By N. A. WARDAH
You might be wrong when it comes to “hak Melayu” and what you have believed about it all this while. Maybe it is not you; maybe it is your friends or social media netizens who spread negative perceptions and making viral the wrong idea about the Malay right.
A few months ago, I had the privilege of meeting one of the most prominent constitutional law professors and writers at University Malaya to talk with him about this heated yet despised topic. His first reminder to me was – “First of all Afiqah, this is not your right. It was never meant to be your right.’
He is right. We have been clouded with the political terms of this special position as “hak-hak melayu” when the truth is, it is not. Calling and believing it as a true ‘hak melayu’ will lead to three major misconceptions. First, it is not a right. Secondly, it is not for the Malays solely. Third, it does not disregard other races’ interests.
So, if it’s not a right, what is it then? The correct term is ‘special position of the Malays and the Bumiputras’. People have to dig where it comes from, and it stems from Article 153 of the Federal Constitution.
Note that the term used is ‘special position’ and not right. What difference does it make? Using ‘right’ would create a very much disparate perception on the intended meaning and purpose of this Article. In jurisprudence, it would bring a different nuance if terms are not used properly in its place. Thus, one should not declare Article 153 as a right. A right means that it belongs to everyone ever since they were born. However, in the context of Article 153, one would fail to find that the Article was intended as a right or amounts to a right. A right is an entitlement recognised and protected by the law. Calling the special position of the Malays and the natives of Sabah and Sarawak as a right would mean that it is bestowed upon every Malay and the natives since forever. Since a right is something which should be conferred upon every human being and could be demanded by those who are being denied that right, that is not the case for Article 153. The reserved quotas for the Malays and the Bumiputras has been stated to be ‘the responsibility of the YDPA’ in safeguarding. That being said, it is under the power of the YDPA in accordance with the Constitution to grant it to the Malays and the Bumis. If the YDPA grants it, we would get it. If he stops it, we would stop having it even though this would never be the case. Thus, get it right by not thinking it as your right but a special position for you which could be taken any time and is given to you for a purpose.
Now, let us move to the second misconception. This misconception usually spreads the idea that the special position for the Malays and the natives of Sabah and Sarawak is granted in everything ranging from education to getting discounts for buying houses. Some believe that the special position is afforded to the Malays and the natives in every area or sector. Alas, it is not in every area but only in three main fields namely public service employment, higher education scholarships, education and training privileges and permits or licences for the operation of trade or business.
Apart from these three areas, if the government were to confer special position for the Malays and the bumiputras, it would be and should be unconstitutional. The discount for buying houses, if you think about it in the context of Article 153, is unconstitutional.
Thirdly, some believe that the special position is for all the Malays and the natives. What is wrong with this statement? It is misleading to believe that the special position is for ‘every Malay and the natives’, instead it aims for the ‘needy Malays and the natives’. Therefore, if a wealthy, influential man is granted with this special position, the man should not enjoy the reserved quotas as it is not what the constitution intended. Hence, such an action would be unconstitutional. So, who does it aim for? Article 153 aims for you and me, who need it the most. It aims for the Malay kampung boy who is struggling to enter university because he cannot afford to do so. It aims for the unlucky native Sarawakian/Sabahan girl who barely scores in SPM and will not enter university because everyone else obtains better grades and will be guaranteed places in the university. It aims for the rural boys and girls who hope to have decent jobs but because of fierce competition might not be able to secure them and might end up planting paddy or towing cows for the rest of their lives.
The special position is there not to discriminate, but to celebrate.
Thinking deeply about it, the crux of the problem does not lie within the constitution or the Article itself, but is within its implementation. The implementation of this law has gone far beyond its intended measures thus creating a lot of hate and racial controversies. The special position should be strictly implemented to the needy Malays and the natives of Sabah and Sarawak without disregarding the interests of other communities and confined to the three areas stipulated in the constitution. However, research shows that it is enjoyed by the wealthy and influential cronies and even extends beyond the three areas because the cronies are messing up with the implementation. When that happens, Article 153 does not seem to achieve its objectives until today which is why many have misinterpreted and despised this special position especially the non-Malays and the non-Bumis.
The special position of the Malays and the natives of Sabah and Sarawak should be carefully studied by everyone who wants to talk about it without leaving behind its background, true purpose, history and the problem that clouds it – implementation. Only then would one be able to appreciate the issue.