Article 153 empowers temporary affirmative action, but cannot resolve majority-minority tensions

IN our conflicts over Malaysia’s proposed ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), we are muddling the basic and oversimplifying the complex.

The basic question is: does article 153 of the federal constitution allows for pro-Bumiputera programmes to be rolled back over time, as the policy achieves its goals? The answer is yes.

Underlying this premise, however, are more complex matters related to article 153. Unfortunately, where we should be more broad-minded, we tend to be simplistic. Both sides of the debate – defenders of Bumiputera “special position” and advocates of the “legitimate interests of other communities” – superimpose onto article 153 their own inclinations, presumptions, and misconceptions.

Let’s backtrack. ICERD allows for temporary race-based affirmative action, but maintains reservations toward permanent implementation of such special measures. Malaysia can ratify ICERD and continue with Bumiputera programmes, but perpetual implementation may be questioned. That’s it.

Abolition of 153 does not arise. Immediate elimination of pro-Bumiputera programmes is not on the drawing board. Such loaded language and dire spectres inflame passions and incite overreaction.

Dr Mahathir Mohamad promises that the government will consult interest groups and stakeholders. It’s a good idea to consult the constitution, too. The written word matters, and unlike people who change what they think and say, the constitution’s contents are manifestly inked. And as I said, in this case, there’s no need at all to not bring up the idea of rewriting or erasing.

Amid the proliferation of comments and reactions on the subject, no one has referred to the specific contents and language of 153. Both sides basically stick to two words in drawing lines in the sand: “special position” versus “legitimate interests”. What special position entails is somewhat clear, but the implications of legitimate interests are utterly vague.

Bumiputera “special position” confers preferential access – quotas and reservations – associated with specific public policies for developing capabilities, overcoming socioeconomic disadvantages and facilitating upward mobility. It is not about a group’s special rights; all citizens have equal rights. This point is clarified now and again. The morphing of special position into special rights is unhelpful.

However, a more subtle but also unhelpful interpretation presumes that the provisions strike a balance, allowing for pro-Bumiputera preferences but also taking care of other communities. Conventional stances on 153 would like it to be so much more than it is.

Here’s what the Article actually says:

153(1): “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.”

153(2): “…the Yang Di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions” in the public service, scholarships and training, and permits and licenses.

The formulation of 153 was a painstaking process. The Reid commission did not, and probably could not, arrive at a specific definition and scope of legitimate interests of other communities.

We have filled this vacuum with two main interpretations. First, the legitimate interests phrase, coupled with 153’s condition that the proportion of quotas and reservations should be “reasonable”, are regarded as a check against overreach. Thus, 67% quotas are ok, 90% or 100% are not.

This is a valid argument, but we should be mindful that there is nothing in article 153 stipulating proportionality. One can make the case that proportionate quotas are the most legitimate or reasonable, but there are no literal constitutional grounds for that.

Highly pertinent to the ICERD matter, though, is one unambiguous implication: the minority legitimate interests clause does not provide grounds for rolling back racial preferences over time, when they have achieved their objectives.

Moreover, stressing the minority legitimate interests clause easily gets out of hand, because it comes across, or can be taken and twisted, as an ominous threat to Bumiputera policies.

A second, less frequently uttered, position draws on 153 (4), which also appears to safeguard minority legitimate interests.

This clause states:

“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.”

Read closer, though, and we should see that these protections specifically apply to things already in possession. If anyone already holds a contract, license or job, that opportunity cannot be arbitrarily taken away or discontinued.

Evidently, article 153 was crafted with a view to manage the immediate transition to Merdeka – specifically, by ensuring that contract renewals would not be undermined, and persons already employed would not be dismissed, and property already held would not be confiscated.

But it does not provide any principles or guidelines for the issuance of new licenses and allocation of new property that arose after merdeka, and that continually arise until today. Article 153’s anachronisms limit its force and relevance of “legitimate interests” as a basis to protect minorities.

A more constructive way to engage article 153, as I have argued previously, is to focus on a routinely overlooked clause. 153(2) stipulates that the Bumiputera special position is to be safeguarded through reservations and quotas “as may be necessary”.

