Malaysia has for several decades had an affirmative action policy in favour of the bumiputra peoples of Malaysia, a term generally understood to include the Malays of Peninsular Malaysia and the indigenous peoples of Sabah and Sarawak.
Special position
This policy is justified on the basis of several provisions in the Federal Constitution which accorded the Malay, as defined therein, a special position the protection of which was to be the responsibility of the Yang di-Pertuan Agong1 by means of quotas in the public service, in government-funded scholarships, exhibitions, education and training, and in trade and business permits and licences required by law. 2
Most people understand the term Malay as referring to an ethnic group and therefore look askance at the Constitution as having a racial basis.
We are suggesting that it does not.
Definition of Malay
The first part of the definition of Malay in Article 160 ("the constitutional definition") reads:
"Malay" means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom...
As this is the oft-quoted meaning of Malay, it tends to suggest that:
(1) anyone could by religious conversion and adoption of custom and language belong;
(2) anyone born a Malay is compelled by law to be a Muslim.
Strictly speaking, this provides not so much a racial as a tribal distinction.
There is a second half to the definition that has to be fulfilled before a person can be considered a Malay within the meaning of the Constitution:
... and—
(a) was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or
(b) is the issue of such a person; 3 Therefore, anyone who claims to be entitled as a Malay under the Constitution will need to trace their birth or ancestry to Merdeka Day. 4 That someone is a Muslim, speaks Malay and adopts Malay custom is not, without more, sufficient to qualify them as a Malay under the Constitution.
The beneficiaries of the special position under the Constitution are therefore not a race but a determinable class of persons comprising those who were born in, or born of a parent born in, or were domiciled in Malaya on Merdeka Day, and their descendants, so long as they habitually spoke the Malay language, conformed to Malay custom and were Muslim. In other words, being ethnically Malay is not and has not been any part of the criteria laid down in the Constitution to qualify as a Malay.
Indeed, there are many, obviously not ethnically Malay, such as those of Caucasian or Chinese stock, who (together with their descendants) qualify as Malay under the Constitution because they meet the criteria in the definition.
A charged term
There is the greatest difficulty in getting people to see this distinction between the word Malay as it is commonly used, which is usually a reference to ethnicity, and the constitutional definition, which is not. If only the authors of that august document had used a made-up term like "privileged person" or "special person", the distinction would, perhaps, not be so clouded.
The provisions for a special position for the Malay were enacted to cater to the political demands of a group going by the name Malay but impossible to define in any other practical or workable way:
"The Malays were, to use Benedict Anderson's phrase, 'an imagined community', similar to the 'Indians', who comprised Bengalis, Marathis, Sindhis, Telegus, Sikhs, Tamils, Malayalees and numerous others, not to mention the further sub-divisions in the caste categories.5
As a matter of law, 6 the definition had to be certain, so that it could be determined whether or not a particular individual was or was not a Malay. This certainty was unavailable in the form of a single ethnically-based term. Therefore, the Constitution had to provide an artificial definition couched in terms which rendered ascertainable whether a person is or is not a Malay. That certainty came in the form of the requirement, as at Merdeka Day, of birth, domicile or descent.
Another consequence of using a term so charged with ethnic, religious and cultural connotations has been to subsume the constitutional definition under the concept of "Malay Rights" or "Ketuanan Melayu", which has made debate and discussion on the special position of the Malay not only difficult but also polemical. 7
As a result, the constitutional definition does little to arrest the idea of the Malays as a favoured race.
If an artificial term had been used, being ethnically Malay would be seen as but one requirement and not an automatic qualification for the special position under the Constitution.
The confusion between the constitutional definition and the understanding of the word Malay as a race is due in no small part to the same term being used in more than one context.
Malay reservation
The constitutional definition, which applies only within the Constitution for the purposes of the special position mentioned above, does not apply in the context of Malay reservation land.
