Constitution and Malay Rights

The recent HINDRAF demonstrations against racial marginalization of Indian Malaysians have again brought into focus the issue of Malay “privileges” as provided for under the Constitution. Judging from public utterances in the press and websites, there seem to be continuing wide-spread ignorance, misrepresentation and misunderstanding of what our Constitution precisely provides on this issue.

The center of controversy is Article 153 of the Constitution which provides for what is popularly known as Malay “privileges”. Due to misrepresentation by UMNO in the past, many have come to identify Article 153 – and even the entire Constitution – as racially discriminatory. This is not so. In spite numerous constitutional amendments, the egalitarian spirit of our Constitution in respect of racial equality remains largely intact. Public misunderstanding is attributed to UMNO hijacking Article 153 to practice unbridled racial discrimination for self-enrichment in the past few decades.

Due to the heightening racial tensions caused by UMNO’s retrogressive move to intensify its racial agenda under the NEP (New Economic Policy) and brewing racial discontent by HINDRAF, it is imperative and urgent that the truth be known with regards to the true legal standing of the various races as provided for in our Constitution - the legal foundation upon which this nation is built. For this reason, I am reproducing as follows the main part of an article I wrote three years ago (see note below), which analysed and clarified these controversial issues.
(commencement of previous article) Forty seven years after Independence, racial issues continued to monopolise national politics, and championing Malay rights remains the single dominant ideology of UMNO - the only ruling power that this nation has known since
Independence. Thousands of speeches have been made championing this Malay cause, using various terminologies such as Malay “special rights”, Malay “special privileges” or simply Malay “rights”, often invoking the nation’s Constitution as the legal back-up. But, of the many politicians who have used these terminologies, how many have read through the Constitution to find out what these “rights” really are? Very few, I am afraid.

Our Constitution is printed in a small booklet titled “Federal Constitution” that can be bought for RM10 in the book shops. Buy one copy and read through to find out what it says about these “rights”. After all, these issues - more than any others - have dominated our lives, and all citizens should know what these rights truly are as spelled out in our Constitution.

If you have read through the Constitution to look for an answer to these Malay “rights”, perhaps the first thing that has struck you is that, familiar terminologies such as Malay “special rights”, Malay “special privileges” or Malay “rights” are no where to be found in the Constitution. Instead, we only find the term “the special position of the Malays”, which appears twice, in Clause (1) and Clause (2) of Article 153, which is titled “Reservation of quotas in respect of services, permits, etc, for Malays and natives of any of the States of Sabah and Sarawak”.
(The words “natives of Sabah and Sarawak” were only incorporated into the Constitution upon the formation of Malaysia in 1963, during which Sabah, Sarawak and Singapore were merged with Malaya to form Malaysia. In this article, these words will not be repeated after the word “Malay” when I quote from the Constitution, for abbreviation purpose).

Anyone who has read through Article 153 might be surprised to discover that the provisions favouring Malays are in fact quite moderate, and certainly no way as stretched out in intensity and scope as our politicians would want us to believe. Similarly, those provisions protecting the non-Malays as a counter-balance to the special position of the Malays under the same Article 153 are also surprisingly quite well conceived and fair. In fact, when read in conjunction with Article 8 (Equality) and Article 136 (Impartial treatment of Federal employees), Article 153 cannot be construed as having significantly violated the egalitarian principles of our Constitution, contrary to common perception.

Since the egalitarian nature of our Constitution is largely intact, in spite of the presence of Article 153, then why should it have acquired such an adverse reputation as the legal root of all kinds of racial inequalities in this country?

Answer: the fault is not with our Constitution, but with our politicians twisting, misinterpreting and abusing it.

ARTICLE 153
It is perhaps high time we get to the bottom of Article 153.
Clause (1) of Article 153 states: “It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and the legitimate interests of other communities in accordance with the provisions of this Article”.

So, the first understanding that we must have on Article 153 is that it is meant to protect the interests of not only the Malays, but also those of the non-Malays.
Next, note the deliberate use of the words “safeguard” and “special position” (instead of “special rights” or “special privileges”). The choice of these words must be understood in the historical context of the drafting of this Constitution half a century ago when Malays were economically and educationally backward in relation to other races. It was thought fit and proper then that there must be “safeguards” to protect the Malays from being swarmed over by other races.

