Article 153 of Malaysia’s Federal Constitution
Raja Petra Kamarudin
Umno Youth, in its recent Annual General Assembly, has asked the government to continue with the New Economic Policy (NEP) until such a time that the aspirations of this policy are met. The NEP, which was launched in 1970 after the infamous race riots of May 1969, was supposed to run for 20 years. By the end of the NEP in 1990 though, the 30% target set for the Bumiputera share of the economic pie fell far short, forcing the government to introduce a new policy that was basically the NEP in another form.
Umno, the ‘trustee’ of the NEP, is now spearheading the ‘fight’ to elevate the lot of the Bumiputera community in the spirit of its Ketuanan Melayu struggle. But what is the status of the NEP and Ketuanan Melayu viz-a-viz Malaysia’s Federal Constitution? In the first place, are the NEP and Ketuanan Melayu constitutional?
Most people have the impression that the NEP was a fast-track policy conjured in a hurry to address a critical problem facing the country then; race riots and the dissatisfaction of the Malay community with regards to the country’s economy being practically monopolised by the Chinese. They also think that the policy is meant only to address the economic problems faced by the Malays.
Actually, the NEP is a two-prong ‘weapon’. First, it was to address the disparity between the different races — and this would include the Indians and all the minority ethnicities or natives of Sabah and Sarawak as well. Second, it was to address the gap between the haves and the have-nots — and this would mean Chinese at the bottom rung of the economic ladder as well (as not all Chinese are millionaires and there are also Chinese who are poor or destitute).
The truth is, the NEP is not ‘new’; meaning, created only in 1970. For all intents and purposes, the NEP, though it was never called that in the beginning, was always with us and was part of the Merdeka ‘package’, in that it had been written into Malaysia’s Federal Constitution. Therefore, whether one likes it or not, the NEP was something agreed by all races even before Malaya gained independence in 1957. The only thing is, it was never given any name (NEP) and was not aggressively implemented until 13 years after Merdeka.
Well, before you start debating this issue, maybe you should read what Article 153 of the Federal Constitution has to say about this matter.
Article 153 of the Malaysian Constitution
Article 153 – Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.
(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 (note below) 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 position 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.
(NB: Article 40 of the Constitution provides that the Yang Di-Pertuan Agong is to act on advice of the Cabinet.)
(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.
(NB: Part X is the provision with regard to Public Services.)
(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 (note below).
(Article 136 provides: 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.)
(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 authorize the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him or to authorize 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 authorize the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him; or
(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 the 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, authorize 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 authorize 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 order 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) 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 (already repealed).
(10) The Constitution of the State of any Ruler may make provision corresponding (with the necessary modifications) to the provisions of this Article.
The abovementioned provision is very clear on the following points:
(1) The scope of the reservation of quotas is only with respect to positions in public service, scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government.
(2) The quotas reserved must be reasonable and the reservation of permits and licences for Malays and natives must be of such proportion as may be deemed reasonable.
(3) The special reservation of quotas must not affect the rights of other communities.
Apart from the provisions allowed under the abovementioned Article 153, all citizens of Malaysia must be treated as equal. This is clearly provided for under Article 8 of the Federal Constitution.
(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) 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.
(3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.
(4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.
(5) This Article does not invalidate personal law;
(a) any provision regulating personal law;
(b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion;
(c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proporation of suitable positions in the public service;
(d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election;
(e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day;
(f) any provision restricting enlistment in the Malay Regiment to Malays.