153

“Bumiputera rights are protected by Article 153 because Malays are the natives of Malaysia.”

How many factual errors are there in the sentence above? Broadly speaking and for most purposes, it’s an innocuous statement. Unless we were to be pedantic there would be no objection to the factual accuracy of the gist of the sentence. Yet in 21st-century Malaysia, where well-meaning misinformation and malicious disinformation are both widespread, it pays to be pedantic — especially when Article 153 of the Federal Constitution is cited by many in power as the keystone of their racist ambitions.

Article 153 does not concern itself with rights per se (instead referring to a ‘special position’); neither does it refer to bumiputera (the word ‘bumiputera’ appears nowhere in the Federal Constitution.). And if we refer to the historical context of the framing of the Constitution, it becomes apparent that Article 153 was intended as a temporary provision with at least part of its purpose being the economic upliftment of the disadvantaged Malays — not a resounding appraisal of the native status of the Malays and Bornean natives or a suggestion of an ethnostate with non-bumiputera being second-class citizens.

It is best to start with the text of Article 153 itself. As prevalent as ‘Malay rights’ or ‘hak Melayu’ are in political discourse today, note ‘rights’ as a matter of terminology do not appear in the wording of the Article itself. Instead, a ‘special position’ or ‘kedudukan istimewa’ is referred to. Compare this with the express use of the word ‘right’ or ‘hak’ in Articles 5 to 13 of the Constitution.

Why does this matter? The notion of a right (or a birthright) is potent and of great significant importance.There is a difference between a right inherent to a community by birthright, one that has connotations of permanence and unalienability, as opposed to a special position granted in light of unique circumstances and for specific purposes — as will be later detailed. Technically speaking, a right is not confined to the realm of human rights and civil liberties — for example, when two people enter a contract and the law imposes a duty on one of them, the other person has a corresponding legal right in contract. But rights as are generally understood in discourse, human rights, are much more fundamental in their nature. To assert that a race has a right unique to itself is different from acknowledgement of a special position. Rights are universal and unalienable; special positions are not.

Strictly speaking, Article 153 does not cover ‘bumiputera’ either. The word ‘bumiputera’ is of political origin; it does not appear at all in the Federal Constitution. Article 153 itself refers to Malays and the natives of Sabah and Sarawak. Though the exact definition of bumiputera varies in its application by government bodies, the fact that the Orang Asli are not included in Article 153 is a major blow to the idea that the special position found in Article 153 is predicated on the idea that certain ‘races’ arrived in Malaysia first. It is often asserted that Article 153 provides rights to the indigenous population of Malaysia, but it would be absurd to argue Orang Asli should not be considered bumiputera in order to justify their exclusion from Article 153. This is to say nothing of the plethora of other communities considered bumiputera: the Kristang, the Malaysian Siamese, and many others.

Where then are the Orang Asli mentioned in the Constitution? One example is under Article 8(5)(c). The provision in question specifies that provisions for the “protection, well-being or advancement of the aboriginal peoples of the Malay peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service” are not invalidated or prohibited by Article 8, which states that all people are equal before the law. Yet to argue that this provides the Orang Asli with a position equivalent to Article 153 is problematic. If this were so and the Orang Asli were sufficiently protected by this subclause of Article 8, why is there a need for Article 153 instead of amending Article 8(5)(c) to read “…Malays, natives of Sabah and Sarawak, and the aboriginal peoples of the Malay peninsula…”? For that matter, the existence of Article 8(5)(c) still does not explain why Orang Asli (or other bumiputera) are excluded from Article 153 — and there is a fundamental difference, for Article 8 refers to equal treatment while Article 153 refers to a special position.

The fact that Article 153 does not extend to all bumiputera, especially the aboriginal people of Malaya, is fatal to the argument that the special position in Article 153 was provided for on the basis that the Malays and natives of Sabah and Sarawak were ‘here first’, or that this special position is predicated on nativity. The transcript of the parliamentary proceedings in 1971 where Article 153 was amended to include the natives of Sabah and Sarawak sheds light on why this special position exists: it is to “allow the Malay people to advance”, given the widely acknowledged advantage of the non-Malays, with the same circumstances existing in East Malaysia. It is clear, then, that the 1971 amendment as well as the Article itself were based on considerations of socio-economic advancement and not purely a recognition of the native status of the Malays and natives of Sabah and Sarawak (though given the economic plight of the Orang Asli, the question still stands as to their exclusion from Article 153).

Is it true, then, that the original intention of the framers of our Constitution in including Article 153 was that of economic affirmative action? Evidence in the Reid Commission report points in this direction.