The Constitution did not provide for, but specifically preserved existing State legislation on "Malay reservation", 8 to which the constitutional definition has no application:
"... "Malay reservation" means land reserved for alienation to Malays or to natives of the State in which it lies; and "Malay" includes any person who, under the law of the State in which he is resident, is treated as a Malay for the purposes of the reservation of land." 9
Thus, there are two definitions of the term Malay in the Constitution. One is the constitutional definition, and the other is its extended version applicable in State legislation in the context of reservation of land.
The definitions of Malay in the various State legislation on Malay reservation have two criteria in common — the Malay language and the religion of Islam. So far as ethnicity is concerned, it takes the form of a requirement that the person be of "any Malayan race" and, in some States, of "Arab descent". The one common factor across the States is the religion of Islam, and there is a general absence of any birth, descent or domicile requirement. So closely is the religion of Islam associated of being Malay, that it is common among the peoples of Malaysia to equate conversion to Islam with becoming a Malay.10 This conflation of the constitutional definition with the definition of the same term in the State laws on Malay reservation does little to discourage the concept of "Malay Rights" as a racial privilege and Malay dominance as having a legal or constitutional basis.
State laws demarcate Malay reservation land and restrict ownership and transmission of such land to persons who fall within the definition of Malay.
The 'social contract'
The provision for a special position for the Malay written into the Constitution and the preservation of existing State laws on Malay reservation are founded upon a so-called social contract between the main racial communities in Malaya immediately prior to independence.
In the words of the late Sultan Azlan Shah:
"We embarked on a journey as a constitutional democracy with the full realisation that we were a multi-racial people with different languages, cultures and religion. Our inherent differences had to be accommodated into a constitutional framework that recognised the traditional features of Malay society with the Sultanate system at the apex as a distinct feature of the Malaysian Constitution.
"Thus there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminster model and built it into the traditional features of Malay society. "This Constitution reflected a social contract between the multi-racial peoples of our country. Thus matters of citizenship for the non-Malays, the Malay language, and special privileges for the Malays and the indigenous peoples of Malaysia were safeguarded and given the added protection of requiring the consent of the Conference of Rulers before change could be effected to them.
"It is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm to which all the other laws are subject. This essential feature of the Federal Constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever enures to the Malaysian people as a whole, for their benefit." 11
The Constitution was in fact drafted in close conformance with representations made by the Alliance party, which was accepted as properly representing the main racial communities, as appears by the report of the Constitutional Commission:
"14. In making our recommendations we have had constantly in mind two objectives: first that there must be the fullest opportunity for the growth of a united, free and democratic nation, and secondly that there must be every facility for the development of the resources of the country and the maintenance and improvement of the standard of living of the people. These objectives can only be achieved by the action of the people themselves: our task is to provide the framework most appropriate for their achievement. We must start from the present position as we find it, taking account not only of the history and tradition of Malaya but also of existing social and economic conditions. Much that is good has already been achieved and we would not seek to undo what has been done. But many existing arrangements are inappropriate for a self-governing and independent country, and, in recommending the form which the necessary political and administrative changes should take, we have borne in mind that the new provisions must be both practicable in existing circumstances and fair to all sections of the community.
"15. ... We recognise the need for safeguarding the special position of the Malays in a manner consistent with the legitimate interests of other communities, and we have given particular consideration to this need." 12
If, indeed, the social contract has been embodied in the Constitution, as the supreme law of the nation, all racial and ethnic considerations prevailing at the time of independence should be seen as having been fully incorporated in the founding document of Malaysia and giving full effect to these legal provisions will be the best way to honour that contract. Just as it is a fundamental principle of the law of contract that no additional terms and conditions can be raised to contradict such terms and conditions as have been agreed in writing, to reopen the discussion on the same issue on race and ethnicity would be to dishonour the concluded bargain.
The way forward
It will soon be 50 years since the race riots of 1969 after which a policy of affirmative action was put in place and repeatedly extended to this day in favour of the Malay. Perhaps it is time that the implementation of the policy be reviewed in the light of the fundamental constitutional and legal provisions on the issue.
Such a review should begin by ensuring that the constitutional provisions are complied with, beginning with identifying the Malay who are accorded the special position under the Constitution.
