Understanding the Spirit of Accommodation
- The ideal that animates the Constitution is one of justice for all irrespective of race, religion, region or gender.
by Dr Shad Saleem Faruqi
Professor of Law at UiTM
Excerpts:
MINISTER in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz deserves praise for his courageous and principled stand on the 55:45 ratio for Public Services Division (PSD) scholarships for bumiputras and non-bumiputras.
His critics in Parliament – MPs Datuk Ibrahim Ali (Pasir Mas) and Datuk Tajuddin Abdul Rahman (Pasir Salak) – raised constitutional issues that require clarification.
Some of what was said by these honourable MPs was deeply defamatory of the Constitution’s sacred provisions and was also detrimental to preserving racial harmony in our dazzlingly diverse society.
To begin with, one must point out that the Constitution of the Federation of Malaya was founded on the courage, conviction and compromises of the leaders of the Alliance who had to grapple not only with inter-ethnic rivalries but also with the demands of the radicals within their own communities.
In the final blueprint, Malay-Muslim features were balanced by provisions suitable for a multi-racial and multi-religious society. Malay privileges were offset by safeguards for the interest of other communities. The spirit that animated the Constitution was of moderation, compassion and compromise.
This spirit was totally lacking in the diatribe by the honourable MPs from Pasir Mas and Pasir Salak.
Ibrahim’s interpretation that the Constitution provides for scholarships only for bumiputras is an extremist interpretation of the affirmative action provisions of Article 153 of the Constitution.
Article 153 is replete with clauses that seek to balance the interests of the various communities.
First, the Article provides for quotas and reservations and not outright or total or exclusive allocation. It is noteworthy that in Article 153 the word “reservation” occurs at seven places;
The proportion is not specified and, as Nazri correctly pointed out, the proportion is determined by considerations of fairness and justice.
Second, Article 153(1) also explicitly mentions that along with protecting Malays and the natives of Sabah and Sarawak, it shall be the responsibility of the Yang di-Pertuan Agong to safeguard “the legitimate interests of other communities”.
Third, the reservations and quotas are enjoined only in areas permitted by the Constitution.
Fourth, Article 153 clauses (4), (7) and (8) expressly state that in safeguarding the special position of Malays and natives, no person can be deprived of any office, scholarship, educational or training privilege, right, permit or licence
Fifth, nothing in Article 153 permits Parliament to restrict business or trade solely to Malays or natives.
Sixth, elsewhere in the Constitution protection is accorded to the orang asli: Article 8(5)(c).
The MPs for Pasir Mas and Pasir Salak must be reminded that the letter and spirit of Article 8 of our Constitution is equality before the law and equal protection of the law. The ideal that animates the Constitution is the ideal of justice for all irrespective of race, religion, region or gender.
Ibrahim’s suggestion that scholarships for non-bumiputras should come only from a special fund contributed by the private sector is puzzling. On what legal, moral or rational basis he advocates such a policy is difficult to understand.
Perhaps he is unmindful that the private sector contributes to taxes that fill the coffers from which government largesse is derived.
It is submitted that the spirit of Article 153 is of affirmative action for Malays and natives, not of hostile discrimination against “non-bumiputras”.
Outright or exclusive allocation of public scholarships for any one community was not envisaged by the Constitution.
This clearly means that the Public Services Division, Mara, the ministries, all universities, statutory authorities and government-owned companies that grant scholarships are entitled to give assistance to all deserving citizens irrespective of race, religion or gender but subject to the quotas set by the Yang di-Pertuan Agong on the advice of the political executive.
Source: TheStar: REFLECTING ON THE LAW By SHAD SALEEM FARUQI
His critics in Parliament – MPs Datuk Ibrahim Ali (Pasir Mas) and Datuk Tajuddin Abdul Rahman (Pasir Salak) – raised constitutional issues that require clarification.
Some of what was said by these honourable MPs was deeply defamatory of the Constitution’s sacred provisions and was also detrimental to preserving racial harmony in our dazzlingly diverse society.