A few points of interest: first, that the non-Malays of Malaya were generally not opposed to these policies; secondly, that the four provisions listed (land reserves, quotas for publics services, quotas for permits/licenses for certain businesses, and educational bursaries/scholarships) were a continuation of existing policies, not created at independence; and finally, that stress on the temporary nature of the provision. Overall, the Reid Commission paints an image of a special position created due to economic need.

Fernando also points out that Article 153 was expressly intended to serve as a provision to improve the socio-economic position of the Malays, drawing attention to the fact that the framers and leaders of the Alliance were aware of its tension with the principle of equality enshrined in Article 8. The vagueness of the wording of the provision, which is what enables its roots of substantive affirmative action to be nearly forgotten today, also did not escape the attention of the framers. The vagueness of the provision was in fact intentional, with the Alliance seeking to avoid criticism from Malay opposition parties as well as opposition from within UMNO.

Fernando refers to the extensive material available in Alliance and Reid Commission meetings where the special position of the Malays is explicitly justified as a temporary measure to rectify the economic imbalance caused by the British occupation. This can be strongly seen even from senior UMNO leaders, with Tun Ismail Abdul Rahman mentioning ‘giving the Malays a handicap if they were to compete on equal terms with the other races’. Further mention is made of the fact that the special position was intended to assist the Malays’ economic position in memoranda from the Alliance (with MCA and MIC supporting UMNO) to the Commission. The Reid Commission report itself as well as archival material from discussions during the framing of the Constitution make it clear that Article 153 was formulated as a provision to help the Malays due first and foremost to their economic position. This conclusion is strengthened by the fact that the article was intended to be a temporary measure.

The Reid Commission report is clear in its recommendation that there should be a review of “the whole matter” after 15 years, followed by a corresponding parliamentary decision as to whether the quotas should be continued.

The final proposal by the Reid Commission, however, does not reflect the many different formulations of the time period suggested during the framing of the Constitution. More crucially, it does not explain why this time period and provision for compulsory review is absent in our Constitution today. In considering the varied proposals regarding the time period for the implementation of Article 153 policies, one commonality stands out: the intention for these policies to be of a temporary nature.

A very brief history of the proposals as to the time period and for review is as follows:

• The Tunku, as Alliance leader, tells Reid that the Alliance “felt there should be a review after 15 years”, but states this does not preclude relaxation of the rule from time to time.
• The Malay Rulers, in a memorandum to the Reid Commission, state that a review after about 10 years would be ‘reasonable’.
• The first tentative draft on the special position (by Jennings) provides for a time period of 15 years from Merdeka, with these provisions to be able to extended by Parliament for a further period of a maximum 6 additional years.
• Abdul Hamid also prepares a paper, similarly providing for a review of the special position after 15 years, but for the provisions to be able to be extended for a maximum of 45 years after Merdeka.
• The Commission discusses these two drafts. They agree Parliament should be able to reduce any of the privileges at any time, and that they should not be continued for more than 15-20 years unless extended by Parliament.
• Jennings then makes a third draft based on Hamid’s draft. This draft provides for the privileges to be discontinued 30 years after Merdeka, and puts the burden on Parliament to have to pass a law for any extension after 15 years.
• The final proposal, as seen above, is a modified version of Jennings’ third draft. The commission’s recommendation that the quotas should be discontinued after 30 years is noticeably absent.

What is striking about the negotiations behind the drafting of the Constitution culminating in the Reid Commission report is the ubiquity of the temporary nature of the provision. Alliance leaders, members of the Reid Commission, and the representatives of the Malay Rulers all agreed on the need for the provisions to be temporary and for review of the provisions, with conflicting opinions being as to the length of the provisions and not to their permanence. However, the question still stands as to why none of these provisions stating the temporary nature of the article ended up in the final Constitution. The work of the Working Party making changes after the drafting of the Reid Commission report provides the answer to this question.

The Working Party consisted of the colonial High Commissioner, representatives of the Alliance government, and representatives of the Malay Rulers. They met between 22 February and 22 May 1957 and made significant changes to the provisions on the special position due to criticism by the Malay-based parties of the Reid Commission’s recommendation for review after 15 years. What is interesting about these meetings is that the Malay Rulers’ representatives preferred to leave the 15-year review in, while UMNO representatives pushed for a more general framing of Article 153.

