Meaningless debate on the Constitution

  • Corporate News
  • Monday, 26 Nov 2018

Prime Minister Tun Dr Mahathir Mohamad was just stating the truth when he said that there would be no amendment to Article 153. As such the Opposition

ALL countries are governed by their uniquely constructed Federal Constitution and Malaysia is no different. The US Constitution has less than 5,000 words whereas the Malaysian Constitution contains more than 60,000 words. This is because the Malaysian Constitution lays down detailed provisions governing micro issues which consist of 15 parts, 230 articles and 13 schedules (Nov 1, 2010).

The Malaysian Constitution is complex and detailed to non-legal practitioners and often misquoted by irrelevant politicians with brains the size of a carrot.

According to constitutional scholar Shad Salem Farouqi, the Malaysian Constitution has been amended 42 times over the 48 years since independence as of 2005. However, as several amendments were made each time, he estimates the true number of individual amendments is around 650.

Most of the amendments were technical in nature and few were fundamental amendments.

It must be noted technical amendments were needed due to changing times and relevance in application of the law. Fundamental amendments however, affect the spirit of the ConstitutIon.

As an example, the RU355 Private Members Bill sought by Hadi Awang of PAS in 2016 was to seek a technical amendment in proposing to increase the current limit of the Syariah Court in sentencing as stated in the Federal Constitution. It does not affect the spirit of the Constitution as the Syariah Court is (still) subordinate to the courts established by the Federal Constitution.

All amendments to the Federal Constitution requires a two-thirds majority in the Parliament which means 148 votes out of 222 MPs. There were no amendments made for the last 15 years since Barisan Nasional lost its two-thirds majority in the Parliament in the 2014 general election.

The current Pakatan Harapan government does not have a two-thirds majority in Parliament and as such it is unlikely to introduce and carry out any amendments to the Constitution over the next 4½ years.

Prime Minister Tun Dr Mahathir Mohamad was just stating the truth when he said that there would be no amendment to Article 153. As such the Opposition’s accusation on the possible amendment is baseless and irrelevant.

Unless of course they cross over to the Pakatan bench and form the two-thirds majority.

Ratification of ICERD is irrelevant and meaningless as long as Article 153 is not amended. It is just a United Nations charter and it has no jurisdiction over our sovereignty. The Malaysian Constitution was drafted to be relevant to the times of the day.

Malaysians will amend the Constitution when there is a need to stay relevant to the needs of the citizens in the foreseeable future.

So the current debate among politicians of both divides serves no purpose other than to stir up racial sentiments that the New Malaysia can ill afford to have right now.

Any sensitive public discussions should be relevant to current political reality.

If the issue of recognising UEC can be pushed back five years, so should this ICERD issue be discussed after the next general election when perhaps the government of the day has a two-thirds majority in the Parliament. In the meantime, all citizens should stay calm and let the carrot-brained politicians beat themselves silly over an irrelevant impractical issue.

Article 153 which is about special position of bumiputras (Malays and natives of Sabah and Sarawak) and legitimate interests of other communities must be read with Article 160 which is on Constitutional definition of Malay.

Article 160 defines a “Malay” as a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and was, before Merdeka day. born in the Federation or in Singapore. So many Indonesian Muslims who migrated to Malaya became Malay by definition of the Constitution.

Article 160 further defines Malay citizens who convert out of Islam are no longer considered Malay under the law. Such converts will no longer be considered bumiputras and will not enjoy the privileges of Article 153. Likewise, a non-Malay who converts to Muslim can lay claim to bumiputra privileges provided he meets the other conditions.

Controversial article

Article 153 is the most controversial article in our Malaysian Constitution as it specifically discriminate citizenship by race. Written into law at a time of need, it was a relevant piece of legislation to reduce economic imbalance between the bumiputras (Malays and natives of Sabah and Sarawak) and the other races.

The Yang di-Pertuan Agong is required to safeguard the special position of bumiputras and must act in accordance with cabinet advice to specifically establish quota for bumiputras in federal public positions, federal scholarships, federal trade or business licences and tertiary education enrollment.

There is no mention of percentages or quantum of quotas in the article so quota policies were set by the government of the day.

The New Economic Policy was the front runner for Article 153 and set the tone for subsequent governments to intensify privilege rights and quotas to the bumiputra community.

How much of the privileges have benefited the community at large is for all to see. Noble intentions, wayward implementations.

So any politicians who says that Article 153 safeguards the position of Malays is technically incorrect as the right definition is bumiputra which includes the natives of Sabah and Sarawak.

Article 153 has nothing to do with religion and it sets no time frame. Any amendment must be with the consent of the Conference of Rulers.

The second part of Article 153 requires the Agong to safeguard the legitimate interests of other communities or non bumiputras. Article 153 protects the legitimate interests of other communities in the following ways:

Citizenship to Federation of Malaysia.

> Civil servants must be treated impartially regardless of race to be read with Article 136.

> Parliament may not restrict any business or trade solely for bumiputras.

> Article 153 cannot deprive any person of any public office already held by such person.

> No person may be deprived of any federal scholarship already enjoyed by such person.

> Laws reserving quotas in trade licences may not deprive any person of any right, privilege or licence already enjoyed or held by him or authorise a refusal to renew such person’s licence or permits.

The Reid Commission who wrote the Constitution in 1957 had proposed that Article 153 be reviewed after 15 years which was in 1972.

The review was not done due to the May 13, 1969 riots and the New Economic Policy was launched in 1971 which was in line with the wordings of Article 153. A new date of expiration of NEP was set for 1991. However, the NEP was said to have failed to meet its targets and was continued under a new policy called the National Development Policy.

Article 153 has a rich historical significance in the governance of Malaya/Malaysia since independence. Singapore broke away because Lee Kuan Yew at that time could not accept Article 153. It was relevant then. Is it relevant today?

Since there is no possibility of amending Article 153, the practical solution would be to work within the spirit of the Article. Quotas can be adjusted to benefit the B40s of all races. Federal licences like AP’s can be reverted back to government for additional revenue. Any policies that benefit the already rich elite should be channeled to a wider group of beneficiaries.

Quota on tertiary education

Quota on tertiary education places for non-bumiputras should be improved giving them placements in studies of their choice based on meritocracy. There are still many non-bumiputra students from the B40 category that need assistance in education.

Political will is needed to work the Article 153 to its fullest potential so that it benefits the poor. Where our NEP has gone wrong has been the lopsided accumulation of wealth among the elite and I believe Dr Mahathir and his Pakatan team will do it right this time. The rakyat will support any programmes that can help the poor citizens irrespective of race and religion.

As I am not legally-trained, I stand to be corrected in the writing of this article. I hope the Bar Council and the Attorney-General will not label me a carrot brain politician wannabe. That would be totally irrelevant.


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