Racial Discrimination in Malaysia - Perspectives From The Constitution and International Covenants - The Malaysian Insider PDF

9/10/2015
RacialdiscriminationinMalaysia:PerspectivesfromtheConstitutionandinternationalcovenantsTheMalaysianInsider
Opinion
Racial discrimination in Malaysia: Perspectives

from the Constitution and international
covenants
BYJeyaSeelan
Jeyaseelen Anthony is an advocate and a councillor of the Petaling Jaya City Council (MBPJ). He also heads the Centre for
Constitutional Research and Education Malaysia.
Published: 12 November 2013
In this article I wish to highlight some important issues with regards to the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on
the Elimination of Racial Discrimination (ICERD) vis--vis the right of minorities and the
position in Malaysia. ESC rights are basically related to labour related rights, right to health,
right to housing, the right to education, the right to food and cultural rights. These rights
have a great impact on the rights of minorities in any given country. The Committee on
Economic, Social and Cultural Rights (CESCR) has stated that every ESC right, as with every
human right, includes the duties to respect, duties to protect and duties to fulfil as part of
the states obligation.
The states duty to respect includes protection state organized forced evictions, protection from
direct threats to health by state actors and protection against arbitrary termination of employment
etc. For example, in the case of the Islamic Community in Bosnia Herzegovina, the Human Rights
Chamber of Bosnia held that denying the Muslim community the ability to rebuild destroyed
mosques, breached the communitys religious and property rights. The states duty to protect is
where the state is required to prevent third parties from unduly interfering in the right holders
enjoyment of a particular freedom or entitlement. The duty to fulfil imposes on a state obligations
to facilitate, provide and promote access to ESC rights.
http://www.themalaysianinsider.com/opinion/jeyaseelan/article/racialdiscriminationinmalaysiaperspectivesfromtheconstitutionandin
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An important aspect of the justifiability ESC rights involves claims of discrimination. The CESCR has
made very clear, that within the provisions of the ICESCR and the ICERD, the prohibition on
discrimination is an obligation of immediate effect. Several clauses enshrined in the ICERD and the
Convention against Discrimination against Women (CEDAW) makes reference to their application to
ESC rights in the implementation of social policies and the provision of social services. An important
aspect of the current development of anti discrimination law is now applied to those cases where
legislation or administrative practices subject certain groups of people to a disparate treatment
which results in a denial or restriction of rights.
In Malaysia, the skewed implementation of affirmative action or positive action policies as some
may call it, contained in Article 153 of the Federal Constitution has resulted in discrimination against
the non- Bumiputra minority communities. The affirmative action policies by way of preferential
treatment provided under Article 153 are mainly to alleviate the Malays and the natives of Sabah
and Sarawak from poverty and economic disadvantage. It protects the majority Bumitputra
population when in fact affirmative action policies are created to protect minorities in most
developed countries. Malaysia is unique in this sense.
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 law; and places
in institutions of higher learning (universities, college and other educational institutions) providing
education after Malaysian Certificate of Education (MCE).
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 Article 153 does not allow simply
any kind of preferential treatment in favour of the "Bumiputra". It is not a blank cheque, but it
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 law.
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 non-Bumiputra communities in Malaysia. For
example, although Article 153 provides for quotas only for the issuance permits and licenses to the
Bumiputra, however, even government contracts and procurement have been awarded solely to
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Bumiputra companies. Government-linked companies (GLCs) and statutory bodies assign their
work solely to Bumiputra companies and some major banks assign their legal work only to
Bumiputra legal firms. These practices are clearly against Article 153 of the Federal Constitution.
The majority of employees at the GLCs and some major banks are Malay Bumiputras 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 Bumiputra quotas, a policy which is clearly against the Federal Constitution
as Article 153 only provides for reservation of quotas in the public service.
The lack of job opportunities in the public sector for the non- Bumiputras is a glaring example of an
