Friday 19 June 2009

Federal Constitution NEVER Gave "Special RIGHTS" to Malays, Says Lawyer Art Harun

Read here for more

Quote
(The Federal Constitution) says that (the) AGONG has the responsibility to safeguard the “SPECIAL POSITION ” of the Malays and natives of Sabah and Sarawak.

Notice that the words used are “Special Position”, NOT “ Special RIGHTS.” Notice also that the safeguarding is not only restricted to the Malays but also the natives of Sabah and Sarawak (the “Natives”).

(The Constitution) also says (the) AGONG is also responsible to safeguard the “LEGITIMATE INTERESTS ” of OTHER communities.

Notice the differences at what is being safeguarded.
  • As for the Malays and the Natives, it is their Special POSITION (not Rights)

  • While in respect of other communities, it is their LEGITIMATE INTERESTS
The most important thing to be noted from this provision is the fact that there is NO RIGHT whatsoever conferred to the Malays or Natives.

Article 160 defines MALAY as a person "... who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom...." It is one of the most absurd definitions I had ever come across in any written law.

How could you define Malay .."as a person who speaks Malay and conforms to MALAY custom.." when the very word which was sought to be defined in that definition is the word “MALAY”?

It is like defining MANGO as “a fruit which tastes like MANGO”.

- Art Harun





Visiting the Malay "Rights"

by

Art Harun

Excerpts: Read here for more

This article contains my interpretation of the relevant Constitutional provisions in respect of the “RIGHTS ” of the Malays. It is not intended to question anything, whether rights or otherwise, belonging to anybody, regardless of his or her race, faith or political leaning.

Malay Rights.

The mere mention of it evokes so many emotions. So much anger and resentment have resulted – on both side of the fence – from this subject.
  • It has been explored by the likes of Awang Selamat, Tun Dr Mahathir Mohamad, Datuk Ibrahim Ali and various NGOs. Our politicians have shouted and screamed about it.

  • Warnings of mayhem and amok have been sounded in case of a challenge against these rights.

  • Even HRH the Sultan of Perak had spoken about it recently.
But not a single person out of 27 million of us has actually taken the trouble to spell out WHAT THESE "RIGHTS " REALLY ARE

And so, let me be the first one to do it.

The supreme law of this country is our Federal Constitution (FC). That means every law and policy must be in adherence with the FC.

Otherwise, such law or policy would be void for being unconstitutional.

What Does the Federal Constitution Say?

We therefore have to look at the provisions of the FC to determine these so called rights of the Malays.
  1. Generally, Article 8 (Clause 1)provides that ALL persons are EQUAL before the law. I say “generally” because there are exceptions to this rule.

  2. Clause 2 of Article 8 says that "... there shall be no discrimination against citizens on the ground of religion, race, descent, place of birth ..." or gender except as expressly authorised by the FC.
So, there you go.

All of us are only equal up to the extent as provided by the FC.

This means we may be discriminated against if the FC expressly allows it.

ARTICLE 153

Article 153 of the FC is right at the centre of this issue. It is a fairly long article, with 10 clauses in it. Basically, these are what that article provides.
  1. Firstly, it says that HRH the YDP Agong has the responsibility to safeguard the “special position” of the Malays and natives of Sabah and Sarawak.

    • Notice that the words used are “Special POSITION ”, NOT “ Special RIGHTS.

    • ” Notice also that the safeguarding is not only restricted to the Malays but also the natives of Sabah and Sarawak (the “Natives”).

  2. But that is not all.

  3. It also says that HRH the YDP Agong is also responsible to safeguard the “legitimate interests” of other communities.

    • Notice the differences at what is being safeguarded. As for the Malays and the Natives, it is their special position.

    • While in respect of other communities, it is their legitimate interests.
Article 160: What is a "MALAY"?

At this juncture, we should know what Malay is.

Article 160 defines Malay as
"...a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom..."
It is one of the MOST ABSURD definitions I had ever come across in any written law.

