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“Maintaining” the special status of the Malays… actually means excluding or discriminating against non-Malay participation, although Article 153 has a balancing provision expressing the need to “maintain the legitimate interests of other communities” in its implementation.
Lin Deyi
The controversy over how to deal with Article 153 of the Constitution has once again come to the fore with the Johor Indian Chamber of Commerce issuing a statement calling on the government to provide opportunities to all companies, not just Bumiputera companies. The statement was in response to the latest policy changes to the car import and sales licensing policy. Jiba president P Sivakumar said in his call:[t]The government must open up the industry to non-Bumiputera companies, level the playing field and ensure fair competition.”
This call for a level playing field is not new. In the areas of education, trade, commerce and employment, Article 153 has been in force and has been increasing. Initially, the policy was implemented in the economic and social fields, and the Reid Committee that drafted the national constitution considered that the Malays and Bumiputeras had low participation. Since then, racial quotas and other forms of preferential treatment have been proliferated to “uphold” the special status of the Malays. These policies actually mean excluding or discriminating against the participation of non-Malays, although Article 153 has a balancing clause that says that in its implementation, “the legitimate interests of other communities need to be safeguarded”.
Those who support the need to review and amend Article 153 point out that the successful development of the Malays in the areas identified in 1957 as requiring special reservation or assistance means that such racially discriminatory preferential policies are no longer necessary. They also believe that these policies are Malaysia’s biggest problem, hindering the country’s economic potential and progress, social cohesion and national unity. Those who support the clause believe that the development of the Malays lags behind other communities and that racial priority policies are still needed in education, employment, economy and society.
Given the wide disagreement over Section 153, is there any way to conduct an impartial, rigorous, transparent review that can provide our policymakers and political leaders with data and findings about its costs and benefits and the future direction of its development and reform?
I had previously posited that a royal commission could provide such a review. But the cold reception given to that proposal suggests that a royal commission may not work. There is a less controversial approach that might gain wider support and be quicker and easier to implement.
Article 153 Database
Key to this review is the establishment of a database on the implementation of Article 153 in the educational, economic and social fields, including the number of participants or beneficiaries who have access to specific programmes, costs, etc. Establishing this database, which could be called Article 153, should not be a problem, as it could draw on existing data sets from statistical offices and the private sector.
Such a database could provide the authorities, as well as other stakeholders, interested parties and the public, with statistical data and other empirical information to assess the outcomes and successes and failures of programmes; and to consider necessary changes (including the possibility of cessation) to promote development and progress in our country.
Besides providing relevant data on the record of success or failure in upholding the special status of Malays and other Bumiputeras, the database can also inform the extent to which provisions to protect the legitimate interests of non-Bumiputeras or Bumiputeras of Sabah and Sarawak are being fulfilled in all designated policy areas.
Amending and re-enacting Article 153 will not only lead to better outcomes for the bottom 40% of society who are in need. The younger generation in particular will benefit from a level playing field where hard work, ability and talent are rewarded in all aspects of their lives, regardless of race. The world has changed dramatically since the implementation of the constitutional provision.
Finally, it is important to emphasize that the members of the Reid Commission and the political leaders during the independence period envisioned a review and possible cessation of the policy of racial preference after 15 years.
Today, more than half a century has passed since that review deadline.
refer to
After the establishment of Malaysia, the latest version of the clause is as follows:
Article 153
(1) It shall be the duty of the Yang di-Pertuan Agong to safeguard the special status of the Malays, the natives of Sabah and Sarawak and the legitimate interests of other races in accordance with this Article.
(2) Notwithstanding anything in this Constitution but subject to Article 40 and this Article, the Yang di-Pertuan Agong may exercise such powers as may be conferred on him by this Constitution and federal laws as may be necessary to protect the special rights of the Malays and the natives of the States of Sabah and Sarawak and to ensure that such proportions as it thinks reasonable of public offices (other than those of the State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities granted or granted by the Federal Government are reserved for Malays and natives of the States of Sabah and Sarawak and, where any permission or licence is required by Federal law for the carrying on of any trade or business, such permission and licence shall be obtained in compliance with the provisions of that law and this section.
