A Race Relations Act VS Article 153

WZWH sudah boleh membaca jika Pakatan Rakyat memerintah Malaysia, Race Relations Act-satu cadangan akta dari Jeyaseelen Anthony, a practicing lawyer and member of the Bar Council Law Reform Committee –akan diguna pakai oleh Pakatan Rakyat untuk mencabar Artikel 153 Perlembagaan Persekutuan berkenaan polisi affirmative actions.

WZWH mahu pembaca tahu apa tujuan sebenar Bar Council. Mari kita dengar cerita peguam Pakatan Rakyat ini...

A Race Relations Act and its impact on Article 153 of federal constitution

By Jeyaseelen Anthony

The objectives of a legislation concerning race relations are fundamentally related to two issues:

1. Eliminating racial discrimination in the public service sector and the private sector.
2. To promote good race relations amongst the different races by eliminating racial imbalances and discrimination.

The purpose of this article is to explore the implications of introducing race relations legislation in Malaysia and whether it would be inconsistent with the affirmative action measures in the federal constitution.

In Malaysia, affirmative action or positive action policies as some may call it, is contained in Article 153 of the federal constitution.¹ The affirmative action policies by way of preferential treatment as envisaged under Article 153 are mainly to alleviate the Malays and the natives of Sabah and Sarawak from poverty and economic disadvantage.

Article 153 provides for the reservation of quotas mainly in the areas of:

1. positions in the public service;
2. scholarships, educational or training privileges or special facilities;
3. permits or licenses for the operation of any trade or business required by federal law²; and
4. places in institutions of higher learning (universities, college and other educational institutions) providing education after Malaysian Certificate of Education (MCE) or its equivalent …³.

The problem and the solution

It is implicit in Article 153(1) that “It shall be the responsibility of the Yang di-Pertuan Agong (YDPA) to safeguard the special position of the Malays and the natives of Sabah and Sarawak and the legitimate interest of other communities”.

The phrase ‘legitimate interest of other communities’ means that the federal constitution does not allow simply any kind of preferential treatment in favour of the Malays and the natives of Sabah and Sarawak. It is not a ‘blank cheque’, but merely confers limited powers on the government and parliament, pursuant to Article 153, to derogate from the principle of equality and equal protection of the law⁴. Therefore, the problem lies not with Article 153 but with its implementation⁵.

The implementation of Article 153 has often been the bone of contention as many have argued that its implementation has been at expense of the other races in Malaysia.

For example, although Article 153 provides for quotas only for the issuance permits and licenses to the Malays and the natives of Sabah and Sarawak, however, even government commercial contracts have been awarded solely to ‘bumiputera’ companies, which are clearly not sanctioned under the federal constitution⁶. Even government linked Companies (GLCs) and statutory bodies assign their work solely to ‘bumiputera’ companies and some major banks assign their legal work only to ‘bumiputera’ legal firms⁷.

The majority of employees at the GLCs and some major banks are Malays although the federal constitution only provides for reservation of quotas in the public service. Ethnic quotas are imposed on private companies by government agencies and licensing is used as a way to get private companies to observe bumiputera quotas, a policy which is clearly against the federal constitution as Article 153 only provides for reservation of quotas in the public service⁸.

These are several examples where the implementation of affirmative action policies has clearly gone beyond the limits of Article 153 of the federal constitution.

The lack of job opportunities in the public sector for the ‘non-bumiputeras’ (mainly people of Chinese and Indian origin) is a glaring example of an unreasonable application of affirmative action policies.

Although Article 136 of the federal constitution⁹ provides for impartiality in the public sector but there have been complaints by the non-Malays in the various government departments that they have been deprived from getting promotions or have been sidelined in favour of Malay candidates. This explains why the non-Malays shy way from seeking employment in the government sector and unfortunately it also explains the current brain drain that is currently plaguing our country.

Our public universities have also not been spared form this unfortunate state of affairs. This is evident from the incessant complaints by mainly Chinese and Indian students that they have been denied entry into the local universities although they have sound academic results¹⁰.

