by Kua Kia Soong, Director of SUARAM, 20 October 2009
The defensive stance of Najib at the recent UMNO general assembly was not lost on most observers. He started off by saying, “We are not racist…” Since the launch of “1Malaysia”, the prime minister has asked for suggestions on how we can attain this elusive objective – what I call Malaysia’s “Year Zero” target.
Towards Year Zero
I often say that we in Malaysia have not even reached “Year Zero” for real nation building to begin. We have to first reach Year Zero when race-based political parties no longer exist in this fair land of ours before we can develop as a nation. Successive Barisan Nasional governments have dreamed up one caper after another to justify their racialist rule and the latest “1Malaysia” is yet another hollow hype.
Everyone can see that the race-based political parties in the Barisan Nasional are the biggest anachronism in a country that claims to aspire to be “1Malaysia”. Where else in the enlightened world community do you find political parties that discriminate against other “races” such as we find in UMNO, MCA and MIC? The floundering of these race-based parties since March 8th 2008 is an indication that the hour of their extinction is nigh…
Can a Chinese Malaysian join UMNO? No! Can a Malay Malaysian join MCA? No! Can a non-Indian join MIC? No! Is this not racial discrimination?
But can a Malay Malaysian enroll in a Chinese-language school? Yes! Can a Chinese Malaysian enroll in a Tamil school? Yes! And there are more than 60,000 non-Chinese in Chinese primary schools of Malaysia today. The Chinese primary school at Fraser’s Hill is almost all Indian! There is no racial discrimination in these schools.
Do you remember the UMNO Minister of Higher Education who told the UMNO general assembly a few years back that as long as he was the minister, he would not allow a single Non-Bumiputra to be admitted to UiTM? That’s blatant racial discrimination in 21st century Malaysia. Has this policy changed at UiTM with 1Malaysia?
Ratify the Convention against Racial Discrimination (CERD)
A simple test of whether or not the latest “1Malaysia” slogan is just another BN caper is for the Government to ratify the International Convention against all forms of Racial Discrimination. For a country that has chaired the UN Human Rights Commission and now espouses a “1Malaysia” slogan, there should be no problem for the government to take this first step on the path to non-racial redemption.
Racism and racial discrimination have been part of Malaysian political, economic, social and cultural realities ever since colonial times. Today, race has been so deeply institutionalised that it is a key factor determining benefits from government development policies, bids for business contracts, education policy, social policy, cultural policy, entry into educational institutions, discounts for purchasing houses and other official policies. Practically every aspect of Malaysian life is permeated by the so-called “Bumiputra policy” based on Malay-centrism. This is unabashedly spelled out by political leaders in the daily mass media in Malaysia.
Racism is an integral part of the Malaysian socio-political system. The ruling coalition is still dominated by racially-defined component parties, the United Malays National Organisation, the Malaysian Chinese Association and the Malaysian Indian Congress. These parties compete for electoral support from their respective “racial” constituencies by pandering to “racial” interests. Invariably, their racist inclinations are exposed at their respective party congresses.
Some opportunistic Opposition parties likewise pander to their constituencies using racialist propaganda to win electoral support and they have also contributed to the vicious circle of racial politics which has characterised Malaysian politics all these years.
UMNO, the ruling party continues to insist that “Malay Unity” and even “Malay Dominance” are essential for National Unity. “Malay dominance” is invariably used interchangeably with “Malay Privileges”, which these ruling Malay elite justify in the Malaysian Federal Constitution.
Would the UMNO leaders continue to use such racist concepts such as “Malay dominance” once we have ratified the CERD? Maybe that explains why Malaysia has up to now not yet ratified this basic international convention.
Consequently, we have witnessed the periodic controversies over the alleged “challenges to Malay Special Privileges” every time sections of Malaysian society call for non-racist solutions to Malaysian problems.
Class Interests in Affirmative Action
The ruling party UMNO prides itself on the supposedly “successful” affirmative action in favour of ‘bumiputras’. This has been the cornerstone of development plans since the New Economic Policy which started in 1971.
