Loyal Followers

Wednesday, March 17, 2010

Article 153 on the ‘special position’ of the Malays and other natives: The way forward*

* This article is originally written in Bahasa Malaysia. Helen Ang of the Centre for Policy Initiatives has kindly translated it into English.

In my article, Visiting the Malay ‘Rights’ (the Bahasa Malaysia version can be read here), I had commented on article 153 of the Federal Constitution. I stated that under its provisions, the Malays in fact do not possess any special ‘rights’.

There is only the special ‘position’ of the Malays and the natives of Sabah and Sarawak. In general, this special position does not confer any right which is recognised by law to the Malays.

Specifically, what is contained in article 153 is the power vested in His Majesty the Yang di Pertuan Agong to ensure that places in the civil service and institutions of higher learning are reserved for the Malays and the natives of Sabah and Sarawak as His Majesty deems reasonable.

Additionally, His Majesty is also given the power to reserve a quota for the Malays and the natives of Sabah and Sarawak in the allocation of scholarships, and permits or licences required for business and trade. This power is similarly to be exercised by His Majesty as His Majesty deems reasonable.

A few fundamental premises should be examined and borne in mind regarding the provisions contained in article 153. They are:

  • They do not confer any rights to the Malays and the natives of Sabah and Sarawak. For example, article 153 does not state that the Malays are entitled (as a matter of rights) to 30% or 50% of scholarships disbursed by the government every year;
  • The special position is not only conferred to the Malays but also the natives of Sabah and Sarawak;
  • The power (enabling the quotas) belongs to His Majesty the Yang di Pertuan Agong;
  • His Majesty is to exercise the powers under article 153 as His majesty deems reasonable. This means the power cannot be exercised arbitrarily.

The injection of the element of ‘reasonableness’ in article 153 brings an element of dynamism in the implementation of the powers under article 153. This is because what was reasonable back in 1969, for instance, may no longer be fitting in 2010 and so forth.

A starting point towards dissipating the dissatisfaction currently felt by all parties (whether the Malays or non-Malays) over article 153 is, I believe, to commence a rational discussion to determine what is held to be ‘reasonable’ at this point.

Thereafter, I feel, the implementation of those facets of article 153 can then be carefully planned by incorporating whatever equitable formula guaranteeing the element of ‘reasonableness’ in time to come.

In this way, there will be no need for all of us to have shouting matches, wield the keris and to ready the arena for a silat fight here and there every time there is doubt that the economic balance between the races falls short of the ideal in our country.

Malaysia has our fair share of the intelligentsia and learned economists. Dr Jomo Sundram, for example, is a senior official at the United Nations secretariat. We even have our very own astronaut. We have submarines in our naval fleet. Why don’t we just employ the wisdom and expertise which we possess to resolve this matter of article 153?

Lately, the issue has raised a lot of hackles and even been distorted by those who appear to be ignorant of its provisions. The trite rhetoric daily purveyed by the mass media is bereft of academic credentials and far from factual. The cheap politicking and parochialism emanating from this rhetoric is so pungent as to be nauseating.

One of the popular assertions is that article 153 cannot be amended. This claim is, in my humble opinion, very confusing and merely reflects ignorance of the Federal Constitution.

According to article 159 of the Federal Constitution, article 153 can in fact be amended on the condition that the amendment is supported by two-thirds of the members of the Lower and Upper Houses in its second and third reading. If this support is obtained, the amendment may only take effect after it is approved by the Council of Rulers.

Therefore, if there is anyone who insists article 153 cannot be amended, I would be glad to be proven otherwise.

We as Malaysians should be more sensitive to any efforts made to gain a deeper understanding of various matters because it is only through knowledge can we arrive at the truth. Don’t simply swallow wholesale what people say. On the subject of article 153, there is a lot we can learn from history.

So let’s revisit history on it.

It is common knowledge that a commission was established to draft our constitution. This commission is known as the Reid Commission (named after its head, a renowned English judge, Lord Reid).

In drawing up the Federal Constitution, the Reid Commission was assigned the task to ensure that the position of the Malays was safeguarded. Its report says:

Our terms of reference require that provision should be made in the Constitution for the ‘safeguarding of the special position of the Malays and the legitimate interests of other Communities’.”

Nonetheless, the commission found it difficult to give a special preference to any single race permanently because such a special preference is contrary to the principle of equality in the eyes of the law. The Reid Commission reported:

We found it difficult, therefore, to reconcile the terms of reference if the protection of the special position of the Malays signified the granting of special privileges, permanently, to one community only and not to the others."