Even local authority contracts, licenses and permits are mostly given to the Malays and other ‘bumiputeras’ although nothing in Article 153 of the federal constitution permits parliament to restrict business and trade solely to Malays and the natives of Sabah and Sarawak¹¹.

There are also complaints that these government and local authority contracts, permits and licenses have only been given to people who are linked to Umno and other powerful ‘bumiputera’ politicians and the components parties of the Barisan Nasional, thus depriving the man on the street of these lucrative contracts. In fact it’s a well-known fact that Umno and BN in general are recognised as business empires.

Clearly the true meaning and purpose of Article 153 has not been followed by the powers that be. In fact it has been hijacked by the executive to favour a particular group people who are linked to the ruling elites and as a result the benefits as provided under Article 153 have not trickled down to the masses of the ‘bumiputera’ populace. The unfair and improper implementation of Article 153 has also given rise to the notion that the ‘non-bumiputera’ population are only given the leftovers or nothing at all.

It cannot be denied that the improper and arbitrary application of affirmative action policies as provided under Article 153 has contributed significantly to the deteriorating race relations in Malaysia as it has led to reverse discrimination. The deprivation of equal opportunities has caused racial tensions to run high in recent years. Therefore in order to improve race relations between the ‘bumiputeras’ and the ‘non-bumiputeras’ in Malaysia, there should be legislative intervention.

The number of quotas and restrictions and qualifications in favour of the Malays and the natives of Sabah and Sarawak are not well defined or specified under the federal constitution.

This loophole has led to the unfair, unbalanced and unreasonable implementation of Article 153. Many have suggested that a Race Relations Act (RRA) must be introduced in Malaysia in order to remedy the imbalances and unfairness that has led to discrimination. There is also the need to promote equality among the different races in Malaysia.

Can this piece of legislation be the answer?

The Malaysian context

The intention and purpose Article 153(1) when read as whole clearly provide for a balance between two competing interests, namely the protection of the special position of the Malays and the natives of Sabah and Sarawak, and at the same time safeguarding the legitimate interest of other communities as well.

However ambiguity arises when one realizes that the scope and meaning of the words “legitimate interest of the other communities” are not defined in the federal constitution. Even the courts have not decided on this issue as the scope and meaning of Article 153 has not been litigated before, as much as it has been done in the USA and India. This lacuna in the federal constitution poses a problem to good race relations in Malaysia. This is where I believe that an effective and well drafted Race Relations Act is needed.

The RRA will provide the balance that the original drafters of the federal constitution had intended when they inserted the words “legitimate interest of the other communities” into Article 153 of the federal constitution. An RRA would help prevent discrimination and promote equality in all spheres of life which affect Malaysians from all the different races. This can be done by putting in place a reservation of a reasonable percentage of quotas in the important areas of business, employment, education and training.

There are two sides of the coin in support of this argument. On the one side, the Malays and the natives of Sabah and Sarawak are protected from discrimination and at the same time their special position under the federal constitution is also preserved.

And on the other, the Chinese, Indians and other races excluded from the ‘bumiputera’ categorization are also protected against discrimination in the spirit of protecting their legitimate interest as provided under Article 153.

The RRA will not affect the special position of the Malays and the natives of Sabah and Sarawak as widely believed by many i.e. the reservation of quotas can still be maintained in the areas specified under the federal constitution.

But if there are areas where a particular racial group is under represented in a particular trade or work area, then the governing authority on race relations or the minister tasked to manage and regulate race relations under the RRA will be empowered take remedial actions to solve the problem.

The RRA in the UK for example provides for such measures (as we will see later in this article).

In fact the Yang Di Pertuan Agong (YDPA) under Article 153 is bound to act on the advice of the cabinet or a minister acting under the authority of the cabinet¹². As such, if the cabinet or the minister finds that there is indeed under-representation of a particular racial group in a particular vocation or trade or sector and decides to take remedial actions, the YDPA is bound to act on that advice, even though Article 153 states that the YDPA may impose a quota “as he may deem reasonable”.

The current system clearly shows that the Malays (if not the natives of Sabah and Sarawak) are over-represented in many areas of employment in the public sector, government and local authority, in business procurement and in the public universities, etc.

