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.


Press statement by Kua Kia Soong, SUARAM Adviser, 21 April 2017

With the approaching 14th general election, the BN government has decided to launch a new initiative “to champion the cause of the Indian community” with a national blueprint to address the plight of Malaysian Indians. Obviously, the wealthy businessmen and professionals in the Indian community do not need any state assistance but the estimated 695,030 Malaysian Indians in the B40 category or bottom 40% of households with a monthly income of up to RM3,855 do. We are told that some 139,010 Indian families live in 38 districts in nine states with a household income of less than RM2,537 a month.

After nearly sixty years of Independence and the countless lip service initiatives to “1Malaysia”, the Government needs to confront these crucial questions:

  1. Why is the problem faced by these Malaysian Indians in B40 category posed in terms of their “race” rather than by the needs of the sector or income level so that all Malaysians in the same B40 category can benefit equally?
  2. Will there be other “new initiatives” to champion the cause of the B40 category Chinese, indigenous peoples and “others” before the 14thgeneral election?
  3. What happened to the initiative by Hindraf that was accepted by the Prime Minister during the last (13th) general election since its obvious failure can be instructive for this new initiative for the Indian community?

Racial policies hide privileges for the well-connected

Like the race-based Bumiputera policy that has been in place since 1971, this new race-based initiative ostensibly to help the B40 Indians will invariably contain benefits for the well-connected elite of the Malaysian Indian community. This is clear from the news report that Malaysian Associated Indian Chambers of Commerce and Industry president Tan Sri Kenneth Eswaran said the body had provided key input on the socio-economic part: “This blueprint will enable the Malaysian Indian community and businesses to raise their competitiveness and be an integral part of the Malaysian economy, which is increasingly becoming more globalised and knowledge intensive.”

Any policy based on “race” is seriously flawed and questionable since every ethnic community has its rich elite and its poorer majority. After more than 45 years, the race-based New Economic Policy has mainly benefited the crony capitalists of UMNO as well as their non-Malay capitalist partners. The class cohesion among the Malaysian ruling elite of various ethnic origins underpins the racial politics which have characterised Malaysian society since Independence. The NEP was supposed to run from 1971 to 1990 but special “Bumiputera” privileges for the elite and their populist appeal have ensured that the NEP has become the “Never Ending Policy”. It transformed into The National Development Plan which ran from 1991 to 2000; the National Vision Policy traversing 2001 to 2010, and under Najib, it has become The National Transformation Policy.

Now it looks like this “Bumiputera policy” is going to be with us for a very long time for the Prime Minister has just given us the latest hint when he said that “the progress of the Bumiputra community is not just measured by equity ownership…Datuk Seri Najib Tun Razak listed education, health, success in business and assets as important criteria… We want to see the Bumiputra become top scientists and world-class athletes, and be famous in other spheres…”

Clearly these racial discriminatory policies have not succeeded in encouraging the “entrepreneurial spirit” among Bumiputeras when they have access to get-rich-quick schemes through rent seeking. On the contrary, the culture of cronyism has been a hallmark of this race-based policy.

Racism obscures class exploitation

The ostensible justification to “correct the racial imbalance” in the economy purposefully obscures the relations of class exploitation by portraying poverty and inequality as a product of unequal distribution between the “races”.

The main victims of racism and racial discrimination in Malaysia are the non-Bumiputera working class especially the ethnic Indians, the indigenous peoples of East and West Malaysia, and migrant workers. The non-Bumiputera working class and the Orang Asli have no access to affirmative action benefits since they are not classified as “princes of the earth”, while the indigenous peoples of East Malaysia do not enjoy the same privileges as the Malays in the peninsula even though they are considered Bumiputeras. Migrant workers are treated as mere commodities or even vermin that have to be periodically “flushed out” when it suits the state.

A New Race-Free Policy based on Need

In Malaysia, since the passing of the deadline for the NEP in 1990, it makes developmental sense to implement a new socially just policy that is race-free and based on need or sector. Thus, if Malays are predominantly in the rural agricultural sector, the poor Malay farmers would be eligible to benefit from such a needs-based policy while the rich Malay land-owning class would not. Likewise, all Malaysians in B40 category can receive state assistance while those in the upper echelon would not. It is time that the poorest sector, the Orang Asli are given proper care and attention to protect their rights to native customary land and to raise their standard of living. Only such a race-free policy can convince the people that the government is socially just, fair and democratic and we can advance as a nation.

More potentially dangerous and insidious is the effect this widespread racial discrimination has had on ethnic relations in this country. Unity can only be promoted through a new policy based on need, sector or income level, never on race.

The world community outlaws racism & racial discrimination

The world community reaffirmed at the World Conference against Racism and Racial Discrimination at Durban in 2001 that “nationality” is a legal relationship denoting membership of a nation or sovereign state. It implies duties of allegiance on the part of the individual as well as of protection on the part of the state. Nationality is regarded as an inalienable right of every person in the UN Declaration of Human Rights, 1948.

