Visiting the Malay ‘Rights’
http://www.themalaysianinsider.com/index.php/opinion/art-harun/29840-visiting-the-malay-rightsBy :
Art Harun describes himself as a non-governmental organism, intent on infecting the conscience.JUNE 18 – I have been labelled anti this and that. Apparently, I am also pro this and that, or the other. Therefore, I am going to begin this article with a disclaimer, just as all accountants do on their reports. This article contains my interpretation of the relevant Constitutional provisions in respect of the “rights” of the Malays.
And please read the next sentence really slowly. It is not intended to question anything, whether rights or otherwise, belonging to anybody, regardless of his or her race, faith or political leaning.
Malay rights. What a subject. The mere mention of it evokes so many emotions. So much anger and resentment have resulted – on both side of the fence – from this subject.
It has been explored by the likes of Awang Selamat, Tun Dr Mahathir Mohamad, Datuk Ibrahim Ali and various NGOs. Our politicians have shouted and screamed about it. Warnings of mayhem and amok have been sounded in case of a challenge against these rights.
Even HRH the Sultan of Perak had spoken about it recently. But I notice not a single person out of 27 million of us has actually taken the trouble to spell out what these rights actually are. And so, let me be the first one to do it.
The supreme law of this country is our Federal Constitution (FC). That means every law and policy must be in adherence with the FC. Otherwise, such law or policy would be void for being unconstitutional.
We therefore have to look at the provisions of the FC to determine these so called rights of the Malays.
Generally, article 8 provides that all persons are equal before the law. I say “generally” because there are exceptions to this rule.
Clause 2 of article 8 says that there shall be no discrimination against citizens on the ground of religion, race, descent, place of birth or gender except as expressly authorised by the FC.
So, there you go. All of us are only equal up to the extent as provided by the FC. This means we may be discriminated against if the FC expressly allows it.
Let’s cut a long story short. Article 153 of the FC is right at the centre of this issue. It is a fairly long article, with 10 clauses in it. Basically, these are what that article provides.
Firstly, it says that HRH the YDP Agong has the responsibility to safeguard the “special position” of the Malays and natives of Sabah and Sarawak. Notice that the words used are “special position”, not “special rights.” Notice also that the safeguarding is not only restricted to the Malays but also the natives of Sabah and Sarawak (the “Natives”).
But that is not all. It also says that HRH the YDP Agong is also responsible to safeguard the “legitimate interests” of other communities.
Notice the differences at what is being safeguarded. As for the Malays and the Natives, it is their special position. While in respect of other communities, it is their legitimate interests.
At this juncture, we should know what Malay is. Article 160 defines Malay as a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom.
It is not a scientific definition. It is one of the most absurd definitions I had ever come across in any written law. How could you define Malay as a person who speaks Malay and conforms to Malay custom when the very word which was sought to be defined in that definition is the word “Malay”? It is like defining a “mango” as “a fruit which tastes like mango”. Anyway, I digress.
Under article 153, HRH the YDP Agong is given the power to do the followings:
A. To exercise his functions under the FC in such manner as may be necessary to safeguard the special position of the Malays and Natives;
B. To ensure the reservation for the Malays and Natives of positions in the public service, scholarship, exhibitions and other similar educational or training privileges given by the Federal Government in such proportion as he may deem reasonable;
C. To ensure the reservation for the Malays and Natives of any permits and licenses if such permits or licenses are needed for the operation of any trade or business as he may deem reasonable; and,
D. To ensure reservation for the Malays and Natives of places in any university, college and other educational institution providing education after Malaysian Certificate of Education (SPM) or its equivalent in such proportion as he may deem reasonable in the event the number of qualified person for any course or study is more than the number of places available.
The rest of article 153 is concerned with the prohibition against depriving licences or permits from the non-Malays or non-Natives if they have been in possession of such licenses or permits all along. This is beyond the scope of this article.
The most important thing to be noted from this provision is the fact that there is no right whatsoever conferred to the Malays or Natives.
The provision does not say, for example, that “the Malays or natives of Sabah and Sarawak shall be allocated 75 per cent of all places in universities, colleges or other education institutions, or 65 per cent of all scholarships available in Malaysia every year.”
