A Message for PERKASA and its Patron
October 30, 2010
www.nst.com.my
Misconstruing the Malaysian Constitution
by Dr. Chandra Muzaffar
MISINTERPRETATIONS of and misconceptions about the Constitution have exacerbated ethnic tension and soured race relations in the country. Several issues have come to the fore lately.
A few weeks ago, a politician alleged that the concept of 1Malaysia is against the Constitution since it promotes equality among the communities. Actually, the Constitution embodies an article on equality. Article 8 (1) states that “all persons are equal before the law and entitled to the equal protection of the law”. Discrimination is prohibited except when it is expressly authorised in the Constitution. Provisions pertaining to the special position of the Malays and the natives of Sabah and Sarawak would be an example.
However, “special position” — it is seldom appreciated — is also about equality. It was incorporated into the Constitution to protect the well-being of the abysmally poor indigenous Malays in the wake of the conferment of citizenship upon more than a million recently domiciled Chinese and Indians by the Malay rulers and the Umno elite on the eve of Merdeka. In other words, special position — like other affirmative action policies elsewhere – is meant to address gross ethnic inequalities.
There are also misconceptions about Article 153. The article is not just about the special position of the Malays and the natives of Sabah and Sarawak. Article 153 (1) also makes it “the responsibility of the Yang di-Pertuan Agong to safeguard… the legitimate interests of the other communities in accordance with the provisions of this Article”.
The provisions of Article 153 go out of the way to ensure that while the special position of the Malays and the natives of Sabah and Sarawak is protected in public service, in the granting of scholarships, in education, in trade and in business, the legitimate interests of the other communities are also safeguarded. This balance in Article 153 is seldom highlighted.
There is another misunderstanding about Article 153 that should be set right. The article does not provide for a 30 per cent quota in equity capital for Malays and the natives of Sabah and Sarawak. That is part of the New Economic Policy and subsequent policies, but it is not stated in the Constitution. Neither does the Constitution provide for the establishment or continuation of Chinese schools in the national education system as some politicians and media commentators have argued recently.
There is no such provision in either Article 12 which deals with rights in respect of education or in Article 152 that focuses on the national language. What Article 152 (1) contains are two sub-clauses that read:
* no person shall be prohibited or prevented from using (other than for official purposes) or from teaching or learning any other language; and,
* nothing in this clause shall prejudice the right of the Federal Government or of any state government to preserve and sustain the use and study of the language of any other community in the federation.
There is no need to emphasise that teaching, learning, preserving and sustaining a language can take place within a Bahasa Malaysia-based school system that provides ample scope for studying Chinese, Tamil, Arabic or any other language. Nonetheless, it should be reiterated that Chinese and Tamil primary schools are part of the national education system today, and their status is protected by the law and policy.
The Education Act 1996, for instance, makes it the duty of the education minister to provide primary education at government and government-aided schools.
Another misconception being propagated by certain individuals is that when Sabah and Sarawak (together with Singapore) joined Malaya to form Malaysia in 1963, a new nation came into being which ipso facto rendered irrelevant some of the defining Malay characteristics of the earlier Malayan state. Whatever the political rhetoric that prevailed before the formation of Malaysia, this is a view that has no basis in the Constitution.
The Constitution makes it very clear that the Yang di-Pertuan Agong is also the Yang di-Pertuan Agong of Sabah and Sarawak (he appoints the governor of the two states), Bahasa Malaysia is the national language of the two states and Islam their official religion. Special position also applies to the natives of Sabah and Sarawak.
Besides, Article 1 (2) spells out lucidly that Sabah and Sarawak are states in the federation like the other 11 states. Of course, the Constitution confers additional rights and powers upon the two states, given their history and the circumstances of their membership in the federation.
If Malaysia in 1963 was a new nation, why didn’t we reapply to join the United Nations? The truth is Malaysia is, to all intents and purposes, an extension of Malaya.
What is important is to ensure that the rights of all states, especially Sabah and Sarawak, are protected and respected in the expanded federation.