unreasonable application of affirmative action policies.
Although Article 136 of the Federal Constitution provides for impartiality in the public sector, there
have been complaints by the non-Bumiputra in the various government departments that they have
been deprived from getting promotions or have been sidelined in favour of Bumiputra candidates.
This explains why non-Bumiputras shy away from seeking employment in the government sector
and GLCs and unfortunately it also explains the current brain drain that is currently plaguing our
country.
Our public universities and our education system as a whole have also not been spared form this
unfortunate state of affairs. This is evident from the incessant complaints by non-Bumiputra
students that they have been denied entry into the local universities although they have sound
academic results. Latest being in July of this year, where of the 41,573 applicants who were
successful in gaining entry into public universities, a staggering 74.3% were Bumiputra applicants.
Year after year only non-Bumiputra students complain about not being able to gain entry into public
universities despite having achieved very good results.
The Education Ministry assures us that applicants are given fair consideration but yet a record
number of high achievers are rejected year after year. The only logical deduction one can make is
that the selection process is riddled with racial bias where racial considerations outweigh
qualifications. Debating competitions in secondary schools are also subjected to a discriminatory
policy since according to a Ministry of Education guideline on English language debating
competitions held in secondary schools there must be at least one Bumiputra student in the
debating team as required by Article 153 of Federal Constitution. It is policies like these that creates
a socially divisive and uncompetitive environment in our schools. This is an example of an
affirmative action policy made under Article 153 which has clearly gone beyond the limits of Article
153 of the Federal Constitution.
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Even local authority contracts, licenses and permits are only given to the Malays Bumiputras. For
example local authority contracts for infrastructure work are only given to Class F licensed
contractors which is a type of license only given to Bumiputra contractors 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 Sarawak. This license which is issued by the Ministry of Finance
under a Federal government policy is clearly unconstitutional.
There are some interesting issues about Class F licenses which is worth mentioning here. Under the
Ministry of Finance guidelines there are six categories of contractors ranging from Class F to Class A.
Each category of license determines the maximum amount that a prospective contractor is able to
bid on. For e.g. the ceiling for a Class F contractor is RM 200,000 while Class A contractors can bid
for jobs worth RM 100 million and above.
Now here comes the shocking piece of information. As of 2005, there were 42,313 registered
contractors. Interestingly 35,253 of the total mentioned are Class F Bumitputra contractors. This
basically means that a staggering 83% or four out every five contractors are Bumiputra contractors
from the Class F category.
Therefore all government procurements valued below RM 200,000 are essentially a Bumitputra only
affair. This is again another blatant example of how Article 153 has been abused to justify a
discriminatory policy where only Bumiputras are able to bid for government contracts.
Since its an open secret that most of these contracts are subcontracted to a number of different
contractors by the Class F contractor, the consequences of such procurement practices are highly
inflated prices, kickbacks, wastages, shoddy work and goods not delivered according specification in
quantity and quality. In fact the weaknesses of such policies have already manifested itself, when
one reads about collapsed stadiums and hospitals, serious leakages in newly built buildings and
unfinished or abandoned public projects, all as a result cost cutting and shoddy work by
incompetent contractors.
Government and local authority contracts, permits and licenses are given to people who are linked
to the major ruling political parties and other powerful Bumiputra politicians who in turn rent out
their licenses and permits for a fee or a percentage of profit, thus depriving others of these lucrative
contracts. Again the result of such a practice are highly inflated prices, kickbacks, wastages, shoddy
work and goods not delivered according specification in quantity and quality.
With all these race based policies which promotes racial discrimination in Malaysia, I am astonished
as to how Malaysia was voted in as a member of the UN Human Rights Council ! Be that as it may,
since Malaysia is a member of the UN Human Rights Council it has the obligation eliminate policies
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which promote racial discrimination.