When we speak of “rights”, we speak of entitlements which are possessed by a person or body of persons. These entitlements would then be enforceable by law.
Taking my example in the previous sentence, a class action to enforce such rights may be brought by the Malays or Natives if such rights are denied them in any year if the provision in the FC is couched as such.
However, that is not the case in the FC. What is provided is a power to HRH the YDP Agong to reserve licences, permits, scholarships, places in universities or positions in public service for the Malays and Natives in such proportion as he deems reasonable. That power is undeniable and clearly defined.
The FC however, in my humble opinion, stops short from conferring any enforceable right.
Question may be asked as to how may HRH the YDP Agong exercise that power. The answer is in clause (2) of article 153.
Clause (2) provides that power shall be exercised by HRH the YDP Agong in accordance with article 40. That simply means that the “power” conferred to HRH in article 153 is not exercisable by HRH at his discretion at all. That power is exercisable on the advice of the Cabinet or any Minister acting under the general authority of the Cabinet. By convention, that person is the Prime Minister.
In the big scheme of things then, HRH the YDP Agong does not have any say on how those things are to be “reserved” for the Malays and the Natives.
Essentially, it is the Government, through a Cabinet decision, which draws out the policy on how this power is to be exercised. Basically, the Cabinet decides the criteria for such “reservation” and also for the distribution of the matters mentioned in article 153.
That means, all these while, it is not Umno alone who decides. It is the Barisan Nasional as a whole, which means the matter has all along been decided by Umno, MCA, MIC and all the component parties within the BN.
Nowadays questions have been raised as to why students with lower scores could gain admission into universities while students (non-Malays) with higher scores could not. The same question is raised with respect to the grant of scholarship.
In the commercial world, questions are being raised on the distribution of government contracts and also the requirement for a certain percentage of Malay shareholdings in corporations.
On the Government side, these questions have been received with absolute disdain. These are treated as a challenge of the rights of the Malays. Rhetoric abounds. Shouts of “ungrateful migrants” could be heard.
There is even suggestion that to question these matters is to question the power of the Ruler under article 153. The “social contract” is referred to.
In my humble opinion, that is misconceived. Nobody is asking for HRH the YDP Agong’s power under article 153 be removed.
I think, rather, what is being questioned is the policy which underlies the exercise of the power as opposed to the power itself.
It must be noted that article 153 repeatedly provides that HRH the YDP Agong shall exercise his power as “he may deem reasonable”. Perhaps such “reasonableness” is the key.
We profess to have a democratic Government and system of politics. If so, surely Government policies, especially those which touch the very basic and fundamental rights of the people, such as the right to education for all citizens, could be discussed, analysed and even questioned.
And surely, a good Government whose heart is with the people and the country would not dismiss such questions nonchalantly.
Otherwise, I suppose, the people could effect a change in such policies by changing the policy makers.
Show/Hide commentswritten by Stop The Nonsense, June 18, 2009
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written by isa rahim, June 18, 2009
I totally agree on the ridiculousness of the definition of 'Malay'. We have Christian and Hindu Malays in this country, even though they are a small minority. This regardless, we have a large number of people that look Malay, speak Malay, uphold Malay customs, but are Christians, Hindus or Pagans. In fact even some Atheists. Their origins may be from Borneo, Java, Lombok, Sulawesi, Bali or Sumbawa, but they are just as much Malay as any muslim Malay.
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written by Kulo, June 18, 2009
Although my children (a 3rd generation Malaysian) born in this country, there is a very high chance that my children will be refused equal opportunity (lets say for scholarship) as compared to a foreigner or his/her children who becomes a Malay (by definition). I am not against the foreigner or Malays but very much against the this ill-treatment on non-Malays.
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written by Sentinel, June 18, 2009
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written by Lack Loose, June 18, 2009
S. 153 confers power to Agong to safeguard reasonableness of the advice given by the PM that applies under s. 40. No special rights have been conferred to any races except certain special positions are reserved.