Consequently, while this populist “bumiputra” policy has been applied to the benefit of “bumiputras” as a whole, the new Malay ruling elite is strategically placed to reap the full benefits of this racially-based policy. Totally committed to capitalism and to privatisation, this policy has ensured that the Non-Malay local and foreign elite have also gained from the New Economic Policy since 1971. This class cohesion among the Malaysian ruling elite underpins the racialist politics which has characterised Malaysian society since Independence.
Non-discriminatory basis of the Constitution
It is time for Malaysians to reaffirm the non-discriminatory basis of the Federal Constitution and to uphold human rights principles which are strictly anti-racist.
Article 8 (1) of the Malaysian Constitution clearly spells out the principle of equality of all Malaysians while Article 12 (1) allows no discrimination against any citizens on the grounds of religion, race, descent or place of birth.
Article 153 on the special position of Malays was inspired by the affirmative action provisions of the Indian Constitution to protect the minority under-privileged class of harijans. Ours is fundamentally different from those provisions because the ethnic group in whose favour the discrimination operates in Malaysia happens to be the one in political control, the Malays.
At the time of Independence in 1957, four matters in relation to which the special position of Malays were recognised and safeguarded were: land; admission to public services; issuing of permits or licences for operation of certain businesses; scholarships, bursaries or other forms of aid for educational purposes.
The Federal Constitution certainly does not adhere to any notion of “Ketuanan Melayu” (Malay Dominance), which is a totally racist concept.When the Constitutional (Reid) Commission was considering whether such a provision should be included in the 1957 Constitution, it made the following comments:
“Our recommendations are made on the footing that the Malays should be assured that the present position will continue for a substantial period, but that in due course the present preferences should be reduced and should ultimately cease so that there should be no discrimination between races or communities.” (Report of the Federation of Malaya Constitutional Commission 1957, Govt Press, para 165, p.72)
The UMNO leaders have often tried to accuse critics of the New Economic Policy of being against Malay special privileges. In fact, they are ignoring the fact that these racially discriminatory policies did not exist in pre-1971 Malaysian society even though Malay special privileges were in existence between 1957 and 1971.
Affirmative Action Must be Transparent and Accountable
After the Tunku was deposed in 1971, the new Malay ruling elite felt that adequate opportunities had not been made available to them, especially in education and that there should be a larger proportion of Malays in the various sectors. Thus, in 1971 and under Emergency conditions, Article 153 was duly amended to introduce the quota system for Malays in institutions of higher learning. Clause (8A) specifically provided for the reservation of places for Bumiputeras in any University, College and other educational institutions.
Nevertheless, the quota system was not intended to be the totally non-transparent and non-accountable and unfair system we know it today:
Firstly, Article (8A) makes it clear that the Yang di-Pertuan Agong can only order a reservation of a proportion of such places for the Malays. It would therefore mean that the quota system is applicable only on a faculty basis and more importantly every faculty or institution should reserve places for students of every race. No faculty or institution under this provision could cater for the Malays alone to the exclusion of the other races. The existence of institutions such as UiTM and other junior colleges which have been practicing blatant racial exclusion is actually a wild aberration from Article 8A.
Visu Sinnadurai (“Rights in respect of education under the Malaysian Constitution” in Trindade & Lee edited ‘The Constituion of Malaysia’) has observed:“Years after the implementation of this racial quota system, there was no trace of any such order being made by His Majesty nor was there evidence of any such order having been gazetted. Such a directive would thus seem to have been made by the officials of the Ministry of Education.”
Thus, it is not clear whether the quota system is made applicable on an institutional basis or on the basis of the total number of places available in a particular course of study of all the universities in the country. To apply the quota system on the total number of places available in any particular university will again be a wrong interpretation of the provisions of the Constitution.Article 153 (8A) does not authorise the administrators of any university to refuse admission to any student of a particular race. It only allows a proportion of the places to be reserved for Malay students. On such reasoning, the constitutionality of institutions like UiTM, the Asasi Sains in the University of Malaya or Kursus Sains Matriculasi Sidang Akademik of the Universiti Sains Malaysia which cater only for Bumiputra students is doubtful.
