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Thread: Constitution: Understanding Article 153 - Special Position of the Malays vs Special Rights

   
   
       
  1. #1
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    Constitution: Understanding Article 153 - Special Position of the Malays vs Special Rights

    Kim Quek:

    Subject: Article 153 of the Federal Constitution - Read and Know your constitution

    Elections are around the corner. Fifty years after Merdeka, and racial tension has never been worse.

    This article was originally written in December 2004! It is quite long, but read it and you will find out that there is no such thing as Malay special rights and privileges; Article 153 merely states 'the special position of the Malays'.


    Saturday, December 04, 2004

    Unveiling the truth of Malay 'Special Rights' .... - Kim Quek

    The recurring issue of Malay 'special rights' was again brought into focus when Opposition Leader Lim Kit Siang moved to reprimand Higher Education Minister Shaffie Salleh in Parliament on Dec 1st for the latter's recent racial utterances.

    In the recently concluded UMNO annual assembly, Shaffie vowed to never admit any non-Malay students to the public funded Universiti Institute Teknologi Mara (UiTM), and he also undertook to ensure that in spite of the current meritocracy system of university intake, Malay students would always exceed 55%, which was the percentage stipulated under the previous quota system.

    Proposing the motion, Kit Siang described these policy statements as shocking and extremist. He exerted that apart from damaging Malaysia's international reputation, they undermined national unity and integration and lowered competitiveness all round.

    Opposing the motion, MP Ahmad Shabery Cheek (UMNO, Kemaman) accused Kit Siang of stirring up racial issues and challenging Malay 'special rights', for which Ahmad quoted Article 153 of the Federal Constitution which prescribed these rights.

    Kit Siang denied these accusations and asked the newly appointed Speaker Ramli Ngah Talib for a ruling as to whether the motion was deemed seditious. The Speaker remained silent. As expected, the motion was eventually rejected in view of ruling party BN's overwhelming majority.

    Forty seven years after Independence, racial issues continued to monopolise national politics, and championing Malay rights remains the single dominant ideology of the only ruling power that this independent nation has known, UMNO. Thousands of speeches have been made championing this Malay cause, using various terminologies such as Malay 'special rights', Malay 'special privileges' or simply Malay 'rights', often invoking the nation's Constitution as the legal back-up. But, of the thousands of politicians who have used these terminologies, how many have read through the Constitution to find out what these 'rights' really are? Very few, perhaps!

    Our Constitution is printed in a small booklet that can be bought for about RM10 in the book shops. Buy one copy and read through to find out what it says about these 'rights'. After all, these issues have been the hottest favourites of our politicians ever since our Independence. Aren't you curious to find out?

    If you have read through the Constitution to look for an answer to these Malay 'rights', perhaps the first thing that has struck you is that, familiar terminologies such as Malay 'special rights', Malay 'special privileges' or Malay 'rights' are nowhere to be found in the Constitution. Instead, we only find the term 'the special position of the Malays', which appears twice, in Clause (1) and Clause (2) of Article 153, which is titled 'Reservation of quotas in respect of services, permits, etc, for Malays and natives of any of the States of Sabah and Sarawak'.

    (The natives of Sabah and Sarawak were only incorporated into the Constitution upon the formation of Malaysia in 1963, during which Sabah, Sarawak and Singapore were merged with Malaya to form Malaysia. In this article, the words 'the natives of Sabah and Sarawak ' will not be repeated after the word 'Malay' when I quote from the Constitution, for abbreviation purpose).

    MP Ahmad Shabery Cheek has of course correctly pinpointed Article 153 as that part of the Constitution upon which Malay 'rights' were founded. But has he read and understood the full meaning of Article 153?