In other words, preferential interventions can be enforced if they are necessary – if the socioeoconomic disadvantages of Bumiputeras persist. When the disadvantage is reduced, and Bumiputera capability, competitive and confidence are broadly developed, the preference can be rolled back. Where need-based targeting can replace race-based targeting – particularly in education – we can modify existing programmes without touching Article 153.

Let’s stop framing the debate as special position versus legitimate interests; Article 153 cannot resolve these tensions.  Let’s instead chart a passage forward by focusing on the socioeconomic conditions of the Bumiputeras, and on the achievements of affirmative action and on ways to make it more effective. Harping on its shortcomings and failures divides and alienates.

But don’t take my word for it. Stop relying on casual readings or non-readings. Dig in and grasp Article 153. In the ICERD ratification process, should Malaysia pursue it, the specific contents will surely come to light.

The international community will read it, and it will reflect poorly on us if non-Malaysians demonstrate a better knowledge of article 153 than Malaysians do. – November 12, 2018.

* Dr Lee Hwok Aun is a senior fellow at the Institute of Southeast Asian Studies (Iseas) in Singapore. He reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.

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  • Indeed it is significant to have an all Malaysians' Yang Di Pertuan Agung rather than one that protects only a group of Malaysians, and an all Malaysians' government rather than one that treats one particular group specially. When God instructs the heaven to rain, the rain nourishes all beings. There is the greatness associated in being the benefactor for all.

    Posted 4 years ago by Tanahair Ku · Reply

    • Malaysians must have the courage to be great and stand tall.

      Posted 4 years ago by Tanahair Ku · Reply

  • It is understood that Article 153 will never be abled to cease. With the leaders in those days calling for a boom in the Malay population and till today the birth rate is getting bigger and bigger , satistically and even by simple mathematics the have nots in the Malays race will never cease or improve for the better. They will be bogged down by their own doings and never will there be a quality of life for them in comparision to the nons whose family size are manageable per to economic requirements. The self serving leaders are just pushing the Malay race to get the numbers to retain their walk in the corridor of power. The 3Rs are tools to ensure that the Article 153 will remain till the country is doom and the blame game will persists. There are no real evaluations or full studies done to facilitate and ensure the Malay race to steer and could ease themselves away from the special rights. It is always the self fish and self serving leaders political leaders who have intended that conditions not to warrant the Malay race to be competently capable and independent. A good example is the ICERD which should have been promoted by the Malay Leaders to take it up as a challenge and bring their race out of the crutches, are now twisted into racial concerns and rights. What special rights now ??????? if the country are facing debts of humongus amount and if the nons are not getting their fair share in return for their tireless effort, things will just turn weary with disillusion and ends up nothing ticks in the country. All for nothing and eating sand.

    Posted 4 years ago by Lee Lee · Reply

    • Undoubtedly the welfarism as literally provided by the Article will perpetuate such a decade old curse. As a result of this Article, Malaysia will never be free from the racial tension.

      Posted 4 years ago by Tanahair Ku · Reply

  • All these tensions are caused by racist politicians using race and religion to score political points to selfishly promote their political career.

    For example, barely 6 months after being elected, politicians from PPBM, a racist party, are spewing rhetoric on ICERD as if they are trying to get re-elected INSTEAD OF WORKING for those who elected them!

    The performance of politicians from PPBM are really poor!

    Posted 4 years ago by Malaysian First · Reply

  • The term "affirmative action" was first used by President John F Kennedy in Executive Order No. 10925 in 1961 to promote non-discrimination in employment by reason of race, creed, colour, or national origin. It later morphed into meaning any action favouring the minorities to the detriment of the majority. Thus, we can say it is an action proposed by the majority for the benefit of the minority to the detriment of the majority. However, in Malaysia, where the majority decree steps to favour the majority to the detriment of the minority, most right-thinking people will call this repression. In all the cases, the affirmative actions are supposed to be transient and transitory i.e. for a limited finite period to allow the favoured party to catch up. In Malaysia, the repression seems to become a permanent feature of life and such was once called apartheid.

    I had hoped to see the day when my children can aspire to become a Vice Chancellor of a Malaysian university, a Chief Justice, a Secretary-General of a Ministry, the CEO of a GLC, a Mentri Besar, a Governor or even the Prime Minister when Pakatan Harapan took power; but now, it looks like another daydream (sigh)

    Posted 4 years ago by Yok Foo Yap · Reply