Bumi affirmative package 'unconstitutional'

COMMENT It appears that the RM30 billion Bumiputera Economic Empowerment package to reward the Malays and natives of Sabah and Sarawak for voting Umno-BN is incompatible with the constitution.

As a policy, it is inherently discriminatory; namely against the non-Malays. This is diametrically opposed to the right to equality guaranteed to all Malaysians under Article 8 of the federal constitution.

As the fund is taken from public funds, every taxpayer should be treated equally.

Even if Prime Minister Najib Abdul Razak tries to justify the package under Article 153, there are several arguments against the package. In short it is hard to square the policy within the Article 153 framework which stands as the foundation for the special position.

It is to be emphasised that under Article 153, the privilege is for all the Malays and the Borneo natives. Since Najib administration made the voting for Umno-BN as the qualification, the package is obviously against Article 153.

It is to be pointed out that the very basis for the race-based affirmative action is being Malay, and later extended to Sabah and Sarawak, when the two states joined the federation in 1963.

In announcing the package, Najib has narrowed down the qualification for the privilege and this is beyond his powers as prime minister.

Najib did not consult rulers

Whatever it is Najib, did not consult the rulers on the change of policy; under Article 38 the rulers must be consulted if the government wants to make a policy change in the implementation of Article 153.

The rulers have a constitutional duty to stop the discriminatory nature of the package. They have to remember that it is the rulers themselves who mooted the idea of giving the Malays that special position.

This is one of the issues championed by the rulers when they started the durbar meeting with the British officers in the late 19th century.

With regard to the non-Malays, one has to bear in mind that under Article 153, the government must take into account the legitimate interest of other communities which in this case, include the non-Malays.
Given the huge amount of money taken from the public purse, certainly there is a case for the non-Malays to put up questions on the matter.

In short, the package has the potential of breaking both Article 8 on equality and Article 153 on the special position of the Malays.

It may also catch the wrath of the constitution via Article 38 mentioned above.

Apparently from both substantive - Article 8 and Article 153 - and procedural - Article 38 - Najib has lots to answer.

He may proceed with it given that it is unlikely for the Federal Court to veto the package but the point to be made here is that Najib must convince the taxpayers if the policy is to have a sound constitutional foundation.

Needless to say it will also affect the investment climate in the country as the world is watching.

---

ABDUL AZIZ BARI is a constitutional law expert who was formerly with Universiti Islam Antarabangsa (UIA).