This would entail going beyond religion, language and custom to ensure that every person accorded the special position does in fact fall within the defined class. Failure to adhere to the constitutional definition is a direct deprivation of the Malay of their special position and a legal injustice. Thus, for example, not every convert to Islam who speaks the Malay language and adopts Malay custom, nor the Muslim immigrant in Malaysia, should be allowed, without more, to claim to be entitled, for example:
A Muslim convert born after Merdeka Day who speaks Malay fluently, conforms to Malay custom and vociferously advocates Malay Rights may discover that he is not himself a Malay within the constitutional definition if he cannot trace his parentage back to Merdeka Day to a Muslim forebear who speaks Malay and conforms to Malay custom.
The child born in Malaysia of Muslim immigrants with no prior roots in Malaysia may become a citizen but will not be a Malay within the constitutional definition.
While each person in the foregoing examples may be entitled as a Malay in certain States to own Malay reservation land, it does not follow that they are entitled as a Malay, within the constitutional definition, to qualify for the special position provided in the Constitution.
Integrity of the special position
The special position under the Constitution is implemented by a quota system. Including such persons in that quota will be a breach of the supreme law of the nation and an injustice to those who are properly entitled. As a practical result, the class of Malay will then be so extended, in error, as to be diluted, eventually, to the point of insignificance. If such errors are currently being committed, they are building up to a constitutional disaster.
Integrity of Malay reservation
Given the large number of immigrants who are accorded citizenship in Malaysia over time, the definition of Malay in Malay reservation legislation should also be reviewed to ensure that the benefit of Malay reservation land continues to enure for the benefit of the people for whom it is intended.
Malay dominance
It is obvious that the special position of the Malay under the Constitution is not a carte blanche for an unlimited concept of "Malay Rights". An almost forgotten provision of the Constitution is Article 136:
"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."
So far as the special position entails provision of quotas for the Malay in the public service,13 that provision is expressly subject to such impartial treatment. For example, a Malay may be admitted to the civil service under a quota, but that is where the "privilege" ends and promotion would have to be on merit. Otherwise, how could the civil service not be at risk of being compromised if merit is discarded?
When considered from these perspectives, the special position of the Malay can be seen as a provision designed to preserve the identity of Malaysia, to ensure adequate representation of this defined class of Malay in the various aspects of life and society stipulated in the Constitution, and not so much as an affirmative action programme for a weak peoples, and certainly not as a preservation of the rights or dominance of a race.
As Malaysia continues to progress in education and knowledge, it is natural that racial and ethnic considerations will be less of a preoccupation. Giving full effect to all the provisions in the Constitution will ensure that the progress of the nation will no longer allow room for racial and ethnic polemics to thrive in convenient disregard of the supreme law of the nation.
Footnotes
1 The Yang di-Pertuan Agong is the constitutional monarch of Malaysia established under Article 32
2 Federal 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.
3 Ibid, Article 160. Interpretation
4 The day on which the Federation of Malaya gained independence from British rule in 1957
5 Joseph M Fernando, The Making of the Malayan Constitution (MBRAS, 2002) at 197
6 The law of trusts requires that beneficiaries be determined with sufficient certainty as otherwise no trust of money or assets could possibly be given effect to (per Lord Eldon in Wright v Atkyns (1823) Turn & R 143, 157; Morice v Bishop of Durham (1804) 9 Ves 399; (1805) 10 Ves 522 and adopted in Datuk Musa Aman And Others v Tan Sri Chong Kah Kiat (suing as Chairman of Kudat Thean Hou Charitable Foundation) [2009] MLJU 987).
7 The issue is commonly described as "sensitive"
8 Federal Constitution, Article 89. Malay reservations.
9 Ibid, Article 89(6)
10 Hence the term, "masuk Melayu" as synonymous with "masuk Islam"
11 Speech delivered during the 12th Malaysian Law Conference, themed "Evolving a Malaysian Nation: The Role of Law and Lawyers". Published in Constitutional Monarchy, Rule of Law and Good Governance: Selected Essays and Speeches by HRH Sultan Azlan Shah, at 330-332.
12 The Reid Commission Report 1957, Chapter I — General Introduction
13 Federal Constitution, Article 153(5)
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