The special position of the Malays is not a concept that was invented by the ethnic Alliance parties in 1957. The concept had existed at least as early as the 1948 Federation of Malaya Agreement, clause 19(i) of which provided that:
In the exercise of his executive authority, the High Commissioner shall have the following special responsibilities that is to say: …
(d) the safeguarding of the special position of the Malays and the legitimate interests of other communities.
When, therefore, the Alliance parties agreed to preserve the special position of the Malays in 1957, they were simply continuing what had existed in Malaya the decade before Merdeka.
Between 1948 and 1957, the special privileges consisted mainly in reservations for the Malays in four areas:
A memorandum prepared for the Reid Commission set out the extent of these privileges. In the area of landholdings, the special privilege consisted primarily in the reservation of land for Malays pursuant to State laws in gazetted areas in the Malay States (but not in Malacca or Penang). The specific provisions and the extent of the reservations varied from State to State; e.g. in Kelantan, nearly the whole State was reserved for the Malays, whereas in Trengganu, no reservations had been made.
Within the public service, qualified Malays were given preference over other applicants for employment. In addition, certain government departments applied a 4:1 or 3:1 ratio of Malays to non-Malays. But as the memorandum noted, these policies applied only to first appointments to the Service and not for subsequent promotions, pursuant to clause 152 of the 1948 Federation of Malaya Agreement, as ‘racial considerations cease to count in respect of the promotion of officers who are already in the Government Service.’
In education, similar quotas also applied. The memorandum states that in 1948, due to the fact that there were few non-Malays who were federal citizens (Malays formed 85% of the electorate in the first nationwide election in 1955) a 3:1 ratio had been proposed ‘to safeguard not only the special position of the Malays but also the legitimate interests of the other communities’.
Eventually, it was thought, the awards would be divided in accordance with the proportion of Malays and non-Malays among federal citizens as a whole. But the 3:1 quota came to be seen as fixed, and relaxing it required the consent of the Conference of Rulers.
Nevertheless, minimum standards were maintained: each year between 1952 and 1956, because of the shortage of qualified Malays in technical subjects, the British asked for, and Rulers consented to, the majority of overseas scholarships to be given instead to qualified non-Malays.
In the area of business licences and permits, the special privilege only applied to the road transport industry, where the policy was applied to licences and permits for taxis, buses and haulage lorries in each State or Settlement, in order to ‘render the proportion of [Malay operators] equivalent to their proportion of the population of that State or Settlement as a whole’.
It is with this background in mind that we can now consider the agreed position of the Alliance parties at the time of Merdeka. The Alliance memorandum to the Reid Commission on 25 September 1956 provided:
Special position of the Malays
While we accept that in independent Malaysia, all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race or creed, we recognize the fact that the Malays are the original sons of the soil and that they have a special position arising from this fact, and also by virtue of the treaties made between the British Government and the various sovereign Malay States. The Constitution should, therefore, provide that the Yang di-Pertuan Besar should have the special responsibility of safeguarding the special position of the Malays. In pursuance of this, the Constitution should give him powers to reserve for Malays a reasonable proportion of lands, posts in the public service, permits to engage in business or trade, where such permits are restricted and controlled by law, Government scholarships and such similar privileges accorded by the Government; but in pursuance of his further responsibility of safeguarding the legitimate interests of the other communities, the Constitution should also provide that any exercise of such powers should not in any way infringe the legitimate interests of the other communities or adversely affect or diminish the rights and opportunities at present enjoyed by them.
The first point that we may note is that the special position of the Malays was meant to be a limited derogation from the general principle of equality and non-discrimination.
The extent of the derogation was to be limited, firstly, by the specified areas to which reservations could be made, and secondly, by the requirement that such reservations must be reasonable.
The second point that we may note is that the special position of the Malays was not intended to ‘adversely affect or diminish’ the rights and opportunities that were then available to the other communities.
Further clarification was obtained by Lord Reid on 27 September 1956, during submissions by the Alliance before the Reid Commission:
Chairman: But you would be prepared to leave [State reservations of land for Malays] to the provision that an extension of the privilege is not to be increased substantially because you say at the end, the privilege “should not in any way infringe the legitimate interests of the other communities”. That would mean that you must not have more of these privileges than you have at present, I suppose.
Dato Abdul Razak: We do not want to reduce the legitimate interests of the others. What we have in mind is not to give Malay special rights by taking away the legitimate rights of other people.
Chairman: I think what you mean here—the Malays have certain rights at this moment, and of course every additional privilege is, to some extent, prejudicing the others because it is limiting the amount of land or the number of jobs they could get and so on; and I think what you have in mind was that there should be no substantial increase in the present rights and privileges but that they should gradually be diminished and that it should be the responsibility of the Prime Minister, in Federal matters, to regulate the way in which it should be diminished?
Dato Abdul Razak: In certain cases it should be increased—in business or trade the Malays have very few permits, and they should be given more, but by giving more we should not take away from what the non-Malays now have. That is the idea.
A third point that may be noted is that the special position of the Malays was not intended to be permanent, but on the contrary was to be regularly reviewed, and diminished over time:
Tunku Abdul Rahman: The suggestion is that there should be a review every 15 years.
Chairman: That would not mean, I suppose, that it was wrong to do anything before that?
Tunku Abdul Rahman: No. The present system of doing it is this: for instance there is a condition that there should be three Malays appointed to every one non-Malay, but that particular rule has been relaxed from time to time … the main thing is that we say here under general terms of the special position of the Malays that it should be reviewed every 15 years, but that does not prevent the government of the day from relaxing the rule from time to time.
In the next Part of this series, we shall see how the Reid Commission implemented the intra-Alliance bargain in the Draft Federal Constitution, on the basis of the Alliance submissions presented above, and how this came to be rejected by the Alliance parties.