THE announcement by Prime Minister Datuk Seri Najib Tun Razak a few days ago that the Government will study in depth the request by the Indian-Muslim community to be recognised as bumiputra has caused quite a stir and sparked numerous discussions.
Some think that recognising a community as bumiputra is akin to “changing the race” of the said community.
This is a misconception. There is no question of changing anyone’s race. This article will attempt to clear the confusion.
The term “bumiputra” is not found in the Federal Constitution, at least with regards to ethnic communities in Peninsular Malaysia.
The term “bumiputra” or “pribumi” does exist in the context of the natives of Sabah and Sarawak. Article 161A of the Federal Constitution lists down the ethnic groups recognised as natives of Sabah and Sarawak.
The Constitution also provides for the “special position” of the Malays and the natives of Sabah and Sarawak, and quotas may be reserved in certain areas for these communities. This can be found in Article 153 of the Federal Constitution.
“Malay” is generally defined in Article 160 as “a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom”. This means that the special position in Article 153 does not include the orang asli of Peninsular Malaysia. However, Article 8 does allow for special laws to be made for the benefit of the orang asli of Peninsular Malaysia.
When the Prime Minister talked about studying the request to recognise Indian-Muslims as bumiputra, he is not talking about Article 153 of the Federal Constitution.
If he were, then Parliament would need to amend the Federal Constitution and expand the definition of Malay, or widen the scope of Article 153.
Such an endeavour would require the support of two-thirds of the Members of Parliament and would also require the express consent of the Council of Rulers, since it concerns Article 153.
The term “bumiputra” can be found in other Federal legislation apart from the Federal Constitution. But there is no legal definition of the term for Peninsular Malaysian ethnic groups.
Thus, the term “bumiputra” is not a legal term, but a policy construct. It is a useful term to group together Malays, natives of Sabah and Sarawak and other ethnic groups, especially after the New Economic Policy was implemented.
It is a “catch-all” term when implementing policies which benefit “natives” of Malaysia, including the orang asli who do not fall under Article 153.
The term has also been extended to other ethnic groups, depending on the context and the policy in question. Certain states have also recognised certain ethnic groups as “bumiputra”.
For example, ethnic groups such as Malaysian Siamese, Peranakan and the Malacca Portuguese have at some point asked to be recognised as bumiputra or have already been recognised as such.
The request made by the Federation of Malaysian Indian Muslim Associations (Permim), communicated to the Prime Minister, is not unique.
The request by Permim, therefore, does not require a legislative amendment.
One must also not forget that there are those with South Indian ancestry (as there are those with Pakistani, Arab and other South-East Asian ethnicities such as Javanese, Bugis and others) who qualify as Malay under Article 16 and are already within the ambit of Article 153.
There is no question of “changing one’s race”, which is often brought up in discussions and commentary about this issue. Permim itself is not asking to be seen as Malay, just to be recognised as bumiputra.
Mature and civil discussions and debates about this issue should be allowed to take place. But at the same time, one must be clear about the difference between “bumiputra” and “Malay”, and what Article 153 entails.
There is, of course, the question of whether race-based policies such as those in the New Economic Policy are effective in today’s world.
But that is a discussion for another time, and perhaps another article.
- Syahredzan Johan is a partner of a legal firm in Kuala Lumpur with an interest in the laws that shape our country. He can be reached at firstname.lastname@example.org. The views expressed here are entirely the writer’s own.