It is a pity that such issues that impinge upon the fundamental character of the nation and the structure of the Constitution are being raised with increasing frequency. Ignorance is not the only explanation. It is part of the intensification of communal politics in the past few years which, if we are not careful, may push us all over the precipice.
Dr Chandra Muzaffar is Chairman of the Board of Trustees of Yayasan 1Malaysia and Noordin Sopiee professor of global studies at Universiti Sains Malaysia, Penang
Hak Orang Melayu and “Special Position of the Malays” (Kedudukan Istimewa Orang Melayu) are two different. They like the twine that shall never meet. Perkasa is focusing on “rights” for the Malays when in actuality there are only rights for all Malaysians. The Constitution protects the rights of all of us.
Mongkut Bean, over to you as our Legal Expert on Perlembagaan Malaysia. I think Dr. Chandra is correct on this score, although we may disagree with his worldview and politics. His misadventure with PKR should be discounted. He is a civil society person and an academic at USM.–Din Merican
dinobeano - October 30, 2010 at 8:03 pm
Somehow I think this will fall on death ears. Hardcore Perkasa members don’t care even facts are against them. This kind of people are just hopeless to debate with. How does one talk to racists and bigots?
didi - October 30, 2010 at 8:49 pm
Didi, you don’t talk people in power who are racists and bigots, just vote them out. As for the Maha racist and bigot, we have expose his corruption and abuse of power.
Muthu-Tamil Nadu - October 30, 2010 at 8:58 pm
New scandal – RM150 fee for your must-have number plate
Creating at least two very high income earners at the expense of 20million car owners of which 95% will be required to pay more for some thing that does not create value or is necessary. Another excuse to impoverish the ordinary rakyat.
The new revenue may be needed to cover the loss of revenue that will happen from the recently announced abolition of duties of luxury womanly goods such as hair dye, undergarments, hand bags, etc. Another example where the poor must subsidize the lifestyles of the rich and powerful.
I remember
[a] RM used to be RELIGION AND MORALITY which appears to have been declining over the decades regardless of the money spent to publicize their values.
[b] Then RM was changed with emphasis on RISK MANAGEMENT which also appears to have lost its flavor.
[c] From 15.10.10 RM may be referred to as ROSMAH MANSOR after the Finance Minister announced the RM111million allocation for his wife’s ‘PERMATA’ programme and abolished import duties on luxury items used by women in the rich and power category.
New Scandal ? More Burden For Rakyat?
By Syed Akbar Ali
Folks I just heard this from the president of a well known
consumer association in Subang Jaya. Changes are being proposed to the Road Transportation Act (the Pengangkutan thingy) whereby all owners of registered motor vehicles will be required to buy new car license number plates.
The new number plates will have some computer chip in it (to make the Government’s job easier I suppose). Here is the catch.
1. We will still have to pay the old Road Tax, get the Road Tax
sticke etc.
2. The “monopoly” to issue these new number plates will be given to two new companies (most likely crony companies – because they were not chosen by open tender or highest bidder for the concession).
There are about 20 million registered vehicles in this country
(cars, buses, lorries, motorbikes etc). So 20 million x RM150 =
RM3.0 Billion.
This seems to be the scale of cronyism nowadays – its always in the Billions, no more in the millions.
So two lucky cronies will get the franchise to charge us RM150.00 per license plate.
Is this why Chrome Dome was recently appointed to head the suruhanjaya pengangkutan darat or something? There are Billions worth of ‘concessions’ to be given out.
Why burden the public even more? You are removing the subsides,
the price of fuel, oil, flour, sugar is all going up. The
Government wants to waste RM800 million to build a new Parliament building.
And we pay for all these subsidies – directly, especially the APs
for the motorcars. A Honda CRV 2010 model costs RM150,000 here.
In the US you can buy it for USD22,000 or about RM68,000 -slightly more than a Proton Waja.
Why are we paying such high prices for cars? Who gains? Not the rakyat. Now we are required to pay RM150.00 for our car license plates for the benefit of some cronies.