    Anyone who has read through Article 153 might be surprised to discover that the provisions favouring Malays are in fact quite moderate, and certainly no way as stretched out in intensity and scope as our politicians would want us to believe. Similarly, those provisions protecting the non-Malays as a counter-balance to the special position of the Malays under this Article are also surprisingly quite well conceived and fair. In fact, when read in conjunction with Article 8 (Equality) and Article 136 (Impartial treatment of Federal employees), Article 153 cannot be construed as having significantly violated the egalitarian principles of our Constitution, contrary to common perception.

    Since the egalitarian nature of our Constitution is largely intact, in spite of the presence of Article 153, then why should it have acquired such an adverse reputation as the legal root of all kinds of racial inequalities in this country?

    Answer: the fault is not with our Constitution, but with our politicians twisting, misinterpreting and abusing it.

    It is perhaps high time we get to the bottom of Article 153.

    Clause (1) of Article 153 states: 'It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and the legitimate interests of other communities in accordance with the provisions of this Article'.

    So, the first understanding that we must have on Article 153 is that it is meant to protect the interests of not only the Malays, but also those of the non-Malays.

    Next, note the deliberate use of the words 'safeguard' and 'special position' (instead of 'special rights' or 'special privileges'). The choice of these words must be understood in the historical context of the drafting of this Constitution half a century ago when Malays were economically and educationally backward in relation to other races. It was thought fit and proper then that there must be 'safeguards' to protect the Malays from being swarmed over by other races. Hence, the creation of the 'special position' of the Malays, which was obviously intended for defensive purpose: to protect for survival. The impeccable avoidance of using words like 'rights' and 'privileges', and the choice of the word 'safeguard' were clearly calculated to reflect its defensive nature. Under that historical context, the provision of the special position of the Malays in the Constitution certainly could not be interpreted to mean the endowment of racial privileges to create a privileged class of citizenship.

    Clause (2) says that the Yang di-Pertuan Agong shall safeguard the special position of the Malays by reserving positions 'of such proportion as he may deem reasonable' in a) the public service b) educational facilities and c) business licenses.

    Clauses (3) & (6) say that the Yang di-Pertuan Agong may, for purpose of fulfilling Clause (2), give general directions to the relevant authorities, which shall then duly comply.

    There is a separate clause covering the allocation of seats in tertiary education - Clause (8A). It says that where there are insufficient places for any particular course of study, the Yang di-Pertuan Agong may give directions for the 'reservation of such proportion of such places for Malays as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions.'

    As for the protection of non-Malays against possible encroachment of their existing interests, there are several provisions under different clauses in this Article, prohibiting the deprivation of the existing facilities enjoyed by them, whether in public service, education or trading licenses. Of these protective clauses, Clauses (5) and (9) are particularly significant.

    Clause (5) consists of one sentence, which reads: 'This Article does not derogate from the provisions of Article 136'.

    Article 136 also consists of one sentence, which reads: '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) consists of one sentence, which reads: 'Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays.'

    Reading Article 153 will not be complete without reading Article 89 (Equality). I will quote the more significant Clauses (1) and (2) of this Article in full, as follows:

    Clause (1) states: 'All persons are equal before the law and entitled to the equal protection of the law.'

    Clause (2) states: 'Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.'

    Reading through these Articles of the Constitution, we are able to draw the following conclusions:

    1. The present clamour for Malay 'special rights' as sacrosanct racial privileges of a privileged race, especially under the ideological ambit of Ketuanan Melayu (Malay the master race), is in conflict with the letters and spirit of the Constitution.

    2. The special position of the Malays as prescribed under Article 153 of the Constitution is limited in scope to only the reservation of reasonable quotas in these 3 sectors: public services, educational places and business licenses. Hence, the present rampant racial discriminations practiced on almost every facet of our national life are mostly violations of the Constitution. Examples of these violations are:

    a) Racial discrimination in the appointment and promotion of employees in publicly funded bodies, resulting in these becoming almost mono-raced bodies (particular so in their top strata). These bodies include: the civil service, police, army and various semi and quasi government agencies.

    b) Barring of non-Malays from tenders and contracts controlled directly or indirectly by the government.

    c) Imposition of compulsory price discounts and quotas in favour of Malays in housing projects.

    d) Imposition of compulsory share quota for Malays in non-Malay companies.

    e) Blanket barring of non-Malays to publicly funded academic institutions (that should include the UITM, which is the subject of debate in Parliament referred to earlier in this article).

    f) Completely lop-sided allocation of scholarships and seats of learning in clearly unreasonable proportions that reflect racial discriminations.

