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Thread: Governance: Constitutional provisions on Malay rights, land, promote discrimination, study suggests.

   
   
       
  1. #1
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    Governance: Constitutional provisions on Malay rights, land, promote discrimination, study suggests.

    Does this article confirm that Malaysia practices a form of Apartheid? Judge for yourself.

    Constitutional provisions on Malay rights, land, promote discrimination, study suggests



    By Clara Chooi
    Assistant News Editor

    November 14, 2012
    The four-part study said the existence of Articles 89 and 153 of the Federal Constitution were among the strongest causes behind racial discrimination in Malaysia. — file pic


    KUALA LUMPUR, Nov 14 — Malaysia should repeal or amend two constitutional provisions protecting the special rights and land of the Malays to avoid discrimination on the basis of race or ethnicity, according to a UK-based study on discrimination and equality in the country.

    The four-part study, jointly conducted by international charity organisation Equal Rights Trust (ERT) and Malaysian rights group Tenaganita, said the existence of Articles 89 and 153 of the Federal Constitution were among the strongest causes behind racial discrimination in Malaysia as both had purportedly failed to meet the original intention for positive action.

    Instead, the provisions had “violated international law standards”, it was said in the executive summary of the “Washing the Tigers: Addressing Discrimination and Inequality in Malaysia” study published on the ERT’s website late Monday.
    “The positive action measures under these provisions are not time-limited or function-limited.

    “The permanent privilege enjoyed by the Malays and the natives of Sabah and Sarawak therefore appears to maintain unequal and separate standards, on the ground of race, in conflict with the constitutional prohibition of discrimination,” the summary said.


    Article 153 of the Constitution of Malaysia grants the Yang di-Pertuan Agong 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”. The provision also goes on to specify ways to do this, such as establishing quotas for entry into the civil service, public scholarships and public education.


    It is among the most controversial provisions in Malaysian law with critics often arguing against the necessity of a race-based distinction between Malaysians of different ethnic identities.


    While right-wing Malay groups and political hardliners have used the provision to argue the need for the continuation of affirmative-action policies, opposition politicians have accused the ruling government of wielding it as a “weapon of aggression”.


    But the ERT report said the provisions were among other legislation in Malaysia that it found to be either directly or indirectly discriminatory in nature, adding that the country has a human rights obligation to respect an individual’s right to be free from discrimination.


    “Malaysia is urged to undertake a review of all federal and state legislation and policies in order to (i) assess compatibility with the right to equality; and (ii) amend, and where necessary, abolish existing laws, regulations, and policies that conflict or are incompatible with the right to equality.


    “This process should include the repeal of all discriminatory laws, provisions and policies. In particular, the following discriminatory provisions should be repealed or amended to remove discriminatory elements,” the study said, before listing Articles 5(4), 8(2), 9, 10, 11, 12(1), 14, 15, 24, 26, 89, 153 and 161 of the Federal Constitution.


    According to the study, the provisions discriminate against individuals on the grounds of residence, political opinion, religion, gender, race and ethnicity.


    As an example, the report said that Article 10 of the Constitution, which outlines freedom of speech, assembly and association, is discriminatory on the grounds of political opinion by setting out exceptions and conditions aimed at restricting the activities of political opponents to the government.


    “The picture of inequalities in Malaysia would be strongly distorted without an understanding of discrimination based on political opinion.


    “The main patterns of politically-based discrimination are related to voting rights and other political participation rights, arbitrary detention on political grounds, freedom of association and assembly, and freedom of expression,” the report said.
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    Saturday, 17 November 2012 08:02

    Irene bashing by Perkasa shows how PARANOID & OUT OF IDEAS Umno is



    Written by Joe Fernandez, Malaysia Chronicle




    Perkasa, which in any other civilized nation would be ridiculed by decent society, has once again stepped forward in a hysterical defence of a political illusion long passed off as reality in Malaysia.

    Hence, the public bashing that activist Irene Fernandez has to endure in Perkasa’s diarrhoea of words over a study linked to her, Washing the Tigers: Addressing Discrimination and Inequality in Malaysia.

    Umno continues to remain in a state of denial that it can no longer be business as usual. Therein lies a death wish like that harboured by the Nazis until the very end in pursuit of their 1,000-year Reich or by the white minority apartheid regime in South Africa.

    The days of the 'Shahrizat Jalils' who could with impunity shrug off allegations and try to 'walk off' with a quarter billion ringgit of the people’s sweat from the Public Treasury are numbered.
    The Government can no longer afford to dole out millions of the peoples money to politicians disguising their mischief as so-called Bumiputera businesses.