From the above, it is clear that the question of the constitutionality of the quota system as it has been practised since 1971 especially in totally Bumiputera institutions has never been tested.
Affirmative Action Not a Carte Blanche for Racial Discrimination
We know what the original intentions of the “Malay Special Privileges” provision in the Merdeka Constitution were, but to maintain that it is a carte blanche for all manner of racial discrimination as we have witnessed since 1971 is a violation of the spirit of the Malaysian Constitution.
International law sets major limits on affirmative action measures. Notably, affirmative action policies must be carefully controlled and not be permitted to undermine the principle of non-discrimination itself nor violate human rights. Holding the equality principle uppermost, the raison detre and reasonableness for differential treatment must be proven.
Another important criterion to ensure successful affirmative action and synonymous with international law is that such special measures should be introduced for a limited duration as was suggested by the Reid Commission in its Report of the Federation of Malaya Constitutional Commission in 1957.A consequence of the so-called affirmative action policies up to now is that for the poor of all ethnic communities, including the indigenous peoples in Malaysia, these objectives of wealth redistribution for their benefit have not been met. Worse, the poorest community remains the Orang Asli of Peninsula Malaysia, the Original People of Malaysia who are not even considered “Bumiputra” under the Federal Constitution.
Just 10 years after the NEP was implemented, the 1980 Census showed that more than 80 per cent of al government executive officers were Malay; Malays held 75 per cent of the publicly-funded tertiary education places; and 96 per cent of FELDA settlers were Malay. By 1990, it was widely held by observers that the wealth restructuring policy objective was very much on target if nominee companies listed under “other Malaysians” were analysed. It is also well-known that many of these nominee companies have been formed by the bumiputra elite.
Elite Cohesion in the Barisan Nasional
All the same, these figures showing ownership of equity capital, however distorted, also reveal that the rich Non-Malay elite have done quite well under the NEP. This perhaps accounts for the elite cohesion which has held the Barisan Nasional coalition together for so long. The evidence further shows that the NEP’s “wealth restructuring” has mainly resulted in increased wealth concentration and greater intra-ethnic inequality.
By the mid-Eighties, it was found that the top 40 shareholders in the country owned 63 per cent of the total number of shares in public companies; the top 4.4 per cent of investors in the Amanah Saham Nasional had savings amounting to more than 70 per cent of ASN’s total investments.
By 1990, the realities of the racially discriminatory quota system in education were as follows: An average of 90 per cent of loans for polytechnic certificate courses, 90 per cent of scholarships for Diploma of Education courses, 90 per cent of scholarships/loans for degree courses taken in the country, almost all scholarships/loans for degree courses taken overseas were given to Bumiputeras. Regarding the enrolment of students in residential schools throughout the Eighties, 95 per cent of these were Bumiputera. The enrolment in MARA’s Lower Science College, Maktab Sains MARA was almost 100 per cent Bumiputera throughout the Eighties.
Racial discrimination in the realm of culture is seen not only in education policy but also in the discrimination against Non-Malay cultures and religions in the National Cultural Policy. Non-Muslims face obstacles in their freedom to build places of worship and access to burial grounds, among other complaints.
Policy Proposals for 1Malaysia
Racism and racial discrimination have dominated Malaysian society for far too long. Now that the Malay ruling elite has clearly gained control of the Malaysian economy, it is high time for a new consensus based on non-racial factors such as class, sector or need to justify affirmative action.
It is time for all Malaysians who hunger for peace and freedom to outlaw racism and racial discrimination from Malaysian society once and for all and to build real unity based on adherence to human rights, equality and the interests of the Malaysian masses.
