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The MALINDO DEFENCE Daily

Monday, February 1, 2010

Article 153 of the Malaysian Constitution and article 10 para 4.4

Article 153 grants the Yang di-Pertuan Agong, or King of Malaysia, responsibility for safeguarding the special position of the Malay 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 and public education.
Originally there was no reference made to other indigenous peoples of Malaysia (then Malaya) such as the Orang Asli, but with the union of Malaya with Singapore, Sabah and Sarawak in 1963, the Constitution was amended so as to provide similar privileges for the indigenous peoples of East Malaysia (Sabah and Sarawak), grouping them with the Malays as Bumiputra.
The scope of Article 153 is limited by Article 136, which requires that civil servants be treated impartially regardless of race. Clause 5 of article 153 specifically reaffirms article 136 of the constitution which states: All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.
Clause 9 of article 153 states Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays.
The Reid Commission suggested that these provisions would be temporary in nature and be revisited in 15 years, and that a report should be presented to the appropriate legislature (currently the Parliament of Malaysia) and that the "legislature should then determine either to retain or to reduce any quota or to discontinue it entirely."
Under Article 153, and due to the 13th May 1969 riots, the New Economic Policy was introduced. The NEP aimed to eradicate poverty irrespective of race by expanding the economic pie so that the Chinese share of the economy would not be reduced in absolute terms but only relatively. The aim was for the Malays to have a 30% equity share of the economy, as opposed to the 4% they held in 1970. Foreigners and Chinese held much of the rest.[10]
The NEP appeared to be derived from Article 153 and could be viewed as being in line with its wording. Although Article 153 would have been up for review in 1972, fifteen years after Malaysia's independence in 1957, due to the May 13 Incident it remained unreviewed. A new expiration date of 1991 for the NEP was set, twenty years after its implementation.[11]
However, the NEP was said to have failed to have met its targets and was continued under a new policy called the National Development Policy.

Article 10 (4) states that Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 of the constitution.
Several acts of law regulate the freedoms granted by Article 10, such as the Official Secrets Act, which makes it a crime to disseminate information classified as an official secret.
The Sedition Act 1948 makes it an offence to engage in acts with a "seditious tendency", including but not limited to the spoken word and publications; conviction may result in a sentence of a fine up to RM5,000, three years in jail, or both.
The Public Order (Preservation) Ordinance 1958 allows the Police to declare certain areas "restricted", and to regulate processions or meetings of five persons or more. The maximum sentence for the violation of a restricted area order is imprisonment of 10 years and whipping.[7]
Other laws curtailing the freedoms of Article 10 are the Police Act 1967, which criminalises the gathering of three or more people in a public place without a licence, and the Printing Presses and Publications Act 1984, which grants the Home Affairs Minister "absolute discretion" in the granting and revoking of publishing permits, and also makes it a criminal offense to possess a printing press without a licence.[8]
The Sedition Act in particular has been widely commented upon by jurists for the bounds it places on freedom of speech. Justice Raja Azlan Shah (later the Yang di-Pertuan Agong) once said:
The right to free speech ceases at the point where it comes within the mischief of the Sedition Act.[9]

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