This over-representation has created a perception that the government is imposing exorbitant and unreasonable reservation of quotas in the areas mentioned in the federal constitution. This is not what the Reid Commission had intended. In fact it is clear from the wordings of Article 153(1) that the drafters of the federal constitution did not envisage a system where reverse discrimination would be the order of the day.

This can be gathered by the qualification that the YDPA has a mandatory duty to safeguard the “legitimate interest of the other communities”in Malaysia¹³. Since the YDPA acts on the advice of the cabinet, than the current practices of overt discrimination under the guise of affirmative action can be said to have been sanctioned by the cabinet by way of administrative orders and instructions.

Since the Article 153(1) does not specify the measures and steps that are to be taken by the YDPA to safeguard the ‘legitimate interest’ of “the non-Malays and non-natives of Sabah and Sarawak”, this is where a legislation like the RRA will become pertinent to cure the deficiencies.

An Act like RRA will not be against (ultra vires) the federal constitution as it comes within the permissible limits of Article 153(1) of the federal constitution under the wordings of Article 153(1) itself. More importantly, the policy behind an RRA is also consistent with requirement of impartiality under Article 136¹⁴ of the federal constitution which indirectly encourages and promotes good race relations in the civil service.

Race relation models

The RRA in the Malaysian context may not follow exactly what is mentioned in the UK RRA, in fact it may not even be called the RRA but it can even be called something like the ‘Merdeka Act’ in order to reflect the feelings of a free and fair Malaysia – a Malaysia for Malaysians as what was initially intended by our leaders during the Independence negotiations which ultimately led to our independence. We can tailor the ‘Merdeka Act’ to suit our local conditions and local needs.

For this purpose we can look at the Canadian laws on race relations and racial discrimination which suits our conditions since Canada has an affirmative action programme which has been given constitutional protection and more importantly Canada is a multiracial country although political power is held by the white majority.

More pertinently, the UK laws on race relations should also be examined. However, it is important to note, that we do not need adopt the Canadian and UK laws wholesale but it would suffice if we adopt some of the more important and practical provisions in those laws and modify it, particularly with the federal constitution and to the requirements of Malaysian society.

Click here for summary of the relevant portions of UK’s ‘Race Relations Amendment Act 2000’.

The RRA in the UK also allows for persons from a particular racial group that is under represented in a particular trade or work area to be employed or trained in that area¹⁵.

Again, this is another provision that we can adopt and should adopt to remedy the problem of over-representation of the Malays (and the natives of Sabah and Sarawak) communities in the public service, government procurement opportunities and GLCs. Similarly a provision like this will also benefit the ‘bumiputeras’ too as it is known fact that they are under represented in many areas of the private sector.

A provision like this will help the government (the cabinet) to come up with measures to help a particular racial group that are under-represented by perhaps coming up with a more reasonable and equitable quota or a target in order to protect the interest of the Malays and the natives of Sabah and Sarawak as required under Article 153(2) and at the same time accommodate other races excluded from the said article.

Another possible measure as stipulated under the UK Amended Act which we can adopt is to put in place targeted publicity and recruitment programs in order to inform people who are under represented in the public and private sectors of job opportunities in these sectors. Of course it is just not enough to publicize it through the media but aggressive recruitment programmes should be undertaken where a recruitment agency set up under the law promoting good race relations to go the ground and recruit people from the under-represented racial groups. This is something that is currently lacking in Malaysia.

In fact, cabinet members including the prime minister have time and again indicated that they are looking into the possibility of increasing the number of ‘non-bumiputeras’ in the public sector and the GLCs.

This shows quite clearly that it is the cabinet who calls the shots and their intentions and willingness to pursue policy changes only goes to show that the provisions of Article 153 of the federal constitution is not cast in stone.

It is unlikely for a provision similar to Section 37 of the UK RRA to be declared unconstitutional for exceeding the ambit of Article 153 of the federal constitution because of the constitutional safeguard as contained in Article 153(1) of the constitution.

It must be impressed that Article 153 of the federal constitution is not a license to pursue or to justify unlawful discriminatory policies against the excluded racial groups in favour of the Malays and the natives of Sabah and Sarawak.

