THIS letter talks about supremacy of our federal Constitution and how we are far from respecting it and its clauses when it comes to Article 153.
This post does not question the Constitution or Malays’ special position as per Article 153.
It seeks to educate irresponsible politicans, ordinary people, and journalists who disrespect the sanctity and supremacy of the Federal Constitution.
They disregarded the “Keluhuran Perlembagaan” ambit of our Rukun Negara. You must understand this premise before you proceed to read this article.
1. As a Malaysian boy who loves my own country very much, I have vowed to adhere and respect the Federal Constitution by acknowledging it being the most supreme law of land.
The Constitution was meant to be the guiding law and social pillar that holds the nation together. It encapsulates the spirit of unity, power sharing module, efforts in preserving various racial identities, and is also a manifestation of wishful prayers and blessings from our forefathers.
2. However, we must be reminded that to respect the sanctity of the Constitution means we have to respect and honour every part of it, which includes Article 153 — a controversial clause which stipulates the special position of the Malay race and other indigenious people in Malaysia.
Article 153 perhaps was among the most difficult clauses to be agreed upon by representatives of all races attending the Reid Commission hearing in the House of Lords in Westminster.
If you don’t already know this, we did not craft the Consitution ourselves. It was the word of Reid Commission, and the commission was an independent committee responsible for drafting the Constitution of the Federation of Malaya prior to our independence from Britain on Aug 31, 1957.
3. The wording of Article 153 were carefully chosen. Lord Reid himself discussed at length on Article 153 in his “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’.“
*You can read the Reid Commission Report 1957 here : – http://www.slideshare.net/mbl2020/the-reid-commission-report-1957 Page 73, Paragraph 163 under the heading “The Special Positions of the Malays”.
Issue: Are we respecting the Federal Constitution, in the way we define Article 153?
Understanding the word “RIGHTS” and its “Universality”.
4. Now comes the issue: When the Constitution was drafted by the Reid Commission, particularly in the enactment of Article 153, what was the definition of “Special Positions”?
The Constitution is a creature of law in the strictest sense. As such it’s diction and wording must be interpreted according to strict rules of statutory/constitutional interpretations.
Statutory and constitutional interpretation place absolute emphasis on dictions and wordings. Literature ambiguity are reduced to minimum, based on the three rules of statutory interpretations : Literal Rule, Golden Rule and Mischief Rule.
5. In the Constitution, the word “hak” or “rights” were used extensively, i.e. Article 10 (Right to free speech), Article 11 (Right to religion), Article 12 (Right to Education), Article 13 (Right to property).
These were inalienable rights, accorded to the people of Malaya/Malaysia by our Federal Constitution.
A right conferred by the Constitution is strictly enforceable against anyone, when it is infringed.
The government nor anyone else has the legal capacity to alienate or remove a right through any means, including legislation, without first amending the clauses in the Federal Constitution that confer such right.
Unlike a “parental statute” or “enabling clause”, a constitutional clause that confers “rights” does not allow further legislation and regulations to be enacted relying on itself.
6. As an example, here is a clause (Article 11 and 12) on how the word “rights” are being used in the wording of the Constitution:
“Article 11 — Freedom of religion.
(1) Every person has the RIGHT to profess and practise his religion and, subject to Clause (4), to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
(3) Every religious group has the RIGHT—
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or charitable purposes; and,
(c) to acquire and own property and hold and administer it in accordance with law.
(4) State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
(5) This Article does not authorise any act contrary to any general law relating to public order, public health or morality.”
“Article 12 — RIGHTS in respect of education
(1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth —
(a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or,
(b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation).
(2) Every religious group has the RIGHT to establish and maintain institutions for the education of children and provide therein instruction in its own religion, and there shall be no discrimination on the ground only of religion in any law relating to such institutions or in the administration of any such law; but federal law or state law may provide for special financial aid for the establishment or maintenance of Muslim institutions or the instruction in the Muslim religion of persons professing that religion.
(3) No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.
(4) For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
7. According to legal publisher and practitioner Gerald and Kathleen Hill, “RIGHT” is an entitlement to something, whether to concepts like justice and due process, or to ownership of property or some interest in property, real or personal.
These rights include various freedoms, protection against interference with enjoyment of life and property, civil rights enjoyed by citizens such as voting and access to the courts, natural rights accepted by civilised societies, human rights to protect people throughout the world from terror, torture, barbaric practices, etc.
8. A right is always “Universal” and applicable to ALL regardless of any individual or collective attributes. The Interpretation of “right” hence is never“discriminatory” in law.
It seems like a conundrum to lay persons but as far as the law is concerned, a right should be “naturally universal” and anything that is discriminatory, positive or negative, is viewed as “privilege“.