To begin with, one must point out that the Constitution of the Federation of Malaya was founded on the courage, conviction and compromises of the leaders of the Alliance who had to grapple not only with inter-ethnic rivalries but also with the demands of the radicals within their own communities.
In the final blueprint, Malay-Muslim features were balanced by provisions suitable for a multi-racial and multi-religious society. Malay privileges were offset by safeguards for the interest of other communities. The spirit that animated the Constitution was of moderation, compassion and compromise.
This spirit was totally lacking in the diatribe by the honourable MPs from Pasir Mas and Pasir Salak.
Ibrahim’s interpretation that the Constitution provides for scholarships only for bumiputras is an extremist interpretation of the affirmative action provisions of Article 153 of the Constitution.
Article 153 is replete with clauses that seek to balance the interests of the various communities.
First, the Article provides for quotas and reservations and not outright or total or exclusive allocation. It is noteworthy that in Article 153 the word “reservation” occurs at seven places;
The proportion is not specified and, as Nazri correctly pointed out, the proportion is determined by considerations of fairness and justice.
Second, Article 153(1) also explicitly mentions that along with protecting Malays and the natives of Sabah and Sarawak, it shall be the responsibility of the Yang di-Pertuan Agong to safeguard “the legitimate interests of other communities”.
Third, the reservations and quotas are enjoined only in areas permitted by the Constitution.
Fourth, Article 153 clauses (4), (7) and (8) expressly state that in safeguarding the special position of Malays and natives, no person can be deprived of any office, scholarship, educational or training privilege, right, permit or licence
Fifth, nothing in Article 153 permits Parliament to restrict business or trade solely to Malays or natives.
Sixth, elsewhere in the Constitution protection is accorded to the orang asli: Article 8(5)(c).
The MPs for Pasir Mas and Pasir Salak must be reminded that the letter and spirit of Article 8 of our Constitution is equality before the law and equal protection of the law. The ideal that animates the Constitution is the ideal of justice for all irrespective of race, religion, region or gender.
Ibrahim’s suggestion that scholarships for non-bumiputras should come only from a special fund contributed by the private sector is puzzling. On what legal, moral or rational basis he advocates such a policy is difficult to understand.
Perhaps he is unmindful that the private sector contributes to taxes that fill the coffers from which government largesse is derived.
It is submitted that the spirit of Article 153 is of affirmative action for Malays and natives, not of hostile discrimination against “non-bumiputras”.
Outright or exclusive allocation of public scholarships for any one community was not envisaged by the Constitution.
This clearly means that the Public Services Division, Mara, the ministries, all universities, statutory authorities and government-owned companies that grant scholarships are entitled to give assistance to all deserving citizens irrespective of race, religion or gender but subject to the quotas set by the Yang di-Pertuan Agong on the advice of the political executive.
Source: TheStar: REFLECTING ON THE LAW By SHAD SALEEM FARUQI
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7 comments:
Excellent article by Prof Faruqi. The embarassing and potentiall dangerous things that our MPs do and say in the Parliament sometimes. We need to tread very carefully along racial lines like these. Thanks for posting this up.
Tanie,
You are welcome. I just post what was written by our law professor from UiTM.
"Ibrahim’s suggestion that scholarships for non-bumiputras should come only from a special fund contributed by the private sector..."
Lets do that. These private sectors should be exempted from paying tax then, and see how much left for those pathetic bumiputra.
Come on non Malays should not be emotional and upset just because of the thrash that come out from the mouth of that ugly Pasir Mas frog. Maybe this frog hails from a foreign country nearby.
Famil,
We can't do that; two wrongs don't make one right. The govt must be rational and must protect the sacred Constitution and ensure that the people do not suffer such discrimination and not to promote the clash of civilization.
Ms / Mr Famil,
It's not alright to be discriminated, whether u're a bumiputra or a non-bumi. It is not the fault of our neighbours and friends when power-hungry politicians do things to further their own ends and interests.
Tanie,
I share your thoughts and concern.
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