The “Malay and Natives Rights” revisited.

Taken from Malaysian Insider

Written by Art Harun

I have been labelled anti this and that. Apparently, I am also pro this and that, or the other. Therefore, I am going to begin this article with a disclaimer, just as all accountants do on their reports. This article contains my interpretation of the relevant Constitutional provisions in respect of the “rights” of the Malays.

And please read the next sentence really slowly. It is not intended to question anything, whether rights or otherwise, belonging to anybody, regardless of his or her race, faith or political leaning.

Malay rights.

What a subject. The mere mention of it evokes so many emotions. So much anger and resentment have resulted – on both side of the fence – from this subject.

It has been explored by the likes of Awang Selamat, Tun Dr Mahathir Mohamad, Datuk Ibrahim Ali and various NGOs. Our politicians have shouted and screamed about it. Warnings of mayhem and amok have been sounded in case of a challenge against these rights.

Even HRH the Sultan of Perak had spoken about it recently. But I notice not a single person out of 27 million of us has actually taken the trouble to spell out what these rights actually are. And so, let me be the first one to do it.

The supreme law of this country is our Federal Constitution (FC). That means every law and policy must be in adherence with the FC. Otherwise, such law or policy would be void for being unconstitutional.

We therefore have to look at the provisions of the FC to determine these so called rights of the Malays.

Generally, article 8 provides that all persons are equal before the law. I say “generally” because there are exceptions to this rule.

Clause 2 of article 8 says that there shall be no discrimination against citizens on the ground of religion, race, descent, place of birth or gender except as expressly authorised by the FC.

So, there you go. All of us are only equal up to the extent as provided by the FC. This means we may be discriminated against if the FC expressly allows it.

Article 153

Let’s cut a long story short. Article 153 of the FC is right at the centre of this issue. It is a fairly long article, with 10 clauses in it. Basically, these are what that article provides.

Special position and not special rights

Firstly, it says that HRH the YDP Agong has the responsibility to safeguard the “special position” of the Malays and natives of Sabah and Sarawak. Notice that the words used are “special position”, not “special rights.” Notice also that the safeguarding is not only restricted to the Malays but also the natives of Sabah and Sarawak (the “Natives”).

But that is not all. It also says that HRH the YDP Agong is also responsible to safeguard the “legitimate interests” of other communities.

Other races is legitimate interest

Notice the differences at what is being safeguarded. As for the Malays and the Natives, it is their special position. While in respect of other communities, it is their legitimate interests.

What is a Malay?

At this juncture, we should know what Malay is. Article 160 defines Malay as a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom.

It is not a scientific definition. It is one of the most absurd definitions I had ever come across in any written law. How could you define Malay as a person who speaks Malay and conforms to Malay custom when the very word which was sought to be defined in that definition is the word “Malay”? It is like defining a “mango” as “a fruit which tastes like mango”. Anyway, I digress.

Under article 153, HRH the YDP Agong is given the power to do the followings:

A. To exercise his functions under the FC in such manner as may be necessary to safeguard the special position of the Malays and Natives;

B. To ensure the reservation for the Malays and Natives of positions in the public service, scholarship, exhibitions and other similar educational or training privileges given by the Federal Government in such proportion as he may deem reasonable;

C. To ensure the reservation for the Malays and Natives of any permits and licenses if such permits or licenses are needed for the operation of any trade or business as he may deem reasonable; and,

D. 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 rest of article 153

The rest of article 153 is concerned with the prohibition against depriving licences or permits from the non-Malays or non-Natives if they have been in possession of such licenses or permits all along. This is beyond the scope of this article.

There is NO RIGHTS confer to Malay or Natives

The most important thing to be noted from this provision is the fact that there is no right whatsoever conferred to the Malays or Natives.

Examples

The provision does not say, for example, that “the Malays or natives of Sabah and Sarawak shall be allocated 75 per cent of all places in universities, colleges or other education institutions, or 65 per cent of all scholarships available in Malaysia every year.”

Rights are entitlements

When we speak of “rights”, we speak of entitlements which are possessed by a person or body of persons. These entitlements would then be enforceable by law.

Taking my example in the previous sentence, a class action to enforce such rights may be brought by the Malays or Natives if such rights are denied them in any year if the provision in the FC is couched as such.

HRH – power is undeniable and clearly defined

However, that is not the case in the FC. What is provided is a power to HRH the YDP Agong to reserve licences, permits, scholarships, places in universities or positions in public service for the Malays and Natives in such proportion as he deems reasonable. That power is undeniable and clearly defined.

The FC however, in my humble opinion, stops short from conferring any enforceable right.

Question may be asked as to how may HRH the YDP Agong exercise that power. The answer is in clause (2) of article 153.

The “power” conferred to HRH in article 153 is not exercisable by HRH at his discretion at all

Clause (2) provides that power shall be exercised by HRH the YDP Agong in accordance with article 40. That simply means that the “power” conferred to HRH in article 153 is not exercisable by HRH at his discretion at all.

That power is exercisable on the advice of the Cabinet or any Minister acting under the general authority of the Cabinet. By convention, that person is the Prime Minister.

HRH the YDP Agong does not have any say

In the big scheme of things then, HRH the YDP Agong does not have any say on how those things are to be “reserved” for the Malays and the Natives.

The Cabinet decides the criteria for such “reservation”

Essentially, it is the Government, through a Cabinet decision, which draws out the policy on how this power is to be exercised. Basically, the Cabinet decides the criteria for such “reservation” and also for the distribution of the matters mentioned in article 153.