It cannot be denied that the improper and arbitrary application of affirmative action policies
provided under Article 153 has contributed significantly to the deteriorating race relations in
Malaysia. The deprivation of equal rights and opportunities has caused racial tensions to run high in
recent years. The Reid Commission when drafting our constitution proposed that affirmative action
measures contained in Article 153 be limited for a period of 15 years but this was rejected by
UMNO. The terms of reference of the Reid Commission in its report states:
Our terms of reference require that a provision should be in the Constitution for the safeguarding
of the special position of the Malays and the legitimate interests of other communities. The special
position of the Malays was already recognized even before Article 153 came into being. It is
contained in the Clause 19(1) (d) of the Federation of Malaya Act 1948 and the Reid Commission
took this fact into consideration and said When we came to determine what is the special position
of the Malays we found that as a result of the original treaties with Malay states, reaffirmed from
time to time, the special positions of the Malays has always been recognized. This recognition was
continued by the provisions of clause 19(1) (d) of the Federation of Malaysia Agreement 1948, which
made the High Commissioner responsible for safeguarding the special position of the Malays and
the legitimate interests of other communities. The Reid Commission then submitted the draft
constitution and proposed that the special position of the Malays be continued under Article 153
with the qualification that it be limited to15 years. However this proposal was rejected by UMNO
and it was removed thus making it a permanent feature of the Federal Constitution.
The Reid Commission must have realized that if there is no limitation placed on the application
affirmative action measures, the consequence would be disastrous to the nation. The Reid
Commission must have known that the continuous application of affirmative action policies for the
Malays would result in a culture of dependence on the government for aid and handouts, creating a
community which fear competition and hard work that would ultimately lead to their downfall. In
fact we can now see this happening. The affirmative action policies implemented over the past 40
years under Article 153 has in fact created a divided Malaysia. There is a widening income gap
between the rich and the poor in the urban areas, creating phenomenon called "urban poverty".
The urban poor are dominant in areas where there are large numbers of low cost flats or Pusat
Perumahan Rakyat (PPR Flats) in Selangor and the Federal Territories (FT). I call these areas as the
"ghettoes" of Selangor and the FT. I have organised community programs in these areas and I have
come across parents who cant afford to buy school bags and shoes for their children, single
mothers who cant afford to take care of their children as result of the rising cost of living in the city,
children from families which become unstable because of alcoholism and debts incurred by their
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parents who cant earn enough money to sustain living in the city and then end up in poverty,
children from these unstable families who drop out from school and end up in the streets working
in car wash outlets, car workshops, factories, stalls, restaurants and scrap metal yards and there
are children and young adults from these unstable families who end up in crime in order to live. In
fact a large number of youths getting involved in dangerous crimes are from these "ghettoes".
There are also people especially Indian youths who are enterprising and who want to get out of
poverty but their efforts are hampered by the race based policies practiced in the public sector and
local authorities in the areas of employment and business opportunities which I have pointed out
earlier. Affirmative action policies should be implemented to reach people from these places and
backgrounds but currently this is not happening.
A majority of these people known as the urban poor are Malays, who are settlers from other poorer
states like Kelantan, Terengganu, Pahang, Perak and Kedah and Indians who are pre-dominantly
Tamils who were displaced from the estates during 80s and the 90s. I have met some of these
people from older generation and they have told me that they were better off living in the estates.
There is also a feeling of discontentment within the non- Bumiputra communities that they are
actually second class citizens in their own country as result of being denied equal rights. This divide
is getting bigger. The limitless affirmative action policy being practiced in Malaysia has created a
feeling that such a policy are Malay and Muslim rights and thus anything and everything must be
Malay and Muslim centric even when it comes to building design, dress codes, schools, universities
and even in education and employment. Our education system has unfortunately fallen victim to
this Malay/Muslim centric affirmative action policies created to further and strengthen the
Malay/Muslim agenda in Malaysia. For instance, since the English language was removed as the
medium of instruction in government schools it has created a large number of unmarketable
Bumiputra and non- Bumiputra graduates who are unable to speak and write proper English.
They are often unemployed as the private sector are unable to employ them because this of this
deficiency. They cant even compete globally in the global employment market because of this.
Indians have always said that the greatest gift that the British had ever left them was the English
language! Today most Indian professionals end up being CEOs of the worlds largest banks and
multinationals, they are the most successful migrant community in the US, a large number of