The Alliance front led by Tunku Abdul Rahman had also wanted independent Malaya to confer equal rights, privileges, and equal opportunities to all its citizens regardless of race or religion. Additionally, the Council of Rulers had hoped too that the concept of communalism would be eventually eradicated from the country’s political and economic spheres. In relation to this, the Reid Commission reported:

The difficulty of giving one community a permanent advantage over the others was realised by the Alliance Party, representatives of which, led by the Chief Minister, submitted that in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed ...’ The same view was expressed by their Highnesses in their memorandum, in which they said that they ‘look forward to a time not too remote when it will become possible to eliminate Communalism as a force in the political and economic life of the country’.”

Such was the hope and good intentions of our forefathers in their common struggle to obtain independence from British colonialism. The Federal Constitution was formulated in cognizance of these intentions and aspirations.

This notwithstanding, the Reid Commission was presented with yet another difficulty. What was in actuality the special position of the Malays that was to be preserved? Where was the special position to be found? What guidelines should they have used to determine and establish this special position?

Their search ended when it was discovered that the Malays had always enjoyed a special position even from the start of British colonisation. This special position was already affirmed by the British in their earlier treaties with the Malay rulers. This culminated in the recognition of the said special position in clause 19(1) (d) of the Federation of Malaya Agreement 1948. It was explained as below:

When we came to determine what is ‘the special position of the Malays’ we found that as a result of the original treaties with the Malay States, reaffirmed from time to time, the special position of the Malays has always been recognised. This recognition was continued by the provisions of cl 19(1)(d) of the Federation Agreement, 1948, which made the High Commissioner responsible for safeguarding the special position of the Malays and the legitimate interests of other communities.”

They found that the Malays had always enjoyed a special position in four areas:

  • Reserve land,
  • Quota in the civil service,
  • Quota in permits and trading licences, and
  • Quota in scholarships and education.

When they visited Tanah Melayu to solicit the views of the various parties before proceeding to draft our constitution, the Reid Commission did not meet with any objections from any parties for this special position to remain although there were some quarters that objected to it being extended for a long period of time.

After studying the special position of the Malays and the circumstances of the Malays who at that time were lagging behind the other races in the economic and education sectors, the Reid Commission decided to retain the Malay special position in the constitution that they drafted.

This is the background and rationale behind article 153 that we have with us today. The question now is whether it is true that the provisions of article 153 were meant to be maintained for perpetuity.

But what was said in the British Parliament about this? What was the wish of our Father of Independence, Tunku Abdul Rahman?

We will look into the details in Part 2.

23 comments:

Anonymous said...

Dear sir,

I have been a frequent visitor to your blog and I find your legal expertise and opinions refreshing and thought-provoking. Keep up the good work sir.

Joshua said...

It amazes me how a relatively harmonious country like Malaysia in the 1970s could become a fractious and racially divided country that it is today. I think the main cause is not the constitution but the NEP.

UMNO’s supporters will reply: it was the newly implemented NEP that provided the balance to the rich-poor gap and it was the key to the racial harmony of the 70s. However, short-term results can/should never justify a bad policy.

Just take a good look today, the long-term effects of that bad policy have come to roost: the rich-poor gap are not distinguished by race as there are as many poor middle class Malays as there are as many Chinese and Indians who were not beneficiaries of crony capitalism and corruption money. Stagnant productivity, auto industry protectionism and domestic oligopolies have caused a slump in foreign direct investments.

More troubling is the recent tendency of politicians to divide society based on the need for religious fidelity, i.e. being more Islamic at the expense of women, other races, etc.

As I said since the political tsunami of 2008, only a true and sincere national repentance on the part of every Malaysian can save this country from the perfect storm that it is hurtling to. Unfortunately, few heeded that call and the political situation became more unstable as politicians were unable to step out of their boxes and acknowledge the sovereign role of God in shaping this nation’s destiny.

Joshua said...

And assuming the PM or Opposition declares a day of national repentance, will some smart guy start saying which God should we repent to and argue about the rights of one group to call “Allah”?

What a strange country we live in: corruption existing side by side with religious legalism, insitutional racism alongside genuine hospitality and kindness among the races.

donplaypuks® said...

While in theory Art 153 can be altered, in practice it's not going to happen for a very, very long time unless a majority of the Sultans "menderhaka" against their own people.

