Introduction by Dr Lim Teck Ghee

In a continuously contentious multi-racial society such as Malaysia, any observer would have assumed that a Race Relations Act would be amongst the first and foremost of the country’s legislative provisions to ensure that Malaysians are not discriminated against on the grounds of ethnicity in the fields of employment, the provision of public goods and services, education and public functions.

However, discussion of the subject of racial discrimination and how to deal with it – perhaps the single-most issue of social significance affecting all Malaysians – has been drowned by the noise and threats of ultra-nationalist Malay groups who have used a variety of strategies including the propagation of biased and distorted history to support the contention that the provision for Malay ‘special position’ (not ‘rights’) found in the constitution implies the need and justification for racially discriminatory policies along a broad front of sectors.

Most recently we have seen a bumiputera (essentially Malay) Economic Congress present a 31-point memorandum basically calling on the government to reject the New Economic Model and to continue with race-based discriminatory policies in favour of the Malays.

Malaysians should not be cowed into silence and passivity by the actions of extremist politicians and their racist allies who are intent on inflaming communalist sentiments by playing on the shortcomings and sense of insecurity of various groups. Instead what is required is a larger public discourse – based on reason and rational analysis – on the subject of racial discrimination and how the state in particular can play a role in eliminating the institutional and individual racism that has coarsened our society.

In an earlier posting on ‘Article 153 on “special position??? of the Malays and other natives: The way forward’, CPI provided readers with a commentary on the historical background to Article 153 of the federal constitution which many Malaysians regard as an intractable obstacle to enacting any legislative instrument.

In this posting, we continue with providing the public with access to expert commentary and analysis – today by Jeyaseelen Anthony, a practicing lawyer and member of the Bar Council Law Reform Committee – on the subject of racial discrimination and race relations which is central to the promotion of equality of opportunity (thus benefitting Malays and non-Malays).

It is hoped that the discussion here can be extended to include the issue of religious bigotry and hatred which is the other side of the coin of racial discrimination.

A Race Relations Act and its impact on Article 153 of federal constitution

By Jeyaseelen Anthony

The objectives of a legislation concerning race relations are fundamentally related to two issues:

1. Eliminating racial discrimination in the public service sector and the private sector.
2. To promote good race relations amongst the different races by eliminating racial imbalances and discrimination.

The purpose of this article is to explore the implications of introducing race relations legislation in Malaysia and whether it would be inconsistent with the affirmative action measures in the federal constitution.

In Malaysia, affirmative action or positive action policies as some may call it, is contained in Article 153 of the federal constitution.¹ The affirmative action policies by way of preferential treatment as envisaged under Article 153 are mainly to alleviate the Malays and the natives of Sabah and Sarawak from poverty and economic disadvantage.

Article 153 provides for the reservation of quotas mainly in the areas of:

1. positions in the public service;
2. scholarships, educational or training privileges or special facilities;
3. permits or licenses for the operation of any trade or business required by federal law²; and
4. places in institutions of higher learning (universities, college and other educational institutions) providing education after Malaysian Certificate of Education (MCE) or its equivalent …³.

 

The problem and the solution

It is implicit in Article 153(1) that “It shall be the responsibility of the Yang di-Pertuan Agong (YDPA) to safeguard the special position of the Malays and the natives of Sabah and Sarawak and the legitimate interest of other communities???.

The phrase ‘legitimate interest of other communities’ means that the federal constitution does not allow simply any kind of preferential treatment in favour of the Malays and the natives of Sabah and Sarawak. It is not a ‘blank cheque’, but merely confers limited powers on the government and parliament, pursuant to Article 153, to derogate from the principle of equality and equal protection of the law⁴. Therefore, the problem lies not with Article 153 but with its implementation⁵.

The implementation of Article 153 has often been the bone of contention as many have argued that its implementation has been at expense of the other races in Malaysia.

