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.