A Race Relations Act for M’sia? (Part 1)

ARCHIVES 2010

By MT Webmaster On Jun 15, 2010

Written by Jeyaseelen Anthony, CPI

In this posting, we continue with providing the public with access to expert commentary and analysis – today by Jeyaseelen Anthony, a practicing lawyer and member of the Bar Council Law Reform Committee – on the subject of racial discrimination and race relations which is central to the promotion of equality of opportunity (thus benefitting Malays and non-Malays).

Introduction by Dr Lim Teck Ghee

In a continuously contentious multi-racial society such as Malaysia, any observer would have assumed that a Race Relations Act would be amongst the first and foremost of the country’s legislative provisions to ensure that Malaysians are not discriminated against on the grounds of ethnicity in the fields of employment, the provision of public goods and services, education and public functions.

However, discussion of the subject of racial discrimination and how to deal with it – perhaps the single-most issue of social significance affecting all Malaysians – has been drowned by the noise and threats of ultra-nationalist Malay groups who have used a variety of strategies including the propagation of biased and distorted history to support the contention that the provision for Malay ‘special position’ (not ‘rights’) found in the constitution implies the need and justification for racially discriminatory policies along a broad front of sectors.

Most recently we have seen a bumiputera (essentially Malay) Economic Congress present a 31-point memorandum basically calling on the government to reject the New Economic Model and to continue with race-based discriminatory policies in favour of the Malays.

Malaysians should not be cowed into silence and passivity by the actions of extremist politicians and their racist allies who are intent on inflaming communalist sentiments by playing on the shortcomings and sense of insecurity of various groups. Instead what is required is a larger public discourse – based on reason and rational analysis – on the subject of racial discrimination and how the state in particular can play a role in eliminating the institutional and individual racism that has coarsened our society.

In an earlier posting on ‘Article 153 on “special position” of the Malays and other natives: The way forward’, CPI provided readers with a commentary on the historical background to Article 153 of the federal constitution which many Malaysians regard as an intractable obstacle to enacting any legislative instrument.

It is hoped that the discussion here can be extended to include the issue of religious bigotry and hatred which is the other side of the coin of racial discrimination.

A Race Relations Act and its impact on Article 153 of federal constitution

By Jeyaseelen Anthony

The objectives of a legislation concerning race relations are fundamentally related to two issues:

Eliminating racial discrimination in the public service sector and the private sector.
To promote good race relations amongst the different races by eliminating racial imbalances and discrimination.

The purpose of this article is to explore the implications of introducing race relations legislation in Malaysia and whether it would be inconsistent with the affirmative action measures in the federal constitution.

In Malaysia, affirmative action or positive action policies as some may call it, is contained in Article 153 of the federal constitution.¹ The affirmative action policies by way of preferential treatment as envisaged under Article 153 are mainly to alleviate the Malays and the natives of Sabah and Sarawak from poverty and economic disadvantage.

Article 153 provides for the reservation of quotas mainly in the areas of:

positions in the public service;
scholarships, educational or training privileges or special facilities;
permits or licenses for the operation of any trade or business required by federal law²; and
places in institutions of higher learning (universities, college and other educational institutions) providing education after Malaysian Certificate of Education (MCE) or its equivalent …³.

The problem and the solution

It is implicit in Article 153(1) that “It shall be the responsibility of the Yang di-Pertuan Agong (YDPA) to safeguard the special position of the Malays and the natives of Sabah and Sarawak and the legitimate interest of other communities”.

The phrase ‘legitimate interest of other communities’ means that the federal constitution does not allow simply any kind of preferential treatment in favour of the Malays and the natives of Sabah and Sarawak. It is not a ‘blank cheque’, but merely confers limited powers on the government and parliament, pursuant to Article 153, to derogate from the principle of equality and equal protection of the law⁴. Therefore, the problem lies not with Article 153 but with its implementation⁵.

The implementation of Article 153 has often been the bone of contention as many have argued that its implementation has been at expense of the other races in Malaysia.

For example, although Article 153 provides for quotas only for the issuance permits and licenses to the Malays and the natives of Sabah and Sarawak, however, even government commercial contracts have been awarded solely to ‘bumiputera’ companies, which are clearly not sanctioned under the federal constitution⁶. Even government linked Companies (GLCs) and statutory bodies assign their work solely to ‘bumiputera’ companies and some major banks assign their legal work only to ‘bumiputera’ legal firms⁷.

The majority of employees at the GLCs and some major banks are Malays although the federal constitution only provides for reservation of quotas in the public service. Ethnic quotas are imposed on private companies by government agencies and licensing is used as a way to get private companies to observe bumiputera quotas, a policy which is clearly against the federal constitution as Article 153 only provides for reservation of quotas in the public service⁸.

These are several examples where the implementation of affirmative action policies has clearly gone beyond the limits of Article 153 of the federal constitution.

The lack of job opportunities in the public sector for the ‘non-bumiputeras’ (mainly people of Chinese and Indian origin) is a glaring example of an unreasonable application of affirmative action policies.

Although Article 136 of the federal constitution⁹ provides for impartiality in the public sector but there have been complaints by the non-Malays in the various government departments that they have been deprived from getting promotions or have been sidelined in favour of Malay candidates. This explains why the non-Malays shy way from seeking employment in the government sector and unfortunately it also explains the current brain drain that is currently plaguing our country.

Our public universities have also not been spared form this unfortunate state of affairs. This is evident from the incessant complaints by mainly Chinese and Indian students that they have been denied entry into the local universities although they have sound academic results¹⁰.

Even local authority contracts, licenses and permits are mostly given to the Malays and other ‘bumiputeras’ although nothing in Article 153 of the federal constitution permits parliament to restrict business and trade solely to Malays and the natives of Sabah and Sarawak¹¹.

There are also complaints that these government and local authority contracts, permits and licenses have only been given to people who are linked to Umno and other powerful ‘bumiputera’ politicians and the components parties of the Barisan Nasional, thus depriving the man on the street of these lucrative contracts. In fact it’s a well-known fact that Umno and BN in general are recognised as business empires.

Clearly the true meaning and purpose of Article 153 has not been followed by the powers that be. In fact it has been hijacked by the executive to favour a particular group people who are linked to the ruling elites and as a result the benefits as provided under Article 153 have not trickled down to the masses of the ‘bumiputera’ populace. The unfair and improper implementation of Article 153 has also given rise to the notion that the ‘non-bumiputera’ population are only given the leftovers or nothing at all.

It cannot be denied that the improper and arbitrary application of affirmative action policies as provided under Article 153 has contributed significantly to the deteriorating race relations in Malaysia as it has led to reverse discrimination. The deprivation of equal opportunities has caused racial tensions to run high in recent years. Therefore in order to improve race relations between the ‘bumiputeras’ and the ‘non-bumiputeras’ in Malaysia, there should be legislative intervention.

The number of quotas and restrictions and qualifications in favour of the Malays and the natives of Sabah and Sarawak are not well defined or specified under the federal constitution.

This loophole has led to the unfair, unbalanced and unreasonable implementation of Article 153. Many have suggested that a Race Relations Act (RRA) must be introduced in Malaysia in order to remedy the imbalances and unfairness that has led to discrimination. There is also the need to promote equality among the different races in Malaysia.

Can this piece of legislation be the answer?

READ MORE HERE