• UM Law Society

OF ARTICLE 153 AND AFFIRMATIVE ACTION

Incorporating affirmative action into the nation’s policies is a useful mechanism to ensure marginalized groups in society are given the opportunity and the aid needed to improve their quality of life. It works by increasing representation and opportunities in areas such as the workplace and in educational institutions. These government policies aim to reduce the social and economic disparities within a country. Affirmative action is implemented globally, and Malaysia is no stranger to such policies what with the basis of these policies embedded within our Federal Constitution.

Article 153(1) of the Constitution, provides that the Yang di Pertuan Agong is to safeguard the “special position” of the Malays and the natives of Sabah and Sarawak. He is also to safeguard the legitimate interests of other communities as well. In reading the provision, it is important to keep in mind the Constitutional definition of a Malay, as enshrined in Article 160, wherein the criteria of a Malay are laid out as follows; one must profess the religion of Islam, habitually speak the Malay language, conform to Malay customs and lastly, be born to a Malaysian parent. Notably, the granting of the status as a Malay has in fact no ties to one's ethnicity.

Further, Article 153(2) delves into the areas of which the focus groups shall receive protection. Again it is noteworthy that the wording of the Constitution specifies that such protections may only be awarded in such manner "as may be deemed necessary" by the Yang di-Pertuan Agong. The scope of reservations is also limited to three sectors, primarily; public services, educational facilities and business licenses. Clauses (3), (6) and (8A) of Article 153 then elaborates that the Yang di-Pertuan Agong may give general direction to the relevant authorities in order to fulfill Clause (2). This may include instituting race-based quotas and policies if the conditions call for it.

Often, attention is drawn only to the special position of the Malays as stated in Article 153(1) yet it is crucial to place emphasis on the latter portion of Article 153(1) that states that the legitimate interests of others is to be safeguarded as well. Clause (5) and (9), which should be read in conjunction with Article 136 (on ‘Impartial Treatment of Federal Employees’) particularly, restricts the possible encroachment of their interests in matters pertaining to employment and business trading. Article 8 on the right to equality is not to be forgotten as well, as it essentially forbids any form of discrimination against citizens regardless of religion, race, descent or birthplace in terms of employment and property.

At the same time we must understand that when Article 153 was first written into the law, a high percentage of Malaysia’s population was living under the poverty line, and this portion of people was vastly made up of Bumiputeras (notably a term not found in the Constitution). Hence, the Article was introduced as a protective measure for the socio-economically disadvantaged communities (thus, the use of the “special position”). However, the Reid Commission did recommend a review of the provision after 15 years. Such review, however, has yet to take place, even after 64 years.

The empowerment of Article 153 via government policy, an action in full force today, was originally fueled by one of Malaysia’s darkest moments in history; the May 1969 riots. The introduction of affirmative action policies for certain groups were reasonable at that time as there was a need to reduce the economic imbalances between races that had inadvertently disrupted the peace of our nation. The purpose of the introduction of such policies was to ensure the development of the capabilities and confidence of those lacking access to the materials required to achieve these goals. The outcomes of those policies, in many forms including the implementation of racial quotas in the education system and in the civil service, was successful to an extent in shrinking the income gap between races in Malaysia, with a narrowing percentage of 0.513 in 1970 to 0.410 in 2014 in household income, as measured through the Gini coefficient.

However, with progress, and with many of those from the original focus group having become more empowered, it raises the question of whether affirmative action as it was crafted then and whether policies based on race are still necessary today. It also begs the question of whether they are the right way forward, especially so since the marginalised are spread out amongst all races. With the provision being weaponized in politics, the narrative and implementation of the true intention of the provision may have eroded. It may therefore be time that the Reid Commission's suggestion for review is expedited and policies for affirmative action based on socio-economic status are implemented instead.