All citizens is on equal footing and will progress as one Malaysian race. Anyway, the special position can still be changed with consensus of the rakyat as witnessed with the position of Chief Minister of Malacca. Politic evolves for better government and not regress as long as the changes are in line with the Federal Ccnstitution.
written by Lung Hien Ching, June 18, 2009
written by jingga, June 18, 2009
What is your problem? What multiculturalism, linguistic pluralism, various historical perspectices, varying degrees of political and economic aspirations are you talking about? I believe the writer is just interpreting the law and that is his opinion. Is he being a tamil hero by doing so? And why tamil hero? Are you a closet racist? Why don't you write on this issue with your perspective? Why spew hatred and dislike on a person who has taken the trouble to write his opinion? If you cannot put your thoughts with reasons, thne please, just stay quiet. Why don't you stick to your racist agenda and stop criticizing others.
written by Robert Leong, June 18, 2009
written by George Chua, June 18, 2009
written by Hang Tuah, June 18, 2009
And as a Malay, you have been very careful and sensitive in your approach -
Yet very precise in your analysis.
Two thumbs up for your effort.
1. I have commented this issue in the past in MI comments.
2. But your article is better and more meaningful.
3. The king decides on the quota. But the cabinet determines.
4. Though MCA, MIC and other component parties are part of the BN government, we all know that Umno plays a single role in quota determination - and if MCA asks questions, they will be put down by Umno as touching on Malay rights.
5. Though the government is accountable to respond to any public inquiry, as to what quota, implementations and recipients of such benefits - the moment questions are put forth, Umno will tell them to call back to countries of their origin - they will be label as pendatang and ungrateful to citizenship, etc - which you have rightly pointed out.
6. Since tax payers money is involved in giving out such benefits such as scholarships and permits, and non-Malays are biggest contributors - Umno should not be sensitive when such issues are raised. It is a matter of good governance and transparency. If Umno has done nothing wrong and as they claimed - they have followed the constitution - then why be afraid???
7. One point that I feel Art Harun missed is the rationale for such Article 153 - my theory is the social contract - and how it developed into article 153 - we call this the history of the constitution.
Article 153 was discussed by UMNO, MCA, MIC, the Malay Rulers and the British representatives - it was agreed that Malays been majority and "natives" should be at disadvantaged in business opportunities and education thus created the wealth gap between Malays and non-Malays. Hence the special position in terms of employment of Malays into civil service, licenses for trade and university places and scholarships are provided to bridge the gap...
In the social contract and discussion, I would assume a time table was drawn up -
Moreover, Umno / MCA / MIC should have similar notes on the agreement.
In 1963 - Sabah, Sarawak and Singapore joined the federation. I am sure these three states also have discussed and have in records the agreement.
I am sure Lee Kuan Yew knows fully about this agreement.
The main point is not about dateline for the wealth gap to be bridged...
The main point is all parties should be involved and all parties must know the machinery and the data to be available for all -
The system today is - Umno is solely responsible and they answer to no one, not even within BN.
Simple question like - NEP - is it achieved or not????
Umno says no.
The question is: How do we know??? We don't swallow hook, line and sinker. We want to see what kind of economic apparatus been used to measured the achievement of NEP.
If Article 153 is permanent and if there is no agreement on dateline -
Then this is legislatured racism - that in Malaysia, we are the only country to legalize Racism.
written by nswamy, June 18, 2009
it would help all citizen's who fall below poverty line say defintion
RM 1200 a month interms of
1) home assitance RM 800 a month
2) sponsorship to their children's education till 6th form and if they qualifed for university - they are provided scholarships
3) Assistance for small business operations - to be classified rigidly to ensure no exploitation by licensing body or big business and ensured we give statistics everyyear who qualifed for these assistance and showed regardless being meritocratic it would mean in every 10 6 malays/bumiputera would have got them vs 4 others would have got them I am still not ultra vires of consitution The so called non's nor Malays would have any objection either , as for the rest of the people pay tax , govt provides basic amenities for living - u goahead and fight the battles of normal existance . no special assistance unless it is merited under a higher category like excellent academic results, best sportsperson or most innovative scientific idea or artistic expression etc now who would complain or should , some may in the beggining but society would get around and do what they are supposed to..
