For the country to have any hope for change - real change - from the toxic racial politics that we have endured especially since May 13, 1969, it is imperative that Muda, the younger generation of politicians, and especially all wannabe political leaders go back to learning about history - the real history and not any reinvented, perverted or opportunistic one.
Whatever the election battle cry used - “Malaysia First”, “Resetting Malaysia”, “Saving Malaysia” - chapter one of this real history from which the future is to be shaped must begin with what was agreed upon in the formulation of the country’s constitution by all the country’s stake players who debated and negotiated for many months on the principles that were needed to ensure an independent, united, free and democratic Malaya.
Our founding fathers did not include only the members of the Reid Commission tasked with making recommendations “for a form of Constitution for a fully self-governing and independent Malaya within the Commonwealth”.
They also included the Malay rulers, the political parties, the political leaders and other stakeholders engaged in the birth of our new nation. In all, the commission received 131 memoranda on the proposed new constitution from organisations and individuals and conducted 31 public meetings throughout the country. This was in addition to the 118 meetings in Malaya that the full commission held, many with officials and politicians providing evidence.
Because the commission’s report and work have not been made available to the Malaysian public, there have been attempts at reinvention and rewriting this particular episode of Malayan and Malaysian history.
To set the historical record straight and hopefully end any further controversy over Article 153, the relevant section of the commission report relating to the special position of the Malays is reproduced in toto:
The special position of the Malays
163. Our terms of reference require that provision should be made in the Constitution for the 'safeguarding of the special position of the Malays and the legitimate interests of other Communities'. In addition, we are asked to provide for a common nationality for the whole of the Federation and to ensure that the Constitution shall guarantee a democratic form of Government. In considering these requirements it seemed to us that a common nationality was the basis upon which a unified Malayan nation was to be created and that under a democratic form of Government it was inherent that all the citizens of Malaya, irrespective of race, creed or culture should enjoy certain fundamental rights including equality before the law. We found it difficult, therefore, to reconcile the terms of reference if the protection of the special position of the Malays signified the granting of special privileges, permanently, to one community only and not to the others. The difficulty of giving one community a permanent advantage over the others was realised by the Alliance Party, representatives of which, led by the Chief Minister, submitted that – “in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed ...” The same view was expressed by their highnesses in their memorandum, in which they said that they “look forward to a time not too remote when it will become possible to eliminate Communalism as a force in the political and economic life of the country”.
164. When we came to determine what is 'the special position of the Malays' we found that as a result of the original treaties with the Malay States, reaffirmed from time to time, the special position of the Malays has always been recognised. This recognition was continued by the provisions of clause 19(1)(d) of the Federation Agreement 1948, which made the High Commissioner responsible for safeguarding the special position of the Malays and the legitimate interests of other communities. We found that there are now four matters with regard to which the special position of the Malays is recognised and safeguarded:
(1) In most of the states there are extensive Malay reservations of land and the system of reserving land for Malays has been in action for many years. In every state the Ruler-in-Council has the power to permit a non-Malay to acquire a piece of land in a Malay reservation but the power is not used very freely. There have been some extensions of reservations in recent years but we do not know to what extent the proportion of reserved land has been increasing.
(2) There are now in operation quotas for admission to the public services. These quotas do not apply to all services, e.g., there is no quota for the police and indeed there is difficulty in getting a sufficient proportion of non-Malays to join the Police. Until 1953 admission to the Malayan Civil Service was only open to British subjects of European descent and to Malays but since that date there has been provision for one-fifth of the entrants being selected from other communities. In other services in which a quota exists the rule generally is that not more than one-quarter of new entrants should be non-Malays.
(3) There are now also in operation quotas in respect of the issuing of permits or licences for the operation of certain businesses. These are chiefly concerned with road haulage and passenger vehicles for hire. Some of these quotas are of recent introduction. The main reasons for them appear to be that in the past the Malays have lacked capital and have tended to remain on the land and not to take a large part in business, and that this is one method of encouraging the Malays to take a larger part in business enterprises.
(4) In many classes of scholarships, bursaries and other forms of aid for educational purposes preference is given to Malays. The reason for this appears to be that in the past higher education of the Malays has tended to fall behind that of the Chinese partly because the Chinese have been better able to pay for it and partly because it is more difficult to arrange higher education for Malays in the country than for Chinese in the towns.
165. We found little opposition in any quarter to the continuance of the present system for a time, but there was great opposition in some quarters to any increase of the present preferences and to their being continued for any prolonged period. We are of opinion that in present circumstances it is necessary to continue these preferences. The Malays would be at a serious and unfair disadvantage compared with other communities if they were suddenly withdrawn. But, with the integration of the various communities into a common nationality which we trust will gradually come about, the need for these preferences will gradually disappear. Our recommendations are made on the footing that the Malays should be assured that the present position will continue for a substantial period, but that in due course the present preferences should be reduced, and should ultimately cease so that there should then be no discrimination between races or communities.