    The country can no longer afford to put up with a situation where those in power, the fat cats in tow, continue to plunder the Public Treasury under the guise of bringing development to the people and bailouts for troubled corporations in incestuous relationships with their political masters.

    Jealousy of Chinese In business Umno’s political ideology

    Umno’s jealousy of the Chinese in business, its nearest to a political ideology, will bite the dust before being cast into the dustbin of history. This is the writing on the wall that Perkasa wants to mask with its Irene F bashing.

    It’s no wonder therefore that the poodle desperately continues the old Umno line of twisting and turning every issue in Malaysia into a racial and religious one to scare the Malay-speaking communities – Bugis, Javanese, Minang, Acehnese, and Indian Muslims -- into circling the wagons and gathering under one political platform i.e. Umno.

    Perkasa and Umno continue under the delusion that total Malay unity is still possible to continue to underwrite their fabulous lifestyles, a thieving one, at the expense of the nation. The fact that the country can no longer afford to suffer the crippling National Debt Burden created by their antics in politics seems to elude them.

    The bottomline is that the Irene F-linked study confirms the long-held views in Malaysia that distortions and deviations in the implementation of the Special Position clauses in the Constitution has robbed the Orang Asal and the Malay-speaking communities of a golden opportunity to uplift themselves within a 15 year time-frame.

    The Special Position clause, while protecting the legitimate interests of the non-Malays, provided for the beneficiaries to enjoy a reasonable proportion in four specific areas only viz. jobs in the civil service; intake into institutions of higher learning owned by the government; state scholarships; and opportunities from the government to do business.
    Umno usurped power of King over Special Position clause

    The Special Position clause was subverted by Umno elites into a sapu bersih – clean sweep – one, Special Privileges, covering in perpetuity every aspect of life in Malaysia.

    This travesty of justice covered a multitude of sins against the nation in general and the underclass in particular.

    The latter grew with the numbers cast into the shanty towns by the fragmentation of the estates in the plantation sector. However, they had to bear the brunt of administrative laws which denied them even cendol licences by the local authorities on the grounds that they were not Bumiputera, “sons of the soil”. The fact of the matter is that all citizens by operation of law are Bumiputera. But that’s another story.

    Had Umno not usurped the power of the King vis-à-vis the Special Position clause, the beneficiary communities would have enjoyed the fruits of independence and development. Today, they have nothing more than the proverbial shirts on their backs.

    This is especially true of the Orang Asal – the Orang Asli, Dayak, Dusun and Murut – who live in grinding poverty for the most part in nothing more than ramshackle huts and continue to be subject to the indignity of their lands being taken away. The Dusuns and Muruts, to add insult to injury, suffer from their politics being neutralized, marginalized and disenfranchised by the continuing influx of illegal immigrants.

    Malaysia’s new political dawn without arch villains Umno, MCA, MIC

    A new political dawn for Malaysia, as proposed by the Irene F-linked study, cannot be entrusted to Umno or MCA and MIC, its lapdogs.

    Both MCA and MIC were never about the people.

    The departing British, to ensure their interest, mooted the formation of MCA and MIC to protect the ruling Malay elite – read Umno -- from themselves. Indian and Chinese elites covered themselves well while looking out for the British.

    It was British Resident Sir Frank Swettenham who came up with the philosophy that has driven Malaysian politics ever since independence. Swettenham observed:
    “The Malay (the elite) will not hesitate to harm you even though he will suffer even greater harm in the process. We need to protect the Malay from himself.”


    It was the failure of the MIC to look out for the community, especially the underclass dispossed by the estates, which brought Hindraf Makkal Sakthi to the streets of Kuala Lumpur on 25 Nov, 2007 and helped set the stage for the political tsunami of Sat 8 Mar, 2008.

    Umno, like MCA and MIC, is incapable of change, incapable of re-inventing itself, as evident in Perkasa’s outburst against Irene F over the Study.

    The people can only wait impatiently for the 13th General Election to send this trio of arch villains, the bane of all Malaysian, packing into the sunset.

    Malaysia Chronicle


    Washing the Tigers: Addressing Discrimination and Inequality in Malaysia
    http://www.equalrightstrust.org/ertd...nk/execsum.pdf
    http://www.equalrightstrust.org/ertd...bank/concl.pdf
    http://www.equalrightstrust.org/ertd...a%20CR%201.pdf
    http://www.equalrightstrust.org/news...1112/index.htm

    py

  3. #3
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    The difference between rights and privilege



    [COLOR=#707070 !important]December 6, 2012[/COLOR]
    It is time for the government to introduce a new socially just affirmative action policy based on need or class or sector.
    By Kua Kia Soong

    We hear this often enough from breast-beating far-right racists but more so at Umno general assemblies, namely, the call for Umno to “safeguard Malay rights”.


