Malay defined?

By Haris Ibrahim,

My good friend, Art Harun, has an excellent ’say it like it is’ piece in Malaysianinsider which, in the plainest language possible, spells out that, under our Constitution, we are all equal, save and except that provision is made in Article 153 for the Agong to take certain measures to safeguard the special position of the Malays and the natives of Sabah and Sarawak whilst also safeguarding the legitimate interests of the other communities.

The Constitution speaks of special position, not privileges or rights.

Art’s piece is worthy of a close read, and I’d urge all of you to give it the attention it deserves.

I want to make one point of clarification.

Art refers to the definition of “Malay” in Article 160(2) of the Constitution.

Let me reproduce that relevant provision here.

160 (2) In this constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say:

…“Malay” means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and -

(a) was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or

(b) is the issue of such a person;

Article 160 is an interpretation clause.

You will note that Article 160(2) expressly states that the meanings of the various words sought to be interpreted in that clause will not apply when, in the Constitution, the context in which the word appears would suggest a meaning different from that prescribed in clause (2). The first thing to note, then, is that the meaning ascribed to the words in clause (2), including “Malay”, are not necessarily exhaustive and must give way when the context demands it.

The second thing to note is that the meanings ascribed to the words in clause (2) are for the purposes of interpreting those words as and when they appear in the Constitution, and the Constitution only and that too, if the meaning ascribed is not displaced by the context.

In other words, the meanings ascribed here in clause (2), including “Malay”, cannot, as a matter of law, be applied and fixed to other laws enacted where similar words appear, simply because the Constitution stipulates the meaning for those words when they appear in the Constitution. It must be understood that these meanings have been ascribed for the purpose of the Constitution and the Constitution only.

The word “Malay”, as defined in the Constitution, has as such been defined so as to afford an understanding of the meaning of that word, as and when that word appears in the Constituion, unless the context affords a different meaning, in which event the latter meaning would have force.

It must not be thought that the definition of “Malay” in Article 160(2) is exhaustive and applicable everytime the word appears in any written law.