How could you define Malay as a person who speaks Malay and conforms to Malay custom when the very word which was sought to be defined in that definition is the word “Malay”?

It is like defining a “mango” as “a fruit which tastes like mango”.

Powers of the Agong under Article 153


Under article 153, HRH the YDP Agong is given the power to do the followings:
A. To exercise his functions under the FC in such manner as may be necessary to safeguard the special position of the Malays and Natives;

B. To ensure the reservation for the Malays and Natives of positions in the public service, scholarship, exhibitions and other similar educational or training privileges given by the Federal Government in such proportion as he may deem reasonable;

C. To ensure the reservation for the Malays and Natives of any permits and licenses if such permits or licenses are needed for the operation of any trade or business as he may deem reasonable; and,

D. To ensure reservation for the Malays and Natives of places in any university, college and other educational institution providing education after Malaysian Certificate of Education (SPM) or its equivalent in such proportion as he may deem reasonable in the event the number of qualified person for any course or study is more than the number of places available.
The rest of article 153 is concerned with the prohibition against depriving licences or permits from the non-Malays or non-Natives if they have been in possession of such licenses or permits all along. This is beyond the scope of this article.

NO "RIGHTS" Conferred to MALAYS or NATIVES in the Constitution

The most important thing to be noted from this provision is the fact that there is NO RIGHT whatsoever conferred to the Malays or Natives.

The provision does NOT say, for example, that “the Malays or natives of Sabah and Sarawak shall be allocated 75 per cent of all places in universities, colleges or other education institutions, or 65 per cent of all scholarships available in Malaysia every year.”

When we speak of “rights”, we speak of entitlements which are possessed by a person or body of persons. These entitlements would then be enforceable by law.

Taking my example in the previous sentence, a class action to enforce such rights may be brought by the Malays or Natives if such rights are denied them in any year if the provision in the FC is couched as such.

However, that is not the case in the FC.

What is provided is a power to HRH the YDP Agong to reserve licences, permits, scholarships, places in universities or positions in public service for the Malays and Natives in such proportion as he deems reasonable.

That power is undeniable and clearly defined.

The FC however, in my humble opinion, stops short from conferring any enforceable right.


Exercise of Power of the Agong under Article 153

How may HRH the YDP Agong exercise that power/ The answer is in clause (2) of article 153.

Clause (2) provides that power shall be exercised by HRH the YDP Agong in accordance with Article 40.
Article 40

In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.
That simply means that the “power” conferred to HRH in article 153 is not exercisable by HRH at his discretion at all. That power is exercisable on the advice of the Cabinet or any Minister acting under the general authority of the Cabinet. By convention, that person is the Prime Minister.

In the big scheme of things then, HRH the YDP Agong does NOT have any say on how those things are to be “reserved” for the Malays and the Natives.

Essentially, it is the GOVERNMENT , through a Cabinet decision, which draws out the policy on how this power is to be exercised. Basically, the CABINET decides the criteria for such “reservation” and also for the distribution of the matters mentioned in article 153.

BARISAN NASIONAL (with MCA and MIC) Decides, Not UMNO Alone

That means, all these while, it is not Umno alone who decides. It is the Barisan Nasional as a whole, which means the matter has all along been decided by Umno, MCA, MIC and all the component parties within the BN.

Questioning Scholarships, Govt Contracts and University Entry

Nowadays questions have been raised as to why students with lower scores could gain admission into universities while students (non-Malays) with higher scores could not. The same question is raised with respect to the grant of scholarship.

In the commercial world, questions are being raised on the distribution of government contracts and also the requirement for a certain percentage of Malay shareholdings in corporations.

On the Government side, these questions have been received with absolute disdain. These are treated as a challenge of the rights of the Malays. Rhetoric abounds. Shouts of “ungrateful migrants” could be heard.

There is even suggestion that to question these matters is to question the power of the Ruler under article 153. The “social contract” is referred to.

In my humble opinion, that is misconceived.