For example, although Article 153 provides for quotas only for the issuance permits and licenses to the Malays and the natives of Sabah and Sarawak, however, even government commercial contracts have been awarded solely to ‘bumiputera’ companies, which are clearly not sanctioned under the federal constitution⁶. Even government linked Companies (GLCs) and statutory bodies assign their work solely to ‘bumiputera’ companies and some major banks assign their legal work only to ‘bumiputera’ legal firms⁷.

The majority of employees at the GLCs and some major banks are Malays although the federal constitution only provides for reservation of quotas in the public service. Ethnic quotas are imposed on private companies by government agencies and licensing is used as a way to get private companies to observe bumiputera quotas, a policy which is clearly against the federal constitution as Article 153 only provides for reservation of quotas in the public service⁸.

These are several examples where the implementation of affirmative action policies has clearly gone beyond the limits of Article 153 of the federal constitution.

The lack of job opportunities in the public sector for the ‘non-bumiputeras’ (mainly people of Chinese and Indian origin) is a glaring example of an unreasonable application of affirmative action policies.

Although Article 136 of the federal constitution⁹ provides for impartiality in the public sector but there have been complaints by the non-Malays in the various government departments that they have been deprived from getting promotions or have been sidelined in favour of Malay candidates. This explains why the non-Malays shy way from seeking employment in the government sector and unfortunately it also explains the current brain drain that is currently plaguing our country.

Our public universities have also not been spared form this unfortunate state of affairs. This is evident from the incessant complaints by mainly Chinese and Indian students that they have been denied entry into the local universities although they have sound academic results¹⁰.

Even local authority contracts, licenses and permits are mostly given to the Malays and other ‘bumiputeras’ although nothing in Article 153 of the federal constitution permits parliament to restrict business and trade solely to Malays and the natives of Sabah and Sarawak¹¹.

There are also complaints that these government and local authority contracts, permits and licenses have only been given to people who are linked to Umno and other powerful ‘bumiputera’ politicians and the components parties of the Barisan Nasional, thus depriving the man on the street of these lucrative contracts. In fact it’s a well-known fact that Umno and BN in general are recognised as business empires.

Clearly the true meaning and purpose of Article 153 has not been followed by the powers that be. In fact it has been hijacked by the executive to favour a particular group people who are linked to the ruling elites and as a result the benefits as provided under Article 153 have not trickled down to the masses of the ‘bumiputera’ populace. The unfair and improper implementation of Article 153 has also given rise to the notion that the ‘non-bumiputera’ population are only given the leftovers or nothing at all.

It cannot be denied that the improper and arbitrary application of affirmative action policies as provided under Article 153 has contributed significantly to the deteriorating race relations in Malaysia as it has led to reverse discrimination. The deprivation of equal opportunities has caused racial tensions to run high in recent years. Therefore in order to improve race relations between the ‘bumiputeras’ and the ‘non-bumiputeras’ in Malaysia, there should be legislative intervention.

The number of quotas and restrictions and qualifications in favour of the Malays and the natives of Sabah and Sarawak are not well defined or specified under the federal constitution.

This loophole has led to the unfair, unbalanced and unreasonable implementation of Article 153. Many have suggested that a Race Relations Act (RRA) must be introduced in Malaysia in order to remedy the imbalances and unfairness that has led to discrimination. There is also the need to promote equality among the different races in Malaysia.

Can this piece of legislation be the answer?

The Malaysian context

The intention and purpose Article 153(1) when read as whole clearly provide for a balance between two competing interests, namely the protection of the special position of the Malays and the natives of Sabah and Sarawak, and at the same time safeguarding the legitimate interest of other communities as well.

However ambiguity arises when one realizes that the scope and meaning of the words “legitimate interest of the other communities??? are not defined in the federal constitution. Even the courts have not decided on this issue as the scope and meaning of Article 153 has not been litigated before, as much as it has been done in the USA and India. This lacuna in the federal constitution poses a problem to good race relations in Malaysia. This is where I believe that an effective and well drafted Race Relations Act is needed.

