Kua Kia Soong 

Dr Mahathir Mohamad's National Day speech lambasted the Chinese organisations (Suqiu) which had submitted some 17 appeals before the last general elections as an extremist group on par with the Al Maunah group which had allegedly robbed two army camps of guns and ammunition a few months ago. 

Their "extremism", according to the prime minister, was manifested by their call to abolish the racialist bumiputra/non-bumiputra dichotomy which is used to discriminate in favour of bumiputras (princes of the soil) in various fields.

To insist, after 43 years of independence, that nobody is allowed to discuss or review such policies under pain of sanctions is hardly the stuff of "Vision 2020". At the outset, it is worth noting that it is a contradiction in terms for a supposedly "extremist" group to be making appeals to the government instead of delivering open threats.

Those who are aware of the nature of these "Election Appeals" were aghast that the prime minister could make such a callous statement. In all, 2,095 Chinese organisations have endorsed these appeals while political parties in the opposition and government including MCA and Gerakan agreed in principle with them. 

We must not forget that Dr Mahathir himself was labeled an "extremist" when he agitated against the incumbent Tunku Abdul Rahman in the early 70s.

His book, The Malay Dilemma was banned by the authorities although surprisingly, he did not fall victim to the Internal Security Act (ISA), which allows detention without trial for those allegedly to have spread "subversive" views. 

The Malay Dilemma analyses Malaysian society from the stand point of the "Malay race".

Rabble rousers

The official White Paper on the mass ISA detentions of 1987 documents the Umno Youth rally at the Jalan Raja Muda Stadium on Oct 17, 1987, at which racist and seditious sentiments were flagrantly displayed, e.g.: "May 13 has begun; soak it (kris) with Chinese blood…" .

Umno leaders, including those who are ministers today, were among the rabble rousers on the podium.

The Mahathir administration condoned such racism on the grounds that theirs was a reaction to the protests by Chinese organisations over the posting of unqualified officers to the Chinese schools in 1987. 

In the same way, Umno Youth's recent boorish protest over Suqiu at the Selangor Chinese Assembly Hall was justified by the fact that they claimed to be "provoked" by Suqiu. 

Another display of mob rule by Umno Youth was in November 1996 when they stormed the International Conference on East Timor at the Asia Hotel, breaking down doors and terrorising the conference participants.

The periodic controversies over the question of Malay special privileges and Umno's threats of challenges to "Malay dominance" in Malaysian politics gives cause for us to examine the issues of Malay special privileges, the quota system and how they reconcile with the principle of racial equality. 

This is an issue that Malaysians have to settle not only for the sake of our future but also to withstand scrutiny by the world community at the "UN Year Against Racism" launch conference in South Africa next year.

Equality for all

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 protective discrimination provisions of the Indian Constitution; but it 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 reasoning behind this special provision for the Malays was that if they were not specially favoured in government employment, scholarships, etc., they would be completely overwhelmed by the other races. 

But the Federal Constitution certainly does not adhere to any notion of "Ketuanan Melayu" (Malay Dominance), which is a totally racist concept peddled by Umno leaders.

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)

Tunku deposed

After the May 13,1969 incident which saw the Tunku deposed, it was felt by the new Umno incumbents that adequate opportunities had not been made available to Malays, especially in education and that there should be a larger proportion of Malays in the various sectors.

In 1971, 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 bumiputras in any university, college and other educational institutions. 

The implementation of the quota system evoked this comment from Visu Sinnadurai, professor of Comparative Law and dean of the Faculty of Law, University of Malaya in the 80s:

"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…

"It should be pointed out that though these changes were made purportedly under the direction of the Yang di Pertuan Agong, the writer is unable to trace any such Order being made by His Majesty nor does there seem to be evidence of any such order being gazetted. 

"It appears that such a directive has been made by the officials of the Ministry of Education. This lack of notification has caused some uncertainty especially in the validity of the implementation of some of the policies. 

"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." 

("Rights in Respect of Education Under the Malaysian Constitution" in F.A. Trindade & H.P. Lee, The Constitution of Malaysia, further perspectives and developments, Fajar Bakti, Petaling Jaya 1986: 49).

University admissions

Sinnadurai adds:

"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 a reasoning, the constitutionality of institutions like the Asasi Sains in the University of Malaya or Kursus Sains Matrikulasi Sidang Akademik of the Universiti Sains Malaysia which cater only for bumiputra students is doubtful...

"Furthermore, the Constitution of the University of Malaya expressly prohibits discrimination on grounds of race for the admission of any student to any faculty or institution of the university. 

"In this context too, the constitutionality of other institutions which admit students of a particular race only to the exclusion of other races is also doubtful as it may violate the equality provision of article 8.""(ibid, p.50)

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 bumiputra institutions has never been tested. 

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 discrimination based on the bumiputra/non-bumiputra divide is certainly straining credibility. 

Now that the commanding heights of the Malaysian economy have fallen into the hands of Malay capitalists 43 years after Independence, is it wrong to appeal for a new consensus based on social sector and need instead of race?