    3) Our Constitution provides for only one class of citizenship and all citizens are equal before the law. The presence of Article 153 does not alter this fact, as it is meant only to protect the Malays from being 'squeezed' by other races by allowing the reservation of reasonable quotas on certain sectors of national life. However, this Constitution has now been hijacked through decades of hegemony of political power by the ruling party to result in the virtual monopoly of the public sector by a single race. The ensuing racism, corruption and corrosion of integrity of our democratic institutions have brought serious retrogression to our nation-building process in terms of national unity, discipline, morality and competitiveness of our people.

    4) At this critical juncture, when nations in this region and around the world are urgently restructuring and shaping up to cope with globalization, our nation stagnates in a cesspool that has been created through decades of misrule. Unless urgent reforms are carried out, beginning with the dismantling of the anachronistic racial superstructure, we are in for serious troubles in the days ahead.
    py

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    Particularly one main reason why they looked lazy, stupid and useless. It's because they're being spoonfed for too long while taking part of our money as tax for funding something useless.

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    Clause (1) of Article 153 states: 'It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and the legitimate interests of other communities in accordance with the provisions of this Article'.

    so, may I ask what exactly Agong is doing to improve the current situation ??

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    History: Article 153

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




    Written by Art HarunWednesday, 17 March 2010 11:12


    Columnists


    In my article, Visiting the Malay ‘Rights’ (the Bahasa Malaysia version can be readhere), 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.
    py

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    History: Article 153 - Pakatan MPs claim Umno, Perkasa twisting Article 153

    Pakatan MPs claim Umno, Perkasa twisting Article 153



    By Melissa Chi
    December 27, 2011
    Khalid said Umno and Perkasa were intentionally conflating Article 153 with the concept of “Ketuanan Melayu”. — File pic

    KUALA LUMPUR, Dec 27 — The constitutional provision outlining the special position of Bumiputeras has been manipulated by Umno and is now being used as a weapon of aggression, Pakatan Rakyat (PR) lawmakers claimed today amid growing debate on the subject.On Saturday, National Evangelical Christian Fellowship (NECF) chairman Reverend Dr Eu Hong Seng said Article 153 of the Federal Constitution is akin to “bullying” if it only protects the rights of one group.

    Today, several PR lawmakers suggested that Article 153 was being intentionally conflated with the concept of “ketuanan Melayu”, or Malay supremacy.

    “Reverend Eu mentioned it should be inclusive and I think it did try to cover it (inclusiveness),” PAS Shah Alam MP Khalid Samad said today. “Fundamentally it is inclusive but has been manipulated and it is not about protection anymore but aggression.”

    Eu’s remark sparked protest from Malay rights group Perkasa and drew a denial today from Deputy Prime Minister Tan Sri Muhyddin Yassin that the provision had been used to bully any community.

    On Sunday, Perkasa claimed the provision kept the country peaceful, further claiming that the race riots of May 13, 1969 happened because it was not implemented properly.

    “This country is peaceful because of Article 153 which protects the rights of Bumiputeras who are the majority in this country.

    “The reverend needs to remember that Christians are able to practise their religion without worry in this country because of Article 153,” Perkasa secretary-general Syed Hasan Syed Ali had said last week.

    Article 153 states that “it shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.”

    Constitutional expert Prof Abdul Aziz Bari also chimed in on Sunday to say this meant “the King must also make sure that (safeguarding Bumiputeras) must not be done at the expense of the legitimate interests of other communities.”

    Today, Khalid echoed the view and similarly noted the inclusion of the phrase “other communities.”