NOBODY is asking for HRH the YDP Agong’s power under article 153 be removed.

Rather, what is being questioned is the POLICY which underlies the exercise of the power as opposed to the power itself.

It must be noted that article 153 repeatedly provides that HRH the YDP Agong shall exercise his power as “he may deem reasonable. Perhaps such “reasonableness” is the key.

We profess to have a democratic Government and system of politics.

If so, surely Government policies, especially those which touch the very basic and fundamental rights of the people, such as the right to education for all citizens, could be discussed, analysed and even questioned.

And surely, a good Government whose heart is with the people and the country would not dismiss such questions nonchalantly.

Otherwise, I suppose, the people could effect a change in such policies by changing the policy makers.

4 comments:

Hamba said...

Apa menatangnye 'Ketuanan Melayu' ni??? Setakat ni yang ada cuma ketuanan UMNO je! UMNO ni nak menipu sibuk pakai slogan ketuanan melayu padahal apa yg di perjuangkan adalah ketuanan UMNO yg merompak negara. Ketuanan melayu??? Tidak pernah ujud... mana ada? Siapa yang cakap ada ni? Kat perenggan mana ada tulis kat dalam perlembagaan? UMNO ni senyap2 ada buat perlembagaan baru ke???

Anonymous said...

The politicians have been giving a new definition on the Federal Constitution. They have unilaterally raised the status of certain Malaysians over other fellow Malaysians. And the so-called 'Social Contract'? I cannot seem to find any reference in the Federal Constitution. Playing fire with words. They had done it for 50+ years. And the remaining populace have accepted this practice on a 'give-and-take' basis. But what makes this 'elite' group of Malaysians to think this would be allowed to continue for another 50 years? That's as good as two generations. Had our fathers not forsaken enough? Their children would not be bound by chains with this continued manipulation. Every each Malaysian has his rightful place in this Nation. No more, no less.
malsia1206

Anonymous said...

Stop harping about Malay rights please. We dont want further polarisation in this country

his story said...

"that law may provide for the reservation of a proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak;"

for those whodwinked by art hqrun it is clearly stated above that laws may provide for the reservation of permits and licenses.

But before bentoh like minded malays start feeling guilty, please study the Malay history of Tanah Melayu.

The Portuguese Queen encouraged by the Catholic church sent an armada to kill and grab Melaka for the Catholic Monarchy in 1511.

These were followed by the Catholic Monarchy of Holland, the Queen of England etc.

They were looking to kill and colonise the world as divided by the Papal Bull issued by the then Catholic Pope.

Thus they killed natives in India, Australia, Filipines, Malaya, Indonesia, Vietnam, Burma etc. to setup their colonies and tax and take back the wealth of our country.

Then come world war 2 and the Japanese killed the british,australians and the europeans were forced to leave.

The Indonesians fought and killed off the Dutch people who colonised them under Sukarno to gain independence.

In Tanah Melayu, the British were leaving but they do not want the Chinese and Indians to claim british citizenship. So they forced the Raja Melayu to accept them or else a war of independence need to be fought.

tunku prefered the easy way. But thanks to the Constitution, the Raja Melayu remains in control and putin place appeasement to stop the Malays from going to war with the British as Indonesia had done.

But a contract under duress is not enforceable under common law. So is the Federal Constitution which forced Tanah Melayu to accept huge numbers of foreigners as citizens so much so that Malays were outnumbered.

Time to relook the Federal Constitution

dont you think?

It has failed to ensure equitable wealth ownership.

According to Forbes Ananda Krishnan has 40 billions, Kuok 40 billions..etc..look up forbe richest Malaysians.

And do you know that when Steve Jobs died..the biggest value company in the US he only left behind 23 billion ringgit!

Yes, the Ananda and Kuok are richer the best US techpreneurs..without producing anything clever like ipod or iphone.

So something need to be done to ensure wealth is not limited to the 0.01 percent of chinese and indian population

Perkasa please study this carefully..