LoyarBurok is publishing this 3-part article we received from a law student at a local university who prefers to be known as “Batu 5”. Part 1 looks back on the original intent of Malaysia’s affirmative action policies.
Affirmative action is not a Malaysian invention. Like most things, Malaysia takes ideas from other countries and implements it with a local flavour (from government policies to reality shows, with the exception of the Imam Muda programme – that’s ours!). Affirmative action is practised everywhere. In the US, scholarships and employments are reserved for minorities (mostly for African-Americans), and there are land reserves for Native Americans. In India, there are employment and university quotas for the Dalits (the lowest caste in India). In Norway, there are quotas for the female gender in Parliament. Affirmative action targets a certain class and operates on stereotypes. We even have affirmative action in sports (e.g. golf’s handicap policy). It is worth noting that affirmative action policies in most nations are for minority groups, but in Malaysia, it is for the majority Bumiputera (hence, the local flavour).
Affirmative action, in my view is to uplift the under-represented class. Be it those who are under-represented economically or politically. A fair share of representation is what it seeks to implement. In Malaysia, affirmative action policies are there to remedy the socio-economic imbalances that exists (due to the British colonialists’ policy of divide & rule) between the three major ethnic groups: The Malays (Bumiputera), Chinese, and Indians. The British considered the Malays as idlers, and hence reduced them to the kampongs, and had no initiative to improve the Malays’ quality of life (save for the few aristocratic Malays). So, the Malaysian-Chinese dominated the economy of Malaya until today, as they were more industrious and business-oriented. The British had a free immigration policy at that time, and a census in the 1930s showed that the non-Malays outnumbered the Malays at one point in time! I hate to stereotype, but I get them facts from our history books. Don’t blame me lads.
Under the Federal Constitution, Article 153 grants the Yang di-Pertuan Agong responsibility for safeguarding the special position of the Malays and other indigenous peoples of Malaysia (collectively referred to as Bumiputra) and the legitimate interests of all the other communities. The article specifies how the King may protect the interest of these groups by establishing quotas for entry into the civil service, public scholarships, public education, and also licenses for trade permits.
However, under Article 8, clause 1 provides that all persons are equal before the law and entitled to its equal protection. Clause 2 states as follows: “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, gender 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.”
As you can see, (save for clause 2), there seems to be a wee bit of contradiction between Article 153 and Article 8. Affirmative action policies are discriminatory, but Article 8 seems to suggest that all citizens are equal before the law. My take on this (which is my general view on affirmative action), is that affirmative action policies are there to level the playing field. To equate the playing field between the three major races. It seeks to confer equal opportunities to every class. Since opportunities are hard to quantify, its flexibility is useful to be used as a benchmark to justify Article 153. This is more of a concept of fairness to ensure a fair share of the economic pie instead of a Marxist view on equality (a strict take on equality).
If we were to follow the free market concept of free competition, the Malays would never survive. The concept of Social Darwinism (part of Anglo-Saxon capitalism) adopted by our colonial masters allowed the Malays to be left behind by the other races. This harsh (and primitive) rule of the survival of the fittest would mean that the Malays would be left below the poverty line in perpetuity. How do you expect an under-represented group to compete with a group which is resourceful and ready to compete? You can’t, and that’s why you see affirmative action policies around the world.
As noted above, the Malays were generally poor and left behind. Their stake in the economic pie at the time of independence was minimal and was way below 30%. The divide and rule policy ensured that the Malays remained in the kampongs and expanded minimally. Life was only cukup makan. For the Malays who travelled to the cities to seek a better life, with a lack of education (save for religious education), they only had their labour to offer and thus confined to the status of proletariats. So, the government needed to intervene and play a top-down approach. If the government did nothing, the Malays would continue to be left behind and remain in the kampongs. As such, the Reid Commission specified policies to remedy poverty which are education and the ease to start business for the Bumiputera. Nothing more, nothing less.
The Reid Commission’s original proposal was to have Article 153 reviewed periodically (around 15 years after Merdeka), but this was not followed up by the ruling government. As far as the law is concerned, the preferential treatment conferred under Article 153 is a right, not a privilege. This also shows that Article 153 would remain in perpetuity and not as a temporary solution.
It is interesting to note that Bumiputera housing discounts, the Amanah Saham Bumiputera scheme (very handsome dividends), preferential treatment for government contracts etc. are not mentioned in the Federal Constitution. Thus, these are considered privileges, not rights. The constitutional validity of these policies is unknown, as it has not been challenged in court.
Please bear in mind that affirmative action policies are like subsidies, not for an economic gain but more for a social gain to ensure social justice for all. Life is unequal and unfair. How is it fair that a baby born in a rich family can continue to enjoy riches, while a baby born in a poor family will remain in poverty? The rich kid would have capital to invest and be richer, while the poor kid only has his labour to offer. This is a vicious cycle that would continue unless someone or something corrects these inequalities.
Next: Part 2 will be about the application of the NEP, the value of affirmative action, and affirmative action to a race versus policies addressed to the poor.
Batu 5 is a law student and a debater. He considers himself a full time debater and a part time law student. He believes that inter-varsity debating is the best thing in the world. He also is a dreamer as he plans to establish a company which is too big to fail for Malaysia with his girlfriend. He believes that Malaysia is in a class war, and his class, the learning/student class is losing out.
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