but the current shape and form of implementation is the untenanble on
written by aaron4d, June 18, 2009
What nonsense are you talking about? The Federal Constitution was created to reflect the multicultural society that is Malaysia. All govt policies should in the end be in accordance with the constitution. The reason we are having so much problems now is because the stupid Umno-BN govt has systematically undermining the constitution with their rhethoric of 'Malay Rights" and racial hate mongering. Please spout your nonsense somewhere else
written by Citizen, June 18, 2009
written by K Das, June 18, 2009
To say that the non-Malays want the Malay rights and privileges to be curtailed and ultimately removed is the height of stupidity. Such alleged sentiments are openly, subtly and deliberately propagated to the Malay ground to whip up their anger by the power holding corrupt Malay elites, who now fear the real possibility of losing power which they have been controlling totally all these years.
As for the special privileges, more need to be given to the Malays (and natives of Sabah and Sarawak) actually. The vast rural Malay heartland is still languishing in backwardness. The special rights constitutional provisions and NEP mandated grants meant for the ordinary Malays have been diverted big-time by these Malay power elites to enrich themselves, their family and cronies and party apparatchiks.
The simple minded rural Malays have still no clue as to why they remain static despite the progress and modernization they see far beyond their horizon. And they seem to believe in the propaganda that their salvation and future lies solely with UMNO and the Royalty. Their awakening can only come with education. Built a school and computer centres for every cluster of Malay villages, teach them English in addition. If need be (where there is insufficient supply of local teachers) recruit from abroad the English teachers. This calls for huge budget. If you really and sincerely mean and care for Malay upliftment this is the route you should take. In 15-20 years you will see a phenomenal transformation in the Malay heartland. If UMNO (if it still breathes) and the Royalty do not change to be in tune with the aspirations of the people, they will be in for a rude shock then.
written by tanyoongfatt, June 18, 2009
written by haha, June 18, 2009
written by Malaysian Heart, June 18, 2009
If (somehow) you believe that Art's "legalistic approach" here does not appreciate Malaysia's "multiculturalism, linguistic pluralism, various historical perspectices and varying degrees of political and economic aspirations", then by all means do share with us why you believe so. Some arguments supported by evidence would give your criticism of Art some credibility, & be most appreciated, as then we can have a discusson.
Sharing ones views is a pre-requisite of a vibrant democracy and no one, yourself included, should try to stop Art or anyone else from espousing his/her views to others.
So you are Dina muse, I am so jealous. Your article brought me to think why do the leaders who clamour for Malay rights have Indian blood! Why has curry make them so hot!!! No wonder Dina likes bawang putih a lot they are more cooler than the curries that i love. Another thing what happen to the Orang Asli rights? The Original people rights seem to be forgotten. Who are taken care of them? Enlighten me please! Hang Tuah seem to have forgotten Singapore also has Article 152 but that country outwardly is not rascist but in truth she is but that is another story. So if tou said this piece of legaslation is racist you have forgotten the race relation acts of various countries. Even US has one!!If you read the book about 'Doc' you realise the so call rights that you mention were never permanent in nature. It was created after 1969. It was given 30 years to work. It should be dismantle but I agree some form of protection must still be in place until we are sure the Malays who now constitute 21% of the economic pie(depends on which data) can safely keep the ill-gotten wealth they earn till then it should remain so. we still have not achieve the 30% and the saddest part the gap between the Malay rich and poor are so alarming. These things need to be arrested. The wealth must be distributed justly and equally among all the races and not create the imbalances as exist now. Salam to my sayang Ku Dina
written by sleme, June 18, 2009
written by Sinchew, June 18, 2009
it would help all citizen's who fall below poverty line say defintion
RM 1200 a month interms of
1) home assitance RM 800 a month
2) sponsorship to their children's education till 6th form and if they qualifed for university - they are provided scholarships
3) Assistance for small business operations - to be classified rigidly to ensure no exploitation by licensing body or big business"...
Yes, this is what it should be, well written, Nsamy,
I am not sure why it is hard. My relatives who's chinese now working in UK, don't mind to pay tax to UK government, but when in Malaysia, he always try to avoid paying tax.. Coz, in UK, he can see, feel that he's tax are paid and in good hand, and not being abuse. but here, he reluctant to pay and try to avoid in the past, as every chinaman know your money are paid to being abused.