It is the Barisan Nasional who decides

That means, all these while, it is not Umno alone who decides. It is the Barisan Nasional as a whole, which means the matter has all along been decided by Umno, MCA, MIC and all the component parties within the BN.

Nowadays questions have been raised as to why students with lower scores could gain admission into universities while students (non-Malays) with higher scores could not. The same question is raised with respect to the grant of scholarship.

Distribution of government contracts

In the commercial world, questions are being raised on the distribution of government contracts and also the requirement for a certain percentage of Malay shareholdings in corporations.

Why call Malaysian “ungrateful Immigrant”?

On the Government side, these questions have been received with absolute disdain. These are treated as a challenge of the rights of the Malays. Rhetoric abounds. Shouts of “ungrateful migrants” could be heard.

There is even suggestion that to question these matters is to question the power of the Ruler under article 153. The “social contract” is referred to.

In my humble opinion, that is misconceived. Nobody is asking for HRH the YDP Agong’s power under article 153 be removed.

What is being questioned?

I think, rather, what is being questioned is the policy which underlies the exercise of the power as opposed to the power itself.

It must be noted that article 153 repeatedly provides that HRH the YDP Agong shall exercise his power as “he may deem reasonable”. Perhaps such “reasonableness” is the key.

Do we have a democratic government?

We profess to have a democratic Government and system of politics. If so, surely Government policies, especially those which touch the very basic and fundamental rights of the people, such as the right to education for all citizens, could be discussed, analysed and even questioned.

And surely, a good Government whose heart is with the people and the country would not dismiss such questions nonchalantly.

Conclusion

Otherwise, I suppose, the people could effect a change in such policies by changing the policy makers.

Dayakbaru – change we must

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June 19, 2009 · Filed Under Culture, Education, Politic

Comments

2 Responses to “The “Malay and Natives Rights” revisited.”

Dayak Undead on June 20th, 2009 11:03 am

Minister says NCR land is state land, lawyer disagrees

MKini Tony Thien Jun 19, 05 3:28pm

A Sarawak senior minister has said that all land that has not been surveyed and issued with titles, including land under native customary rights (NCR) claim, is state or government land.

“The state government will only recognize a right or claim to government land if it was created in line with the relevant written laws of the state government, including laws and the Royal Order brought into effect before January 1, 1958,” state Second Minister of Resource Planning and Management Awang Tengah Ali Hassan told the state legislative assembly last Friday.

The minister’s statement appears to be directed at largely the Dayak community who make up almost half of the state’s 2.3 million population. They reside mostly in the rural areas and do traditional farming and collecting firewood and timber for their own needs from temuda land and pemakai menoa (land never surveyed and without any title issued).

It is estimated that NCR land constitutes a total area of about three million hectares or more.

Awang Tengah was replying to a written question from Ba’Kelalan state assemblyperson Nelson Balang, who wanted to know the exact relationship between NCR land and state land in view of the need for native landowners to understand the legal implications.

He explained that if there was any land dispute involving either state land or NCR land, the matter should be dealt with according to the laws.

“The party making the claim must prove the validity of their NCR claim over the land,” he added.

A well-known Orang Ulu lawyer Baru Bian, when contacted for his comments, described the minister’s statement as “misleading and incorrect as it does not reflect the actual status of the law.”

Land Code

“It is half-truth and half lie and I would say akin to the devil trying to tempt Jesus,” said Baru, who handles a number of litigation cases brought by NCR landowners against the government and many logging and plantation companies in Sarawak.

He explained: “Section 15 of the Sarawak Land Code clearly recognizes that native customary rights over land can exist in a land categorised as state land.”

“Secondly, it also clearly states that state land shall not be alienated to any person until all native customary rights therein have been surrendered or extinguished or provisions made for compensation to be paid to persons entitled to such rights.”

Baru said he hoped the minister had been misquoted or been ill advised “because his response seems to suggest there is no NCR land under the laws of Sarawak.”

He explained that by virtue of it (land) being native customary rights it therefore has no titles, and when the land is surveyed and issued with titles, it would then become titled native land.

Many natives have been complaining about encroachment by logging and plantation companies into NCR land which is either farming land or kampong reserves, leading to destruction of crops and fruit trees as well as polluting water catchment areas in some areas.

Small native landowners

Earlier this week, the state assembly passed a bill to determine the composition of the Native Court of Appeal and accelerate the process of hearing some 800 cases involving land disputes between natives.

In addition, about 130 litigation cases against the government and companies are before the civil courts, and more such cases are expected as more land is opened up for logging, plantation and other commercial development activities in rural Sarawak.

Meanwhile, Peter Nansian Ngusie ( BN-Tasik Biru), who also spoke, called on the state government to survey what he described as fragmented and small pieces of land owned by natives along roads and close to urban centres and issued them with titles for commercial agriculture.

He added that while the government was pursuing large-scale plantation activities, small native landowners desiring to go into commercial activities themselves should also be assisted so that they could raise loans with land titles.
Dayak Jihat Militant on June 21st, 2009 12:44 am

The Orang Asal( Dayaks) or Orang Asli are the true Original Natives of Malaysia. The Chinese, the Indian and the Malays are Pendatang.Thy should not have the right to be call Bumiputras.
This Malays and the Muslims are missuse( salah guna) the Bumiputra right for their selfishness( untuk kepentingan diri sendiri) and depriving the Natives right of the original Natives people(Dayaks and Orang Asli) in Malaysia. The Dayak and the Orang Asli lost/ rob of their Land right to the Pendatang and the BN Government. Now a days a lots of the Natives are Landless,homeless and stateless with no IC/Mycard. The Dayaks and the Orang Asli should fight for their right to the last drop of their blood or life. Hidup Dayakbaru! Amen!