Малайзия Конституциясының 153-бабы: Этностық ажырымдылық және даулы ережелер

Malaysian segregationist constitutional article

Article 153 of the Constitution of Malaysia grants the Yang di Pertuan Agong (King of Malaysia) responsibility for "safeguard[ing] the special position of the 'Malays' and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities" and goes on to specify ways to do this, such as establishing quotas for entry into the civil service, public scholarships and public education. Article 153 is one of the most controversial articles in the Malaysian constitution. Critics consider Article 153 as creating an unnecessary and distinction between Malaysians of different ethnic backgrounds, because it has led to the ethnocentric implementation of affirmative action policies which benefit only the Bumiputra, who comprise a majority of the population. Critics also consider the preferential treatment to be against both meritocracy and egalitarianism. Technically, discussing the repeal of Article 153 is illegal—even in Parliament, although it was originally drafted as a temporary provision to the Constitution. Despite this prohibition on discussion (in order to ostensibly manage race relations, thus appearing to defuse and avoid ethnic hatred, ethnic conflict and ethnic violence), the article is hotly debated, both privately and publicly among Malaysians, against the continued perpetual retention and implementation of the article although ostensibly maintaining support for the special race based privileges. Nevertheless, the article is viewed as a sensitive matter by many, with politicians who are in favour or opposed to it often being labelled as racist and engaging in social exclusion. The article is primarily seen as a continuation of previous laws made by the British to protect the indigenous peoples from being overwhelmed by the immigration of Chinese and Indian workers into Malaya. In the years after independence in 1957, the Chinese in particular were generally congregated in urban areas (towns and cities resulting from trade and mining) and possessed relatively greater incomes and wealth, whilst the Bumiputra were mostly living in rural areas with meagre incomes and little wealth, as they commonly engaged in subsistence agriculture and artisanal fishing. The first clause of the article provides that the government should act "in accordance with the provisions of this Article".

The Constitution was drafted on the basis of a report from the Reid Commission. The commission, which had been formed to lay the groundwork for a Constitution in the run up to Malaysia's pending independence, released the report in 1957 as the Report of the Federation of Malaya Constitutional Commission 1957 or The Reid Commission Report. In the report, the Reid Commission stated that "provision should be made in the Constitution for the 'safeguarding of the special position of the Malays and the legitimate interests of the other Communities'." However, the Commission "found it difficult [ ] to reconcile the terms of reference if the protection of the special position of the Malays signified the granting of special privileges, permanently, to one community only and not to the others." The Reid Commission reported that Tunku Abdul Rahman and the Malay Rulers had asked that "in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed." At that time, Tunku Abdul Rahman was the leader of the United Malays National Organisation (UMNO), which led the Alliance coalition. Eventually the Alliance would become the Barisan Nasional and Tunku Abdul Rahman later became the first Prime Minister of Malaysia. When succeeding to the UMNO Presidency, Tunku had expressed doubts about the loyalty of the non Malays to Malaya, and as a result, insisted that this be settled before they be granted citizenship. However, he also stated that "For those who love and feel they owe undivided loyalty to this country, we will welcome them as Malayans. They must truly be Malayans, and they will have the same rights and privileges as the Malays." The Commission found the existing privileges accorded to the Malays included the allocation of extensive Malay land reservations. In addition, the Commission discovered quotas for admission to the public services with a general rule that "not more than one quarter of new entrants [to a particular service] should be non Malays." Operation quotas existed in regard to the issuing of permits or licences for the operation of certain businesses "chiefly concerned with road haulage and passenger vehicles for hire." In addition, there existed "scholarships, bursaries and other forms of aid for educational purpose" where preference was given to Malays. Lee's statements upset many, especially politicians from the Alliance. Then Finance Minister Tan Siew Sin called Lee the "greatest, disruptive force in the entire history of Malaysia and Malaya." The Tunku considered Lee to be too extremist in his views, while other UMNO politicians thought Lee was simply taking advantage of the situation to pander to the Chinese Malaysians. PAP UMNO relations were chilled further when UMNO officials publicly backed the opposition Singapore Alliance Party in Singapore's 1963 general election and PAP responded in turn by fielding several candidates in the Malaysian federal elections in 1964. These acts were seen by each party as challenges of the other's authority in their respective domains, and in violation of previous agreements made by the PAP and UMNO before merger not to contest each other's elections until Malaysia had matured enough. The tension led to the 1964 racial riots in Singapore that killed 36 people. Eventually, the Tunku decided to ask Singapore, through Lee and some of his closest confidantes, to secede from Malaysia. Eventually, Lee (reluctantly) agreed to do so, and Singapore became an independent nation in 1965, with Lee as its first Prime Minister.<! page not found error