Understanding the word “Privilege” and its “Exclusivity”
9. Privilege, on the other hand, is a particular benefit, advantage, or immunity enjoyed by a person or “class of people that is not shared with others”.
A power of exemption against or beyond the law. It is not a right but, rather, exempts one from the performance of a duty, obligation, or liability (West Encyclophedia, 2008 the Gale Group).
Suffice to say, a privilege is discriminatory in nature. It is spelled out in favour against certain group of people, or a class of people.
10. When you read the Constitution, you can easily tell if a clause confers a “Right” or “Privilege”.
If it’s “Universal / apply to all”, even if its qualified or conditional, it is a right.
If it is “Exclusive” to certain group of individuals, then it’s a privilege.
A good example of “Privilege” would be the immunity given to royalty.
Example on “Privileges” conferred by the Constitution.
“Article 32 — The Yang Dipertuan Agong
(1) There shall be a Supreme Head of the Federation, to be called the Yang di-Pertuan Agong, who shall take precedence over all persons in the Federation and shall not be liable to any proceedings whatsoever in any court.
(2) The Consort of the Yang di-Pertuan Agong (to be called the Raja Permaisuri Agong) shall take precedence next after the Yang di- Pertuan Agong over all other persons in the Federation.
(3) The Yang di-Pertuan Agong shall be elected by the Conference of Rulers for a term of five years, but may at any time resign his office by writing under his hand addressed to the Conference of Rulers or be removed from office by the Conference of Rulers, and shall cease to hold office on ceasing to be a Ruler.
(4) The provisions of Part l and lll of the Third Schedule shall apply to the election and removal of the Yang di-Pertuan Agong.
Article 33 — Timbalan Yang Dipertuan Agong
(1) There shall be a Deputy Supreme Head of the Federation (to be called the Timbalan Yang di-Pertuan Agong) who shall exercise the functions and have the Privileges of the Yang di-Pertuan Agong during any vacancy in the office of the Yang di-Pertuan Agong and during any period during which the Yang di-Pertuan Agong is unable to exercise the functions of his office owing to illness, absence from the Federation or for any other cause, but the Timbalan Yang di-Pertuan Agong shall not exercise those functions during any inability or absence of the Yang di-Pertuan Agong which is expected to be less than fifteen days, unless the Timbalan Yang di-Pertuan is satisfied that it is necessary or expedient to exercise such functions.”
11. To this respect, we should be aware that while Article 32 did not mention the “functions” of the Yang Dipertuan Agong are conferred as a Right or Privileges, Article 33 would “SUM UP” Article 32 as a “PRIVILEGE”.
Note that while the Constitution was generous when it comes to the word “RIGHTS” in article 11,12,13, which are universal and apply to everyone, it didn’t even use a single “right” word in Article 32 and 33.
12. As per the above premise, Article 32 and 33 are privileges of the monarchy because these functions are exclusively for them (monarch) only. If it’s not universal, it can never be recognised as a “right”.
Reconciling Article 153: Applying knowledge on “Universality of Rights” and “Exclusivity of Privilege”.
13. Again, let me remind you one thing that we’ve learnt from the above dissects of constitutional wordings.
Any obligation or benefit that is conferred to everyone is called “Rights” while any obligation or benefit that is only conferred to a group or class of people, is known as “Privileges”.
14. Let’s do a quick test. Below are the exact wordings of Article 153 of our Federal Constitution.
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.
2. Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, 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 provision 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 (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.
3. The Yang di-Pertuan Agong may, in order to ensure in accordance with Clause (2) the reservation to Malays and natives of any of the States of Sabah and Sarawak of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to any Commission to which Part X applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities; and the Commission or authority shall duly comply with the directions.
4. In exercising his functions under this Constitution and federal law in accordance with Clauses (1) to (3) 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.
5. This Article does not derogate from the provisions of Article 136.
6. Where by existing federal law a permit or licence is required for the operation of any trade or business the Yang di-Pertuan Agong may exercise his functions under that law in such manner, or give such general directions to any authority charged under that law with the grant of such permits or licences, as may be required to ensure the reservation of such proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable, and the authority shall duly comply with the directions.
7. Nothing in this Article shall operate to deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him or to authorised a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of a person any permit or licence when the renewal or grant might reasonably be expected in the ordinary course of events.
8. Notwithstanding anything in this Constitution, where by any federal law any permit or licence is required for the operation of any trade or business, that law may provide for the reservation of a proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak; but no such law shall for the purpose of ensuring such a reservation:
· (a) deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him;
· (b) authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of any person any permit or licence when the renewal or grant might in accordance with he other provisions of the law reasonably be expected in the ordinary course of events, or prevent any person from transferring together with his business any transferable licence to operate that business; or,
· (c) where no permit or licence was previously required for the operation of the trade or business, authorise a refusal to grant a permit or licence to any person for the operation of any trade or business which immediately before the coming into force of the law he had been bona fide carrying on, or authorise a refusal subsequently to renew to any such person any permit or licence, or a refusal to grant to the heirs, successors or assigns of any such person any such permit or licence when the renewal or grant might in accordance with the other provisions of that law reasonably be expected in the ordinary course of events.