The RRA will provide the balance that the original drafters of the federal constitution had intended when they inserted the words “legitimate interest of the other communities??? into Article 153 of the federal constitution. An RRA would help prevent discrimination and promote equality in all spheres of life which affect Malaysians from all the different races. This can be done by putting in place a reservation of a reasonable percentage of quotas in the important areas of business, employment, education and training.

There are two sides of the coin in support of this argument. On the one side, the Malays and the natives of Sabah and Sarawak are protected from discrimination and at the same time their special position under the federal constitution is also preserved.

And on the other, the Chinese, Indians and other races excluded from the ‘bumiputera’ categorization are also protected against discrimination in the spirit of protecting their legitimate interest as provided under Article 153.

The RRA will not affect the special position of the Malays and the natives of Sabah and Sarawak as widely believed by many i.e. the reservation of quotas can still be maintained in the areas specified under the federal constitution.

But if there are areas where a particular racial group is under represented in a particular trade or work area, then the governing authority on race relations or the minister tasked to manage and regulate race relations under the RRA will be empowered take remedial actions to solve the problem.

The RRA in the UK for example provides for such measures (as we will see later in this article).

In fact the Yang Di Pertuan Agong (YDPA) under Article 153 is bound to act on the advice of the cabinet or a minister acting under the authority of the cabinet¹². As such, if the cabinet or the minister finds that there is indeed under-representation of a particular racial group in a particular vocation or trade or sector and decides to take remedial actions, the YDPA is bound to act on that advice, even though Article 153 states that the YDPA may impose a quota “as he may deem reasonable???.

The current system clearly shows that the Malays (if not the natives of Sabah and Sarawak) are over-represented in many areas of employment in the public sector, government and local authority, in business procurement and in the public universities, etc.

This over-representation has created a perception that the government is imposing exorbitant and unreasonable reservation of quotas in the areas mentioned in the federal constitution. This is not what the Reid Commission had intended. In fact it is clear from the wordings of Article 153(1) that the drafters of the federal constitution did not envisage a system where reverse discrimination would be the order of the day.

This can be gathered by the qualification that the YDPA has a mandatory duty to safeguard the “legitimate interest of the other communities??? in Malaysia¹³. Since the YDPA acts on the advice of the cabinet, than the current practices of overt discrimination under the guise of affirmative action can be said to have been sanctioned by the cabinet by way of administrative orders and instructions.

Since the Article 153(1) does not specify the measures and steps that are to be taken by the YDPA to safeguard the ‘legitimate interest’ of “the non-Malays and non-natives of Sabah and Sarawak???, this is where a legislation like the RRA will become pertinent to cure the deficiencies.

An Act like RRA will not be against (ultra vires) the federal constitution as it comes within the permissible limits of Article 153(1) of the federal constitution under the wordings of Article 153(1) itself. More importantly, the policy behind an RRA is also consistent with requirement of impartiality under Article 136¹⁴ of the federal constitution which indirectly encourages and promotes good race relations in the civil service.

Race relation models

The RRA in the Malaysian context may not follow exactly what is mentioned in the UK RRA, in fact it may not even be called the RRA but it can even be called something like the ‘Merdeka Act’ in order to reflect the feelings of a free and fair Malaysia – a Malaysia for Malaysians as what was initially intended by our leaders during the Independence negotiations which ultimately led to our independence. We can tailor the ‘Merdeka Act’ to suit our local conditions and local needs.

For this purpose we can look at the Canadian laws on race relations and racial discrimination which suits our conditions since Canada has an affirmative action programme which has been given constitutional protection and more importantly Canada is a multiracial country although political power is held by the white majority.

More pertinently, the UK laws on race relations should also be examined. However, it is important to note, that we do not need adopt the Canadian and UK laws wholesale but it would suffice if we adopt some of the more important and practical provisions in those laws and modify it, particularly with the federal constitution and to the requirements of Malaysian society.

Click here for summary of the relevant portions of UK’s ‘Race Relations Amendment Act 2000’.

The RRA in the UK also allows for persons from a particular racial group that is under represented in a particular trade or work area to be employed or trained in that area¹⁵.