UMNO Parliamentary backbencher Mahathir Mohamad soon became the face of a movement against the Tunku, arguing that he had been too accommodative towards the non Malays. In a letter to the Prime Minister, demanding his resignation, Mahathir argued that the Tunku had given the Chinese "too much face" and that the responsibility for the deaths of the people in the riot rested squarely on the Tunku's shoulders. Mahathir was expelled from UMNO not long after, and Home Affairs Minister Ismail Abdul Rahman warned that "[t]hese ultras believe in the wild and fantastic theory of absolute dominion by one race over the other communities, regardless of the Constitution". The government suspended Parliament and the executive branch governed on its own through the National Operations Council (NOC) until 1971. The NOC proposed amendments to the Sedition Act that made illegal the questioning of, among others, Article 153. These amendments were passed by Parliament as law when it reconvened in 1971. During the period of NOC governance, the Malaysian New Economic Policy (NEP) was implemented. The NEP aimed to eradicate poverty irrespective of race by expanding the economic pie so that the Chinese share of the economy would not be reduced in absolute terms but only relatively. The aim was for the Malays to have a 30% equity share of the economy, as opposed to the 4% they held in 1970. Foreigners and Chinese held much of the rest. The NEP appeared to be derived from Article 153 and could be viewed as being in line with its wording. Although Article 153 would have been up for review in 1972, fifteen years after Malaysia's independence in 1957, due to the May 13 Incident it remained unreviewed. A new expiration date of 1991 for the NEP was set, twenty years after its implementation.

Mahathir, who had been a strong supporter of affirmative action for the Malays since the late 1960s, expounded upon his views in his book The Malay Dilemma while in political exile. The book argued that stronger measures were needed to improve the Malays' economic lot. It also contended that the Malays were the "definitive" people and thus "rightful owners" of Malaysia, which also entitled them to their privileges but he also criticized the Malays for being "easily forgetful". Mahathir was rehabilitated under the second Prime Minister, Tun Abdul Razak. He became Prime Minister in 1981. During Mahathir's tenure as Prime Minister, the NEP, after its expiry, was replaced by the National Development Policy (NDP), that sought to create a Malay class of entrepreneurs and business tycoons. However, allegations of corruption and nepotism plagued Mahathir's administration, and Mahathir's goal of creating a new class of Malay tycoons was criticised for ignoring the rural Malays, who comprised the majority of the Malay population. Under Mahathir, quotas for entry into public universities were enforced, with some universities such as Universiti Teknologi MARA (UiTM) admitting only Bumiputra students. In 1998, then Education Minister Najib Tun Razak (son of Tun Abdul Razak who implemented the NEP) stated that without quotas, only 5% of undergraduates in public universities would be Malays. Najib argued this justified the need for the continuance of quotas. These policies also mandate that publicly listed companies must set aside 30% of equity for Bumiputras; discounts that must be provided for automobile and real estate purchases; a set amount of lots set aside for Bumiputras in housing projects; companies submitting bids for government projects be Bumiputra owned and that Approved Permits (APs) for importing automobiles be preferentially given to Bumiputras. The equity in the publicly listed companies is disbursed by the Trade Ministry, and sold to selected Bumiputras at substantial discounts. However, the recipients frequently sell their stake in the companies immediately. The policies continued the Bumiputra advantage in higher education. In practice, however, most of these privileges went to Malays, and non Malay Bumiputras, like the Orang Asli or aboriginal peoples, did not appear to have benefited much from Article 153 or policies such as the NEP.