Clearly, this was not the intention of Reid Commission when they drafted Article 153. If it was, then, there would not be a corresponding constitutional duty on the part of the YDPA to safeguard the “legitimate interest of other communities” under Article 153 (1) of the federal constitution.

As such any challenge with regards to the constitutional validity of a Race Relations Act or a ‘Merdeka Act’ (as I prefer to call it) can easily be defeated by relying on the Article 153(1) of the federal constitution itself as a defence.

One important feature of Canada’s Charter of Rights and Freedom is that it emphasizes on the merit principle in the context of affirmative action.

Canada has emphasized education and training designed to assist minorities and other persons in the designated groups benefitting from affirmative action. Such assistance is in the attainment of skills and professional qualifications which will provide them with proper qualifications for jobs. In this way the problem of filling educational and occupational quotas with unqualified or under-qualified persons from the designated groups has been avoided.

The above is a provision that can be adopted in any law in Malaysia and elsewhere which intends to promote better race relations, especially when one is told about the appointment of unqualified or under-qualified people in the public and private sectors. However a provision like this must be made to apply regardless to race in line with the requirement in Article 153(1) of the federal constitution.

Click here for summary of the relevant portions of the Canadian Charter of Rights and Freedom, Employment Equity Act (EEA) and other relevant legislation.

A case can be made for a Race Relations Act in Malaysia to promote better race relations here.

Any argument that the special position of the Malays and the natives of Sabah and Sarawak will be eroded, if similar provisions contained in the United Kingdom Race Relations Act and the Canadian laws on anti-discrimination were to be adopted, is misplaced and devoid of merit.

It must be emphasized again that the special position as contained in Article 153(2) of the federal constitution must be read to together with Article 153(1).

The special position of the Malays and the natives of Sabah and Sarawak does not envisage a situation where over-representation of one particular group is permitted in the administrative and business spheres of the government. It only talks of a reservation of quotas. It does not say that the civil service must be dominated by the Malays, or that the issuances of licenses /permits etc must only be given to the Malays.

The wordings of Article 153(2) must not be taken out of context to the extent of permitting ‘apartheid’ type policies. Clearly that was not the intention of the Reid Commission.

The provisions of the federal constitution must be read and interpreted with some degree of reasonableness, particularly Article 153(2) of the federal constitution. If the provisions of the federal constitution are not tempered with reasonableness, then its provisions will be rendered meaningless for want of reasonableness.

In fact Article 153 must be read with Article 5 of the federal constitution1 since it guarantees every citizen of Malaysia the right to life which has been interpreted to mean the right to enjoyment of life. This would mean that any citizen of Malaysia cannot be subjected to unlawful discrimination which is not permitted by the federal constitution.

The federal constitution only provides for lawful discrimination by virtue Art 153(2) in favour of the Malays and the natives of Sabah and Sarawak by way of affirmative action programmes and policies.

The current implementation of Article 153 which has resulted in reverse discrimination by the imposition unreasonable and unbalanced quotas – which has led to the domination of the Malays (and the natives of Sabah and Sarawak) in the public sector, government procurement, education, local authorities and GLCs – is clearly unlawful discrimination against the other communities. If the ‘reasonableness’ approach is adopted then it will give new life to Article 153(1) & (2) of the federal constitution and this would not pose a problem to the special position of the Malays and the natives of Sabah and Sarawak, and neither will it threaten it.

There is no reason why affirmative action programmes cannot be extended to the non-Malays and non-natives of Sabah and Sarawak to address their under-representation. In fact it is clear that Article 153(1) permits such policies and programmes to be extended to “the other communities” by virtue of the constitutional safeguard contained in it where the YDPA is required to safeguard their “legitimate interest”.

Therefore if an Act of Parliament in the likes of the UK RRA or the Canadian laws on anti-discrimination is created (modified to suit local conditions and needs, of course), it will not be unconstitutional.