Hence, the creation of the “special position” of the Malays, which was obviously intended for defensive purpose: to protect for survival. The meticulous avoidance of using words like “rights” and “privileges”, and the choice of the word “safeguard” were clearly calculated to reflect its defensive nature. Under that historical context, the provision of the special position of the Malays in the Constitution certainly could not be interpreted to mean the endowment of racial privileges to create a privileged class of citizenship. If it were otherwise, this country would have been turned into a racist and feudal state right from day one of our Independence.

Clause (2) says that the Yang di-Pertuan Agong shall safeguard the special position of the Malays by reserving positions “of such proportion as he may deem reasonable” in a) the public service b) educational facilities and c) business licenses.

Clauses (3) & (6) say that the Yang di-Pertuan Agong may, for purpose of fulfilling Clause (2), give general directions to the relevant authorities, which shall then duly comply.
There is a separate clause covering the allocation of seats in tertiary education – Clause (8A). It says that where there are insufficient places for any particular course of study, the Yang di-Pertuan Agong may give directions for the “reservation of such proportion of such places for Malays as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions.”

As for the protection of non-Malays against possible encroachment of their existing interests, there are several provisions under different clauses in this Article, prohibiting the deprivation of the existing facilities enjoyed by them, whether in public service, education or trading licenses. Of these protective clauses, Clauses (5) and (9) are particularly significant.

Clause (5) consists of one sentence, which reads: “This Article does not derogate from the provisions of Article 136”.

Article 136 also consists of one sentence, which reads: “All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.”

Clause (9) consists of one sentence, which reads: “Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays.”

ARTICLE 8
Reading Article 153 will not be complete without reading Article 8 (Equality). I will quote the more significant Clauses (1) and (2) of this Article in full, as follows:

Clause (1) of Article 8 states: “All persons are equal before the law and entitled to the equal protection of the law.”

Clause (2) states: “Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”

After reading through these Articles of the Constitution, we are able to draw the following conclusions:

1. The present clamour for Malay “special rights” as sacrosanct racial privileges of a privileged race, especially under the ideological ambit of Ketuanan Melayu (Malay the master race), is in conflict with the letters and spirit of the Constitution.

2. The special position of the Malays as prescribed under Article 153 of the Constitution is limited in scope to only the reservation of reasonable quotas in these 3 sectors: public services, educational places and business licenses. Hence, the present rampant racial discriminations practiced on almost every facet of our national life are mostly violations of the Constitution. Examples of these violations are:

a) Racial discrimination in the appointment and promotion of employees in publicly funded bodies, resulting in these becoming almost mono-raced bodies (particular so in their top strata). These bodies include: the civil service, police, army and various semi and quasi government agencies.

b) Barring of non-Malays from tenders and contracts controlled directly or indirectly by the government.

c) Imposition of compulsory price discounts and quotas in favour of Malays in housing projects.

d) Imposition of compulsory share quota for Malays in non-Malay companies.

e) Blanket barring of non-Malays to publicly funded academic institutions.

f) Completely lop-sided allocation of scholarships and seats of learning in clearly unreasonable proportions that reflect racial discriminations.

3) Our Constitution provides for only one class of citizenship and all citizens are equal before the law. The presence of Article 153 does not alter this fact, as it is meant only to protect the Malays from being “squeezed” by other races by allowing the reservation of reasonable quotas on certain sectors of national life. However, this Constitution has now been hijacked through decades of hegemony of political power by UMNO to result in the virtual monopoly of the public sector by a single race. The ensuing racism, corruption and corrosion of integrity of our democratic institutions have brought serious retrogression to our nation-building process in terms of national unity, discipline, morality and competitiveness of our people.
At this critical juncture, when nations in this region and around the world are urgently restructuring and shaping up to cope with globalization, our nation stagnates in a cesspool that has been created through decades of misrule. Unless urgent reforms are carried out, beginning with the dismantling of the anachronistic racial edifice, we are in for serious troubles in the days ahead.