By Kua Kia Soong, SUARAM Adviser 21 July 2017

The Malaysian government is caught in a conundrum over the Indian Muslim community claiming ‘Bumiputera’ status. This is because the term ‘Bumiputera’ does not exist in the Federal Constitution. It was an elaborate plan thought up by the new state capitalists in UMNO after 1970 for the ideological purpose of using the New Economic Policy (NEP) for their own agenda.

The Constitution merely mentions the “special position” (not rights!) of Malays and the natives of Sabah and Sarawak. A ‘Malay’ is defined in the Constitution as someone who is Muslim, speaks Malay habitually and practises Malay culture. If the former Prime Minister Mahathir, whose father was Indian, can claim Malay privileges, there seems no reason why Indian Muslims cannot claim similar ‘Malay’ privileges.

Transformation of affirmative action based on race

The so-called “social contract” at Independence was the product of colonial manipulation of the constitutional proposals, from the Malayan Union to the final Merdeka Agreement. Furthermore, it has in fact undergone transformations since Independence:

(i)            After Independence in 1957, the affirmative action policy was sparingly used according to Article 153;

(ii)           After May 13 in 1971, while the country was still under Emergency decree, Article 153 was amended to introduce the so-called “quota system” allowing wider affirmative action policies but still within stipulated conditions.

In the 1957 Constitution, Article 153 was framed simply as follows:

“It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and the legitimate interests of other communities in accordance with the provisions of this Article…and to ensure the reservation for Malays of such proportion as he may deem reasonable of positions in the public service…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…Nothing in this Article shall operate to deprive or authorize the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him…”

Sheridan & Groves commentary on Article 153 (“The Constitution of Malaysia”, Malayan Law Journal, Singapore 1979: 382) is as follows:

“This article had its inspiration in the protective discrimination provisions of the Indian constitution; but it is fundamentally different from those provisions because the largest class in whose favour the discrimination operates in Malaysia is the class which possesses political control, the Malays…”

Bumiputraism as the ideology of the new UMNO elite

The ideology of the new UMNO elite after May 13 is based on “bumiputraism” and this has been imprinted into the New Economic Policy, the New Education Policy and the National Cultural Policy which were raised barely a week after May 13, 1969, as I pointed out in my book on “May 13”. Through the NEP, the interests of the UMNO elite have expanded immensely.

Thus, Article 153 was amended in 1971 (while the country was still under Emergency decree) to introduce the so-called “quota system” which has become a carte blanche for gross racial discrimination in education policy. It is clear that the question of the constitutionality of the quota system as it has been practised since 1971 especially in exclusively Bumiputera institutions has never been tested. We know what the original intentions of the “Malay Special Privileges” provision in the Merdeka Constitution were, but to maintain that it is a carte blanche for all manner of discrimination based on the Bumiputra/ Non-Bumiputra divide is certainly straining credibility.

Since the Eighties, more than 90 per cent of loans for polytechnic certificate courses, 90 per cent of scholarships for Diploma of Education courses, 90 per cent of scholarships/loans for degree courses taken in the country, scholarships/loans for degree courses taken overseas have been given to Bumiputeras; the enrolment of students in residential schools have been 95 per cent Bumiputera; the enrolment in MARA’s Lower Science College, Maktab Sains MARA and UiTM have been almost 100 per cent Bumiputera.

Time to drop ‘Bumiputera’ and race-based policies

The Malaysian Judiciary is the interpreter of the Malaysian Constitution and as far as we know, extraneous concepts such as “social contract” and “bumiputera” cannot be found in the Constitution. The very idea of “Malay dominance” is repugnant to a civilized world united against racism and racial discrimination, in which diverse citizens enjoy an equal right to access opportunities. The abuse of the quota system ever since the 1971 constitutional amendment remains to be challenged in court.

Racism and racial discrimination have dominated Malaysian society for far too long. Now that the UMNO elite already controls the commanding heights of the Malaysian economy, it is high time for a new consensus based on non-racial factors such as need or needy sectors to justify affirmative action. Any ethnic community that has undergone class differentiation can hardly qualify for positive discrimination on the basis of ethnicity alone. This applies to the Malay, Chinese, Indian and even the Iban and Kadazan communities. Affirmative action may be justified for communities such as the Orang Asli and the Penans while they are still fairly homogeneous.

A consequence of the so-called affirmative action policies up to now is that for the poor of all ethnic communities, including the indigenous peoples in Malaysia, the objectives of wealth redistribution for their benefit have not been met. Worse, the poorest community remains the Orang Asli of Peninsula Malaysia, the Original People of Malaysia who, for some strange reason, are not even considered ‘Bumiputra’.

It is time for all Malaysians, including the Indian Muslims who hunger for peace and freedom to outlaw racism and racial discrimination from Malaysian society once and for all and to build genuine unity founded on adherence to human rights, equality and the interests of all the Malaysian peoples. Political parties and candidates in the coming 14th general election must declare if they are prepared to accept non-racial alternatives to national development.