    “What you want to maintain in the Constitution is that it is recognition of historical facts and that Malays do not lose out even if citizenships were given to the Chinese and Indians.
    “Unfortunately it leaves a lot of room for manipulation and it is manipulated by Umno and people such as those in Perkasa where they emphasise on Ketuanan Melayu instead of making sure Malays do not lose out,” said Khalid.

    He also noted the Article refers to special privileges, and not special rights.

    PKR secretary-general Saifuddin Nasution Ismail agreed with Khalid and spoke of rampant abuse of Article 153 carried out under the guise of safeguarding Malay and Bumiputera interests.

    Citing the award of contracts and licensing rights for example, Saifuddin said these appeared to only be given to a core group of politically-connected Malays rather than to the community at large.

    “I am clearly guided by the stance agreed by Pakatan Rakyat on this Article 153 ... which is the position of the Malay rulers, Bahasa Malaysia and Islam as the official language and religion of the country and Article 153 as stated clearly in the Malaysian Constitution but at the same time to also look into the interest of minority including those in Sabah and Sarawak,” he said.

    PKR vice-president Fuziah Salleh said that it was clear the provision was inclusive despite the specific mention of the Bumiputeras and Malays.

    “When we give special rights to Bumiputeras, it does not deny the rights of the others as there are other parts of the Constitution that does not provide for discrimination,” the Kuantan MP added.

    PAS Kuala Selangor MP Dr Dzulkefly Ahmad also said the clause is self-explanatory and that it provides a “very balanced and just” view of what it should be.

    “I have had this understanding for a long time that Article 153 in no way compromises nor usurps any legitimate interests or rights of any ethnic group.

    “So if only Perkasa or Ibrahim Ali would read this provision and not just selectively or preferentially highlight what he wants,” he said.

    He also stressed that Malays and Bumiputeras had a “special position” that had to be guarded, and not special rights.

    “We must move on to bring the nation, both BN and the opposition, forward to one that really confronts and faces the many challenges of the problems in our nation,” he said.

    py

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    Malay Rights v Special Position

    Stanley Koh
    December 28, 2011


    In this last week of 2011, we will be re-publishing selected stories carried in FMT throughout this year. We find that these stories still remain relevant in the present context.
    FLASHBACK 2011
    EDITOR’S NOTE: This story was posted on Jan 9, 2011, reminding the nation’s leaders the warnings that the late Ghazali Shafie gave 10 years ago. We think it is still worth reminding our leaders the warnings.
    “There are no Malay rights since our Constitution holds dear that all persons are equal before the law and entitled to equal protection of the law without discrimination on the basis of race and religion.”

    That was what the late Ghazali Shafie said in a speech at the National Unity Convention in May 2001.

    He continued: “What perhaps has come to be regarded as special rights is the special position of the Malays and natives of Sabah and Sarawak under Article 153 (of the Federal Constitution). The change from ‘position’ to ‘rights’ is frightening. Who did that, I wonder?

    “In a plural society like ours, if the leadership was not bold and sincere enough to take corrective measures so that there would be a level playing field, then the situation would indeed be bleak and our society would be a playground for those who wish us ill.”

    Born in Kuala Lipis, Ghazali was 88 at the time of his death in January 2010. He had a distinguished career in politics and government.

    Many bigots, opportunists and self-serving leaders of today will probably dismiss those remarks on the New Economic Policy as just one man’s opinion. If they are ignorant of history, they may even question his authority.

    If Ghazali were alive and facing these critics, he would probably reply in these words, which were part of the speech at the 2001 convention:

    “It was Tun Abdul Razak who asked me to devise the NEP after being inspired by Rukunegara.

    “The NEP was the fruit of consultations among the various races in the Consultative Committee and later Parliament, who agreed to the corrective measures by invoking affirmative action.”