Again, this is another provision that we can adopt and should adopt to remedy the problem of over-representation of the Malays (and the natives of Sabah and Sarawak) communities in the public service, government procurement opportunities and GLCs. Similarly a provision like this will also benefit the ‘bumiputeras’ too as it is known fact that they are under represented in many areas of the private sector.

A provision like this will help the government (the cabinet) to come up with measures to help a particular racial group that are under-represented by perhaps coming up with a more reasonable and equitable quota or a target in order to protect the interest of the Malays and the natives of Sabah and Sarawak as required under Article 153(2) and at the same time accommodate other races excluded from the said article.

Another possible measure as stipulated under the UK Amended Act which we can adopt is to put in place targeted publicity and recruitment programs in order to inform people who are under represented in the public and private sectors of job opportunities in these sectors. Of course it is just not enough to publicize it through the media but aggressive recruitment programmes should be undertaken where a recruitment agency set up under the law promoting good race relations to go the ground and recruit people from the under-represented racial groups. This is something that is currently lacking in Malaysia.

In fact, cabinet members including the prime minister have time and again indicated that they are looking into the possibility of increasing the number of ‘non-bumiputeras’ in the public sector and the GLCs.

This shows quite clearly that it is the cabinet who calls the shots and their intentions and willingness to pursue policy changes only goes to show that the provisions of Article 153 of the federal constitution is not cast in stone.

It is unlikely for a provision similar to Section 37 of the UK RRA to be declared unconstitutional for exceeding the ambit of Article 153 of the federal constitution because of the constitutional safeguard as contained in Article 153(1) of the constitution.

It must be impressed that Article 153 of the federal constitution is not a license to pursue or to justify unlawful discriminatory policies against the excluded racial groups in favour of the Malays and the natives of Sabah and Sarawak.

Clearly, this was not the intention of Reid Commission when they drafted Article 153. If it was, then, there would not be a corresponding constitutional duty on the part of the YDPA to safeguard the “legitimate interest of other communities??? under Article 153 (1) of the federal constitution.

As such any challenge with regards to the constitutional validity of a Race Relations Act or a ‘Merdeka Act’ (as I prefer to call it) can easily be defeated by relying on the Article 153(1) of the federal constitution itself as a defence.

Part 2 which includes a discussion of the Canadian RRA will be published tomorrow.

Jeyaseelen Anthony is a lawyer who trains widely on basic constitutional rights, human rights and police powers.

Endnotes:

1 Part XII, Article 153 of the Federal Constitution, under the heading “Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak???.

2 Article 153(2).

3 Article 153(8A) inserted by Act A30, Section 6, in force from 10-3-1971.

4 Andrew Harding ‘Law, Government and the Constitution in Malaysia’ Malayan Law Journal Sdn. Bhd. Kuala Lumpur 1996 at p.231. See Article 8 of Federal Constitution on the right to equality.

5 Dr Abdul Aziz Bari “Malaysian Constitution – A Critical Introduction???, The Other Press 2003 at p.49.

6 Shad Saleem Faruqi ‘Document of Destiny’, Star Publications (M) Berhad 2008 at p.693.

7 Ibid

8 Ibid

9 Infra, n11

10 New Straits Times, Letter to the Editor, 28-5-2010 at p.19.

11 Article 153(9) of the Federal Constitution.

12 Article 40(1) In the exercise of his functions under this Constitution or federal law, the Yang Dipertuan Agong shall act in accordance with the advice of this Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution.

13 Article 153(1) Federal Constitution.

14 Impartial treatment of Federal Employees, Article 136. All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.

15 Section 37 of the Act allows training or encouragement to be provided for a particular racial group that is under-represented in a particular work stream or area. Where there is national under-representation – that is, where, during the previous 12 months, no one from a particular racial group has done the work in question in Great Britain, or where the proportion of people from that group doing that work was small compared to its proportion of the population of Great Britain. In this case, training or encouragement can be provided exclusively for the racial group (or groups) in question.