Dislodging Article 153 will tear society apart

The gist of my presentation was that in 1957, there was an ethnic bargain and that if non-Malays seek to renegotiate the social contract on Malay special position, then many Malays may ask “if privileges must go, what then happens to the citizenship of the non-Malays.” 

Professor Emeritus Dr Shad Saleem Faruqi, Malaysiakini

I am shocked and sad at the S Pathmawathy’s report about my paper at the Tenaganita/Bar Council seminar on Jan 29. Parts of the report, especially the first four paragraphs, are distorted and contained mischievous and materially false statements.

The first four paragraphs of the report deliberately falsify and fabricate the thesis I sought to present.

The first paragraph that “A constitutional expert has outlined how he thought the special position of the Malays had subtly evolved into ethnic hegemony” is very far from what I said. I never used the words “ethnic hegemony”.

I used the word “ketuanan” to describe the recent interpretation of Article 153. You are entitled to interpret “ketuanan Melayu” as “ethnic hegemony”, but you should not attribute this wrong interpretation to me. The only time I used the word hegemony was to describe the hegemony of the West over the rest of the world.

In the second paragraph, you lied blatantly when you said that Emeritus Professor Shad Saleem Faruqi “eloquently described the atrocities against equality in the constitution.” I never used the words “atrocities against equality”.

In fact, my seminar paper had a portion about ‘The Malaysian Constitution’s Promise of Equality’. In this portion, I had pointed out how Article 8(1), 8(2), 8(3), 8(4), 136, 12(1), 12(2), electoral laws, posts in the federal service (except for the position of the Yang di-Pertuan Agong) are ethnicity free.

I also pointed out that the constitution guarantees cultural freedoms, business opportunities, membership of professions and citizenship irrespective of race or religion. Yet you falsely accused me of talking of “atrocities” against the ideal of equality.

My presentation had tried to point out both sides of the story – how the constitution honours equality and how it permits exceptions.

I had also taken great pains to point out that “no constitution ideal is as worthy and yet as unattainable as the ideal of equality before the law”. Throughout the world, massive exceptions including some systemic, structural departures from the ideal of equality abound. What the law says and what the reality on the ground is wide apart. I had pointed to the system of justice in the USA where 70 percent of the inmates in prison are non-whites.

What rankles me most is that you fabricated the statement that “such provisions (the affirmative action provisions) are no longer relevant”. In fact, I had cautioned against revolutionary changes and had recommended evolutionary developments. I had pointed out that any attempt to dislodge Article 153 would tear society apart.

My paper which was shown on powerpoint was entitled ‘Race, religion and equal protection under the law’. Your heading to the article ‘When special position evolved into ketuanan’ created the impression that this was the heading of my speech, which it was not.

You correctly pointed out that I recommended the setting up of an Equal Opportunities Commission but you adroitly omitted the word “subject to Article 153″.

You also did not emphasise that I had insisted that both public and private sectors must be subjected to the Article 8 requirement of equality by an Equal Opportunities Commission or tribunal. I had emphasised that discrimination in the private sector contributes to discrimination in the public sector and vice versa.

Your story paints me as someone who has no respect for the constitution. In fact, I believe that the constitution was a remarkable piece of compromise, compassion and tolerance. It dealt with the existentialist reality of Malay backwardness and took a path of compromise and pragmatism. Some of its provisions, while not in line with traditional constitutional theory, were a very moderate and pragmatic response to the realities of Malaysian society.

The gist of my presentation was that in 1957, there was an ethnic bargain and that if non-Malays seek to renegotiate the social contract on Malay special position, then many Malays may ask “if privileges must go, what then happens to the citizenship of the non-Malays.”

I had said that only one part of the social bargain cannot be jettisoned. To reopen the 1957 compromises is a game both sides can play.

You were correct in reporting my belief that Article 153 was left in the hands of politicians and mostly benefitted the rich elite. That is why I had suggested that Article 153 implementation needs to be scrutinised, any over zealousness needs to be checked, and the real provisions of Article 153 need to be studied and adhered to.

I request you to please print this reply and to please be more careful in not putting your own beliefs (to which you have a right to) in the mouth of others.

Professor Emeritus Dr Shad Saleem Faruqi
Universiti Teknologi Mara (UiTM)