The difference between rights and privileges

It is time for the government to introduce a new socially just affirmative action policy based on need or class or sector.

By Kua Kia Soong, FMT

We hear this often enough from breast-beating far-right racists but more so at Umno general assemblies, namely, the call for Umno to “safeguard Malay rights”.

The top Umno leaders and the mainstream press and even those who should know better do not seem to be interested in correcting them on their loose usage of “Malay rights”.

As Human Rights Day approaches, we will do well to be clear about the difference between rights and privileges.

All peoples have rights – Malays, Chinese, Indians, indigenous peoples and all other ethnic communities are entitled to the same human rights. These rights are enshrined in Part II of the Constitution under “Fundamental Liberties”.

They are inalienable, independent of the government-of-the-day. Thus, apart from the fact that they are guaranteed in our Federal Constitution, they are also part and parcel of the United Nations Human Rights instruments.

Now, do Malays in this country have any special right on account of the fact they are “Malay” as stipulated under Article 153 of the Constitution?

Rights and privileges

A right is defined as an entitlement, very different from a privilege or a licence granted by the Constitution. All Malaysians are entitled to liberty of the person; equality; freedom of movement; freedom of speech, assembly and association; freedom of religion, and other rights.

Privileges, on the other hand, are not rights. They can be revoked because they are conditional. Once the intended results have been met, privileges can be taken away but rights cannot be taken away.

Special Position of the Malays”

Nowhere in Malaysia’s constitution will you find any reference to “Malay rights”. Article 153 mentions “the special position of the Malays”.

The main purpose for including Article 153 in the Constitution was to rectify the perceived weakness of the Malay community in the economic field, the public service and the problem of Malay poverty at the time of Independence. (Tun Mohamed Suffian bin Hashim, “An Introduction to the Constitution of Malaysia”, KL 1972:245)

The first clause of Article 153 states:

“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.”

The second clause of Article 153 stipulates that the Yang di-Pertuan Agong shall ensure the reservation for Malays and since 1963, for natives of Borneo “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…any permit or licence for the operation of any trade or business is required by federal law…”

Clause 4 expressly states that: “In exercising his functions under this Constitution and federal law…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.”

The abused ‘Quota System’

As a result of the racial violence of May 13, 1969, the country was presented with a fait accompli by the new ruling class in Umno who were keen to propagate their “bumiputeraist” ideology as a populist ploy. Again, you will not see any mention of “bumiputera” (the “princes of the soil”) in the Malaysian constitution.

Thus, in early 1971 the Constitution (Amendment) Act was passed adding a new clause (No. 8A) to Article 153:

“…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 or 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 (my emphasis); and the authority shall duly comply with the directions.”

This is the “quota system” we have lived with for the last 40 years or so and which has created so much controversy for that length of time.

Strictly speaking, if we were to go by Umno’s oft-repeated “social contract” at Independence in 1957, that “social contract” certainly does not include Clause 8A of Article 153.

And if we scrutinise this clause more closely, we will see that it is definitely not a carte blanche for the blatant racial discrimination as is the case of enrolment at institutions such as UiTM.

At the 2004 Umno general assembly, you may recall then Higher Education Minister Shafie Salleh declaring:

“I will not compromise on this matter…there will not be a single non-bumiputera allowed to enroll!”

So, if any aggrieved party took the government to court for its enrolment policy at UiTM or any other MARA institutions, how do you think any judge would interpret clause 8A of Article 153, ie. “…to give such directions to the authority as may be required to ensure the reservation of such proportion of such places (my emphasis) for Malays and natives of any of the States of Sabah and Sarawak as the yang di-Pertuan Agong may deem reasonable…”

The 100 per cent bumiputera enrolment policy at UiTM makes a mockery of the quota system and the justification of any affirmative action in any country!

Principles and purpose of ‘affirmative’ action

Compared to the affirmative action policies elsewhere, for example the United States, we find some glaring inconsistencies in this country:

Principle 1: Affirmative action in the US was implemented to rectify the glaring discrimination experienced by historically marginalised groups such as the black minority in the US; In contrast, affirmative action in Malaysia is driven by the politically dominant and majority Malay elite and directed at the Malay community as a whole, as the beneficiary group, regardless of wealth and position.

Principle 2: Any preferential treatment for any group should be followed by specific goals, quotas and sunset clauses as is the case in the US rather than the “Never Ending Policy” of the NEP in Malaysia;

Principle 3: Affirmative action policies in the US are fundamentally not “special rights” as they are portrayed in Malaysia but rather, policy adjustments to rectify social inequality with a time limitation once the objectives have been reached;

Principle 4: The definition of the main target group in Malaysia, namely, “the Malays” is imprecise and allows confusion when any Muslim who is not ethnically Malay can claim to be a beneficiary;

Principle 5: In the US, affirmative action is extended into all discriminated groups, for example, women, Hispanics and other minority groups; whereas in Malaysia, only the “bumiputeras” (the “princes of the soil”) are included, while the poorest and most marginalized group, arguably the original people of this land, the Orang Asli, have been excluded from this policy.