Sunday Times (Used by permission)
by Tan Sri Abdul Aziz Abdul Rahman
EVERY citizen should be familiar with the Federal Constitution. Both Malays and non–Malays should understand the intent and the letter of the provisions in the Constitution regarding the "special position" of the Malays as embodied in Article 153.
They should also know the history of that provision in order
to appreciate why and how it was inserted in the Constitution.
In an article in the New Sunday Times on June 22, Raja Aziz Addruse and Helen Ting asked several questions:
Does doing away with the New Economic Policy necessarily mean challenging
Article 153? Should the Constitutional provisions regarding the "special
position" be understood as the symbolic affirmation of Ketuanan Melayu? What
was, historically, the understanding regarding the "special position" in any
In answering those questions I would like to touch on certain points highlighted by the authors.
The article stated: "Written records of the inter–party
discussions of the Alliance leaders indicate that the Constitutional provisions
on the 'special position' were understood more as a protective measure for the
Malay community which was then socio–economically disadvantaged.
"Significantly, in their oral submission to the Reid Commission, the Alliance leaders requested the insertion of a Constitutional provision for the review of the 'special position' of the Malays 15 years after independence.
"Though subsequently removed, this implies that the Alliance leaders themselves did not intend the provision to be permanent feature of independent Malaya."
I find it difficult to reconcile the above with the statement in the Reid Commission's Report on the special position of the Malays, which reads: "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."
The terms of reference were clear and direct. Nothing was mentioned about time limitation.
I think it is not safe to mention the oral submission of the Alliance leaders, who included Umno leaders, stating that they had requested the insertion of a Constitutional provision for the review of the "special position" of the Malays 15 years after independence.
I say so because all the relevant Umno leaders have died and therefore are not in a position to confirm or deny that what had happened was not consistent with what was alleged, and that the Constitutional provision was inserted without any qualification.
What had happened according to the records was that the Reid Commission recommended that after 15 years there should be a review of the "special position" of the Malays provision.
But this recommendation was rejected by the Merdeka negotiating parties and hence Article 153 was inserted in the Constitution.
Not only was it inserted, but it was also entrenched –– meaning the Constitution provided for a more difficult process for the purpose of amending Article 153.
To amend Article 153, there is not only the need for it to be approved by a two–thirds majority in Parliament, but also the consent of the Conference of Rulers must be obtained.
This clearly suggests that the provision of Article 153 was not intended to be for a temporary period.
To support the argument that Article 153 of the Constitution was meant to be for a temporary period only, the authors cited the biography of the late Tun Dr Ismail Abdul Rahman, who was alleged to have said: "As more and more Malays became educated and gained self–confidence, they themselves would do away with this 'special position' because in itself this 'special position' is a slur on the ability of the Malays and only to be tolerated because it is necessary as a temporary measure to ensure their survival in the modern competitive world".
I do not know in what context Tun Dr Ismail said that, if indeed he did say it.
I find it difficult to reconcile that statement with the fact that Tun Dr Ismail was one of the senior members of the National Operations Council which, in 1970, approved the amendment of the Sedition Act, 1948 to the effect that it would be a criminal offence for anyone to question the existence of the entrenched provision of Article 153 anywhere, including in Parliament.
The stance taken by the government in this regard suggests that the government had intended to make Article 153 last a long time and Tun Dr Ismail was a party to it.
When parliamentary rule was reinstated, it was also Tun Dr Ismail who introduced the Bill in Parliament to place sensitive issues which included Article 153 beyond political challenges. (See pages 241 and 242 of the same book.)
Article 153 of the Constitution has nothing to do with the ideology of Ketuanan Melayu. This issue is clear and no one should attempt to cloud it.
The New Economic Policy (NEP) is a socio–economic policy for the purpose of restructuring society and eradicating poverty irrespective of race or religion.
The NEP was introduced to give substance to the Rukun Negara which was launched in consequence of the May 13, 1969 racial riots.
It has no direct relationship with Article 153 except that the NEP took into consideration the spirit and intent of the "special position" of the Malays and the natives of Sabah and Sarawak.
Whatever happens to the NEP does not affect Article 153. We should also look at the history of the "special position" of the Malays as embodied in Article 153.
The "special position" of the Malays was already in the Federation of Malaya Agreement 1948 and in all the Constitutions of the Malay States.
The quota system was already in existence before Merdeka and the Malays already were enjoying that privilege. It is very difficult to accept the belief that the Alliance Party, including Umno, had asked for the provision to be on a temporary basis.
The Alliance Party had asked for independence from the British in order to improve their position and not to be worse off.
It is clear that Article 153 was inserted in the Constitution for it to last a long time.
It is a sensitive issue and no one should question it. In any case, Article 153 is an enabling provision and it is left to the government in power to implement its provisions as reasonably as possible.
The Reid Commission was tasked to draft independent Malaya’s Constitution. It recommended that the special position of the Malays be reviewed after 15 years, which the Merdeka negotiating parties rejected.
The writer is a legal adviser for the Malay National Consultative Council ('Majlis Muafakat Kebangsaan Melayu'), a non–govermental organisation formed after the Malay Consultative Congress in Johor in May this year