The status of nationality and citizenship has the crucial implication that every citizen is equal in the eyes of the law. It does not matter in the least whether citizens have been recently naturalized, or that their forefathers came here centuries ago. This is provided for in our Federal Constitution (our “social contract”?) when we became independent in 1957.

After so many years since Independence, it is time we ponder these words by Martin Luther King, Jr:

“I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality.”


Press statement by Kua Kia Soong, SUARAM Adviser, 5 Aug 2016

Mahathir’s new “Bumi-only” party deserves to be shunned like the other mono-ethnic parties in the BN. I am truly surprised that leaders of Pakatan Harapan as well as some civil society leaders have welcomed this new party with open arms when it is neither civil nor hopeful.

Can any civil society leader or political leader espousing progressive reforms for our country accept a political party that is open only to “Bumiputeras”? Have they lost their marbles simply because Mahathir is staunchly anti-Najib? They better come to their senses or they may lose their credibility altogether in their contortionist bid to perform the art of the possible.

Racism and racial discrimination have been part of Malaysian political, economic, social and cultural realities ever since colonial times. Today, race has been so deeply institutionalised that it is a key factor determining benefits from government development policies, bids for business contracts, education policy, social policy, cultural policy, entry into educational institutions, discounts for purchasing houses and other official policies. Practically every aspect of Malaysian life is permeated by the so-called “Bumiputra policy” based on Malay-centrism. This is unabashedly spelled out by political leaders in the daily mass media in Malaysia.

Institutional racism is an integral part of the Malaysian socio-political system. The ruling coalition is still dominated by racially-defined component parties, the United Malays National Organisation, the Malaysian Chinese Association and the Malaysian Indian Congress. These parties compete for electoral support from their respective “racial” constituencies by pandering to “racial” interests. Invariably, their racist inclinations are exposed at their respective party congresses.

UMNO, the ruling party continues to insist that “Malay Unity” and even “Malay Dominance” are essential for National Unity. “Malay dominance” is invariably used interchangeably with “Malay Privileges”, which these ruling Malay elite justify in the Malaysian Federal Constitution. No doubt Mahathir is still caught up in this racist ideology.

Reformists must transcend “Race”

It is time for Malaysians to reaffirm the non-discriminatory basis of the Federal Constitution and to uphold human rights principles which are strictly anti-racist. Article 8 (1) of the Malaysian Constitution clearly spells out the principle of equality of all Malaysians while Article 12 (1) allows no discrimination against any citizens on the grounds of religion, race, descent or place of birth.

While it is widely recognised that racial polarisation exists in many Malaysian institutions such as schools, universities, the civil service, it must be stressed that this is not a “natural” consequence of a plural society. On the contrary, through the years there have been deliberate attempts by those in power to create divisions among the people. There is general agreement that racial polarisation has its origins in colonial divide-and-rule strategy.

The racialist formula (UMNO-MCA-MIC) was institutionalised in the Alliance at Independence and perpetuated by the Barisan Nasional to the present day. Attempts at creating racial discord among the people continue to be perpetrated in public institutions and the mass media whenever it suits the politicians.

Of all the official policies and public institutions which practice racial discrimination, there is none more pervasive than the New Economic Policy (NEP) which has been implemented as a fait accompli after the Emergency declared in 1969. Although its specific objectives were “restructuring of society to correct the economic imbalance of wealth holding which led to the identification of race with economic function” and “eradication of poverty irrespective of race”, the NEP has been implemented these thirty years in a racially discriminatory way with little transparency or accountability.

Racist game over, Tun

Mahathir’s “Malay Dilemma” was an instant hit among the emergent Malay state capitalists in UMNO since it provided the instant recipe for them to rally populist support for their bid for power during May 13, 1969. It was the time tested recipe for opportunistic politicians to use “race” as the rallying cry for political support.

Hitler’s “Mein Kampf” was of course the model of such a political route. Since the demise of Hitler and his race-steeped ideology and the price paid in blood by the freedom loving peoples of the world, racism, racial discrimination and other forms of intolerance have been outlawed in the world community.

The very existence of racially-based political parties – UMNO, MCA and MIC – is an anachronism way past their sell-by date. Where in the world today can one find political parties that are restricted to only one race?

Time for non-racial solutions to Malaysian challenges

We will only truly be a united nation when we ban race-based political parties from our midst and ratify the Convention on the Eradication of Racism and Racial Discrimination (CERD). This can be done through a Race & Religious Relations Act and Equality & Human Rights Commission. It would be the mother of all transformations!

Political parties formed on the basis of “race” to further the interests of their respective “races” should be outlawed as such practices are inconsistent with international conventions against racism and racial discrimination.

My admonition to Tun is:

“Wisdom doesn’t necessarily come with age.  Sometimes age just shows up all by itself.”