Constitutional provisions on Malay rights, land, promote discrimination, study suggests

The Malaysian Insider
by Clara Chooi

KUALA LUMPUR, Nov 14 — Malaysia should repeal or amend two constitutional provisions protecting the special rights and land of the Malays to avoid discrimination on the basis of race or ethnicity, according to a UK-based study on discrimination and equality in the country.

The four-part study, jointly conducted by international charity organisation Equal Rights Trust (ERT) and Malaysian rights group Tenaganita, said the existence of Articles 89 and 153 of the Federal Constitution were among the strongest causes behind racial discrimination in Malaysia as both had purportedly failed to meet the original intention for positive action.

Instead, the provisions had “violated international law standards”, it was said in the executive summary of the “Washing the Tigers: Addressing Discrimination and Inequality in Malaysia” study published on the ERT’s website late Monday.

“The positive action measures under these provisions are not time-limited or function-limited.

“The permanent privilege enjoyed by the Malays and the natives of Sabah and Sarawak therefore appears to maintain unequal and separate standards, on the ground of race, in conflict with the constitutional prohibition of discrimination,” the summary said.

Article 153 of the Constitution of Malaysia grants the Yang di-Pertuan Agong responsibility “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”. The provision also goes on to specify ways to do this, such as establishing quotas for entry into the civil service, public scholarships and public education.

It is among the most controversial provisions in Malaysian law with critics often arguing against the necessity of a race-based distinction between Malaysians of different ethnic identities.

While right-wing Malay groups and political hardliners have used the provision to argue the need for the continuation of affirmative-action policies, opposition politicians have accused the ruling government of wielding it as a “weapon of aggression”.

But the ERT report said the provisions were among other legislation in Malaysia that it found to be either directly or indirectly discriminatory in nature, adding that the country has a human rights obligation to respect an individual’s right to be free from discrimination.

“Malaysia is urged to undertake a review of all federal and state legislation and policies in order to (i) assess compatibility with the right to equality; and (ii) amend, and where necessary, abolish existing laws, regulations, and policies that conflict or are incompatible with the right to equality.

“This process should include the repeal of all discriminatory laws, provisions and policies. In particular, the following discriminatory provisions should be repealed or amended to remove discriminatory elements,” the study said, before listing Articles 5(4), 8(2), 9, 10, 11, 12(1), 14, 15, 24, 26, 89, 153 and 161 of the Federal Constitution.

According to the study, the provisions discriminate against individuals on the grounds of residence, political opinion, religion, gender, race and ethnicity.

As an example, the report said that Article 10 of the Constitution, which outlines freedom of speech, assembly and association, is discriminatory on the grounds of political opinion by setting out exceptions and conditions aimed at restricting the activities of political opponents to the government.

“The picture of inequalities in Malaysia would be strongly distorted without an understanding of discrimination based on political opinion.

“The main patterns of politically-based discrimination are related to voting rights and other political participation rights, arbitrary detention on political grounds, freedom of association and assembly, and freedom of expression,” the report said.