keen to deploy.
More, if they can deploy it and do, what is it that they seize hold of by doing so, and what is its force?
* Necessary fictions: equal and identical?
In other words, the matter cannot be simply dismissed as irrelevant or inconsequential.
There remains here a serious problem –– that in political debates and in the constitutional documents off which they in part feed one may read about “sovereignty”, or sovereign power, in the modern English sense and also find the same thing habitually rendered, or “glossed”, in no less authoritative Malay text versions as daulat and kedaulatan.
Both these things, “sovereignty” and daulat may ultimately be “fictions” –– meaning socially functional and politically necessary abstractions –– but they are not quite the same fiction. That is the point, and one that needs to be made. It is a distinction that urgently needs to be pinned down and clarified.
Fictions are fine, it has been further suggested, so long as they serve some useful purpose,(26) and making a clear distinction between different fictions is, in cases such as this, indispensable.
Yet doing so may also entail (or so I was advised by those who urged a prudent silence upon me in 2009) an enormous risk. By insisting that daulat is not sovereignty one may, against one’s own best intentions, end up simply providing new scholarly arguments and academically augmented justification to those –– and this kind of thinking, or disingenuous sophistry, is becoming increasingly prevalent and influential these days in Malaysia –– who simply refuse to accept sovereignty in the modern constitutional sense.
Such people will seize upon daulat and the cultural and historical explication of the kind offered in this analysis to impugn and reject constitutionalism, meaning modern constitutionalism as it is generally understood.
* Avoiding risky arguments, or upholding constitutionalism?
A fine scholarly distinction made by academics who are careless, or na├пve, about its political implications and potential –– so I was admonished –– may well serve as a tool for the opportunistic champions of royal prerogative and Malay ethnic ascendancy to say that sovereignty in the modern legal sense is simply not suited to the Malay world, and specifically Malaysia.
This is not an unfounded fear, nor therefore a frivolous caution. But it is a danger that must be faced.
First, because the champions of constitutionalism would be unwise to deprive themselves of the advantages of insisting that the daulat of which some dream is not sovereignty, should not be confused with it, and cannot be substituted for it.
And second, because, whether or not this distinction and analysis may be used by unscrupulous opportunists to impugn it, constitutionalism needs to be and must be defended anyway, at all times.
Were we to renounce or prohibit everything that the ill-intentioned and mean-minded might abuse, we would be left in a bare and cold universe –– and no better placed to defend the things that matter to us.
Renouncing the right to make the distinction between daulat and sovereignty will not make constitutionalism safe nor exempt its champions from the need constantly to defend it and to uphold the view that in Malaysia it is the Constitution, and only the constitution, that is supreme and sovereign.(27)
The main task and challenge that the upholders of constitutionalism face, and will always face, is not that of identifying, sifting out, setting aside and then renouncing arguments that others may cynically appropriate and abuse.
It is to uphold forthrightly “against all comers” the view that the Constitution, constitutionalism and the constitutionally-based rule of law are supreme and must remain so, no matter what arguments –– ostensibly plausible or far-fetched, responsibly or unconscionably proffered –– that those hostile to it may be pleased to adduce.
* Daulat in its proper place, constitutionalism too
Both daulat and sovereignty may be recognized, each for what it is and each in its place.
The place of daulat is in the public cultural imagination of the pre-modern and traditional Malay social order; the place of sovereignty, these days constitutionally-based popular sovereignty, is at the foundation of the modern democratic nation-state.
Each has its place, and each is to be honoured in its place. Its own place. There, and not to be inserted cuckoo-like into that of the other.[Series to be concluded with Part 6 next week. Part 1, 2, 3 and 4 are available HERE, HERE, HERE and HERE]
Clive Kessler is Emeritus Professor of Sociology & Anthropology at The University of New South Wales in Sydney. Throughout the 1970s he taught courses, both undergraduate and postgraduate, about the Southeast Asian world and regional cultural history at Columbia University, New York. This article is based on Clive Kessler’s paper, “Daulat, kedaulatan and sovereignty: Authority, legitimacy, constitutionalism and modernity in the Malay world.”
(26) The astute lawyer’s insight is not unprecedented. The idea that certain socially necessary fictions are, or may become, real (and, through ritual affirmation, are made to enjoy this more than merely apparent or delusional reality), has been a commonplace in anthropology at least since the time, in the early twentieth century, of Bronislaw Malinowski (1884-1942) with his idea of “mythological charters” of existing social reality and activities. This understanding is akin to what lawyers, in their expert domain, might call a truism or designate as “trite knowledge”.
Before Malinowski the same idea was powerfully articulated by Georges Sorel (1847-1922) in his insightful, if awkwardly and even inappropriately titled, Reflections on Violence (orig. 1908). Sorel argued that the idea of workers’ industrial solidarity that was forged and experienced in common struggle created and sustained that solidarity. The belief drives action, inspires confidence, takes shape in powerful practices and recurrent patterns of social activity, and so lends credence and solid form to the initiating belief.
(27) This was ever the primary point insisted upon by independent Malaysia’s greatest jurist, Tun Mohamed Suffian Hashim: that the Malaysian Constitution is the country’s supreme law; it and it alone is supreme –– not the legislature, not the executive, not the judiciary, not the Agong and what he may stand for or others may believe him to personify, only the Constitution. It is the charter of the nation’s sovereignty and the indisputable basis of the rule of law, of the government of the nation in all its aspects and dimensions.
If Tun Suffian was right –– and few legal scholars of genuine credibility in his time or since have dared to disagree with him on this cardinal point –– the Constitution is supreme and the Constitution, that of a modern nation state, is grounded in and expresses the popular national sovereignty of its people as citizens; and, whatever their traditional and continuing cultural significance and social roles may be, the Agong federally and the Council of Rulers from whose number the Agong is drawn for a finite period –– being creations or “artefacts” of the Constitution, and having no other formal grounding or standing in those capacities outside of it –– serve as the symbolic personification of that modern national Constitution and hence as embodiments of the principles of Malaysian national constitutionalism. A popular national democratic constitutionalism.
In no way does the Federal Constitution create, acknowledge or authorize any royal power standing outside and independent of the Constitution. There is no constitutional basis for extra-constitutional royal prerogative.
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