Quota system is ultra vires the constitution

 

From Kua Kia Soong

Prime Minister Anwar Ibrahim has said the quota system would continue to be implemented to enable Malay and Bumiputera students to achieve balance in universities.

His attempt to win Malay votes in the coming state elections obviously has the support of his DAP partners, who have all these years been trenchant opponents of this racially discriminatory policy. This is not surprising since DAP has been thoroughly compromised in the so-called “unity government”.

However, I am flummoxed that there is no dissenting voice among the legal fraternity to this much abused Article 153 of our Federal Constitution. Not many Malaysians have bothered to scrutinise Amendment 8A to Article 153, from which the government has all these years used to justify this so-called “quota system”. Allow me to show you what our Federal Constitution says and does not say.

Article 153 does not mention ‘Malay privileges’

Nowhere in the constitution will you find any reference to “Malay rights” or “Malay privileges”. Article 153 mentions “the special position of the Malays”. The main purpose for including Article 153 in the constitution was to rectify the perceived weakness of the Malay community in the economic field, the public services, and the problem of Malay poverty at the time of independence. (Tun Mohamed Suffian Hashim, “An Introduction to the Constitution of Malaysia”, KL 1972:245)

The first clause of Article 153 states: “It shall be the responsibility of the Yang di-Pertuan Agong 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 in accordance with the provisions of this Article.”

The second clause of Article 153 stipulates that the Yang di-Pertuan Agong shall ensure the reservation for Malays and since 1963, for natives of Borneo “of such proportion as he may deem reasonable of positions in the public services … and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the federal government and any permit or licence for the operation of any trade or business is required by federal law…”

Clause 4 expressly states that “in exercising his functions under this constitution and federal law, the Yang di-Pertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him”.

The so-called ‘quota system’ since 1971

As a result of the May 13, 1969 incident, the country was presented with a fait accompli by the new ruling class in Umno who were keen to propagate their “Bumiputera-ist” ideology as a convenient populist ploy. Again, you will not see any mention of “Bumiputera” in the constitution. In Malaysia, only the “Bumiputeras” are included, while the poorest and most marginalised group, arguably the original people of this land, the Orang Asli, have been excluded from this policy.

Thus, in early 1971, the Constitution (Amendment) Act was passed adding a new clause (No. 8A) to Article 153: “… where in any university, college and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the university, college or such educational institution to candidates for any course or study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the states of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions”.

This is the “quota system” we have lived with for the last 50 years or so and which has created so much acrimony for that length of time. Strictly speaking, if we were to go by Umno’s “social contract” at independence in 1957, that “social contract” certainly does not include Clause 8A of Article 153 since this clause was introduced 14 years later.

How would the Federal Court interpret Article 153?

So, if any aggrieved party took the government to court for its enrolment policy at UiTM or any other Mara institution, how do you think any Federal Court judge would interpret Clause 8A of Article 153, that is “… to give such directions to the authority as may be required to ensure the reservation of such proportion of such places (my emphasis) for Malays and natives of any of the states of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable”?

And if we scrutinise Clause 8A more closely, we will see that it is not a carte blanche for the apartheid policy practised at institutions such as UiTM.

The 100% Bumiputera enrolment policy at UiTM makes a mockery of the quota system and the justification of any affirmative action.

Affirmative action policies of other countries

The beneficiary group in Malaysia happens to be the politically dominant and majority Malay group while the most obvious beneficiary group in any affirmative action ought to be one whose people have been historically discriminated against such as the black minority in the US.

Any preferential treatment for any group should be followed by specific goals, quotas, and sunset clauses as is the case in the US rather than the “never-ending policy” of the New Economic Policy (NEP) in Malaysia.

Affirmative action policies in the US are fundamentally not “special rights” as they are portrayed in Malaysia, but rather, policy adjustments to rectify social inequality with sunset clauses once the objectives have been reached.

The definition of the under-represented group in Malaysia, namely, “the Malays”, is imprecise and allows leakages when any Muslim who is not ethnically Malay can claim to be a beneficiary.

In the US, affirmative action is extended to all discriminated groups, for example, women, Hispanics, and other minority groups; whereas in Malaysia, only the “Bumiputeras” are included, while the poorest and most marginalised group, the Orang Asli, have been excluded from this policy.

The contrasting origins of affirmative action in the US and Malaysia are worth noting. Affirmative action in the US was created in response to the 1960s movement for civil rights in which downtrodden African Americans demanded parity. In contrast, Malaysia’s “special privileges of the Malays” had its origin in the colonial policy of divide-and-rule.

The British strategy involved propping up the Malay feudal elite and dividing the people into the “native Malays” versus the “Chinese and Indian immigrants”. Thus, Malays were given priority in civil service employment, and the Chinese and Indians were even excluded from the political arena until an accommodation with the Chinese and Indian capitalist class was found during the Emergency.

A new affirmative action based on class or need

Since the passing of the deadline for the NEP in 1990, it is high time for a new socially just affirmative action policy based on needs, class or sector. Thus, if Malays are predominantly in the rural agricultural sector, we should create policies that benefit the poor Malay farmers and not the rich Malay land-owning class. Only such a race-free policy can convince the people that the government is socially just, fair, and democratic and walks the 1Malaysia talk.

Thus, Malaysians should be able to reclaim their inalienable rights and understand the transient nature of affirmative action. For a truly “Malaysia Madani”, let there be no more obfuscation about “rights” of any ethnic community but a commitment to unite all Malaysians by eradicating institutional racism through:

• Corrective action in all economic and education policies based on need, sector or class and not on race with priority given to indigenous people, marginalised and poor communities;
• Implementing merit-based recruitment in the civil and armed services; and
• Ratifying the International Convention on the Elimination of All Forms of Racial Discrimination.

It is crucial for Malaysia to have an open and constructive dialogue to reassess its affirmative action policies and explore alternative methods that promote social justice, equal opportunity, and national unity, while also addressing the needs of marginalised communities. - FMT

Kua Kia Soong is a former adviser to Suaram and an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.