The Special Position of the Malays (Part Three)

In Parts One and Two, we learnt about the origins of the special position of the Malays, and the negotiations that led to its adoption in the Merdeka Constitution. In this Part, we will consider the constitutional provisions as they were finally adopted, and the amendments that have been made since Merdeka.

The Merdeka provisions

Clause (1) of Article 153, as we have read, was derived directly from clause 19(i) of the Federation of Malaya Agreement 1948, and provided that:

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.

Clause (2) gave the Federal Government the power to continue and adapt the policies existing in various areas of public life in Malaya in 1957, that, with the State reservation of land for Malays, together constituted the special position of the Malays:

Notwithstanding anything in this Constitution, … the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and to ensure the reservation for Malays of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or license for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licenses.

Among the safeguards provided were that:

• Article 153 would not affect any existing holder of any public office or scholarship, etc.; and
• Article 153 would not allow discrimination on the grounds of race among Federal employees (in promotions, etc.) once they had joined the public service.

The former safeguard reflects Tun Razak’s statement to the Reid Commission that “by giving more (to the Malays) we should not take away from what the non-Malays now have”, but is of little application beyond the immediate post-Merdeka era. The latter safeguard, contained in Article 136, was a continuation of the position that applied by virtue of clause 152 of the Federation of Malaysia Agreement 1948. However, in the present day, this provision is generally believed to be more honoured in the breach than in the observance.

Other clauses in Article 153 made provision for the special position of the Malays in respect of permits and licences required for the operation of any trade or business. Among the safeguards provided were to the effect that:

• Article 153 would not affect any existing holder of any permit, licence, etc., or any person bona fide carrying on a trade or business before the imposition of a requirement of such a permit or licence, etc., or their heirs, successors or assigns (where a renewal or fresh grant would reasonably be expected in the ordinary course of events); and
• Article 153 would not empower Parliament to restrict business or trade solely for the purpose of reservations for Malays.

The former safeguard is this time of more relevance, since it protects those carrying out business or trade in a hitherto unlicensed field which Parliament subsequently decides to license. The latter, rather ambiguous safeguard was, as we have seen, inserted at the request of the MCA when the Reid Commission draft article was transformed into Article 153, and is of very little value since the Government can almost always point to other reasons for licensing a particular trade or business.

Finally, clause (10) of Article 153 provided that “the Constitution of the State of any Ruler” (i.e. of any State other than Penang and Malacca) could make a provision corresponding to Article 153. This exclusion of Penang and Malacca mirrored the refusal of the British Government (as the guardian of the interests of its non-Malay subjects in the Settlements) to allow the extension of Malay land reservations to Penang and Malacca, and consequently, the States of Penang and Malacca have no power to adopt Malay special-position policies or enactments of their own.

Amendments to Article 153

Upon the formation of Malaysia in 1963, the Malaysia Act 1963 inserted Article 161A, which made provision for the application of the special position of the Malays to include natives of any of the Borneo States, subject to consultation with the Chief Minister of that State. However, in 1976, Article 161A was repealed and Article 153 was amended to include the natives of any of the Borneo States wherever it referred to the Malays.

A more significant amendment to Article 153 was made after the May 13, 1969, riots. The Constitution (Amendment) Act 1971, which was the first to be passed after Parliament reconvened, amended Article 153 by adding clause (8A). The new Article 153(8A) provided that:

Notwithstanding anything in this Constitution, where in any University, College and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the University, College or such educational institution to candidates for any course of study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the Borneo States as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions.

This addition of Article 153(8A) is highly significant, because until 1971 the special position of the Malays applied only to “scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government”. Article 153(8A) effectively negates the specific prohibition of discrimination in education that is contained in Article 12(1), which provides that:

Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth—

(a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or

(b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation).

Prior to the enactment of Article 153(8A) in 1971, there could have been no lawful discrimination on the grounds of race in the admission of students to university. Indeed, the Constitution of the University of Malaya adopted under the University of Malaya Act 1961 specifically prohibited discrimination on the grounds of race in the admission of any student to any faculty or institution of the university. Nevertheless, even after the enactment of Article 153(8A) it is highly questionable whether the reservation of 100% of the places in a university such as UiTM could be defended as being “reasonable” under that clause, were that policy to be subjected to judicial review. In addition, any discrimination as between classes of persons who are neither Malays or natives of Sabah or Sarawak (e.g. in the form of quotas distinguishing between Indians, Chinese and others) is still unconstitutional.

Future development of the special position

As we have seen, the compulsory review of the special position of the Malays after 15 years that was agreed by the Alliance parties in 1956 was in the end replaced by review “from time to time”, but even this was not expressly included in Article 153. Instead, Parliament and the Federal Government were given the implied discretion to modify or discontinue laws and policies made under Article 153, subject to consultation with the Conference of Rulers, under Article 38(5), before any change in policy is made.

Pursuant to Article 159(5), the consent of the Conference of Rulers is required before any amendment to Article 153 is made. However, as we have seen, Parliament in 1971 amended the terms of the so-called “social contract” by adding Article 153(8A), while at the same time slamming the door (at least for the time being) to future amendments of Article 153, by removing the privilege of free speech in Parliament through the enactment of Articles 10(4) and 63(4). These amendments allow Parliament to prohibit the questioning, whether inside or outside Parliament, of “any matter, right, status, position, privilege, sovereignty or prerogative established or protected by … Article … 153 … otherwise than in relation to the implementation thereof as may be specified in such law”.

Since June 2012, the prohibition against questioning Article 153 that was contained section 3(1)(f) of the Sedition Act 1948, (which was added by the Emergency (Essential Provisions) Ordinance No. 45, 1970) has lapsed with the revocation of the 1969 Emergency in December 2011. Yet because of the discretion over the special position that is given to the Federal Government of the day by Article 153, there is no party that currently plans to do away with the special position of the Malays or Article 153. Instead, the current policy of the Federal Opposition appears to be identical to the that of the MIC General Assembly in April 1957, that is to say, to elevate the vast majority of the poor who are Malays by giving safeguards and protections to all backward sections of the population irrespective of race, creed or community. However, in the absence of any amendment to Article 153, it would always be open to a subsequent Government to reinstate purely racial policies pursuant to that Article.