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.




* This article is the personal opinion of the writer or publication. The blog owner does not endorse the view unless specified. To share the above article, please click the followings:
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Yes, I am a stubborn bastard




Tuesday, 16 March 2010 Super Admin
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Yes, The Malay Mail has got its version to the story of my Statutory Declaration. I also have my version. And my version is: I will not be put on trial and I refuse to pay bail. The government had its chance to send me to jail. I gave them that chance. I agreed to forfeit both my trial and bail. But they wanted to impose bail on me and put me on trial.
NO HOLDS BARRED
Raja Petra Kamarudin
“Raja Petra went missing after two warrants of arrest were issued for failing to attend a court hearing on April 23 and May 23 for publishing seditious words and defaming Datin Seri Rosmah Mansor, wife of the prime minister, on his portal, Malaysia Today,” said The Malay Mail (read the full report here). Then they inserted a wrong link that takes you to another website instead of to Malaysia Today (very devious of The Malay Mail).
The Malay Mail is run by a pro-Umno Blogger who also runs the Blog known as Rocky’s Bru. So The Malay Mailis certainly far from independent although it presents itself as ‘mainstream media’. It has a certain agenda and it writes whatever suits this agenda. And Rocky’s running mate is Big Dog, the chap who first triggered this whole business that resulted in the shit hitting the fan.
It all started with the Statutory Declaration that I signed on 18 June 2008. No doubt, a Statutory Declaration signed and lodged in court is not a secret document and members of the public would be able to get access to it. Nevertheless, what I signed was meant for the consumption of the prosecution team in the Altantuya murder trial. And my lawyer did write to the prosecutor with a copy of that Statutory Declaration attached.
Somehow, though, a copy of the Statutory Declaration was published on Big Dog’s Blog within 24 hours or so. Almost immediately the IGP and AG said that I have signed a false declaration and that action would be taken against me.
Now, no investigation was yet carried out as to whether I did or did not sign a false declaration. In fact, they did not even know yet whether I really did sign it or maybe it was a fake. But the IGP and AG announced that I had signed a false declaration and that action would be taken against me.
That’s right, action would be taken against me for signing that declaration. No investigation needs to be carried out. And the people named in that declaration are automatically presumed innocent and they need not be investigated.
Prejudgment was immediately made. They pronounced me guilty of the crime of signing a false declaration and announced that I would be punished for that crime.
How did the IGP and AG know? They are yet to read what I signed. They are yet to investigate what I signed. They do not even know if I did really sign it. But they already know it is false and the decision was made immediately that I would be punished for this crime.
I was then called in for interrogation. In my interrogation the police wanted to know how Big Dog obtained a copy of that Statutory Declaration and whether I had given it to him. The focus of the investigation was on whether Big Dog and I are working in concert, which means I gave him a copy of the declaration so that he can publish it.
It looked like the concern of the police was that the Statutory Declaration was published on Big Dog’s Blog and not so much that I had signed it. They were also not too concerned with the contents of the declaration as much as with the fact that it was made public. But then is not a Statutory Declaration signed in court a public document anyway?
The interrogation also focused on the source of my information. The police wanted to know whom my source is, how reliable he is, how well I know him, whether I have known him for a long time, how far I trust him, and whatnot. I told the police all this will be revealed in court. If they think I have signed a false declaration, then charge me, and my source will then come forward to testify during my trial. I also told the police I have known this source longer than I have known my wife -- and I have known my wife since 1968.
Soon after that I was asked to report to the police station because they are going to charge me for that Statutory Declaration which I signed. Okay, I thought, now the fun is going to start. I was actually looking forward to being charged so that we can ‘revisit’ the Altantuya murder trial and go through all those points the murder trial missed, or intentionally left out.
They did not, however, charge me for signing a false Statutory Declaration. If they do then they will have to prove their case against me. Instead, they charged me for criminal defamation, which means they need prove nothing other than the fact that I had signed the declaration, which in the first place I never denied signing.
My name and signature are on that document so how can I deny it? Why should I want to deny it? If I wanted to deny anything I would not have put my name and signature to something as legal and binding as a Statutory Declaration, what the Malays call a surat sumpah or ‘letter of oath’, almost like swearing on the Quran.
The government did not have the balls to challenge me on the contents of my Statutory Declaration. And by charging me for criminal defamation the government can avoid talking about the contents of what I signed. They just need to prove that I did sign it, which they can prove easily enough since I admit it, and then send me to jail.
Okay, so let’s assume that I did defame the Prime Minister’s wife (who was then only the Deputy Prime Minister’s wife). Can I be charged for that? Is that criminal defamation?
It is criminal defamation only if the Deputy Prime Minister’s wife works for the government and I defamed her in her official capacity as a government officer. Say I accuse Khalid Ibrahim, the Selangor Menteri Besar, of neglecting the Malays in Selangor because he gave land to Chinese and Indians but not to Malays. And, say, this is not true. That can tantamount to criminal defamation. This means I am criticising Khalid in what he does as Menteri Besar and that this allegation is false.
Rosmah Mansor is not a government officer. And I did not criticise her, false or otherwise, because of what she did as a government officer. So whatever I say, true or false, about Rosmah is not criminal defamation. She has absolutely no status in the government. She is just a wife of a politician who happens to hold a position in the government. The wife of a public servant is not a government post. The First Lady of the US is an official position, not the so-called ‘First Lady’ of Malaysia (and at that time she was not even the ‘First Lady’ yet).
Anyway, I was charged for that crime, which is not a crime. And, as Prime Minister Najib Tun Razak said, since the charge is frivolous, I did not want to layan (entertain) it. So when the charges were read out to me I told the judge I am not responding to the charges because the charges are mala fide and defective. I will not enter any plea.
