Malay rights? Are you sure it is a right? Hak ketuanan Melayu, adakah ia satu hak?
Looking at the constitution;
When we are talking about the constitution and the racial dynamics of this country, we cannot avoid article 153 and my argument is that article 153 has been contorted, distorted, mutated, at two (2) levels: one, on the idealism level and second, the pragmatic level.
Let me make myself clear about the outset. I have nothing against affirmative action whatsoever, in fact I think it is necessary but the problem is when it is not done well.
So if we look at article 153 just briefly it is about providing specific assistance to Malays and the natives of Sabah and Sarawak. When I say there are problems on the level of idealism and pragmatism, what do I mean?
Well, the idealism is, first and foremost is that we must not forget that article 153 exists within the context of the constitution. And the constitution very clearly states that in Part II, that all Malaysians are equal. So there is this underlying belief in equality. And if you look at the history of the drafting of the constitution, during the discussion of article 153, it was made clear that the aspiration of the Alliance and of the royal families, the Sultans at that time was that ultimately this country (Malaya at that time, of course) would not have any governance based on racial grounds. So decision making would do away with all racial grounds. That was the aspiration, embedded in the constitution under article 8.
But somehow we have lost sight of this. We have lost sight of this higher ideal of equality. And when you have something like ‘153’ without the corresponding idealism and aspiration, it is not tempered by any belief that whatever we do has to be within the context of equality. Then it can run loose and get out of hand. And I believe this is one of the problem that we have because we have a serious problem of ideology in this country (or, lack of ideology). And without a firm belief in certain principles, certain human rights and certain ideologies then by the letter of the law all sorts of abuse can occur.
Then comes the pragmatic element of article 153.
You see, the thing is, article 153 is.. categorically speaking, is not a right per se. It is not a right in any sense of the word actually. Article 153 is fundamentally a permission for the government to move away from article 8. Article 8 says that everyone is equal except where it specifically allowed for in the constitution and art 153 is where it is specifically allowed for in the constitution. So in other words, it is permissioned for the government to move away from the ideals and the letter of article 8 to do something/implement policies with regards to affirmative action.
It is not a right, it is merely a permission.
And another thing is we have to look at what it says.
The constitution is very clear. You can act unequally if you are allowed to and article 153 gives permission to act unequally. But you have to act unequally, as allowed for in the constitution. And the constitution is very specific as to when and where you behave in a matter which is unequal (business permits, licenses, education, scholarships, roles in the civil service etc). Anything else beyond this is wrong, because it is not allowed for in the constitution.
Unfortunately, we haven’t really had a serious challenge on the implementation of affirmative action supposedly based on the permission allowed by 153. Because I’m sure there will be many circumstances and situations where the actions and policies conducted and have been passed, have exceeded the limitations provided by the constitution.
Now, the problem that we have is that this provision in our law has influenced our political scenario. And this, more that the law this has probably created the problems that we have today.
The myth of the Malay rights enshrined in the constitution has been perpetuated by the government, the supporters and the organizations which are proxy to them. And this has led to a very toxic atmosphere in our society where there is a sense of different classes of citizens.
So when affirmative action becomes something different from helping the marginalized to a right, what you are doing is you are dividing, you are creating a divisiveness within the society. And of course there are social repercussions from this as well, because the whole affirmative action thing is based on race, instead of being based on need. So race becomes a question which is perpetually being raised, Malayness for example. What do you mean by Malayness? This is of course defined in our constitution as someone who habitually speaks Malay, who practices the religion of Islam, and who practices the cultural norms of the Malay people. And so what you have here of course is that suddenly religion gets caught up in the mix as well. And so the issues of religion and religious freedom suddenly becomes clouded by the issues of race. Because you cannot be a Malay constitutionally if you are not a Muslim. There are many Malay Hindus in Bali for example. So it becomes cloudy, it becomes messy.
And on top of this, other laws have been passed to make it near impossible for us to look at this matter with intelligence and a progressive outlook. So you can’t question 153. The Sedition Act makes it difficult or impossible. I would argue that you can question the implementation of it but the law is so vague and arbitrary that people are worried about this.
And there is also an aggressive stance whenever an effort is made with regards to questioning of the success of policies which were based on race. A few years ago, a study was published which argued that with regards to share and stock ownership, the objectives of the NEP was met. This was vehemently shot and shouted down not so much based on the work itself, but based on the fact that the writer of the report was Chinese. See, we have even shut down the necessary tools which are required in order for us to see whether this affirmative action is working or not.
If you can’t argue about the existence of 153, we still need to argue whether it is working or not. But how can you argue if it’s working or not when there is 1) an adamant insistence that it is an unquestionable right, and 2) when any effort is made to look at the implementation, it would be deemed unacceptable.
So, we are led to a situation where there can be no forward movement, no progressiveness with regard to this issue, which ultimately could undermine the entire purpose of affirmative action which is to help the marginalized.
I would say that over the years, article 153 has not evolved, because ‘evolve’ connotes something positive. It has instead, mutated from something which was initially designed as a tool for social equality and equity into a weapon for the furtherance of intolerance and racial divisiveness.
So, what is necessary? Open discussions, and open research on the effectiveness of 153. We need to go deep into the heart of the matter. What else? The freedom to conduct the research without fear or favour (the ammendment/abolishment of the arbitrary Sedition Act).
We should stop saying that the Malay rights are ‘unquestionable.’ Instead, we have to ask more questions.
I don’t think that this country was founded on any principles of bigotry and biasness. I think we were founded on the principles of equality and justice and also equity. It’s just that somewhere along the line we have forgotten this and this is why we are the way we are.