The recent outbreak of violence with racial overtones at Petaling Jaya Selatan squatter settlement requires Malaysians to face up quickly to this most critical yet unresolved problem of racism and racial discrimination in Malaysian society.
This agenda is highly appropriate and timely because this year happens to be the year the United Nations will hold its Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR) in Durban, South Africa in August.
Racism and racial discrimination have been part of Malaysian political, economic, social and cultural realities ever since colonial times. Today, race has been so deeply institutionalised that it is a key factor determining benefits from government development policies, bids for business contracts, education policy, social policy, cultural policy, entry into educational institutions, discounts for purchasing houses and other official policies.
Practically every aspect of Malaysian life is permeated by the so-called 'bumiputra policy' based on Malay-centrism. This is unabashedly spelled out by political leaders in the daily mass media in Malaysia.
It is an established fact that racial polarisation is prevalent in various Malaysian institutions. A new survey by Universiti Malaya shows that 98 per cent of Malay students do not mix with non-Malays while 99 per cent of Chinese students and 97 per cent of Indian students do not mingle with the other races.
While the government tries to account for this problem by blaming other extraneous factors such as the existence of vernacular schools, it is clear that the roots of polarisation lie in this institutionalisation of racism and racial discrimination.
Integral part
Racism is an integral part of the Malaysian socio-political system. The ruling coalition is still dominated by racially-defined component parties, the United Malays National Organisation (Umno), the Malaysian Chinese Association (MCA) and the Malaysian Indian Congress (MIC). These parties compete for electoral support from their respective constituencies by pandering to 'racial' interests. Invariably, their racist inclinations are exposed at their respective party congresses.
Some opportunistic opposition parties likewise pander to their constituencies using racist propaganda to win electoral support and they have also contributed to the vicious circle of racial politics which has characterised Malaysia all these years.
Umno, the ruling party, continues to insist that 'Malay unity' and even 'Malay dominance' is essential for national unity. 'Malay dominance' is invariably used interchangeably with 'Malay privileges', which the ruling Malay elite justifies through the Federal Constitution.
Consequently, we have witnessed the periodic controversies over the alleged challenges to Malay special privileges every time sections of Malaysian society call for non-racist solutions to Malaysian problems. The recent fracas over the appeals by the Chinese Associations of Malaysia (Suqiu) is a case in point. There have been other cases in recent Malaysian history in which the ruling party has allowed racist reactions to be used against the non-Malay communities.
White Paper
The official White Paper on the mass ISA detentions of 1987 documents the Umno Youth rally at the Jalan Raja Muda Stadium on Oct 17, 1987, at which racist and seditious sentiments were flagrantly displayed, e.g.: "May 13 Has Begun; Soak it (the kris ) with Chinese Blood" Umno leaders, including those who are ministers today, were among the rabble rousers on the podium.
The ruling party condoned such racism on the grounds that theirs was a reaction to the protests by the Chinese organisations over the posting of unqualified officers to the Chinese schools in 1987. In the same way, Umno Youth tried to justify their recent boorish protest over Suqiu at the Selangor Chinese Assembly Hall by the fact that they were 'provoked' by Suqiu. These realities are principally because they were trying to externalise the internal problems within the ruling party, Umno itself.
Even more recently on Feb 4, 2001, a Malay Action Front rally was organised by former and current Umno leaders using the emblem of an unsheathed kris (Malay dagger) against a blood-red backdrop and calling for the further extension of Malay rights and privileges.
Racism and racial discrimination are also manifested in the way indigenous peoples are uprooted from their traditional homelands and displaced to ill-planned resettlement schemes to make way for dams, plantations and other industrial projects. Many development agencies do not respect their native customary land rights. The underlying assumption in official circles is that their cultures and way of life are backward and they need to be 'modernised'. They are rarely properly consulted over these projects and their fate is tantamount to 'ethnocide'.
Migrant workers, including foreign domestic workers, are another group of people who face racism and racial discrimination in Malaysia. There are over two million foreign workers in the country, out of which there are over 160,000 hired as domestic help. The negative and derogatory perception of foreign workers held by many Malaysians condone the abuse of these workers. As women, foreign domestic workers are often subject to verbal, physical and even sexual abuse. They are discriminated against because of their gender, race as well as class.
Affirmative action
The ruling party Umno prides itself on the supposedly 'successful' affirmative action in favour of bumiputra. Bumiputra literally means 'princes of the soil', the official epithet for Malays and other indigenous peoples but which excludes the original peoples, i.e. the Orang Asli of Peninsula Malaysia. This has been the cornerstone of development plans since the New Economic Policy was started in 1971.
