Visiting the Malay “Rights”

I have been labelled anti this and that. Apparently, I am also pro this and that, or the other. As such, 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 real 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 sides of the fence – from this subject. It has been explored by the likes of Awang Selamat, Mahathir Mohamad, 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 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 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 following:

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 licenses 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% of all places in universities, colleges or other education institutions or 65% to 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.

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Posted on 18 June 2009. You can follow any responses to this entry through the RSS 2.0.

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7 Responses to Visiting the Malay “Rights”

  1. Pingback: Loyarburok

  2. R4Os

    Mahatiu had single-handedly:

    – destroyed our Judiciary system, by sacking our top judges n put in his clowns to run his Kangaroo Courts,

    – destroyed our standards of English Language by overzealously forcing Malay-medium of instruction into all subjects at all levels of education,n destroyed our good education system,

    – destroyed our Public Transport System in KL, by killing the effective Mini-buses n replaced private bus companies with Intrakota, n built the failed LRT instead of much needed MRT,

    – put up tolls at every corner of our city, with ever rising toll charges that drivers must pay n still get traffic-jams,

    – destroyed our Ringgit's value by 50% in 1998, due to excessive borrowing n mismanaged the nation's finance, that made us vunerable to Hedge Fund attacks by George Soros,

    – nearly destroyed our EPF, by abusing EPF to bail out his cronies, n ended up with hopeless companies like Time.com,

    – destroyed our once good n free public healthcare, made us pay for expensive medical bills but get declining healthcare quality,

    – made us all pay thru' our nose to own non-proton cars or crappy Proton cars in the name of 'National Pride',

    – neglected our agricultural industry by miscalling it as "sunset industry", n ventured into all those failed heavy industries like steel-mills, Cement plant, car manufacure, etc, made Msia spend Rm10bils to import foods each year,

    – he made Thailand become "The detroit of Asia" by turning away major automakers to protect his pet Proton cars,

    – etc…

    I go on & on to write the endless list of failures Mahatiu has given to us over his 22 yrs of failed PM'ship. Yet his Kutty DNA enable him to have the cheeks to belittle his successful adversary Mr. LKY as the "Little Emperor from the Small Middle Kingdom"…

    Who could be more shameless than this recalcitrant who doesn't know how to spell the word S-H-A-M-E?

  3. R4Os

    That pariah Mahatiu Kutty from Kerala,he took away our 22 precious yrs n single-handedly destroyed the pillars of our beloved nation,n crippled our beloved Malay brothers-&-sisters by making them walk with crutches given free to them with our hard-earned tax-ringgits, n abused our limited oil revenues to build mega-dollars landmark projects, to satisfy his megalomaniac ego.

    He made our beloved nation drain of tens of godzillions of RM since the 1st day of his PM'ship, thru' massive losses in his stupid ventures in Maminco (London Tin Market manipulation), collapsed Palm-oil Commodity Futures market, BMF Scandal, Proton cars, Perwaja, Kedah Cement, Bank Negara's Forex speculations, PKFZ Scandal, MSC project, Putrajaya, KLCC, Crooked Bridge, etc… No PM before him had ever close to his great mischievements in demolishing this beloved nation of ours into debris,that it will take decades to recover, if it's lucky to be able to.

    Mahatiu = Bapak Pemerosakan Malaysia!

  4. Stop retarding progress, have competition without any regard to race

    when selecting students to Varsities. Why should any students with questionable results than a good one be selected because he or she is a Malay ?

    This is the selection system of Mahathir, he did not want progress for the Malay, as he is not a Malay and in the name of correcting the balance between the Malays and the non Malays.

    This way Malay will always remain inferior because there is no competition.

    Yearly 30 Malay students are sent to New Zealand, to study medicine,

    at places bought with colossal amounts and paid for by the Malaysian taxpayers money. The 30 so called medical students are then brought back to Malaysia at the end of only 4 years, with 2 crucial years left to complete their medical degrees and then be passed off as qualified doctors by Malaysian universities.

    Are these the kind if quarter cooked doctors the Malaysians deserved to have and attended to ? Sue the pariah Mahathir as he was responsible for this scheme ?

  5. Agreed…!!!

    Since the Orang Asli "are" the original settellers, what has the goverment done for them……??????

    Where are their rights….???????????????????????????

    Where…???

    Look at the Chinese. Why are they successful…? How are they successful…?

    Go "learn" from them.

    They "don't" have Malay rights & not bothered to fight for it…..

    So…! They just go better "themselves".

    No need NEP lah….!!

    Who has the NEP beneffitted so far……………..?

    We must only fight for "Malaysian Rights"…!

    We are all Malaysians of many races….!!! We are all born into this country "unintentionally" ……….!!

    Look at the children here. Many races & they play together.

    When growing up we realized that "there are" other races & religion which we respect.

    So why "pick" on what & who's rights belongs to who & what…?????

    Actually……………..

    These subjects are "NO" issues…..

    It just that a certain "politician" open their filthy mouth & out came the "rubbish"…………

    That's when everyone goes "haywire"…………..

    Right….????

    If it's you & me "shouting" at each other on the street about our "rights"…………

    Who gives a "shit"…………….?????

  6. Syahredzan Johan

    Agreed!

    We keep screaming about 'hak Melayu' being questioned and whatnot, but do we really know what it entails?

    Remember when the Selangor MB proposed UiTM open up it's doors to non-Malays? People were quoting Article 153 like nobody's business. But since when Article 153 state that UiTM is exclusively for 'bumi's?

    Conclusion: our understanding and appreciation of the Constitution is very poor.

  7. jungleboy

    How many 'malays' are tulen? An indian who professes islam and habitually speaks the malay language can claim to be a malay. A rose by any other name is still a rose. Because of the many privileges given to malays, many variety of roses are claiming to be hibiscus