I say, nak menang ke atau tak nak menang PRU13? Or is this the season of pukul habis ? You know the politicians figure they are going to lose the next elections, so lets take as much as we can while we have the time. Zaman pukul habis.
And if you dont buy these new RM150.00 license plates, you can be fined RM300 or jailed up to 20 years (isnt it kind of
excessive?). So kalau kroni tak boleh kaya, kita pula masuk
penjara atau bayar denda RM3000. Banyak cantik ! !
The other amendment to the Road Transport Act is that all roads, tracks and footpaths in the country and in the jungle will now be
classsified ‘Government roads’. This means the Government will be responsible for their maintenance and upkeep.
But it also means that the new RM150.00 number plate law will be fully enforced.
Again to benefit cronies. What does the rakyat get? Why do I need a microchip in my number plate? I am doing fine with the old RM20.00 number plate. Why think up useless ways to burden the people?
VOTE THEM OUT before RAKYAT is LED to DEATH!
tourman53 - October 30, 2010 at 9:00 pm
Hi Din
Dr Chandra once presented to me some prizes for being the top student in Georgetown Secondary School, Penang. It was a long time ago when I was only in Form Three, and Dr Chandra was then in Aliran.
The case in discussion is very simple. Some people like Perkasa and its other sponsors will be trying to do something on this matter of the interepretation of the Constitution.
They may more likely be going to bring a unique (once in a life time) case to the “High Bench” to declare in a judgement that the Constitution is as according to their interpretation, and legalise their insatiable dreams whatever they may be.
Therefore, Malaysians of different persuasions should be careful enough not to goaded into this likely trap, especially when the general election fever is hotting up.
From the overall scenario, the analysis shows that it is now important that the advesaries of Perkasa and its sponsors retain their cool and do not overreact, and if so, will inadvertently hand the advantage of initiative to Perkasa and its sponsors to concretising their version of the Constitution through the legal system, thereby bypassing the Parliamentary system.
That is the obvious reason for their relentless agitations through all available means at their disposal. They are trying to tease an overreaction for which they can build a legal case against.
One cannot take chances considering the enormous resources and influence that Perkasa, and especially its sponsors have.
One should always remember how Al Gore lost to George Bush Jr. in the American preseidential elections.
Tang Loon Kong - October 30, 2010 at 9:31 pm
Apo pulak ni? From form 3, we ended up with Al Gore gored by Bushie Jr. Hahaha.. what a stretch! I seriously don’t think anyone’s gonna take this Chandra’s anal-ysis seriously. All angst is virtual, just like an empty, unstretched rectum.
No one is reacting to these shallow minded ‘provocations’- period! It’s not even a bark, just warbling in the wind – like hydrophobic (rabid) dogs.
Menyalak-er - October 30, 2010 at 10:28 pm
I know Chandra Muzaffar back in the days when he was known as Chandrasekhran Pillai – top student in the class and the subject of envy and admiration as he would monopolise all awards given for academic excellence. No, he didn’t present me with anything.
His reading of the Federal Constitution is mainstream among academics. It is always about the balancing of Malay special privileges and the legitimate rights of the non-Malays – with emphasis on ‘special’ and ‘legitimate rights’.
To begin with we can’t even balance our check books sometimes, more so with appendages between our legs that tend to protrude and obstruct as we walk the tight rope. It is a mammoth task mortals like politicians should never be called upon to do as they are the least qualified. By least qualified I do not mean their grade point average or GPA given by their respective alma mater. It is obvious that our politicians rely on the lack of balance between special privileges of the Malays and legitimate rights of the non-Malays, its existence in perpetuity to remain on top of their jobs and in power.
Some say the culprit is the Federal Constitution itself. An ideal constitution should survive the vagaries of time with its integrity intact. Our constitution has had no less than 600 amendments and still counting. Given a constitution though sacred is a living document but surely those responsible for its framing never meant to breath such zest for life into our constitution. It is a run-away constitution and it is hard for us ordinary mortals to keep pace. And when you consider some of those amendments may be ultra vires the constitution, void ab initio rather than voidable, the race itself is in danger of being illegal.
