Tuesday, March 20

HINDRAF Chair Waytha Moorthy: Time to correct historical wrongs. Time to dismantle Article 153

Good evening to all participants of Forum on “Article 153 of Federal Constitution and Equality of All Ethnic Communities”. Thank you for giving me this opportunity to present my thoughts on this taboo subject in Malaysia.

The supreme law of our country is the written Federal Constitution of Malaysia drafted by the British along with the then elites of Malaya. Any law or policies that do not adhere to this written law would become redundant as it would be unconstitutional.

Several articles from the Constitution that contradicts Article 153 in its manipulation can be observed in Articles 5, 8, 10, 11, 12 by the conduct of the present-day government, not a situation that prevailed at the time it was written.

Under article 153, His Royal Highness, the Yang Dipertuan Agong is expected to protect the “special position” of Malays, not “right” to do the following:-

• To exercise his functions under the Federal Constitution in such manner as may be necessary to safeguard the special position of the Malays and Natives;

• To ensure the reservation for the Malays and Natives of positions in the public service, scholarship, exhibitions and other similar educational or training privileges, any permit or licence for the operation of any trade or business is required by federal law in such proportion as he may deem reasonable;

• To ensure reservation for the Malays and Natives of places in any university, college and other educational institution providing education after Malaysian Certificate of Education (SPM) or its equivalent in such proportion as he may deem reasonable in the event the number of qualified person for any course or  study is more than the number of places available.
The responsibility conferred to the His Royal Highness (HRH) is subject to clause (2) of article 153. Clause (2) provides that the responsibility shall be exercised by HRH the Yang Dipertuan Agong in accordance with article 40. The authority to protect the “special position” to HRH in article 153 is not exercisable by HRH at his discretion at all, but only on the advice of the Cabinet or any Minister acting under the general power of the Cabinet or the ruling government.

How these powers have been usurped by the present government defeats any reasonability for its people and its citizenry on the basis of human rights and purported democracy in Malaysia.

If you look closely, the injection of “reasonableness” into Article 153 to protect the “Special position” of the Malays shows the yesteryear on the predicament of the Malays then, and not the current scenario in 2012 for all Malaysians and those who are jus soli.

It is expressly stated in Article 153(1) that “It shall be the responsibility of the Yang di-Pertuan Agong (YDPA) to safeguard the special position of the Malays and the natives of Sabah and Sarawak and the legitimate interest of other communities”.

The legitimate interests of other communities provided by the Constitution have been totally disregarded the phrase ‘legitimate interest of other communities’ means that original intention of the federal constitution does not allow simply any kind of preferential treatment in favour of the Malays and the natives of Sabah and Sarawak similar to a ‘blank check’, but merely confers reasonable powers on the government and parliament, pursuant to Article 153 under the purview of the Agong, to act reasonably without derogating from the principle of equality and equal protection of the law.

Such is the current scenario where 90% of the public service, scholarship for education, 80% of business permits are solely tailored and allocated for the majority Malays.

Clause (9) in Article 153 says 'Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays.'

If that is the case, then why do government projects should be awarded only to majority Bumiputra owned or where we have directive in law firms that you will need a Bumi Partner with more than 51 % ownership before a firm is accepted into any panelship to provide legal work in government related agencies which later stretched itself into the many other private industries such as finance, shipping, oil & gas, insurance, education and banking industry with such directive. 

The manoeuvred special position and the manipulation of Article 153 have even entrenched itself into the private sectors, the executive branch of the democracy organ, the judiciary including cultural and religious practice that seems oblivious to protect the legitimate interest of other communities that form part of the nation.

Article 153 is bound to Review 15 Years after the Implementation of the Constitution In revisiting the archives, it was very clear that the Alliance and the Reid Commission had every intention for Article 153 to be a transitional one to be reviewed after 15 years.

This is what Sir Alan Lennox-Boyd represented in the House of Commons on the 12th July 1957 said.

Now, a word about the balance achieved between the rights of Malays and Chinese. The special position of the Malays was recognized in the original treaties made by His Majesty in previous years, and Her Majesty Queen Victoria and others with the Malay States. It was reaffirmed when these treaties were revised. It was confirmed in the 1948 Agreement, and reference was expressly made to it in the terms of reference of the Reid Commission. So the Malay privilege clauses in the articles of the Constitution do not, in the main, introduce any precedent, but give recognition in the Constitution to the existing situation.

Observation - This statement was made deliberately to mislead the House of Commons into agreeing the provisions of the special privileges for the Malays. The original treaties with the Malay Rulers only state that the Sultan has to accept all advice given by residents except in matters involving the Islam religion and Malay custom. There was no mention of Malay privileges in the treaties.
This was what the Secretary for colonies had to say to justify the permanent feature of the Special position in the Constitution.

