Irene Fernandez insists constitutional provisions inspire racial discrimination

KUALA LUMPUR, Nov 16 — Human rights activist Irene Fernandez has stood by the findings of a report citing the Constitution’s protection of Malay rights for racial discrimination in Malaysia, insisting that certain provisions in the country’s supreme law should be amended or entirely removed.

The outspoken executive director of rights group Tenaganita said that the form of affirmative action in government policies that were inspired by Articles 89 and 153 of the Federal Constitution had only succeeded in benefiting an elite few among the Malay upper class.

“This form of affirmative action, these provisions, they are no longer relevant as they have failed and only benefited the top few.

“And this is clear even among the Malays and the Muslims themselves,” she pointed out when contacted by The Malaysian Insider yesterday.

On that note, Fernandez (picture) insisted that the joint study by Tenaganita and international charity organisation Equal Rights Trust (ERT) had been spot-on in suggesting the total repeal or amendment to certain provisions in the Federal Constitution.

She acknowledged that the study had ruffled the feathers of a few Malay right-wingers, including Malay rights group Perkasa, but said she would stand by the findings.

Perkasa Youth has labelled the veteran activist a “traitor” for the ERT-Tenaganita study titled “Washing the Tigers: Addressing Discrimination and Inequality in Malaysia”, and lodged a police report against her for allegedly questioning the special position of the country’s dominant ethnic group.

But Fernandez pointed out that the study, published on the ERT’s website on Monday, had been thorough in its research, even including case studies and interviews with numerous individuals before drawing up a conclusion and issuing recommendations.

“You can pull the yarn as far as you want,” she said, when pointed out that Perkasa members had even linked apostasy to the study’s recommendation to review constitutional provisions on Malay rights.

“But the issue in front of us is this — we as a nation, do we want to achieve equality and non-discrimination? If we do, we have to be bold enough to ensure that everyone has equal treatment that is guaranteed in the Federal Constitution,” she said.

“Affirmative action, and even so, not in this way, must have a time frame and clear goals. It is not for eternity and it is not for certain people to become elitist and rich and use their power to oppress others,” she added.

The four-part study had said the existence of Articles 89 and 153 in 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.

“The positive action measures under these provisions are not time-limited or function-limited.

“The permanent privilege enjoyed by the Malay 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 executive summary said.

Article 89 deals with Malay reserve land while Article 153 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 latter 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 a 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, women, race and ethnicity.