We may end up needing the help of Koran burning pastors to start a different kind of bonfire.
Mr Bean - October 31, 2010 at 12:14 am
Well, that’s the ‘Best’ we have buddy. We never had ‘self beholden’ truths since everything was dictated verbatim by dickheads.
Sink or swim? We shall perpetually be dog paddling, instead of practicing a decent kinda freestyle. That’s what happens when there are dickheads who can’t see their appendages due to gross obesity, from being overfed by garbage. Their immense drag coefficent curtails any attempt at better strokes.
Yup, what we really need is a rehash of the the whole Constituition and cut away the deadwood and bandages, but that ain’t gonna happen unless a Benignest of Archon/Tyrant/Dictator drops out from Sky-Kingdom to save Malaysians from themselves. A period of ‘unrest’, i.e. anarchy would required. However, Bible burning ulamas are indeed rare, if not extinct. The reverse as you mentioned, is impossible due to ‘Sanity’.
Menyalak-er - October 31, 2010 at 12:52 am
The basis of north borneo agreeing to form malaysia is enshrine in the 20 point agreement. Nothing more , nothing less. Go get this migrant Pillai fella to preach this fundamental fact and quit hidding behind a twisted constitution.
danil daud - October 31, 2010 at 1:06 am
“If Malaysia in 1963 was a new nation, why didn’t we reapply to join the United Nations? The truth is Malaysia is, to all intents and purposes, an extension of Malaya.” Chandra
Somebody forgot??!
An extension of Malaya? Such loose language does nothing to shed light on what has always been the subject of constant debate in a classroom full of constitutional law students. To begin with the Federation of Malaya is not a true federation. Whereas Malaysia if at all a federation is a federation between the peninsular states and Sabah and Sarawak and Singapore. Constitutional relations between the component states of the peinsular and east Malaysia are more akin to those of a confederation.
Mr Bean - October 31, 2010 at 2:14 am
An extension of malaya? What can one conclude to such proclaimation , the malayan empire perhaps? There were written agreements by all tfour initial entities to the formation of malaysia . This jackass makes it sound as though malaya is occupying sabah/sarawak
danil daud - October 31, 2010 at 3:06 am
The reason why Article 1 (2) of the Federal Constitution is stated thus i.e. the states of Sabah and Sarawak are grouped under (b) whereas the peninsular states of Kedah, Kelantan etc under (a) is because the notion of equality of constitutional status is meant to apply to states within the same category.
Mr Bean - October 31, 2010 at 6:25 am
You could say Malaysia is a federation of unequal states i.e. states within peninsular Malaysia vis-a-vis the other states.
Mr Bean - October 31, 2010 at 6:33 am
” This jackass makes it sound as though malaya is occupying sabab and sarawak .” – Danil
By jackass do you mean Dr mahathir mohammad ?
sunshine - October 31, 2010 at 7:16 am
Dr Chandra Muzaffar is Chairman of the Board of Trustees of Yayasan 1Malaysia and Noordin Sopiee professor of global studies at Universiti Sains Malaysia, Penang.
He is where he is today because he knows which side of his bread is buttered. He may be an intellect but lacks principles. Gone are the articles he wrote against the government when he was Aliran President , Anwar supporter and Deputy President of Parti Keadilan.
He could not stand the heat and got out of the kitchen to be on safe grounds next to UMNO and BN. He is a chameleon.
Lawyer - October 31, 2010 at 8:23 am
“If Malaysia in 1963 was a new nation, why didn’t we reapply to join the United Nations? The truth is Malaysia is, to all intents and purposes, an extension of Malaya.” Chandra
——–
Before there was a Malaya, this peninsular was an hodge podge of warring states, each independent of one another and no state declared that they are one country known as Malaya. Malaya come about by an accident of colonisation by the British. Actually Malaya is a neat and convenient creation of the British topographers and politicians. I cannot foresee that if the British had not colonised the peninsular, there would have been a Malaya at all. Most probably Malaya would have fractured into provinces, with parts ruled by Thailand, Indonesia and the Philippines.