And if we have good implemention of NEP and have all the knowledgeable people like Art Harun, then we would have been ahead of korean, taiwan and singapore.
written by wkc, June 18, 2009
written by pachinko, June 18, 2009
written by ACR, June 18, 2009
We are all at liberty to agree or disagree with each other but none of us can tell someone else not to state their point of view. If you do, you are just an UMNO donkey. Agree Salam?
written by p1, June 18, 2009
u r correct 2 state the gap btw rich n poor malay r alarming.d question surely must be why it is so?rasuah ? imcompetence n wastful gov ?cronism ?.wil retaining the system do any good for the poor malay,cina india etc?what kind of graduate r v producing and look @ our uni?where r they heading?wealth of the nation r in the hand of the few malay cina india n lain lain esp. in sabah n sarawak, why it is so?
written by Peter Pan, June 18, 2009
Again, we are a constitutional monarchy with parliamentary democracy. Today, what do we see? We see rulers making comments ( hopefully not with the advice of the government leader of the country/state) on issues which tend to 'rojak' the constitution whether Federal or State. HRH and YDP Agong are to act on the advice of the MB/PM in a constitutional monarchy cum parliamentary democracy, unless we are reverting to the old feudalistic system!
Thanks to Art Harun for his opinion. We should see more of this and must not be emotionally be carried away. Nobody is questioning the special position of the Malays and challenging the power of the HRH/YDP Agong. What is important is that whilst this is being done, there must be transparency and equity, for fairness breeds fairness.
written by focussed08, June 18, 2009
written by Mike Li, June 19, 2009
written by Zen, June 19, 2009
Special position is clearly different than special rights. However, in deciding this special position and reservation in regard to this special position is where the problem begins. The implementation is difficult as the subject is a grey area instead of an black and white area. So this criteria for such “reservation” and also for the distribution of the matters mentioned in article 153 is where the problems begin.
Take for eg. education allocation scenario:
So how does this criteria for reservation and distribution matters be implemented?
Yes, having a student (malay) of lower score could get in to the Uni while student (non-malay) with higher score could be seen as straight cut of a black and white issue. But when it comes to implementing this reservation and distribution due to the special position, how does one implement it correctly is a difficult matter. Would allocating say 75% for Bumiputera (that means Malays, Sabah and Sarawak natives - special position) were due to this understanding of reservation and distribution?
Let's think again, how does one correctly implement it taking into consideration of the special position (reservation and distribution) while protecting the interest of other communities? We can point that the present implementation is flawed but given now, how should it implemented correctly while adhering the FC? We are quick to see the problems but not the solutions. If you were in their position, you'd probably do the same rather than crack one's head to find the right solutions. This is just one of the many examples of a flawed implementation (some people find it confusing and contradicting at the same time). If anyone can point out a solution which can protect this special position and at the same time protecting other communities interest when it comes to reservation and distribution, I'd like to hear what are the solutions for just say this education allocation scenario.
Of course, without cracking one's head to much, if in the first place where meritocracy principle was implemented, the solution of distribution would be easy to implemented. But there still need to be another clause stating that the poor, weak, powerless must be protected and those either lost of opportunity or in the first place, no opportunity was given correctly.
We are after all human and therefore are not perfect. Humans will makes mistakes but must continue to learn. The goal is not perfection but improvement constantly for the good of all.
written by megabigBLUR, June 19, 2009
So the awarding of places in universities and of scholarships has to be on merit only, first. Then if there are more scholarships available than qualified applicants - which I can't imagine happening any time soon - THEN they can set aside a certain proportion of the excess slots for bumiputra applicants.
Self serving cowards in the component parties are following UMNO's lead in their despicable "divide and rule" strategy for the last 50 years.
Using the name of "Malay Rights" they have been plundering the country's resources for themselves.
A change of Government will see the release of the nation's riches for all races to enjoy and the Malays themselves will find that their portion will actually be much more than what the crumbs that they are getting now.
My prayer is that all Malaysians regardless of race will see that the key to freedom is in Changing the Government!