    Distortions and misinterpretations

    In explaining affirmative action, he paraphrased Tun Abdul Razak, who likened it to the handicap system in golf, “so that,” he said, “everyone could play together on a level playing field.”

    He added: “Almost ad nauseam, it was explained that the NEP was not to make the Malay community rich but to change vocations through affirmative action. To acquire riches is the privilege of any individual and it would be contrary to the Rukunegara if the only aim was to make the Malays rich.”

    When he spoke those words, the greed for riches through the NEP had long taken root. Distortions and misinterpretations of the policy had already divided the nation, and our so-called leaders tossed around the word “unity” only when elections were near, and they still do so today.

    But unity, if we take it seriously, is indeed the key to resolving the profound problems that the nation faces.

    Is “1Malaysia” a call for such unity? Many Malaysians do not think so. They believe instead that it is a red herring meant to deflect attention from the continuation of discriminatory policies.

    The thinking public does not buy all the hype about 1Malaysia that BN is pushing through the media organisations it controls. It remains an empty and meaningless slogan.

    And, as if oblivious of what the public is saying, 1Malaysia has become a favourite catchword among BN politicians. They tag the slogan to everything, like a chef sprinkling salt in every dish. Do they really think that Malaysians are stupid enough to believe that mere rhetoric can charm them out of their dissatisfactions?

    Shifting goal posts

    Ghazali was right when he said that our national problem had become complicated because of the kind of education Malaysians were receiving. And nothing has changed since he made that remark 10 years ago.

    “We become argumentative over some words without analysis or a look at the semantics,” he said.

    And Ghazali was right too when he said: “We don’t seem to care about the fundamental right to food and clothing.”

    Critics accuse the Umno-led regime of spending millions of ringgit on decorative rhetoric and ceremonial reforms without making any real effort towards substantive institutional changes that would bring about compliance with democratic principles and respect for human rights and needs.

    Ghazali stressed that there could be no lasting unity unless the playing field was level.

    He added: “Let us not shift the goal posts when the field is beginning to level. This exercise at maintaining peace and stability must be kept in constant repair.”

    Ghazali, once an Umno supreme council member himself, probably had some faith that the party would eventually come to its senses and start to set things right again. If he were alive today, would he still have such confidence?

    py

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    Wednesday, 28 December 2011 17:39

    Ibrahim Ali vs Rev Eu: Giving Malays a bad name with racist and ignorant comments


    Written by Maclean Patrick, Malaysia Chronicle


    Perkasa, as an NGO that is bent on protecting the rights of Malays, will always contort any manner of legislation to suit their arguments - whether right or wrong, fair or unfair.

    Obviously, this does not bode well fior the Malays as Perkasa's extremist stand will be taken to reflect that of the community as a whole. So if Perkasa adopts a racist and selfish stance, the Malays it claims to represent - by virtue of Perkasa having access to high-profile mainstream media coverage - will also come across as racist, selfish and fearful of competition.

    But that as we know is not true. However, one looks at it, Perkasa has little substance, even at its core. It is a mere shallow capsule to further the narcissistic urges of someone who is, politically, a non-entity in Malaysia. This person is its founder president - Ibrahim Ali.

    Supported by Umno

    Ibrahim Ali is not afraid to threaten anyone he sees fit because he has the backing of Prime Minister Najib Razak's UMNO party. And as long as UMNO gives Ibrahim the nod, he can speak all manner of nonsense. Others will get pulled up for sedition or even detained under the draconian Internal Security Act, but not Ibrahim Ali, who never has to account for his words.

    The most recent idiotic approach taken by Perkasa towards Article 153 and the comments by Rev Dr Eu Hong Seng, shows its inability to view any subject matter objectively and intelligently. Eu, the National Evangelical Christian Fellowship (NECF) chairman who likened Article 153 to “bullying” for only protecting the rights of one group.

    “We demand the government use the Sedition Act on anyone who makes statements like this from now on and charge them in court,” the Perkasa chief told reporters a day ago.