    The top Umno leaders and the mainstream press and even those who should know better do not seem to be interested in correcting them on their loose usage of “Malay rights”.


    As Human Rights Day approaches, we will do well to be clear about the difference between rights and privileges.


    All peoples have rights – Malays, Chinese, Indians, indigenous peoples and all other ethnic communities are entitled to the same human rights. These rights are enshrined in Part II of the Constitution under “Fundamental Liberties”.


    They are inalienable, independent of the government-of-the-day. Thus, apart from the fact that they are guaranteed in our Federal Constitution, they are also part and parcel of the United Nations Human Rights instruments.


    Now, do Malays in this country have any special right on account of the fact they are “Malay” as stipulated under Article 153 of the Constitution?


    Rights and privileges


    A right is defined as an entitlement, very different from a privilege or a licence granted by the Constitution. All Malaysians are entitled to liberty of the person; equality; freedom of movement; freedom of speech, assembly and association; freedom of religion, and other rights.


    Privileges, on the other hand, are not rights. They can be revoked because they are conditional. Once the intended results have been met, privileges can be taken away but rights cannot be taken away.


    Special Position of the Malays”


    Nowhere in Malaysia’s constitution will you find any reference to “Malay rights”. Article 153 mentions “the special position of the Malays”.


    The main purpose for including Article 153 in the Constitution was to rectify the perceived weakness of the Malay community in the economic field, the public service and the problem of Malay poverty at the time of Independence. (Tun Mohamed Suffian bin Hashim, “An Introduction to the Constitution of Malaysia”, KL 1972:245)


    The first clause of Article 153 states:


    “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.”


    The second clause of Article 153 stipulates that the Yang di-Pertuan Agong shall ensure the reservation for Malays and since 1963, for natives of Borneo “of such proportion as he may deem reasonable of positions in the public service…and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and…any permit or licence for the operation of any trade or business is required by federal law…”


    Clause 4 expressly states that: “In exercising his functions under this Constitution and federal law…the Yang di-Pertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.”


    The abused ‘Quota System’


    As a result of the racial violence of May 13, 1969, the country was presented with a fait accompli by the new ruling class in Umno who were keen to propagate their “bumiputeraist” ideology as a populist ploy. Again, you will not see any mention of “bumiputera” (the “princes of the soil”) in the Malaysian constitution.


    Thus, in early 1971 the Constitution (Amendment) Act was passed adding a new clause (No. 8A) to Article 153:


    “…where in any university, college and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the university, college or such educational institution to candidates for any course or study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the yang di-Pertuan Agong may deem reasonable (my emphasis); and the authority shall duly comply with the directions.”


    This is the “quota system” we have lived with for the last 40 years or so and which has created so much controversy for that length of time.


    Strictly speaking, if we were to go by Umno’s oft-repeated “social contract” at Independence in 1957, that “social contract” certainly does not include Clause 8A of Article 153.


    And if we scrutinise this clause more closely, we will see that it is definitely not a carte blanche for the blatant racial discrimination as is the case of enrolment at institutions such as UiTM.


    At the 2004 Umno general assembly, you may recall then Higher Education Minister Shafie Salleh declaring:


    “I will not compromise on this matter…there will not be a single non-bumiputera allowed to enroll!”


    So, if any aggrieved party took the government to court for its enrolment policy at UiTM or any other MARA institutions, how do you think any judge would interpret clause 8A of Article 153, ie. “…to give such directions to the authority as may be required to ensure the reservation of such proportion of such places (my emphasis) for Malays and natives of any of the States of Sabah and Sarawak as the yang di-Pertuan Agong may deem reasonable…”


    The 100 per cent bumiputera enrolment policy at UiTM makes a mockery of the quota system and the justification of any affirmative action in any country!


    Principles and purpose of ‘affirmative’ action


    Compared to the affirmative action policies elsewhere, for example the United States, we find some glaring inconsistencies in this country:


    Principle 1: Affirmative action in the US was implemented to rectify the glaring discrimination experienced by historically marginalised groups such as the black minority in the US; In contrast, affirmative action in Malaysia is driven by the politically dominant and majority Malay elite and directed at the Malay community as a whole, as the beneficiary group, regardless of wealth and position.