(3) The Yang di-Pertuan Agong may, for the purpose of ensuring the reservation of public offices and scholarships, exhibitions and other educational or training privileges or special facilities for Malays and natives of the States of Sabah and Sarawak in accordance with subsection (2), give such general directions as may be necessary for that purpose to any committee to which Part X applies or to any authority responsible for the award of such scholarships, exhibitions and other educational or training privileges or special facilities; and such committee or authority shall give due compliance with any such directions.
(4) In exercising his powers under this Constitution and federal law, the Yang di-Pertuan Agong shall not deprive any person of any public office held or of the continuance of any scholarship, fellowship or other educational or training privilege or special facility.
(5) This Article does not derogate from the provisions of Article 136.
(6) Whenever any permit or licence is required for the carrying on of any trade or business under any federal law in force, the Yang di-Pertuan Agong may, in exercise of his powers under that law or in exercise of his powers under that law, or may give general directions to any authority responsible for the granting of such permits or licences under that law, ensure that such proportions of such permits or licences as the Yang di-Pertuan Agong thinks reasonable shall be reserved for Malays and natives of Sabah and Sarawak, and the authority concerned shall duly comply with any such directions.
(7) Nothing in this section shall deprive or authorise the deprivation of any person of any right, privilege, permission or licence acquired or enjoyed or held by him, or authorise the refusal to renew any such permission or licence to any person, or to grant any permission or licence to a heir, successor or assign of a person where in the ordinary course of things the renewal or grant of such permission or licence might reasonably be expected.
(8) Notwithstanding anything in this Constitution, where any federal law provides for the requirement of any permit or licence for the carrying on of any trade or business, such law may provide for the reservation of a proportion of such permits or licences for Malays and natives of the States of Sabah and Sarawak; but for the purpose of securing such reservation no such law shall—
(a) deprive or authorise the deprivation of any person of any right, privilege, permission or licence acquired, enjoyed or held;
(b) authorise the refusal to renew any permit or licence to any person, or to refuse to grant any permit or licence to any heir, successor or assign of any person, or to prevent any person from transferring any transferable permit to carry on any business in conjunction with his business, when such permit or licence would normally have been renewed or granted under any other provision of that Act; or
(c) refuse to issue a permit or license to any person to carry on any trade or business that the person was lawfully carrying on before the commencement of the law, or refuse to subsequently renew a permit or license to any person if the person did not previously require a permit or license to carry on that trade or business.
Any permit or license, or refuse to issue such permit or license to the heir, successor, or assign of such person, the renewal or grant of which could reasonably be expected in the ordinary course of events under the other provisions of this Act.
(8A) Notwithstanding anything in this Constitution, where in any university, college or other educational institution offering post-graduate education leading to the Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of such university, college or educational institution to candidates for any course of study is less than the number of eligible candidates, the Yang di-Pertuan Agong may give such directions to the authority under this Article as may be necessary to ensure that such proportion of places as he thinks reasonable shall be reserved for Malays and natives of Sabah and Sarawak and the authority shall duly comply with such directions.
(9) Nothing in this Article shall empower Parliament to restrict business or trade in respect of reservations only for Malays and natives of the States of Sabah and Sarawak.
(9A) In this Article, the expression “natives” in relation to a State of Sabah or Sarawak has the meaning assigned to it in section 161A.
(10) The Constitution of any State in which the Ruler resides may make provisions corresponding to the provisions of this Article (with necessary modifications). https://www.jac.gov.my/spk/images/stories/10_akta/perlembagaan_persekutuan/federal_con
institution.pdf; pp. 123-5)
postscript
This is the first of a two-part review of Article 153. A close friend provided the following feedback on a draft. The second part details how the database was implemented and will also address his concerns and reader reactions to this review.
Anthony James: “…fair, rigorous, transparent review…” – good enough. These are the standard adjectives for ensuring a credible, unblemished body of work. There is a second, more critical component: timely implementation of the work product’s recommendations. “Timely” is a key word. “Implementation” is equally important. Bureaucracies, aided and abetted by political forces, are notorious for killing recommendations in reports with delays. Withholding implementation funds is another weapon of choice. Beware the war of attrition.
Enforceable implementation rules are essential. Otherwise, you could get into trouble.
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