Though UMNO’s push for this more general framing without the explicit time period was largely a reaction to criticism from Malay opposition parties and from within UMNO itself, its leaders’ justifications for the departure from the Reid Commission are interesting. Abdul Razak, deputy head of the Alliance, specified “recourse to the Court”, or judicial review, in the event of the provision being interpreted to infringe the rights and interests of non-Malays. Tun Ismail Abdul Rahman has also claimed he suggested a time-frame be removed from the position so that the Malays be allowed to decide the time-frame, calling it a “slur on the ability of the Malays” only to be “tolerated”. In the end, the final draft removed the time frame because UMNO felt it could be more effectively defended politically in that way. This does not, however, imply the understanding on the review time-frame had been extinguished; instead, it was simply understood that it was to not be stipulated in the Article for political reasons.

From these economic considerations alone it should be clear that there was not Malay supremacy or racism intended in the framing of Article 153. This becomes even clearer when examining the aspects of the Article that stress a compromise amongst (at the time) disparate communities, as with other articles in our Constitution.

Recall 153(1), the very first image above — it is explicitly stated that the YDPA’s responsibility is to safeguard the special position as well as the legitimate interests of the other communities in Malaysia. This fits well into the spirit of reconciliation and plurality visible in other aspects of our Constitution, for example the provisions on religion and language. Article 3(1) specifies the religion of the Federation is to be Islam, but at the same time that “other religions may be practised in peace and harmony in any part of the Federation”. Article 152 provides that the national language shall be Malay, but specifically protects against the prohibition of the use, teaching, and learning of any other language (except for official purposes). All of these provisions, as with Article 153, are emblematic of the theme of compromise amongst the then-disparate communities of Malaya upon independence.

Wilson Tay interestingly argues that Ketuanan Melayu is foundational in the Federal Constititution, and that Article 153 is the “hallmark of Ketuanan”. However, Tay’s characterisation of Ketuanan is unorthodox: it is described as a combination of political fact (the Malays have the ‘right to rule’ simply because any elected leader will need Malay votes), official recognition of Malay culture, and a “reasonable set of socio-economic privileges” (referring to Article 153). Tay specifically argues that Ketuanan is not racial superiority, drawing attention instead to the safeguards in place for non-Malay communities, a “spirit of compromise”, and the background of economic disparity in 1957. Hardly Ketuanan as it is generally understood today. However, Tay does point out that reducing Article 153 to economic affirmative action alone is oversimplistic. The colonial administration reinforcing Malay attitudes that the non-Malays were “the Other”, the British perspective that “the Chinese and Indians were only tolerated guests in a country belonging to the Malays”, and the weak bargaining position of the non-Malay communities were all also factors leading to the legacy of the colonial ideology of racial differences. This legacy, Tay argues, also played a role alongside economic disparity. Tay’s Ketuanan can thus be seen to be a rejection of racial superiority and a recognition of the same theme of compromise described earlier on in this essay.

Surely then Article 153 is neither evil nor intended to be racist. Racial superiority, it can be seen, was thoroughly absent from the intentions of the framers. In fact, many of the political realities Malaysians accept today (e.g. the existence of universities limited by ‘race’) are not actually mandated by Article 153; ‘reasonable quotas’ do not necessarily mean entire universities. It would not be inconceivable that what is ‘reasonable’ can change over time: what was reasonable in 1957 for the uplifting of the Malay community may not be reasonable in 2020. The day may even come where quotas of 0%, or no quotas at all, would be deemed reasonable if economic parity between the ‘races’ of Malaysia were achieved — and this would be perfectly acceptable under Article 153.

This is to say nothing of the legal process of repealing Article 153 should the day ever come where it is no longer needed, of amending it to better reflect the intent of its framers or to include adequate checks and balances to ensure its relevance, or separate provisions in the Constitution relating to Malay reserve land. The key term is still ‘reasonable’, and the following question as to what is reasonable for helping impoverished Malays and Bornean natives today: are housing discounts for properties worth millions of ringgit, or scholarships for education in the United Kingdom worth hundreds of thousands of ringgit for students who would have already been able to afford it (instead of the needy) truly reasonable in this regard?

References

[1] Federal Constitution of Malaysia

[2] Reid Commission Report 1957

[3] Fernando (2014), Special Rights in the Malaysian Constitution and the Framers’ Dilemma, 1956–57

[4] Hansard Parlimen Ketiga (1971–1974), 23 February 1971

[5] Wilson TV Tay, ‘Dimensions of Ketuanan Melayu in the Malaysian Constitutional Framework’, in Andrew Harding and Dian Shah (eds), Law and Society in Malaysia: Pluralism, Religion and Ethnicity (London: Routledge Taylor & Francis, 2017)