And Malaysia is the child of the British with the inclusion of Singapore, Sabah and Sarawak into a new federation. So Chandra, you are wrong here, Malaysia is indeed a new nation and it override the old Ketuanan Melayu aristocratic autocracies order that the Perkasa rabble rousers and UMNO elites are so fond to revive.
vsp - October 31, 2010 at 11:28 am
Yup danil.
The dickheads are certainly occupying North Borneo. No controversy needed over this statement. They are also the ones who are insisting on a spurious, invisible social contract in the Peninular. They disregard the 20-point agreement that was published, signed, sealed and delivered with the cooperation of fellow dickheads from your neck of the woods, is it not? As the wise say: “It takes 2 hands to clap, but only one hand to slap.”
The subterfuge, intimidation and criminal acts that goes into such corruption is mind boggling. Remember Donald Aloysius Marmaduke Stephens, the first Huguan Siou.
Menyalak-er - October 31, 2010 at 12:17 pm
Dear Din,
Dr.Chandra’s NST article is only”a” view/opinion, not “the” view.
Let see what the late Tun Ghazali Shafie had to say on the subject. It is contained in his speech on CONFLICT RESOLUTION:THE MALAYSIAN EXPERIENCE, which he presented in a “Paper Presented at the Workshop on Conflict Resolution held in KL, August 7-8,1993.
Following are excerpts of his speech:
- ” This country was never a single country until in 1946 after the formtion of the Malayan Union; the Japanese linked Malaya and Singapore to Sumatra and in a limited way introduced a new identity. Late in 1948 it was replaced by the Federation of Malaya and in 1963, Malaysia. During the colonial days, the territory was subject to a number of exploitative policies which, by deliberate design or absent-minded motivated by greed, resulted in acrimony between the races.
The only reason why these antagonistic elements did not seriously flare up had been through authoritarianism. Whether it was the British or the Japanese, their authoritarian rule Pax Britannica or Pax Japonica had kept the antagonistic factions apart. That certainly was one method of conflict management….”;
-” the Chinese as a community were never allowed to integrate with the Malays although a few had already been fully integrated as Baba and Nyonya who came before the British colonial period. The colonial policy of “separateness” resulted in independent Chinese schools with teachers from China…. much of the pattern of the Chinese was also among the Tamils of India who were brought here….”
- ” After the defeat of the Malayan Union the British began to worry as to what had to be done to the Chinese and Tamils…. The new communist government of China did not want to accept the Chinese back … Neither would the Indian government accept the Indians back in India.
- “In the meantime, the Malay movement which removed Malayan Union became a political force. Inspired by their independent compatriots across the Straits of Malacca, the Malays began to yearn for independence. The standard of the movement was red and white similar to the Indonesian flag, distinguished by a kris on a royal yellow background. However, the members of the movement went through a period of soul searching as to the best way to achieve their heart’s desire for Merdeka. The movement by that time recognised that the Chinese and the Indians had nowhere else to go; this country had to be the only object of their loyalty. The movement however was not ready to accept non-Malays in their midst and Dato Onn, a leader had to be sacrificed for being too much a “Leader” in the western sense and not a “Pemimpin” in the native nuance”;
-”However, in terms of the struggle for independence through a democratic process, there was a dire need that all who were domiciled here should be brought into the mainstream of the struggle,…”
Din, there is a lot more … if you are interested, I will continue on.
My point is that one simply can’t take a legalistic view and Chandra is NOT a constitutional expert. We need a historical context. Chandra’s article is half-backed and he misses some fundamental issues. And, Tun Ghaz speech provides it.
What do you think?
Muthu-Tamil Nadu - October 31, 2010 at 12:50 pm
The has been a lot of nonsense being written by pseudo-intellectuals, Chandra included, on the social contract, the constitution. etc without they having a clue of the historical context. Some of those writers are even worse – psycho-intellectuals.