The proposed act can be applied generally to cure the imbalances and at the same time give particular emphasis to a need-based policy, i.e. it can be targeted to help the following groups of Malaysians by introducing affirmative action programmes:

* Malays and orang asal and other native groups in Sabah and Sarawak living in the kampungs, squatter areas, longhouses, low-cost and Program Perumahan Rakyat (PPR) housing and in the fringes of the jungle.
* Chinese living in the New Villages, squatter areas and low-cost housing colonies.
* Indians living in the estates and plantations, low-cost housing colonies, squatter areas and longhouses (a majority of these groups of people have been displaced from the estates and plantations as a result of development).

It must be noted that affirmative action programmes are usually targeted at the minority groups but Malaysia is unique in this sense since affirmative action programme are targeted at the majority races.

Given this situation, it would not be misplaced if a law like the UK RRA is introduced in Malaysia to cure the current imbalance of racial representation in the various sections of the public and private sectors in terms of jobs and government and local authority procurement and educational opportunities in the institutes of higher education. In fact such a law can complement Article 153 of the federal constitution in that it can contain the various positive steps and measures that are to be taken to help the visible minority groups, i.e. the poor and the marginalized, and who should administer it.

It can specify the restrictions and qualification of affirmative action measures that are currently not specified in the federal constitution to prevent the extreme and lopsided implementation of such policies. Administrative practices, instructions and policies that hinder better race relations and are currently being enforced by certain local authorities and public sector organizations can come within the purview of the act for review and scrutiny.

There have also been suggestions that a class-based affirmative action system should be introduced in Malaysia2.

A class-based system will definitely run foul of Article 153 of the federal constitution, as Article 153 is race-based and does not provide for preferential treatment based on class, i.e. between the lower income groups, the middle income groups and the higher income groups. Such a system if introduced via legislation, it will risk being declared unconstitutional until and unless the federal constitution is amended.

Governing authority

A body can be set up under the act to enforce the provisions and duties imposed on public and private institutions, similar to the UK CRE and the Canadian organizations tasked to administer race relation policies with some modifications to suit local conditions.

One of the institutions that have been talked about is an ombudsman. However an ombudsman institution may not be appropriate as it is more akin to a public complaints bureau which focuses on public complaints against public administrative authorities.

What is required is a Race Relations Commission to be created under a proposed Merdeka Act which will be given powers and functions similar to the UK Commission of Racial Equality and the Canadian organizations.

The primary duty of the commission will be to identify the areas where there is racial under-representation and it must be allowed to cure the imbalance by introducing positive steps and measures. It will also have powers to identify racially discriminative administrative instructions, orders and policies in all sectors of the public and private sector in order to ensure fair representation and at the same time, issue warnings and implement other punitive measures to ensure compliance with the act.

It can also be mandated to ensure that public bodies introduce race equality in all aspects of employment in the areas of recruitment, promotion, training and educational opportunities.

In fact this is nothing new as Article 136 (a provision which is often forgotten) of the federal constitution guarantees that all federal employees of whatever race must be treated impartially. Often this is not the case currently.

The commission can also be empowered to embark and organize recruitment programmes in order to recruit persons from the under-represented racial groups. This can be done by the formation of an official recruitment agency under the act. These are some of the important functions that the commission must be empowered to perform and if there are others, it can be ventilated when the bill is proposed to be tabled in parliament or when it is introduced for public views.

The act must also provide for a forum to settle disputes concerning specific complaints of discrimination in the workplace. A Race Relations tribunal can be set up under the act with specific powers to deal with such complaints from employees from the public and private sectors and also from individuals or companies who have business dealings with these institutions. It can be modelled upon the Industrial Court.

The commission proposed under the putative Merdeka Act should also be given constitutional recognition like Police Commission and Public Service Commission and its reports on its activities or its official findings to a particular problem affecting race relations must be tabled before both houses of parliament similar to the reports of the various commissions in the federal constitution3.

Conclusion

It cannot be denied that if a Race Relations Act is mooted in Malaysia, its passage – politically speaking – will be tough one since the introduction of an act like this will be exploited by Umno as being anti-Malay, etc.

However that should not be a reason for not having it at all as any law, controversial as it is, will be exploited to suit vested interest. With proper education of the proposed Race Relations Act given to the people and its transparent implementation, the rakyat will come to accept it as a necessary law to move Malaysia forward in the face of globalization.