The Reid Commission found very little opposition in any quarter in Malaya to the continuance of the present system for a time, and it made certain recommendations which hon. Members will have read. The Alliance Government—this was accepted by the three parties composing the Alliance—wanted a number of changes, which have been made. They relate mostly to quotas in the public service, to permits, scholarships, and land reservations.

Very generally, the proposal to review the quotas after fifteen years has been dropped within the framework in the constitution. The responsibility of the High Commissioner is transferred to the Head of State, but—and it is a genuine safeguard for other races—the Head of State will act on the advice of the Cabinet, and the Cabinet is bound to be sensitive to the feeling of public opinion at any time.

HINDRAF is of opinion that the non-Malays were short-changed and irresponsibly left at the mercy of the majority Malay politicians and the Head of State by the British Government at that juncture. Even in 1957 the component parties, MCA and MIC were held at ransom by UMNO. The British Government conducted Legislative Council elections in 1955 where apparently alliance swept into power with overwhelming majority and confidence of the Malayan electorate. This was a sham as almost 90% of eligible Chinese and Indian voters were denied their right to vote in the elections. MCA and MIC had depended on UMNO to win the elections on the seats they contested. Justification for such an unbalanced and inhumane provision is against basic tenet of human liberty.

UMNO distorted the Federal Constitution and deprive other communities of their legitimate interests Malaysia is a secular country and in their representation to Reid Commission in 1956, the Rulers have specifically agreed that Islam should be for ceremonial purpose and that they did not intend to make Malaysia an Islamic state nor dilute the basic human rights of Non Malays in Malaysia to live a life without fear, favour or restriction.

The original Federal Constitution only bears a biased mirror of its original model against the minorities on a pretext of Article 153 for the benefits of the UMNO-based politicians.

In real terms, the poor and marginalized communities, including those aborigines, have been recolonized by the UMNO Malay ultras for their hegemony at the expense of human liberty and human rights for Malaysians.

HINDRAF is not against fellow Malays, but as a representative of a Malaysian nation, it stands tall to ensure that human liberty and freedom should not be subjected to one’s race, religion or creed, but to ensure equality is across the board, starting with the poor and marginalized. In this light, HINDRAF stresses the need to have a special economic and social program to specifically tailor for the almost 800,000 displaced estate workers who contributed to this country’s economy for almost 200 years, who today live in shacks and rumah panjangs as illegal squatters. They live a life of indignity as a result of institutionalized racism practised by UMNO for the last 55 years. We speak for the marginalized Indians on this need. Likewise we welcome all other groups to similarly speak for the respective communities they represent, and let us all join forces in a concerted manner, to fight the injustice perpetrated by UMNO under its 55 years’ rule.

Article 153 conveniently forgot the Orang Asal’s who were the aborigines of Malaya, the Chinese Babas, and Indian Chittys of Malacca who were all part of the early Malayan people. Migrant Indonesians were given citizenships as early as the 1950’s as the Malays felt threatened with the number of the Chinese community.

Are we to be treated as “pendatang” and “second class citizens” forever? After 55 years of Merdeka, millions of other Malaysians, just like me, are sons of this soil, but we are permanently termed as pendatangs and treated as second class citizens. Given another 45 years, when we celebrate our 100th Anniversary Independence celebrations, we would still be pendatangs.

What do we tell our great grandchildren when they question us as to why we are termed pendatangs. They would be the 8th – 10 generation Malaysians then.

The non-Malays may account to about 15-20% by then, if we are lucky, as a result of Bangladeshi’s, Pakistanis, Philippines, and Indonesians being made Bumiputras simply because they are Muslims. Sabah and Sarawak too would be filled with Muslims from the region and they would be equally disenfranchised.

The elite and upper class Chinese and Indians would be settled overseas. We can see this trend even this day. The remaining non-Malays and Borneo natives would be the underclass. The Malays who believe that their race is the master race just like the Nazis, would treat the non’s like slaves. I dread to imagine that day. More temples, Churches and Chinese temples would be demolished. I can imagine The Scott road Hindu temple would be demolished as there would be no more Indian elites left in the country, and the government would justify their demolitions, as this temple sits at a prime location. The Chinese temples in the caves along Jalan Kuala Kangsar Ipoh would have been history, as they would say the caves did not belong to the Buddhists. The familiar “illegal temples” term would then stick on to Chinese temples and Christian churches.

