A Malaysian passport has more value than Article 153

The unholy unity of the executive and their unethical appointees, disguised as being made in accordance with Article 153, has in essence allowed those in power to secure appointments under the “orang kita” (our people) concept.

Hamid Sultan Abu Backer, FMT

Even after Merdeka, many Malaysians went to India to become doctors, engineers and other professionals.

They benefited from the Indian government’s policy of allowing Malaysians to be educated in that country’s public universities on the same terms as the locals then, irrespective of whether they were of Indian, Chinese, Malay, Sabah or Sarawakian descent.

These days, Malaysian passport holders are still welcome to pursue education in India. The opportunity to enrol in government universities may be less, but there are wider prospects of joining the many private universities, including those offering external degrees via correspondence courses, to secure highly sought-after qualifications.

In terms of education, the Indian government generally does not practise any form of discrimination based on religion, race or citizenship, which is in conformity with international human rights conventions. The situation is the same in the US and in many other countries across the Commonwealth and in Europe.

However, the Indian constitution does permit a prioritisation policy at some level in line with social justice. This policy is sometimes wrongly articulated by jurists as discriminatory, or labelled an apartheid policy, but such suggestions are by and large simply to provoke dissent.

Likewise, the framers of our Federal Constitution did not include any discrimination policy for government appointments in relation to services, education, etc.

Instead, Article 153 of the constitution ensured that the Malays and natives of East Malaysia have access to “such proportion” of positions in the public service, and of scholarships, as well as permits and licences for the operation of any trade or business “as (the Yang di-Pertuan Agong) may deem reasonable”.

Sheridan and Groves, authors of The Constitution of Malaysia, one of the early law books on the subject, had this to say about Article 153:

“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.

“The theory behind the protection of Malays is that if they were not specially favoured in government employment, scholarships and the other matters provided for, they would be completely overwhelmed by the other racial groups, particularly the Chinese, who already controlled the economy and dominated the professions.”

Commenting on Article 153, the court in PP v. Fan Yew Teng (1975) stated that the Yang di-Pertuan Agong’s role is to safeguard the special position of the Malays and the natives of Sabah and Sarawak, as well as the legitimate interest of other communities.

The court also ruled that these provisions cannot be questioned and are necessary to assist the less advanced or fortunate in the light of the conditions prevailing in the country at the time of independence.

I am personally of the view that Article 153 was a well-crafted provision aimed at sustaining social justice for all Malaysians to preserve the country’s peace, harmony and economic success.

However, while serving in the judiciary and going through several cases which came before me, I had come to realise that appointments to many of the top positions in the country, which were premised on the advice of the executive, had resulted in many persons lacking in merit and integrity taking office. This was primarily done to allow certain politicians to unjustly prosper, with support of the compliant appointees.

Since Article 153 is premised on the discretion of the Yang di-Pertuan Agong, it is my view that a rulers’ court, which I have suggested in an earlier column should be formed, can act as an oversight committee, vet appointments and look into other aspects of the special rights and privileges granted. Obviously my proposal and the methodology to be applied would require appropriate research and deliberation.

For my part, as an Indian Muslim (not a Malay), I had to think out-of-the-box to secure tertiary and professional qualifications, simply because such opportunities were not available to me due to Article 153 and the limited space in our universities then.

Indeed, I am thankful to the Almighty for the prioritisation constitutional provision that allowed me to go to India to secure a pre-university certificate, followed by a degree in economics which I secured via a correspondence degree programme.

That degree gave me the confidence to read law as an external student of the University of London. I went on to secure qualifications to the English Bar and thereafter obtained a Master’s degree without being a full-time scholar. I subsequently secured several postgraduate qualifications, including a doctorate in civil procedure and justice in Malaysia while practising law.

I have five children, and knowing that their opportunities would be likewise limited, I made sure they received the relevant education in India early, at minimal cost.

Three of them went on to pursue careers in law. One is practicing in Australia, and the other in India. One daughter is a dentist currently in Dubai, and another had by the tender age of 23 secured a Master’s degree from India. She has since completed her ACCA, and is now attached to a firm in Singapore.

For those who have the will, even the poor and needy, a thousand routes open up.

For example, 50 years ago, my village of Thopputhurai consisted almost entirely of modest houses with thatched roofs of coconut or palm leaves. In the early seventies, construction and commercial activities began in the Middle East, and there was great demand for skilled and unskilled Indian workmen.

Many able villagers left to work there, and within a short period of time, built bungalows without any bank assistance and educated their children to become professionals. These professionals are now working in many countries, including Singapore and the US.

Their ability to repatriate foreign funds has made the village and its inhabitants successful. Likewise, many Muslim villages in Tamil Nadu and Kerala have progressed well due to the economic boom in the Middle East.

All Malaysians must respect rights and guarantees offered in the Federal Constitution, in particular the supremacy of Malay rulers, Islam as official religion of the Federation, and the special rights of the Malays, provided they are applied in an equitable way without discriminating against non-Malays.

However, over the past few decades, Malaysia has been plagued by constant political maneuverings. This has brought disunity among Malay leaders to its peak, resulting in economic stress and security issues.

The unholy unity of the executive and their unethical appointees, disguised as being made in accordance with Article 153, has in essence allowed those in power to secure appointments under the “orang kita” (our people) concept.

Such appointments are anathema to the doctrine of separation of powers and have led to syndicated corruption in this country, as witnessed in many recent court cases as well as other information in the public domain.

Ultimately, for Malaysia to reset, these dishonourable practices must be eradicated.

Corrupt officials must be brought to justice. In my considered view, the methodology to arrest syndicated corruption in the existing Malaysian context must also include confiscating the properties of the giver of bribes who seeks to corrupt Article 153 appointees.

Also, the consent of the Malay rulers must be made mandatory before a Malay politician is charged for corruption or abuse of power while holding a government position, to preserve economic stability of the country.

All political and service appointments must be premised on integrity and made in the best interests of the nation.

In my view, a rulers’ court is the best way to arrest syndicated corruption in limine.