King Ghaz’s article is authentic as he was an active participant in that process.
Muthu-Tamil Nadu - October 31, 2010 at 5:53 pm
There is no such thing as an underlying social contract. It has been introduced as justification for the need for reforms.
Mr Bean - October 31, 2010 at 8:02 pm
The narrative has taken a new character. There is nothing substantive there.
Mr Bean - October 31, 2010 at 8:06 pm
Well Mongkut, your fellow royals are insisting that there is.
That is substantive. No?
Hmm.., i truly wonder if that old adage: “Repeat a lie often enough..”, will work. If it does, kindly send me the greencard lottery application again.
Menyalak-er - October 31, 2010 at 9:04 pm
Meneylak-er,
Hilary is in town. Why not go see her in her hotel room? Don’t forget to bring Tok CIk along. You need backup in case steroids like Tongkat Ali doesn’t work fast enough for you. She’s on kacip fatimah and you may have to make a premature withdrawal. You know that there is no interest on premature withdrawal.
The DV-lottery which is what you’re referring to has some 11.0 million applicants every year and only 50,000 visas are issued. Furthermore, there’s no job waiting for you here. Unless of course you intend to blow your way into the arms of 72 virgins. You may want to talk to Homeland Security first.
Mr Bean - October 31, 2010 at 11:35 pm
But before you go, you need to put her in the right mood. I thought his evergreen should help.
http://il.youtube.com/watch?v=K_S41oEfT9g&feature=related
Mr Bean - October 31, 2010 at 11:45 pm
There would never be a Malaya had the Dutch not traded Batavia for Melaka. Let’s just not fail in history and confine ourself to the period post 1930. That gave the British a foothold in the Malay peninsula and the Dutch went on to take Indonesia. Had that not happen Malaysia could find itself as a province of Indonesia headed by a walikota provinsi Malaya. Malaysians would then be just like the Indonesians that we so detest as pendatangs.
semper fi - November 1, 2010 at 12:16 am
Thanks for the advice, Bean.
Well i’m an expert at ‘pulled’ tea – err.. teh tarik. Hey, it’s a skill i learnt from my fave neighbourhood mamak – even gotta a diploma to prove it from Sintok (UUM). What?! That’s useless? I was positive you guys need more tea parties in NY.
Yup will need Tok Cik, whose pretty handy with his Cooper S exhaust. Will that help? What’s the room number?
Here’s to you, since you made my soul dark as the night:
Menyalak-er - November 1, 2010 at 12:25 am
“Yup will need Tok Cik, whose pretty handy with his Cooper S exhaust”
Whaaat?? Tok Cik has taken to stuffing his own exhaust pipe?? He can’t be that desperate.
Mr Bean - November 1, 2010 at 12:44 am
Nope, he aims the exhaust, sort of sniper-like. Good shot. No collateral pollution, wastage and damage. Fills what needs to be filled.
Menyalak-er - November 1, 2010 at 1:16 am
Ayaa..what has my car’s exhaust pipe got to do with Chandra Muzaffar’s theory? This guy’s choice of a buttered bread is well known. Dia pun nak makan juga.
Semper fi,
The Brits gave up its factory and all of its properties in Bencoolen (Bengkala) on the island of Sumatra to the Dutch and the Dutch in return, ceded the port of Malacca to the Brits. These were some of the terms agreed upon in the Anglo-Dutch Treaty of 1824.
Batavia (Jakarta) was solidly in the Dutch hands.
Had we agreed to the proposals by Hatta and Sukarno we’ll be part of Greater Indonesia today. And should we set foot in S’pore we’ll be termed as pendatangs by LKY.
Tok Cik - November 1, 2010 at 3:16 pm
Tok Cik
Had they succeeded in the campaign Ganyang Malaysia we would also be a probinsi of Malaya. Right now with over a million Indonesians in Malaysia they don’t need to send ABRI over. They just need to organize a plan of attack.
Semper Fi - November 4, 2010 at 11:23 pm