And that establishes the lie on which Perkasa is founded; that the Malays are under threat!! Whatever/ whoever from? None other than political has beens and worthless demagogues keen to follow in Hitler's and Pauline Hanson's footsteps to resurrect failed and faltering carrers.

Art.153 has been misused to maintain a (still) much abused NEP. I recall a famous encounter in 2008 in Parliament between Nazri and Ibrahim Ali, when the former (surprisingly)challenged the latter to read the Constitution and say which part of the 'special position' specifies a % for numbers in civil service and scholarships!

Needless to say that shut up the gobsmacked Ibrahim Ali!!

dpp
We are all of 1 race, the Human Race

Anonymous said...

Sad to see the condition of country lately. Our forefathers were very far sighted than current Ameeno morons....
My friends who have miggrated, persuading me to follow their steps soon. They say, Malaysia is no more a safe country. I am very sad to leave my beloved country but then somehow rather I have to make a decision for the future of my kids.Sigh

Anonymous said...

Clearly, artikel 153 said nothing about 5% discount to bumiputras, or companies needing to have bumiputra sleeping partners, or UiTM.

Joshua said...

How often have we read this type of response to the country's crisis?

"They say, Malaysia is no more a safe country. I am very sad to leave my beloved country but then somehow rather I have to make a decision for the future of my kids.Sigh"

Is this how Malaysians respond to a family crisis? Leave and disown your own family members? Hah.

You'll never create a great future for your children if you won't stand in the heat of the oppression. Stand with God and He'll rescue the oppressed from the oppressors. Last thing you want to do is cop out into another country.

fah hean said...

Dear Sir,

a good read and thank you for the education.

Anonymous said...

Allow me to be a wet sock.

A very wise man once said "He who gives something as a gift and then [demands] it back is like a dog which eats its own vomit.".

After enjoying the gift of 30% for so long, no one would want to give that up. And for the government to try to take it back in the interest of fairness would be like swallowing its vomit, no?

We can sane-headedly argue the case of 153, it will still be considered unfair by one or the other aggrieved party. Its a no-win.

So, what then, is the solution to this mess?

Simple. Umno Malays take northen Malaysia, starting at the Perak/Pahang border, and the rest (including Sabah & Sarawak) belong to the non-Umno. Then, we agree that the part with the most "progressive" spiritual & economical development takes over the other after 20 years.

That's how I'd solve the squabbling between my kids.

p.s. I shall remain anonymous for this post for obvious reasons.

Anonymous said...

Yes it is an oustanding site that I yearn to read (other than RPK of course). It touches me especially when you mentioned of the peace in the past, which is now so remote. it is an idealism of course. the Malay community although lived in a less sectorised society then, nevertheless was un-comfortable being "lorded" over by the so called more sucessful non-Malays, and in significant measures were taken advatage of. It is why I have always in my deep conscience that they need help.

I grew up in a small kampong where father taught a Malay abacus to trade and he was a succesful businessman in his own right. My family survived because a Malay neighbour tipped my parents off before the family was wiped out.

The modern developments in Malaysia has turned into a looting place synonymous to the chaotic state of affairs in many failed states in history. I am deeply pessimistic that we can see a turning point in our lifetime. I am however constantly reminded of the works of Art Harun, RPK etc., but am saddened that they will no doubt occupy an illustrious chapter of Malaysian history but change would probably be rather distant.

Anonymous said...

Berapa DAP bayaq kat hang? Sedih bila ada orang melayu yg kononnya liberal yg sanggup jadi anjing baruah depa...

Inilah contoh budak melayu yg mau jilat jubuq cina DAP..

sang kancil said...

The time is nigh. UMNO MUST be defeated in GE 13.

Richard Cranium said...
This comment has been removed by the author.
Richard Cranium said...

Heavens, did Anon 18:06 just called you an ass-licker... and a Chinese one at that?

Don't worry, you are in good company.

kang said...

As always all the things laid out in the Constituition will be manipulated by certain group to their whim and fancy. This special position only mention the Malays and the natives of Sabah & Sarawak. How about the natives in West Malaysia like the Negritos, Senoi, Jakun and Semang ?

How do you define a person as a Malay ? It's very funny like the mamak who always proclaim themselves as a Malay.

Anonymous said...

Hi,

I want to know if there is any legal provision that bans the questioning of artikel 153. I can't find any reference on this. You are a lawyer, perhaps you can answer this?

Thanks man!

tudip said...

Art,

Excellent, impressive...you are the one...the chosen one.

Gundrohiker said...