These proposals which I submitted to the World Conference against Racism and Racial Discrimination in Durban, 2001 are still applicable today, an indication that we have not yet reached “Year Zero”:
· Non-Racial Solutions to Malaysian Political Institutions
1. Political parties formed on the basis of “race” to further the interests of their respective “races” should be outlawed as such practices are inconsistent with international conventions against racism and racial discrimination;
2. Ratify all the international covenants and UN Conventions that have not been ratified by the Malaysian Government to ensure that all legislations in the country abide by international human rights standards;
3. Enact a Race Relations Act and institute an Equal Opportunities Commission to combat racism, racialism, and racial discrimination in all Malaysian institutions;
4. Delineation of constituencies must be based on the principle of “one person, one vote” and there should not be wide discrepancies between the number of voters in different constituencies;
5. Reintroduce elected local government so that problems of housing, health, schools, public order, etc. can be solved in non-racial ways;
6. Ensure that there is no racial discrimination in the Civil and Armed Services and every ethnic community has equal chance of promotion;
7. Establish an Independent Broadcasting Authority which is fair to all ethnic communities in Malaysia;
· Non-Racial Solutions to Malaysian Economic development
8. Full transparency and accountability to ensure that contracts and shares are not dispensed on a racial basis through nepotism, cronyism or corruption;
9. No bailing out of failed private businesses under the guise of affirmative action;
10. Reduce income disparity between the rich and poor regardless of race, religion, gender, disability or political affiliation;
11. Develop small and medium industries, the backbone of national industrialization without racial discrimination;
12. Support all sectors including pig farmers during times of crisis;
13. Distribute land equally to farmers of all ethnic communities;
14. Replace the racially-based quota system with a means-tested sliding scale mechanism to award deserving entrepreneurs;
Ø Non-Racial Solutions to Malaysian Social Development
15. Modernise the 450 or so New Villages in the country which have existed for more than 50 years, in which many of our small and medium industries are located and where basic infrastructure is inadequate;
16. Improve the living conditions (eg. a guaranteed minimum monthly wage) and basic amenities such as housing, education and health facilities of plantation workers;
17. Ratify the International Convention on the Protection of the Rights of all Migrant Workers and members of their families;
18. Set up an Equal Opportunities Employment Commission to address all forms of discrimination in the workplace;
19. Gazette all communal lands of the Orang Asli and other indigenous peoples so that they can control their own land resources and choose their own way of life;
20. Enact laws to confirm the rights of urban settlers and obligations of developers to provide fair compensation and alternative housing to urban settlers;
21. Cater to the special needs of women, children, senior citizens and the disabled;
22. Provide more recreational facilities for the youth regardless of race to allow them to develop positive and healthy lifestyles and to encourage tolerance and awareness of cultural diversity and equality;
23. Establish a housing development authority to direct construction of low and medium-cost public housing for the needy irrespective of race;
24. Poverty eradication programmes to benefit the poor of all ethnicity;
Ø Non-Racial Solutions to Malaysian Education
25. Special assistance based on NEED by under-privileged sectors and CLASS and NOT on race;
26. Institute a means-tested sliding scale of education grants and loans for all who qualify to enter tertiary institutions regardless of race, religion or gender;
27. Recognise educational certificates, diplomas or degrees based on strictly academic grounds and to be dealt with by the National Accreditation Board and not politicised;
28. Build more schools using the mother tongue of Malaysian minorities as long as there is a demand for them in any catchment of these ethnic communities and provide financial allocations to these fairly;
29. Establish a long-term solution to the crisis of teacher shortage in the Chinese and Tamil schools;
30. Amend the Education Act 1996 to reflect the national education policy as originally stated in the Education Ordinance 1957 ensuring the use, teaching and development of the mother tongue of all Malaysian ethnic communities;
31. Make available compulsory Pupils’ Own language (POL) classes within the normal school curriculum as long as there are five pupils of any ethnic community in any school;
Ø Non-Racial Solutions to Malaysian Cultural Policy
32. Promote knowledge, respect and sensitivity among Malaysians on cultures, religions and ethnicity;
33. Gazette all places of prayer and worship for all ethnic communities in their areas of domicile free from any encumbrances or arbitrary restrictions;
34. Include all works by Malaysians regardless of the language in which they are written in national artistic and literary awards and scholarships;35. All ethnic Malaysian cultures to be fairly represented in official cultural bodies and the media.