professionals in the US are from India, even in places like NASA. All this was possible for India
because it gave the English language prominence. It is very unfortunate that our education policy
has rejected the English language since the Malays themselves could have been like the Indians
from India. And there you have it, a Malay centric education policy which has gone wrong!
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The government set up the matriculation system which was initially only for the Bumiputra and then
opened up a little bit for the non- Bumiputras in recent years. It has failed to produce students who
are in par with their counterparts from STPM examination system. Everyone knows that its easy to
pass the matriculation examinations as compared to the STPM examinations and STPM graduates
are of better quality and much sought after by employers and even reputable foreign universities
for enrolment into professional degree courses. This is another example of an examination system
created under a Malay/Muslim centric affirmative action policy to increase the number of
Bumiputra professionals which has compromised on quality and emphasized on quantity and the
result- a large number of unemployed Malay graduates. Policies like these have done more harm
than good for the Malays and other Bumiputras. On the economic and business side, the
Malay/Muslim centric affirmative action policies like the Class F license has only created a large
number of politically connected Bumiputra rent seekers promoting a business system riddled with
kickbacks and corruption.
It is clear that the indefinite use of affirmative action policies has drained the country of its
resources, be it human or economic and has undermined Malaysias economic standing. It has
driven the Bumiputras backwards because the Malays have become a race that fears competition.
In fact the ICERD has affirmed that the affirmative action policies cannot be used for indefinite
period of time since it has a negative effect on its beneficiaries, thus there must be a review of these
policies.
The government cannot pretend that everything is all and good in our country. The government
should take the cue from the results of the last two general elections to realize that the majority of
non-Bumiputras and some classes of the Bumiputra populace too are clamouring for equal rights
and opportunities. The government needs to take drastic steps to arrest this problem.
Firstly it needs to do away with the distinction between Bumiputra and non-Bumiputra and treat
everyone regardless of race as Malaysians and guarantee each and every Malaysian equal rights
and opportunities in education, employment and business procurement.
Secondly, the government needs to avoid any form of ethnocentric approach in dealing with poverty
eradication or social restructuring. Poverty eradication and economic social restructuring policies
should be implemented across the board. It must not be an initiative inclined towards helping the
Bumiputra only but policy regardless of race. Being poor and socially disadvantaged cuts across
race and religion and it is colour blind. As Martin Luther King once said If colour made them
different, misery and oppression made them the same.
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Therefore Bumitputra centric economic plans like Teraju, the National Development Policy which
has its roots from the New Economic Policy (NEP) and the recently announced Bumitputra Economic
Empowerment Agenda (BEE) must be abolished and replaced with an open economic policy
benefiting all deserving Malaysians. If the measure for equity is need rather than race, then I believe
the problem facing our country will be solved.
Thirdly, the government must ratify the International Covenant on the Elimination of Racial
Discrimination (ICERD) and the International Covenant on Economic, Social and Cultural Rights
(ICESCR) to show its commitment in eradicating racial discrimination which continues to hamper the
countrys progress and fourthly the government must do away with the quota system since quotas
in itself are discriminatory. India for example has had to battle with the issue of reverse
discrimination for decades, where more and more high achieving students are being rejected from
obtaining university seats on the grounds the quota is filled up and to make things worse more and
more good students are being picked up by universities from the US and the UK and are employed
there too, thus causing a brain drain. A situation our country is currently facing too.
Therefore meritocracy must be embraced to its fullest for Malaysia to achieve its fullest too. Fifthly,
Article 153 of the Federal Constitution must amended to reflect an affirmative action policy which is
inclusive of other racial groups rather than a policy which is exclusive only for the benefit of
Bumiputras and such a policy must be based on need, solely targeting the poor and the
marginalized and limited to period of may be 20 years.
Lastly, in order to improve race relations between the races in Malaysia there should be legislative
intervention. I would call for the creation of a Race Relations Act and Race Relations Commission or
the enactment an Equality Act based on the UK model. The Race Relations Commission will have
powers under the Act to investigate and bring to book public and private institutions which practice
racial discrimination based on race based policies and at the same time propose and formulate
transparent policies free from racial bias. November 12, 2013.
* This is the personal opinion of the writer or publication and does not necessarily represent the
views of The Malaysian Insider.
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9/10/2015

Racial discrimination in Malaysia: Perspectives

which promote racial discrimination.

different, misery and oppression made them the same.

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