Article 153 of the Federal Constitution - Read and Know your constitution

POST TAKEN FROM http://justice4otk.blogspot.com/2010/08/article-153-of-federal-constituti-on.html

Fifty three years after Independence, racial issues continued to
monopolise national politics, and championing Malay rights remains the
single dominant ideology of the only ruling power that this independent
nation has known, UMNO. Thousands of speeches have been made championing
this Malay cause, using various terminologies such as Malay 'special
rights', Malay 'special privileges' or simply Malay 'rights', often
invoking the nation's Constitution as the legal back-up. But, of the
thousands of politicians who have used these terminologies, how many have
read through the Constitution to find out what these 'rights' really are?
Very few, perhaps!

Our Constitution is printed in a small booklet that can be bought for
about RM10 in the book shops. Buy one copy and read through to find out
what it says about these 'rights'. After all, these issues have been the
hottest favourites of our politicians ever since our Independence. Aren't
you curious to find out?

If you have read through the Constitution to look for an answer to these
Malay 'rights', perhaps the first thing that has struck you is that,
familiar terminologies such as Malay 'special rights', Malay 'special
privileges' or Malay 'rights' are nowhere to be found in the Constitution.
Instead, we only find the term 'the special position of the Malays', which
appears twice, in Clause (1) and Clause (2) of Article 153, which is
titled 'Reservation of quotas in respect of services, permits, etc, for
Malays and natives of any of the States of Sabah and Sarawak'.

Anyone who has read through Article 153 might be surprised to discover
that the provisions favouring Malays are in fact quite moderate, and
certainly no way as stretched out in intensity and scope as our
politicians would want us to believe. Similarly, those provisions
protecting the non-Malays as a counter-balance to the special position of
the Malays under this Article are also surprisingly quite well conceived
and fair. In fact, when read in conjunction with Article 8 (Equality) and
Article 136 (Impartial treatment of Federal employees), Article 153 cannot
be construed as having significantly violated the egalitarian principles
of our Constitution, contrary to common perception.

Since the egalitarian nature of our Constitution is largely intact, in
spite of the presence of Article 153, then why should it have acquired
such an adverse reputation as the legal root of all kinds of racial
inequalities in this country?

Answer: the fault is not with our Constitution, but with our politicians
twisting, misinterpreting and abusing it.

It is perhaps high time we get to the bottom of Article 153.

Clause (1) of Article 153 states: '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'.

So, the first understanding that we must have on Article 153 is that it is
meant to protect the interests of not only the Malays, but also those of
the non-Malays.

Next, note the deliberate use of the words 'safeguard' and 'special
position' (instead of 'special rights' or 'special privileges'). The
choice of these words must be understood in the historical context of the
drafting of this Constitution half a century ago when Malays were
economically and educationally backward in relation to other races. It was
thought fit and proper then that there must be 'safeguards' to protect the
Malays from being swarmed over by other races. Hence, the creation of the
'special position' of the Malays, which was obviously intended for
defensive purpose: to protect for survival. The impeccable avoidance of
using words like 'rights' and 'privileges', and the choice of the word
'safeguard' were clearly calculated to reflect its defensive nature. Under
that historical context, the provision of the special position of the
Malays in the Constitution certainly could not be interpreted to mean the
endowment of racial privileges to create a privileged class of
citizenship.

Clause (2) says that the Yang di-Pertuan Agong shall safeguard the special
position of the Malays by reserving positions 'of such proportion as he
may deem reasonable' in a) the public service b) educational facilities
and c) business licenses.

Clauses (3) & (6) say that the Yang di-Pertuan Agong may, for purpose of
fulfilling Clause (2), give general directions to the relevant
authorities, which shall then duly comply.

There is a separate clause covering the allocation of seats in tertiary
education - Clause (8A). It says that where there are insufficient places
for any particular course of study, the Yang di-Pertuan Agong may give
directions for the 'reservation of such proportion of such places for
Malays as the Yang di-Pertuan Agong may deem reasonable; and the authority
shall duly comply with the directions.'

As for the protection of non-Malays against possible encroachment of their
existing interests, there are several provisions under different clauses
in this Article, prohibiting the deprivation of the existing facilities
enjoyed by them, whether in public service, education or trading licenses.
Of these protective clauses, Clauses (5) and (9) are particularly
significant.

Clause (5) consists of one sentence, which reads: 'This Article does not
derogate from the provisions of Article 136'.

Article 136 also consists of one sentence, which reads: 'All persons of
whatever race in the same grade in the service of the Federation shall,
subject to the terms and conditions of their employment, be treated
impartially.'

Clause (9) consists of one sentence, which reads: 'Nothing in this Article
shall empower Parliament to restrict business or trade solely for the
purpose of reservations for Malays.'

Reading Article 153 will not be complete without reading Article 89
(Equality). I will quote the more significant Clauses (1) and (2) of this
Article in full, as follows:

Clause (1) states: 'All persons are equal before the law and entitled to
the equal protection of the law.'

Clause (2) states: 'Except as expressly authorized by this Constitution,
there shall be no discrimination against citizens on the ground only of
religion, race, descent or place of birth in any law or in the appointment
to any office or employment under a public authority or in the
administration of any law relating to the acquisition, holding or
disposition of property or the establishing or carrying on of any trade,
business, profession, vocation or employment.'

Reading through these Articles of the Constitution, we are able to draw
the following conclusions:

1. The present clamour for Malay 'special rights' as sacrosanct racial
privileges of a privileged race, especially under the ideological ambit of
Ketuanan Melayu (Malay the master race), is in conflict with the letters
and spirit of the Constitution.

2. The special position of the Malays as prescribed under Article 153 of
the Constitution is limited in scope to only the reservation of reasonable
quotas in these 3 sectors: public services, educational places and
business licenses. Hence, the present rampant racial discriminations
practiced on almost every facet of our national life are mostly violations
of the Constitution. Examples of these violations are:
a) Racial discrimination in the appointment and promotion of employees in
publicly funded bodies, resulting in these becoming almost mono-raced
bodies (particular so in their top strata). These bodies include: the
civil service, police, army and various semi and quasi government
agencies.

b) Barring of non-Malays from tenders and contracts controlled directly or
indirectly by the government.

c) Imposition of compulsory price discounts and quotas in favour of Malays
in housing projects.

d) Imposition of compulsory share quota for Malays in non-Malay companies.

e) Blanket barring of non-Malays to publicly funded academic institutions
(that should include the UITM, which is the subject of debate in
Parliament referred to earlier in this article).

f) Completely lop-sided allocation of scholarships and seats of learning
in clearly unreasonable proportions that reflect racial discriminations.

3) Our Constitution provides for only one class of citizenship and all
citizens are equal before the law. The presence of Article 153 does not
alter this fact, as it is meant only to protect the Malays from being
'squeezed' by other races by allowing the reservation of reasonable quotas
on certain sectors of national life. However, this Constitution has now
been hijacked through decades of hegemony of political power by the ruling
party to result in the virtual monopoly of the public sector by a single
race. The ensuing racism, corruption and corrosion of integrity of our
democratic institutions have brought serious retrogression to our
nation-building process in terms of national unity, discipline, morality
and competitiveness of our people.

4) At this critical juncture, when nations in this region and around the
world are urgently restructuring and shaping up to cope with
globalization, our nation stagnates in a cesspool that has been created
through decades of misrule. Unless urgent reforms are carried out,
beginning with the dismantling of the anachronistic racial superstructure,
we are in for serious troubles in the days ahead.