    Principle 2: Any preferential treatment for any group should be followed by specific goals, quotas and sunset clauses as is the case in the US rather than the “Never Ending Policy” of the NEP in Malaysia;


    Principle 3: Affirmative action policies in the US are fundamentally not “special rights” as they are portrayed in Malaysia but rather, policy adjustments to rectify social inequality with a time limitation once the objectives have been reached;


    Principle 4: The definition of the main target group in Malaysia, namely, “the Malays” is imprecise and allows confusion when any Muslim who is not ethnically Malay can claim to be a beneficiary;


    Principle 5: In the US, affirmative action is extended into all discriminated groups, for example, women, Hispanics and other minority groups; whereas in Malaysia, only the “bumiputeras” (the “princes of the soil”) are included, while the poorest and most marginalized group, arguably the original people of this land, the Orang Asli, have been excluded from this policy.


    Contrasts in affirmative actions


    The contrasting origin of affirmative action in the US and Malaysia is worth noting. While in the US, it came about as a result of the civil rights movement in the 1960s by the downtrodden blacks, Malaysia’s “special privileges of the Malays” had its origin in colonial policy of divide-and-rule.


    The British strategy propped up the Malay feudal elite and divided the people into the “native Malays” versus the “Chinese and Indian immigrants”.


    Thus, Malays were given priority in civil service employment and the Chinese and Indians were also excluded from the political arena until an accommodation with the Chinese and Indian capitalist class was found during the Emergency.


    The political machinations by the British colonial power during the post-war constitutional crisis from the Malayan Union (1946) through the Federation of Malaya Agreement (194 to the Independence Agreement (1957) led to the inclusion of Article 153 in the federal constitution pertaining to “the special position of the Malays.”


    In strong contrast to the US, affirmative action in Malaysia covers not only higher education but also land reservation, quotas in public service, licences, permits, scholarships and grants.


    The most glaring inequity is seen when bumiputeras can buy houses costing more than a million ringgit and still claim a discount from the market rate. Can a black in the US do the same?


    The New Economic Policy of 1971 has led to a carte blanche for the ruling Umnoputeras to control the commanding heights of the Malaysian economy, including banks, plantations, oil & gas, properties and other sectors. Furthermore, several of these bumiputera-controlled sectors are monopolies. You certainly do not find such a situation with the blacks in the US.


    The NEP’s 30 per cent bumiputera equity share target by 1990 had clearly been reached but there seems to be no end to a policy that allows the Umno elite to continue reaping the benefits of the policy.


    Besides being onto a good thing, such a discriminatory policy has populist appeal to win over the Malay vote by portraying non-Malay citizens as “immigrants” who cannot enjoy these “special privileges”.


    Clearly, affirmative action cannot be justified for communities that are thoroughly class differentiated, such as the Malays, Chinese and Indians in Malaysia.


    The Orang Asli are a community that has not undergone class differentiation on a scale similar to the other ethnic communities in Malaysia but they enjoy no such privilege!


    A new affirmative action based on class or need


    In Malaysia, since the passing of the deadline for the NEP in 1990, it is high time for a new socially just affirmative action policy based on need or class or sector.


    Thus, if Malays are predominantly in the rural agricultural sector, we should create policies that benefit the poor Malay farmers and not the rich Malay land-owning class.


    Only such a race-free policy can convince the people that the government is socially just, fair and democratic and walks the 1Malaysia talk.


    The cost and consequences of the racially discriminatory policy in Malaysia have been immense, especially since the NEP in 1971. It has caused crippling polarisation of Malaysian society and costly brain drain.


    While the working class Chinese in Malaysia have largely adapted to this discrimination in the public sector by trying to make a living in the private sector, many working class Indians in Malaysia have not been so fortunate and have found themselves marginalized especially with the destruction of the traditional plantation economy.


    The phenomenon of the Hindraf movement which erupted in 2007 is a warning of social problems waiting to explode. The cost of preferential treatment has also seen greater intra-community inequality, with the higher class members creaming off the benefits and opportunities.


    Thus, on Human Rights Day 2012, Malaysians should try to reclaim their inalienable rights and understand the transient nature of privileges.


    For a truly 1Malaysia, let there be no more obfuscation about “rights” of any particular ethnic community but a commitment to unite all Malaysians by eradicating institutional racism through:



    • Corrective action in all economic and education policies based on need or sector or class and not on race with priority given to indigenous people, marginalised and poor communities;


    • Implementing merit-based recruitment in civil and armed services;
    • Ratifying the Convention on the Eradication of Racial Discrimination (CERD).


    Kua Kia Soong is the adviser of human rights group Suaram.

    py

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