    "We’re only upholding what’s in the Federal Constitution. Please don’t keep provoking us on and on because it’s not good for the country. And we have been patient for so long.”
    Get the facts right

    But who is Perkasa to talk about the Federal Constitution, especially when it gets the facts totally wrong? Then on his interpretation of Article 153, Ibrahim Ali and Perkasa are wrong on various fronts.

    Article 153 states that it is the King's responsibility “to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article”.

    The controversial article consists of ten statements, and the first error by Perkasa is that, in Article 153, there is no mention of the term “bumiputra”. The second error is to assert that Article 153 protects the rights of the Malays and Bumiputeras.

    The heading for Article 153 gives us a clear picture as to what it covers - Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.

    Article 153(1) uses the broad term “the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.”

    The “special position” refers to the Malays and natives of any of the States of Sabah and Sarawak in relation to government service, the issuance of permits and etc. Special position does not mean “special rights” instead it points to the state of preference or priority. And no-where in Article 153 does it mention “bumiputera”, and when reading the sentence in a whole, the natives of any of the States of Sabah and Sarawak are on par. They are to be given EQUAL preference. The Malays are not to lord over the natives nor the natives over the natives of Sabah and Sarawak. This is fundamental, as it relates to the terms and conditions for Sabah and Sarawak to form the federation of Malaysia as equal partners.

    Who says only for Malays

    Perkasa is also dead wrong in asserting their stand that Malays, and only Malays, should take priority. If Perkasa is the defender of Article 153, by right, Perkasa should also champion the cause for all natives of Sabah and Sarawak. Article 153(1) further states a third group of citizens, “the legitimate interests of other communities”.

    This third group of citizens includes all other groups outside the sphere of Malay and natives of Sabah and Sarawak. Meaning, priority is given to Malays and natives of Sabah and Sarawak but where legitimate, other communities should not be deprived of civil service employment, business opportunities and education in accordance to to the provisions of the Article 153.

    For Perkasa to merely champion the Malays, using Article 153 as their tool, and whitewashing the existence of the natives of Sabah and Sarawak and other communities; are they not supporting the depriving of equal opportunity as stated in Article 153 and thus, totally contradicting and nullifying the provisions of Article 153?

    Article 153 protects that rights of all Malaysians, giving priority to Malays and natives of Sabah and Sarawak and where legitimately possible, other communities.

    When Rev Eu stated that Article 153 is akin to “bullying” if it only protects the rights of one group, he was referring to the gap we now see when it comes to position of the “natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article” as stated in Article 153(1).

    No one questioned the Agong either

    There is also no question of questioning the authority of the Agong, nor is there any challenge to the Federal Constitution. Another point that irks our intelligence, is the claim by Perkasa, that if anyone questions Article 153, they are to be charged with sedition and a police case raised against them.

    For what crime, may we ask? For the crime of speaking an opinion? For the crime of stating an observation? For the crime of being a Christian and addressing a need? What is the crime? Since when was thinking a crime? Since when was a citizen punished for voicing out their concerns?

    “We demand the government use the Sedition Act on anyone who makes statements like this from now on and charge them in court,” Ibrahim told reporters a day ago.

    The Perkasa chief was referring to a statement made on Saturday by National Evangelical Christian Fellowship (NECF) chairman Eu, who likened Article 153 to “bullying” for only protecting the rights of one group. Article 153 states that it is the King's responsibility “to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article”.

    If anything, Perkasa should be charged with the crime of threatening non-Malays and non-Muslims, in particular the Christians and Chinese, as well as insulting the intelligence of every right minded Malaysian.

    Malaysia Chronicle


    py

  8. #8
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    The Special Position of the Malays (Part One)




    30 August 2012 | Bolehland | Posted by Andrew Yong

    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:



    • estates in land;
    • positions in the public service;
    • scholarships, exhibitions and other similar educational or training privileges or special facilities;
    • permits or licenses for the operation of trade or business, where required by federal law.


    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.
    py

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