COMMENT | In our conflicts over Malaysia’s proposed ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd), we are muddling the basic and oversimplifying the complex.

The basic question is: does Article 153 of the Federal Constitution allow for pro-Bumiputera programmes to be rolled back over time, as the policy achieves its goals? The answer is yes.

Underlying this premise, however, are more complex matters related to Article 153. Unfortunately, where we should be more broad-minded, we tend to be simplistic.

Both sides of the debate – defenders of bumiputera “special position” and advocates of the “legitimate interests of other communities” – superimpose onto Article 153 their own inclinations, presumptions, and misconceptions.

Let’s backtrack. Icerd allows for temporary race-based affirmative action, but maintains reservations toward permanent implementation of such special measures. Malaysia can ratify Icered and continue with bumiputera programmes, but perpetual implementation may be questioned. That’s it.

No abolishment

Abolition of Article 153 does not arise. Immediate elimination of pro-bumiputera programmes is not on the drawing board. Such loaded language and dire spectres inflame passions and incite overreaction.

Prime Minister Dr Mahathir Mohamad promises that the government will consult interest groups and stakeholders. It’s a good idea to consult the Federal Constitution, too.

The written word matters, and unlike people who change what they think and say, the constitution’s contents are manifestly inked. And as I said, in this case, there’s no need at all to not bring up the idea of rewriting or erasing.

Amidst the proliferation of comments and reactions on the subject, no one has referred to the specific contents and language of 153. Both sides basically stick to two words in drawing lines in the sand: “special position” versus “legitimate interests”. What special position entails is somewhat clear, but the implications of legitimate interests are utterly vague.

Bumiputera “special position” confers preferential access – quotas and reservations – associated with specific public policies for developing capabilities, overcoming socioeconomic disadvantages and facilitating upward mobility.

It is not about a group’s special rights; all citizens have equal rights. This point is clarified now and again. The morphing of special position into special rights is unhelpful.

However, a more subtle but also unhelpful interpretation presumes that the provisions strike a balance, allowing for pro-bumiputera preferences but also taking care of other communities. Conventional stances on Article 153 would like it to be so much more than it is.

Here’s what the Article 153 actually says.

153 (1) It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.

153 (2) ...the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.

The formulation of Article 153 was a painstaking process. The Reid commission did not, and probably could not, arrive at a specific definition and scope of legitimate interests of other communities.

We have filled this vacuum with two main interpretations. First, the legitimate interests phrase, coupled with Article 153’s condition that the proportion of quotas and reservations should be “reasonable”, are regarded as a check against overreach. Thus, 67 percent quotas are ok, 90 percent or 100 percent quotas are not.

This is a valid argument, but we should be mindful that there is nothing in Article 153 stipulating proportionality. One can make the case that proportionate quotas are the most legitimate or reasonable, but there are no literal constitutional grounds for that.

Highly pertinent to the Icerd matter, though, is one unambiguous implication: the minority legitimate interests clause does not provide grounds for rolling back racial preferences over time, when they have achieved their objectives.

Moreover, stressing the minority legitimate interests clause easily gets out of hand, because it comes across, or can be taken and twisted, as an ominous threat to bumiputera policies.

A second, less frequently uttered, position draws on Article 153(4), which also appears to safeguard minority legitimate interests.

153 (4) In exercising his functions under this Constitution and federal law in accordance with Clauses (1) to (3) the Yang diPertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.

Read closer, though, and we should see that these protections specifically apply to things already in possession. If anyone already holds a contract, licence or job, that opportunity cannot be arbitrarily taken away or discontinued.

Transition from Merdeka

Evidently, Article 153 was crafted with a view to managing the immediate transition to Merdeka – specifically, by ensuring that contract renewals would not be undermined, and persons already employed would not be dismissed, and property already held would not be confiscated.

But it does not provide any principles or guidelines for the issuance of new licences and allocation of new property that arose after Merdeka, and that continually arise until today. Article 153’s anachronisms limit its force and relevance of “legitimate interests” as a basis to protect minorities.

A more constructive way to engage Article 153, as I have argued elsewhere, is to focus on a routinely overlooked clause. Article 153(2) stipulates that bumiputera special position is to be safeguarded through reservations and quotas “as may be necessary".

In other words, preferential interventions can be enforced if they are necessary – if the socioeoconomic disadvantages of the bumiputera persist.

When the disadvantage is reduced, and bumiputera capability, competitiveness and confidence are broadly developed, the preference can be rolled back. Where need-based targeting can replace race-based targeting – particularly in education – we can modify existing programmes without touching Article 153.

Let’s stop framing the debate as special position versus legitimate interests; Article 153 cannot resolve these tensions. Let’s instead chart a passage forward by focusing on the socioeconomic conditions of the bumiputeras, and on the achievements of affirmative action and on ways to make it more effective. Harping on its shortcomings and failures divides and alienates.

But don’t take my word for it. Stop relying on casual readings or non-readings. Dig in and grasp Article 153. In the Icerd ratification process, should Malaysia pursue it, the specific contents will surely come to light.

The international community will read it, and it will reflect poorly on us if non-Malaysians demonstrate a better knowledge of Article 153 than Malaysians do.

LEE HWOK AUN is a senior fellow at the Institute of Southeast Asian Studies (Iseas).

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.