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Sunday, October 31, 2010

Misconstruing the Constitution


The provisions of Article 153 go out of the way to ensure that while the special position of the Malays and the natives of Sabah and Sarawak is protected in public service, in the granting of scholarships, in education, in trade and in business, the legitimate interests of the other communities are also safeguarded. This balance in Article 153 is seldom highlighted.

CHANDRA MUZAFFAR. New Straits Times

MISINTERPRETATIONS of, and misconceptions about, the Constitution have exacerbated ethnic relations in the country. Several issues have come to the fore lately.

A few weeks ago, a politician alleged that the concept of 1Malaysia is against the Constitution since it promotes equality among the communities. Actually, the Constitution embodies an article on equality. Article 8 (1) states that "all persons are equal before the law and entitled to the equal protection of the law". Discrimination is prohibited except when it is expressly authorised in the Constitution. Provisions pertaining to the special position of the Malays and the natives of Sabah and Sarawak would be an example.

However, "special position" -- it is seldom appreciated -- is also about equality. It was incorporated into the Constitution to protect the well-being of the abysmally poor indigenous Malays in the wake of the conferment of citizenship upon more than a million recently domiciled Chinese and Indians by the Malay rulers and the Umno elite on the eve of Merdeka. In other words, special position -- like other affirmative action policies elsewhere -- is meant to address gross ethnic inequalities.

There are also misconceptions about Article 153. The article is not just about the special position of the Malays and the natives of Sabah and Sarawak. Article 153 (1) also makes it "the responsibility of the Yang di-Pertuan Agong to safeguard... the legitimate interests of the other communities in accordance with the provisions of this Article".

The provisions of Article 153 go out of the way to ensure that while the special position of the Malays and the natives of Sabah and Sarawak is protected in public service, in the granting of scholarships, in education, in trade and in business, the legitimate interests of the other communities are also safeguarded. This balance in Article 153 is seldom highlighted.

There is another misunderstanding about Article 153 that should be set right. The article does not provide for a 30 per cent quota in equity capital for Malays and the natives of Sabah and Sarawak. That is part of the New Economic Policy and subsequent policies, but it is not stated in the Constitution.

Neither does the Constitution provide for the establishment or continuation of Chinese schools in the national education system as some politicians and media commentators have argued recently.

There is no such provision in either Article 12 which deals with rights in respect of education or in Article 152 that focuses on the national language. What Article 152 (1) contains are two sub-clauses that read:

- no person shall be prohibited or prevented from using (other than for official purposes) or from teaching or learning any other language; and,

- nothing in this clause shall prejudice the right of the Federal Government or of any state government to preserve and sustain the use and study of the language of any other community in the federation.

There is no need to emphasise that teaching, learning, preserving and sustaining a language can take place within a Bahasa Malaysia-based school system that provides ample scope for studying Chinese, Tamil, Arabic or any other language. Nonetheless, it should be reiterated that Chinese and Tamil primary schools are part of the national education system today, and their status is protected by the law and policy.

The Education Act 1996, for instance, makes it the duty of the education minister to provide primary education at government and government-aided schools.

Another misconception being propagated by certain individuals is that when Sabah and Sarawak (together with Singapore) joined Malaya to form Malaysia in 1963, a new nation came into being which ipso facto rendered irrelevant some of the defining Malay characteristics of the earlier Malayan state. Whatever the political rhetoric that prevailed before the formation of Malaysia, this is a view that has no basis in the Constitution.

The Constitution makes it very clear that the Yang di-Pertuan Agong is also the Yang di-Pertuan Agong of Sabah and Sarawak (he appoints the governor of the two states), Bahasa Malaysia is the national language of the two states and Islam their official religion. Special position also applies to the natives of Sabah and Sarawak.

Besides, Article 1 (2) spells out lucidly that Sabah and Sarawak are states in the federation like the other 11 states. Of course, the Constitution confers additional rights and powers upon the two states, given their history and the circumstances of their membership in the federation.

If Malaysia in 1963 was a new nation, why didn't we reapply to join the United Nations? The truth is Malaysia is, to all intents and purposes, an extension of Malaya.

What is important is to ensure that the rights of all states, especially Sabah and Sarawak, are protected and respected in the expanded federation.

It is a pity that such issues that impinge upon the fundamental character of the nation and the structure of the Constitution are being raised with increasing frequency. Ignorance is not the only explanation. It is part of the intensification of communal politics in the past few years which, if we are not careful, may push us all over the precipice.

Dr Chandra Muzaffar is chairman of the board of trustees of Yayasan 1Malaysia and Noordin Sopiee professor of global studies at Universiti Sains Malaysia, Penang.

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