As mentioned in the Reid Commission, the special position can be relook when there is no longer Communalism but Communalism is still very much alive and strong today.

M Bakri Musa and Farish Noor has said that one of the reasons for this continued Communalism is segregated schooling of the young. It is quite common sense and does not need reaffirmation by these authors that our separate schooling does not lead to integration. But what we see from both side of the aisle is that segregated schooling is a 'non-negotiable' issue just like Article 153.

I personally think that one of the main flaws of the NEP was to let segregated schooling to mushroom. It was as if there was horse-trading. You can have your schorlarship/concessions but let me have my segregated schools./

Anonymous said...

Propagate Malay Supremacy under the pretext of NEP policy to distribute wealth and help the poor so the vested interest of the few could plunder the wealth and resources of this country

Anonymous said...

I'm young for my age. But I keep nodding my head as I go through your post.
Look at America.
America is no different from Malaysia. Blacks, Whites, Yellows, Reds... you name it. All sorts of skin colours can be observed. But they can live peacefully with equal rights.
Malaysia is as colourful as the U.S.A. It is a shame that Malaysians cannot be as accepting as the Americans. So what if this so-called 'Special Treatment' is abolished. Does it mean that Malays will then be bullied by Non-Malays?
If so, please put yourselves in the shoes of the Non-Malays, who have thrived nicely, if not in prosperity, without this Special Right.
By keeping this 'Right' alive, it is no different from practicing apartheid. How is this 1Malaysia concept going to succeed if the rights of Malaysians are not equal?
Have we not learnt the lessons from 13th May?

MalayHistory said...

Good article. This simple fact of Malay rights and native rights of Sabah and Sarawak escape some stupid people like Khoo Khay Kom.

He was even quoted bumiputera rights is only for Sabah and Sarawak!

Dumbo chinese old man.

Firstly there is no such word as bumiputera. It is a modern word to cut short malay rights and native of Sabah and Sarawak rights!

But there is a serious fault in your right up.

You wrote as a colonised mentality.

The fact that there was continuous rights of the Malays by the British was not due to the goodwill but because this is Tanah Melayu and agreements were between the British and Raja Melayu.

Can the raja exists without the Melayu? Can Raja Melayu existed without orang Melayu.

Thus it was a wrong presumptions that it was a right. It was colonisations of Tanah Melayu and as some pittance, the British tried to pacify the malay masses with some social sugar.

Thus to talk of the Constitution as if this is the US where the natives were killed by Europeans settlers is wrong.

The Raja Melayus were under duress to let in the Chinese and Indians. They did not want the Chinese and Indians as their citizens. They were forced by the British who did not want to take them British citizens as Uganda forced them to.

So it is the Malay right human rights to expand their culture,language and control their land.

All that in the Constitution is just pure robbery of Tanah Melayu by the British.

U r a chineseassliqe said...

And yes.- Anon 18.06 is right.

You are a colonised malay who lick chinese arsed.

For what? At least Mahathir got a piece of the gambling action from Vincent Tan with his Perdana.

Khairy got ECM libra..

But you lick for what?

luckily we have malay perkasa to fight for malay rights and culture.

We must protect Tanah Melayu, Raja-Raja Melayu from the chinese and indians invaders brought by the British colonisers

PAK DONI DI MALAYSIA said...

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saya mengucapkan banyak terimakasih kepada MBAH KABOIRENG yang telah menolong saya dalam kesulitan,ini tidak pernah terfikirkan dari benak saya kalau nomor yang saya pasang bisa tembus dan ALHAMDULILLAH kini saya sekeluarga sudah bisa melunasi semua hutang2 kami,sebenarnya saya bukan penggemar togel tapi apa boleh buat kondisi yang tidak memunkinkan dan akhirnya saya minta tolong sama MBAH KABOIRENG dan dengan senang hati MBAH KABOIRENG mau membantu saya..,ALHAMDULIL LAH nomor yang dikasi MBAH KABOIRENG semuanya bener2 terbukti tembus dan baru kali ini saya menemukan dukun yang jujur,jangan anda takut untuk menhubungiya jika anda ingin mendapatkan nomor yang betul2 tembus seperti saya,silahkan hubungi MBAH KABOIRENG DI 082=322=212=111 ingat kesempat tidak akan datang untuk yang kedua kalinga dan perlu anda ketahui kalau banyak dukun yang tercantum dalam internet,itu jangan dipercaya kalau bukan nama MBAH KABOIRENG KLIK TOGEL 2D 3D 4D 6D DISINI