(8A) Notwithstanding anything in this Constitution, where in any University, College and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the University, College or such educational institution to candidates for any course of study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable, and the authority shall duly comply with the directions.
9. (9) Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays and natives of any of the States of Sabah and Sarawak.
(9A) In this Article the expression “natives” in relation to the State of Sabah or Sarawak shall have the meaning assigned to it in Article 161A.
10. The Constitution of the State of any Ruler may make provision corresponding (with the necessary modifications) to the provisions of this Article.
15. Note that in Article 153, the term used to explain benefits exclusively to the Malay and other indigenous, is “Special Position” or“Position” / “Kedudukan Istimewa” or “Kedudukan”.
The Constitution never once use the word “Rights” / “Hak” to explain the Malay and other Indigenous Malaysians’ benefit. Based on the earlier methodology in our Constitutional Interpretation, this is due to the fact that such benefits are “Exclusive” in nature, only towards the Malay and Indigenous. Hence, it is qualified as a “Privilege”.
16. In the same article (Article 153), the word “Rights” were used thrice. The way in which “rights” were used has huge connotation on “universality”. Take for example, Article 153 (7) which reads:
“Nothing in this Article shall operate to deprive or authorise the deprivation of any person of any right.”
17. When the word “Right” is used, it was used to depict the universal right of every Malaysians.
Article 153 (7) stipulates that when the Yang Dipertuan Agong exercises His Royal Highness’ function to maintain “Special Position” of the Malays and other indigenous, he mustn’t do so at the expense of depriving another Malaysian’s (Malay, Indigenous, or non-Malay/non-indigenous) “Right”.
18. It is hence very CLEAR beyond a shadow of doubt that the Reid Commission, the Conference of Rulers, and our Founding Fathers were adamant in recognising the Exclusive Benefits conferred to Malays and indigenous Malaysians as “Privilege” in the form of “Special Positions” and not a Universal “Right”.
19. For the past decades, I’ve read and came across many journalists, politicians and ordinary Malaysians depicting the Special Position and Privileges of the Malay race and Indigenous Malaysians as “Rights”.
One must first understand that such special position is a pure provision of Law by the Constitution and is actionable only by operation of law.
Not only that, I respect the law and succumb to its provisions wholeheartedly when it comes to recognising the Special Position of the Malay and indigenous Malaysians.
I, too, internalise the “importance” of such a provision. I think it is important to have the affirmative action provision to help balance the racially divisive society.
20. The differences between races are not just income-reflective.
We are divided at all levels: language, lifestyle, eating habits, diet, religion, thought process, priority, culture, education, industrial preference, mode of wealth generation, etc.
Without provision of the special position, the relationship between the various ethnic denominations will become even more fragile and dangerous.
All it takes is one extreme view and the whole fabric of the society will be reduced to ashes, as witnessed in 1969.
Every race needs to feel safe and secure, and such needs of each race must be balanced off.
The majority Malays tolerated a “foreign” presence of other cultures (Chinese, Indians, etc) who speak in a language they don’t understand, practise their lifestyle in a manner which is forbidden in Islam, and dealt with the “uncomfortableness” of a huge presence of alien culture, without them being able to participate due to language, religion and cultural barriers.
The Chinese and Indians tolerated the “special position” of Malays and other indigenous, which puts them on a unequal levelled playing field in the business, entrepreneur, civil service, education and property industry: no equal access to competition.
It is the balancing of such toleration and pain that holds Malaysia together. We swallow part of the pain, and we tolerate the rest, then we celebrate the wealth and fruit of such sacrifices.
21. Again, in Reid Commission Report 1957, note that the wordings by the commission were even more straightforward.
Paragraph 163 of the report actually states that:
“163. ….. We found it difficult, therefore, 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 difficulty of giving one community a permanent advantage over the others was realised by the Alliance Party, representatives of which ……….”
— Reid Commission Report, 1957 on Malayan Constitution.
22. With such clarity of intention portrayed by the drafters of our Constitution, by our founding fathers, and as approved by the Conference of Rulers, there should not be any more justification by anyone who would confuse between the article being a “RIGHT” or a “PRIVILEGE”.
It is the duty of politicians, the government, media and journalists to ensure that the distinction between these two are explained and used in the most appropriate and correct manner.
TAI ZEE KIN