Consequently, while this populist bumiputra policy has been applied to the benefit of bumiputra as a whole, the new Malay ruling elite is strategically placed to reap the full benefits of this racially-based policy. Totally committed to capitalism and to privatisation, this policy has ensured that the non-Malay local and foreign elite have also gained from the New Economic Policy since 1971. This class cohesion among the Malaysian ruling elite underpins the racialist politics which has characterised Malaysian society since Independence.
It is time for Malaysians to reaffirm the non-discriminatory basis of the Federal Constitution and to uphold human rights principles which are strictly anti-racist.
Article 8 (1) of the Constitution clearly spells out the principle of equality of all Malaysians while Article 12 (1) allows no discrimination against any citizens on the grounds of religion, race, descent or place of birth.
Article 153 on the special position of Malays was inspired by the affirmative action provisions of the Indian Constitution to protect the minority under-privileged class of harijans . Ours is fundamentally different from those provisions because the ethnic group in whose favour the discrimination operates in Malaysia happens to be the one in political control, the Malays.
Malay dominance
At the time of Independence in 1957, four matters in relation to which the special position of Malays were recognised and safeguarded were: land; admission to public services; issuing of permits or licences for operation of certain businesses; scholarships, bursaries or other forms of aid for educational purposes. The Constitution certainly does not adhere to any notion of " Ketuanan Melayu " (Malay dominance), which is a totally racist concept.
When the Constitutional (Reid) Commission was considering whether such a provision should be included in the 1957 Constitution, it made the following comments:
"Our recommendations are made on the footing that the Malays should be assured that the present position will continue for a substantial period, but that in due course the present preferences should be reduced and should ultimately cease so that there should be no discrimination between races or communities." (Report of the Federation of Malaya Constitutional Commission 1957, Govt Press, para 165, p.72)
After the Tunku was deposed in 1971, the new Malay ruling elite felt that adequate opportunities had not been made available to Malays, especially in education and that there should be a larger proportion of Malays in the various sectors. In 1971, under Emergency conditions, Article 153 was duly amended to introduce the quota system for Malays in institutions of higher learning. Clause (8A) specifically provided for the reservation of places for bumiputra in any university, college and other educational institutions.
Quota system
Nevertheless, the quota system was not intended to be the totally non-transparent and non-accountable and unfair system we know it today:
Firstly, Article (8A) makes it clear that the Yang di-Pertuan Agong can only order a reservation of a proportion of such places for the Malays. It would therefore mean that the quota system is applicable only on a faculty basis and more importantly every faculty or institution should reserve places for students of every race. No faculty or institution under this provision could cater for the Malays alone to the exclusion of the other races.
Years after the implementation of this racial quota system, there was no trace of any such order being made by the Agong nor was there evidence of any such order having been gazetted. Such a directive would thus seem to have been made by the officials of the Ministry of Education.
Thus, it is not clear whether the quota system is made applicable on an institutional basis or on the basis of the total number of places available in a particular course of study of all the universities in the country. To apply the quota system on the total number of places available in any particular university will again be a wrong interpretation of the provisions of the Constitution.
Article 153 (8A) does not authorise the administrators of any university to refuse admission to any student of a particular race. It only allows a proportion of the places to be reserved for Malay students. On such a reasoning, the constitutionality of institutions like the Asasi Sains in the University of Malaya or the science matriculation course of the Universiti Sains Malaysia which cater only for bumiputra students is doubtful.
Furthermore, the Constitution of the University of Malaya expressly prohibits discrimination on grounds of race for the admission of any student to any faculty or institution of the university. In this context too, the constitutionality of other institutions which admit students of a particular race only to the exclusion of other races is also doubtful as it violates the equality provision of Article 8.
From the above, it is clear that the question of the constitutionality of the quota system as it has been practised since 1971 especially in totally bumiputra institutions has never been tested.
Original intentions
We know what the original intentions of the 'Malay special privileges' provision in the Merdeka Constitution were, but to maintain that it is a carte blanche for all manner of racial discrimination as we have witnessed since 1971 is a violation of the spirit of the Constitution.
International law sets major limits on affirmative action measures. Notably, affirmative action policies must be carefully controlled and not be permitted to undermine the principle of non-discrimination itself nor violate human rights. Holding the equality principle uppermost, the raison d'etre and reasonableness for differential treatment must be proven.
Another important criterion to ensure successful affirmative action and synonymous with international law is that such special measures should be introduced for a limited duration as was suggested by the Reid Commission in its Report of the Federation of Malaya Constitutional Commission in 1957.
A consequence of the so-called affirmative action policies up to now is that for the poor of all ethnic communities, including the indigenous peoples in Malaysia, these objectives of wealth redistribution for their benefit have not been met.
Tomorrow: [#1]Part 2[/#]
DR KUA KIA SOONG, a former ISA detainee and member of parliament, is a director of human rights group Suaram.