In 2003, Mahathir began stressing that Malays needed to abandon their "crutches," and implemented a policy of "meritocracy". However, this policy by and large streams Bumiputras into what is termed matriculation, as a prelude to university admission, whereby students take a course and later sit for a test set by the instructor. The non Bumiputras generally sit for the Sijil Tinggi Pelajaran Malaysia (STPM) standardised examination to enter university. Although it is possible for non Bumiputras to enter matriculation, and Bumiputras who prefer to take the STPM may do so, in practice, it is difficult for non Bumiputras to gain entry into the matriculation stream. The meritocracy policy itself came in for criticism from both sides of the political divide, with some quarters of UMNO calling it "discrimination," leading to an "uneven playing field," and asked for the restoration of the quota system that set the ratio of Bumiputra to non Bumiputra students in public institutions at 55 to 45. Others, however, branded meritocracy as a sham due to its division of students into the two different streams. In 2003, Mahathir was succeeded by Abdullah Ahmad Badawi, who, like his predecessor, warned the Malays that over reliance on their privileges would be fatal. "A continuing reliance on crutches will further enfeeble [the nation], and we may eventually end up in wheelchairs." However, within UMNO, some, such as Education Minister Hishamuddin bin Hussein Hussein Onn's son, and UMNO Deputy Permanent Chairman Badruddin Amiruldin, appeared to disagree and in turn argued for the protection of Malay privileges. In 2005, several Malays, led by Hishamuddin at the UMNO Annual General Meeting (AGM) argued that the 30% equity target of the NEP had yet to be met and called on the government to restore the NEP as the New National Agenda (NNA). At the past year's AGM, Badruddin had warned questioning Article 153 and "Malay rights" would be akin to stirring up a hornet's nest, and declared, "Let no one from the other races ever question the rights of Malays on this land." The year before, UMNO Youth Information Chief Azmi Daim had also said, "In Malaysia, everybody knows that Malays are the masters of this land. We rule this country as provided for in the federal constitution. Any one who touches upon Malay affairs or criticizes Malays is [offending] our sensitivities." At the 2005 AGM, Hishamuddin brandished the traditional Malay dagger, the kris, while warning the non Bumiputras not to attack Malay rights and "ketuanan Melayu" (translated variously as Malay supremacy or dominance). His action was applauded by the UMNO delegates. Then Higher Education Minister Shafie Salleh also stated that he would ensure the amount of new Malay students admitted would always exceed the old quotas set, and that UiTM would remain an all Bumiputra institution. The PKR, which was founded to fight for the release of former Deputy Prime Minister Anwar Ibrahim, who had been detained for charges of corruption and sodomy after he publicly opposed Mahathir's policies, also has criticised the NEP. After Anwar's release in 2004, he criticised the NEP as having failed the Malays and stated that he would seek its replacement by a more equitable policy. The NEP and other privileges accorded to the Bumiputras or Malays under Article 153 have been noted for not explicitly seeking to eradicate poverty among the Malays, but instead largely aiming to improve the Malays' overall share of the economy, even if this share is held by a small number of Malays. However, the NEP has also been defended as having been largely successful in creating a Malay middle class and improving Malaysian standards of living without compromising the non Bumiputra share of the economy in absolute terms; indeed, statistics indicate that the Chinese and Indian middle classes also grew under the NEP, albeit not as much as the Malays'. It has also been contended that the NEP defused racial tensions by eradicating the perception of the Chinese as the mercantile class and the perception of the Malays as mere farmers. Article 10 (4) of the Constitution permits Parliament to make it illegal to question, among others, Article 153 of the Constitution. Under the Sedition Act, questioning Article 153 is indeed illegal—even for Members of Parliament, who usually have the freedom to discuss anything without fear of external censure. Others have questioned the constitutionality of the NEP. In 2005, the issue of the Constitution and its provisions was also brought up by several politicians within the government itself. Lim Keng Yaik of the Gerakan party, which by now had joined Barisan Nasional, the ruling coalition, asked for a re examination of the social contract so that a Bangsa Malaysia (literally 'Malaysian race' or 'Malaysian nation' in the Malay language) could be achieved. The social contract is the Constitution's provisions with regard to the different races' privileges—those who defend it and Article 153 often define the social contract as providing the Indians and Chinese with citizenship in exchange for the Malays' special rights or ketuanan Melayu. Lim was severely criticised by many Malay politicians, including Khairy Jamaluddin, the Prime Minister's son in law and Deputy Chairman of the UMNO Youth wing, and Ahmad Shabery Cheek, a prominent Malay Member of Parliament from the state of Terengganu. The Malay press, most of which is owned by UMNO, also ran articles condemning the questioning of the social contract. Lim was adamant, asking in an interview "How do you expect non Malays to pour their hearts and souls into the country, and to one day die for it if you keep harping on this? Flag waving and singing the 'Negaraku' (the national anthem) are rituals, while true love for the nation lies in the heart." the speech went largely unremarked. In the end, Lim stated that the Malay press had blown his comments out of proportion and misquoted him. The issue ended with UMNO Youth chief Hishamuddin Hussein warning people not to "bring up the issue again as it has been agreed upon, appreciated, understood and endorsed by the Constitution."

Terms used in Article 153 to categorise people ('Malays', 'natives') are defined in Articles 160 (English · Malay) and 161a (English · Malay). Perhaps unintuitively, only "a person who professes the religion of Islam" may be a 'Malay' (orang Melayu) in the sense of the constitution (for other contexts, see the article at Malays (ethnic group)). This restriction, if not those about "conform[ing] to Malay custom" and "habitually speak[ing] the Malay language", would seem to affect many Orang Asli, a group defined in Article 160 but not mentioned in Article 153. The term bumiputera is neither used nor defined in the constitution.