The Hindraf's law suit against the British is much more than the demand for compensation for the Indian communityHINDRAF is pursuing the legal civil suit against the British government. It is with merit as there is clear negligence on the part of the past British rulers and the conduct of the present government for the last 55 years, without safeguarding the interest of the non-Malays, who continue to face uncertainty and regression in their socio-economic development due to the maligned provision of Article 153. When it comes up in the UK courts, the case would reveal the deceit and manipulation of Britain and UMNO. Winning or losing the case does not matter, but Malaysians must be given the chance to prove the truth. On behalf of Hindraf, I invite all lovers of truth, justice, equality and democracy to join us, and contribute in whatever ways possible to that end. The civil case in Britain should not only be an Indian case for reparations, but a case of all Malaysians who care for the future. We must build Malaysia as a home for our grandchildren to live in peace and equality. Let not our grandchildren suffer the indignity and racial prejudice we have suffered from birth to death.

The Malays must understand that a provision favouring their race as the supreme race which deserves something better than others, is really a conspiracy of the elite, and everybody loses - Malays Chinese, Indians, Orang Asals and the Borneons. Article 153 is evil in nature. 

All religions in the world and conventions and covenants of the United Nations speak about equality of all human beings. The Yang Dipertuan Agong is falsely placed in a difficult position to perpetuate this conspiracy. The legality of Article 159 (5) which restricts amendments to Article 153  is disputable as the Agong is a Constitutional monarch, who is bound to act upon the directions of a 2/3 amendment to the Constitution.

I call upon the Yang Dipertuan Agong (Malaysian King) to openly call his Government and Cabinet to introduce a bill in Parliament with a view to amending Article 153 and restoring the lost dignity of all Malaysians for the past 55 years.
There can be no dignity without equality.

Thank you.

P. Waytha Moorthy 

(Note: Subtitles are added by the editor)


Apai irau said...

Waytha Moorthy is a 'pendatang' so do us, the none muslim natives especially the Ibans. We have problem entering local universities just because of mixed percentage,our 'race' in most of the borangs is still'lain-lain',our economics and social problems were never look into and remains the poorest race in Malaysia, our participation in public sectors are the lowest in term of population proportion and what not.As of today,Article 153 is intended for the Malays only(the way BN UMNO looking into it)and not for other natives.Natives of Sabah Sarawak referred to therein are mere hollow words that do not reflect the reality we faced today. One of the reasons why it becomes so hollow is because of our so-called Dayak leaders misdeeds.

Banting said...

A key practical tenet of democracy is that everyone is treated equally under the law. That means a system which ensure that there is no discrimination in the enforcement of law, and that power is not concentrated in the hand of a few.

While there is rule by the majority, the rights of everyone must be clearly spelt out and systematically protected. The majority cannot do whatever it wants.

Even though a Constitution is amended, discrimination can occur because of race, gender, social status and nationality. If such bill is introduced, I doubt other BN component parties including PBB, PRS and SPDP will support it. May be these three Sarawak based-parties will support the amendment of The Sarawak Land Code 1958 that criminalising community mapping, gathering of forest products by the natives in their NCR land and to empower the minister in charge of land matters to extinguish native customary rights to land.

Jambu Batu said...

This article should not be published in Sarawak.It is a very good article but at the same time it is worthless to publish it here.The natives are too naive to understand it and our leaders, in particular the so-called Dayak leaders are always hoping for the worst for their community.They are too busy politicking,saving their skin and has no time for their community.They are too busy perusing their bank accounts and have no time or purposely not having the time to read our rights and privileges enshrined in the constitution.

Anonymous said...

I like W. Moorthy statement " The elite and upper class Chinese and Indians would be settled overseas". What about the Chinese/Indians shopkeeper, retailers or other middle class, and these groups are the largest and the strongest suppoeters SUPP, MCA, MIC and BN . What a pity without knowing the conseguences.

Anonymous said...

There is entirely no point in asking that article 153 be taken off the Federal Constitution from the outside. The best to do is to convince the voters of this Nation in the coming GE13th that this article 153 had been abused raped and means to enriching leaders in UMNO and in PBB. So we must first change those leaders by voting other party than BN in the coming election. Then after a new government is in place we can talk about article 153. I see it that article 153 is not the problem. It is the abuse of power by BN leaders that had made it cast under a bad light. Anyway I think we should concentrate our efforts for the coming GE13, please.

Alan Newman said...

Am writing from NZ, rated among the world most democratic, uncorrupt countries:
Sarawak’s biggest criminal & his cronies have stolen directly or indirectly, billions of $ from the people. He was elected to serve his people, instead he made himself a King and continued self-aggrandization for 31 years to this day, without the slightest trace of humility or remorse. He still stands & speaks proudly. Gosh! How can you tolerate this another day! Sit-ins, stop-work, blockages, protests, marches, should have started 30 years ago by NZ’s standard. Has no one in Sarawak got any guts? The PM obviously supports deception, cheating & multi-billion thefts on a grand scale. Where is his sense of shame? And his legitimacy to remain in office?