The judge told me since I refuse to enter a plea then the court would take that as a not guilty plea. I then raised my voice and told the judge that I did not enter a plea of not guilty. I refuse to respond to the charges and enter any plea. But the judge still insisted that he would record that as a not guilty plea.
The case was then transferred to a higher court. The lower court that I was first charged in cannot impose a higher sentence. So they transferred my case to a higher court so that the sentence can be more severe.
There was no reason to transfer my case to a higher court. The lower court that I was first charged in is legally allowed to hear my case. Only that if I am found guilty then my sentence would be a maximum of two years jail and/or a fine of RM10,000. But if my case goes to a higher court then there is no limit as to what they can whack me with.
It looked like they already knew I was going to be found guilty even before the trial started. So they wanted my case transferred to the higher court so that there is no limit on my sentencing and they can lock me up and throw away the key. If they impose a sentence of both jail and fine, and if the fine is so huge that I can’t afford to pay it, then that would be an additional jail sentence imposed on me.
Smart, no?
Anyway, they recharged me in a higher court and I, again, refused to respond to the charges and enter any plea. And, again, the court insisted that this will be taken as a not guilty plea. And, again, I raised my voice and said that I did not enter a not guilty plea. But the court still insisted that they take it as a not guilty plea. This is the way it works, my lawyer told me.
I told my lawyer I don’t care what the system says. I refuse to face trial on charges of criminal defamation. If they charge me for the crime of signing a false declaration then I will fight the charge. But I am not going to layan a charge of criminal defamation. And the system can go fuck itself for all I care.
Now, on the issue of bail, I told the court that I refuse to pay the bail. I came to court with just a phone call and with no summons or warrant of arrest issued against me, like it should have been. I was not legally summoned to court to be charged. The police phoned me to request my presence in court so that I could be charged.
I could have told the police to go to hell. Since there is no summons for me to appear in court or no warrant issued against me, then I need not go to court. The police can’t do a damn thing. But I came to court anyway, based on just that phone call and the request from the police. So why the need for bail?
But the court still insisted that I post bail. The Prosecution wanted bail of RM10,000 for each charge. I protested and said that I would not pay. My lawyers quickly stood up to negotiate for the bail to be reduced to RM5,000. I scolded my lawyers and shouted at the judge that I am sacking my lawyers. I did not authorise my lawyers to negotiate for bail of RM5,000.
The judge called for an adjournment so that my lawyers could talk to me. My lawyers told me to accept bail and they will try to negotiate for the bail amount to be reduced. I said no. I had walked into court based on just a phone call and with no summons or warrant when I did not need to do that. So I do not see the need for bail. Even Anwar Ibrahim on a more serious charge of sodomy where the sentence is ten times more than the charge I am facing was allowed personal bond. So why treat me differently?
The judge came back into court and, to everyone’s surprise, imposed bail of RM2,000, for all three charges. This was very odd, my lawyers told me. The Prosecution asked for bail of RM10,000 for each charge (so that would be RM30,000 in total). My lawyers asked for bail of RM5,000. But the judge imposes bail of just RM2,000 for all three charges. This never happens, my lawyers told me, so can I please accept this lower bail? It looks like the judge is going out of his way to help me.
I still said no and walked off and surrendered myself to the police and told them to send to the Sungai Buloh Prison.
But the police would not do that. They did not even handcuff me like they should have. And they let me sit in the common area instead of locking me up in the holding cell. The Black Maria then left for the prison without me.
Furthermore, the police allowed my wife and one of my lawyers, Sam, into the holding area. They then opened one of the lockups so that we could sit inside it to discuss our matter in secret and in 'comfort'.
I told Sam to get the hell out of there and go home. But he would not go and my wife begged him to stay. My wife was crying and Sam said if he needs to go down on his hands and knees to beg me to accept bail he would do so. I was adamant that I am not paying bail. In fact, I refuse to even be put on trial. I had refused to enter any plea and the court should have just pronounced me guilty and sent me to jail.
I refuse to respond to the charges and enter any plea but they refuse to pronounce me guilty even after I shouted at the judge. I refuse bail but they refuse to send me to the Sungai Buloh Prison even after I walk into the lockup on my own accord.
I am not cooperating with the government, I told Sam. I am going to fight this charge. But I will not fight the charge in a trial. I will fight it my way and on my terms, not on the terms of the government.
If the government chooses to enter a plea of not guilty on my behalf then that is their choice not mine. It is the government that recorded a plea of not guilty. I did not enter that plea. And I also refuse bail. If they impose bail on me then I am not going to pay the amount. I will choose to go to jail.
My wife, full of tears, pleaded with Sam to keep me there, by force if necessary, and not allow them to send me to prison while she goes upstairs to post bail.
Sam and my wife said they are going to pay the bail and take me home. They insist. I told them to do what the fuck they want. And Sam called me a stubborn bastard. And I told Sam that it takes stubborn bastards who dare tell the government to go fuck itself to bring changes to this country.
Yes, The Malay Mail has got its version to the story of my Statutory Declaration. I also have my version. And my version is: I will not be put on trial and I refuse to pay bail. The government had its chance to send me to jail. I gave them that chance. I agreed to forfeit both my trial and bail. But they wanted to impose bail on me and put me on trial.
Well, I am not playing this game so they can go play with themselves. That’s my way of telling the government of Malaysia to go fuck itself. Oh, and it is true as what Sam said: I am a stubborn bastard and arrogant to boot. And by the way, Manchester United is playing against Liverpool this weekend so I thought the video below best explains my feelings about the Malaysian legal system


* This article is the personal opinion of the writer or publication. The blog owner does not endorse the view unless specified. To share the above article, please click the followings:
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