166. With regard to land we recommend that, subject to two qualifications, there should be no further Malay reservations, but that each State should be left to reduce Malay reservations in that State at an appropriate time. Land is a State subject and we do not recommend giving overriding powers to the Federation in this matter. We do not think that it is possible to lay down in advance any time when a change should be made because conditions vary greatly from State to State. The two qualifications to the rule that there should be no further reservations are: first, that if any land at present reserved ceases to be reserved, an equivalent area may be reserved provided that it is not already occupied by a non-Malay; and secondly that, if any undeveloped land is opened up, part of it may be reserved provided that an equivalent area is made available to non-Malays.
167. The effect of our recommendations is that with regard to other preferences to Malays no new quota or other preference could be created. These preferences can only be lawfully created or continued to the extent to which that is specifically authorised by the Constitution. With regard to the existing quotas which we have referred to above we recommend that the Malays ought to have a substantial period during which the continuance of the existing quotas is made obligatory, but that, if in any year there are not enough Malay applicants qualified to fill their quota of vacancies, the number of appointments should not be reduced and other qualified applicants should be appointed in sufficient numbers to fill the vacancies. We recommend that after 15 years there should be a review of the whole matter and that the procedure should be that the appropriate Government should cause a report to be made and laid before the appropriate legislature; and that the legislature should then determine either to retain or to reduce any quota or to discontinue it entirely.
168. The Alliance in their memorandum said 'The Constitution should therefore provide that the Yang di-Pertuan Besar should have the special responsibility of safeguarding the special position of the Malays. The majority of us take the view that the Alliance intended that the Yang di-Pertuan Besar should act in this matter as in others as a constitutional Ruler and should accept the advice of his Cabinet. Accordingly we think that the intention of the Alliance was that the whole matter should be dealt with by the Government of the day and Articles 82 and 157 of the draft Constitution give expression to the view of the majority. Mr Justice Abdul Hamid's view is that the words 'special responsibility' imply that in this matter the Yang di-Pertuan Besar should act at his discretion and not on advice. His views are set out in his note appended to this Report.
(See Colonial Office, Report of the Federation of Malaya Constitutional Commission 1957, London, Her Majesty’s Stationery Office, Colonial 330.)
Lessons for the present generation
Besides the Commission’s views, It is important that the present and future generation of Malaysians be reminded that the country’s first prime minister, Tunku Abdul Rahman, as Umno’s leader as well as leader of the Alliance coalition noted that “For those who love and feel they owe undivided loyalty to this country, we will welcome them as Malayans. They must truly be Malayans, and they will have the same rights and privileges as the Malays.”
In addition to Tunku’s plea, there are at least three key points that need close examination with regard to Article 153. The first relates to the use of the word “special position”. There is no mention in the provision itself or in the entire constitutional text of “special rights” or “special privilege” or the use of similar terminology such as that employed by those with their false or exaggerated claims about what the constitution has to say about the position of the Malay vis a vis non-Malays.
Secondly, the lengthy detailing of the key areas of redress and the scope and extent necessary to alleviate deficiencies in the Malay position as well as the specification of the “legitimate interests of other communities” were deliberate and intended to ensure that abuses of the provision would be minimised.
From this, we can deduce that not only was it the clear intent of the framers to ensure that there was only to be one class of citizenship or nationality - that is, one common and equal Malayan nationality - but also that the rights attached to citizenship were to be strictly and impartially managed and administered according to the rule of law and the principles of equality.
The third point relates to the omission of a time frame for the provision. Despite this omission, it is clear that all the agreeing parties involved in approving it - the rulers, the political parties, the political leaders and other stakeholders engaged in the birth of the new nation in 1957 - intended that the special position provision be reviewed - one recorded suggestion from the Alliance party with its Malay members was as early as 15 years after independence - and that it should not be a taboo topic or cast in stone and made a permanent feature.
Besides its work on Article 153, the commission report - a 110-page document - deals with an entire range of issues that are just as salient to the nation’s well being and development today as in the past.
Fundamental rights, Parliament, the Election commission, constituency delineation, the judiciary, division of legislative and executive powers, the public services, Islam as a state religion - these and more of the bones and sinews that make up our now emaciated national being were deliberated upon before put in place to ensure a free, just and equal country for all our people.
Many of the constitutional safeguards since 1957 have been subjected to abuse and repeated efforts to debase the vision of our founding fathers thus undermining the consensus and agreement that accompanied the nation’s birth.
The report - especially a Malay translation - should be Politics and Socio-Economics 101 for all Malaysians to avoid a warped and misguided future. - Mkini
LIM TECK GHEE is a former senior official with the United Nations and World Bank.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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