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The MALINDO DEFENCE Daily

Wednesday, March 17, 2010

Article 153 on 'special position' of the Malays and other natives: The way forward



WRITTEN BY ART HARUN   


In my article, Visiting the Malay ‘Rights’ (the Bahasa Malaysia version can be read here), I had commented on article 153 of the Federal Constitution. I stated that under its provisions, the Malays in fact do not possess any special ‘rights’.
There is only the special ‘position’ of the Malays and the natives of Sabah and Sarawak. In general, this special position does not confer any right which is recognised by law to the Malays.
Specifically, what is contained in article 153 is the power vested in His Majesty the Yang di Pertuan Agong to ensure that places in the civil service and institutions of higher learning are reserved for the Malays and the natives of Sabah and Sarawak as His Majesty deems reasonable.
Additionally, His Majesty is also given the power to reserve a quota for the Malays and the natives of Sabah and Sarawak in the allocation of scholarships, and permits or licences required for business and trade. This power is similarly to be exercised by His Majesty as His Majesty deems reasonable.  
A few fundamental premises should be examined and borne in mind regarding the provisions contained in article 153. They are:
  • They do not confer any rights to the Malays and the natives of Sabah and Sarawak. For example, article 153 does not state that the Malays are entitled (as a matter of rights) to 30% or 50% of scholarships disbursed by the government every year;
  • The special position is not only conferred to the  Malays but also the natives of Sabah and Sarawak;
  • The power (enabling the quotas) belongs to His Majesty the Yang di Pertuan Agong;
  •  His Majesty is to exercise the powers under article 153 as His majesty deems reasonable.  This means the power cannot be exercised arbitrarily.

The injection of  the element of ‘reasonableness’ in article 153 brings an element of dynamism in the  implementation of the powers under article 153.  This is because what was reasonable back in 1969, for instance, may no longer be fitting in 2010 and so forth.
A starting point towards dissipating the dissatisfaction currently felt by all parties (whether the Malays or non-Malays) over article 153 is, I believe, to commence a rational discussion to determine what is held to be ‘reasonable’ at this point.
Thereafter, I feel, the implementation of those facets of article 153 can then be carefully planned by incorporating whatever equitable formula guaranteeing the element of ‘reasonableness’  in time to come.
In this way, there will be no need for all of us to have shouting matches, wield the keris and to ready the arena for a silat fight here and there every time there is doubt that the economic balance between the races falls short of the ideal in our country.
Malaysia has our fair share of the intelligentsia and learned economists. Dr Jomo Sundram, for example, is a senior official the United Nations secretariat. We even have our very own astronaut. We have submarines in our naval fleet. Why don’t we just employ the wisdom and expertise which we possess to resolve this matter of article 153?
Lately, the issue has raised a lot of hackles and even been distorted by those who appear to be ignorant of its provisions. The trite rhetoric daily purveyed by the mass media is bereft of academic credentials and far from factual. The cheap politicking and parochialism emanating from this rhetoric is so pungent as to be nauseating.
One of the popular assertions is that article 153 cannot be amended. This claim is, in my humble opinion, very confusing and merely reflects ignorance of the Federal Constitution.
According to article 159 of the Federal Constitution, article 153 can in fact be amended on the condition that the amendment is supported by two-thirds of the members of the Lower and Upper Houses in its second and third reading. If this support is obtained, the amendment may only take effect after it is approved by the Council of Rulers.
Therefore, if there is anyone who insists article 153 cannot be amended,  I would be glad to be proven otherwise. 
We as Malaysians should be more sensitive to any efforts made to gain a deeper understanding of various matters because it is only through knowledge can we arrive at the truth. Don’t simply swallow wholesale what people say. On the subject of article 153, there is a lot we can learn from history.


So let’s revisit history on it.

It is common knowledge that a commission was established to draft our constitution. This commission is known as the Reid Commission (named after its head, a renowned English judge, Lord Reid).
In drawing up the Federal Constitution, the Reid Commission was assigned the task to ensure that the position of the Malays was safeguarded. Its report says:

“Our terms of reference require that provision should be made in the Constitution for the ‘safeguarding of the special position of the Malays and the legitimate interests of other Communities’.”

Nonetheless, the commission found it difficult to give a special preference to any single race permanently because such a special preference is contrary to the principle of equality in the eyes of the law. The Reid Commission reported:

“We found it difficult, therefore, to reconcile the terms of reference if the protection of the special position of the Malays signified the granting of special privileges, permanently, to one community only and not to the others."

The Alliance front led by Tunku Abdul Rahman had also wanted independent Malaya to confer equal rights, privileges, and equal opportunities to all its citizens regardless of race or religion. Additionally, the Council of Rulers had hoped too that the concept of communalism would be eventually eradicated from the country’s political and economic spheres. In relation to this, the Reid Commission reported:

“The difficulty of giving one community a permanent advantage over the others was realised by the Alliance Party, representatives of which, led by the Chief Minister, submitted that in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed ...’ The same view was expressed by their Highnesses in their memorandum, in which they said that they ‘look forward to a time not too remote when it will become possible to eliminate Communalism as a force in the political and economic life of the country’.”

Such was the hope and good intentions of our forefathers in their common struggle to obtain independence from British colonialism. The Federal Constitution was formulated in cognizance of these intentions and aspirations.
This notwithstanding, the Reid Commission was presented with yet another difficulty. What was in actuality the special position of the Malays that was to be preserved? Where was the special position to be found? What guidelines should they have used to determine and establish this special position?
Their search ended when it was discovered that the Malays had always enjoyed a special position even from the start of British colonisation. This special position was already affirmed by the British in their earlier treaties with the Malay rulers. This culminated in the recognition of the said special position in clause 19(1) (d) of the Federation of Malaya Agreement 1948. It was explained as below:

“When we came to determine what is ‘the special position of the Malays’ we found that as a result of the original treaties with the Malay States, reaffirmed from time to time, the special position of the Malays has always been recognised. This recognition was continued by the provisions of cl 19(1)(d) of the Federation Agreement, 1948, which made the High Commissioner responsible for safeguarding the special position of the Malays and the legitimate interests of other communities.”

They found that the Malays had always enjoyed a special position in four areas:
  • Reserve land,
  • Quota in the civil service,
  • Quota in permits and trading licences, and
  • Quota in scholarships and education.

When they visited Tanah Melayu to solicit the views of the various parties before proceeding to draft our constitution, the Reid Commission did not meet with any objections from any parties for this special position to remain although there were some quarters that objected to it being extended for a long period of time.
After studying the special position of the Malays and the circumstances of the Malays who at that time were lagging behind the other races in the economic and education sectors, the Reid Commission decided to retain the Malay special position in the constitution that they drafted. 
This is the background and rationale behind article 153 that we have with us today. The question now is whether it is true that the provisions of article 153 were meant to be maintained for perpetuity.

But what was said in the British Parliament about this? What was the wish of our Father of Independence, Tunku Abdul Rahman?

We will look into the details in Part 2.




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