©New
Sunday Times (Used by permission)
by Raja Aziz Addruse and Helen Ting
THE electoral results in March have stirred up great hope among many that it
signals the birth of a "new politics", whereby race–based rhetoric seems to have
faltered as the magic formula for a big win by the Barisan Nasional.
Political observers are impressed by the fact that the proposal to replace the New Economic Policy (NEP) with needs–based affirmative action did not appear to be a political liability for Parti Keadilan Rakyat among the Malay voters. Those on the other side of the camp, on their part, talk about the loss of ketuanan Melayu for the same reason.
Public discussions on the abolition of the NEP link it up from time to time with
Article 153 of the Federal Constitution regarding the special position of the
Malays and natives in Sabah and Sarawak.
At times, it was even suggested that the abolition of affirmative action
policies for the Malays was impossible due to the need to amend Article 153 of
the Federal Constitution.
Closely related to this discussion is the charge of Malay ultra–nationalists
that questioning the "special position" of the Malays amounts to challenging the
ideology of ketuanan Melayu.
There appear to be a lot of myths surrounding "taboo notions"
such as the Constitutional provisions for the "special position".
Does doing away with the NEP 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 case?
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 a permanent feature of independent Malaya.
This perspective is also clearly articulated in the recent biography of the late
Tun Dr Ismail Abdul Rahman, who even expressed his belief that, "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".
Yet, why has it come to be interpreted as a symbol of Malay hegemony and a
permanent, even defining, feature of the Malaysian nation?
We have the familiar story of the racial riots of May 13 1969, which
subsequently led to the imposition of a prohibition on the questioning of a
number of Constitutional provisions including Article 153.
Meantime, the NEP was formally launched, setting clear objectives to be achieved
within two decades, such as attaining a more balanced ethnic distribution of
occupational engagement and for Malay share in the ownership of business to
reach 30 per cent by 1990.
While some argue that the NEP officially ended in 1990, many of its wide–ranging
economic and educational policies, including the popularly euphemised "quota
system", remain in place till today in all but name.
Over the decades, the comprehensive affirmative action programmes have
transformed the socio–economic status of the Malay community as a social group,
even though many poor Malays may not have benefited from it.
Nonetheless, it was not successful in uplifting the overall socio–economic
conditions of natives in Sabah and Sarawak and the Orang Asli in Peninsular
Malaysia (who are intriguingly not mentioned explicitly as being included within
the provisions of the "special position"), as well as the poor in other
communities.
More insidiously, the initial socio–economic justifications for these measures
have over time shifted to the argument of "indigenous entitlement" or right. It
is only when affirmative action came to be viewed as a form of "indigenous
entitlement" that the call for reforms or abolition of the NEP has been
interpreted as a challenge to ketuanan Melayu.
Does a revamp of the NEP necessarily entail the amendment of Article 153 of the
Federal Constitution?
Article 153 addresses the issues of reservation of quotas in respect of
scholarships and other educational facilities or training privileges, positions
in the federal public service and the granting of permits or licences for the
operation of any trade or business for Malays and the natives of Sabah and
Sarawak.
Nonetheless, figures for the quota are not specified, but are left to the
discretion of the Yang di–Pertuan Agong as he deems "reasonable". In addition,
clause 1 of the Article entrusts to the Yang di–Pertuan Agong the responsibility
to also safeguard the "legitimate interests of other communities" in the same
breath as safeguarding the special position of the Malays and natives in Sabah
and Sarawak.
Notable is the fact that five out of the 12 clauses of Article 153 set out to
limit the scope of its application.
They provide that the Constitutional provisions with respect to the special
position should not deprive or restrict other communities of their legitimate
interests and continued enjoyment of the same public office, rights, grants,
facilities or privileges which might reasonably be expected in the ordinary
course of events.
It could be argued that in order to respect the Constitutional spirit, the
translation of this so–called "special position" into practical measures by the
policy–makers should judiciously ensure that they are perceived as "reasonable",
equitable and just by society as a whole.
The original spirit of the NEP, as defined by its twin objectives of the
restructuring of society and the eradication of poverty regardless of race,
abides by this same sense of fair play and social justice.
While Article 153 does provide the Constitutional basis for affirmative action
in favour of the Malays and natives in Sabah and Sarawak, there is no ground to
suggest that doing away with the NEP necessarily requires the amendment or
repeal of Article 153.
While we cannot stop politicians with vested interests from linking up the NEP
and Article 153 with the concept of ketuanan Melayu, we should at least
be able to evaluate their discourse for what it is worth.
And it is apparent from a study of Article 153 of the Federal Constitution that
such a linkage has no real basis whatsoever.
Raja Aziz Addruse is a former Bar Council president and former president
of the National Human Rights Society (Hakam). Helen Ting is a research fellow at
the Institute of Malaysian and International Studies (Ikmas), Universiti
Kebangsaan Malaysia