Monday, May 26, 2014

'Article 153 doesn't condone UiTM bumi policy'


COMMENT Recently, Universiti Teknologi Mara (UiTM) pro-chancellor Dr Abdul Rahman Arshad maintained that UiTM should remain a Malay-only institution.

He was responding to a proposal by DAP's Teluk Intan by-election candidate Dyana Sofya Mohd Daud (right) for equal access to a similar public institution of higher learning in the country.

The pro-chancellor claimed that UiTM was set up based on Article 153 of the federal constitution, adding that bumiputera privileges should not be questioned:

"We have Article 153 in the constitution that states clearly Malay privileges. If UiTM is opened to everyone, then where is the privilege?" he reportedly said.

Deputy Minister in the Prime Minister's Department Razali Ibrahim also questioned Dyana’s suggestion that a similar institution like UiTM be established to provide quality education for other races.

Nowhere in Malaysia’s constitution will you find any reference to “Malay rights” or “Malay privileges”. Article 153 mentions “the special position of the Malays”.

The main purpose for including Article 153 in the constitution was to rectify the perceived weakness of the Malay community in the economic field, the public service and the problem of Malay poverty at the time of Independence. (Tun Mohamed Suffian bin Hashim, “An Introduction to the Constitution of Malaysia”, KL 1972:245)

The first clause of Article 153 states:

“It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.”

The second clause of Article 153 stipulates that the Yang di-Pertuan Agong shall ensure the reservation for Malays and since 1963, for natives of Borneo “of such proportion as he may deem reasonable (my emphasis) of positions in the public service…and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the federal government and… any permit or licence for the operation of any trade or business is required by federal law…”

Clause 4 expressly states that:

“In exercising his functions under this constitution and federal law…the Yang di-Pertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.”

Is racial discrimination at UiTM 'reasonable'?

As a result of the racial violence of May 13, 1969, the country was presented with a fait accompli by the new ruling class in Umno who were keen to propagate their “bumiputraist” ideology as a populist ploy.

Again, you will not see any mention of “bumiputera” (the “princes of the soil”) in the Malaysian constitution.

Thus, in early 1971 the Constitution (Amendment) Act was passed adding a new clause (No. 8A) to Article 153:

“…where in any university, college and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the university, college or such educational institution to candidates for any course or study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the yang di-Pertuan Agong may deem reasonable (my emphasis); and the authority shall duly comply with the directions.”

This is the “quota system” we have lived with for more than forty years and which has created so much controversy for that length of time. Strictly speaking, if we were to go by Umno’s oft-repeated “social contract” at Independence in 1957, that “social contract” certainly does not include Clause 8A of Article 153.

And if we scrutinise this clause more closely, we will see that it is definitely not a carte blanche for the blatant racial discrimination as is the case of enrolment at institutions such as UiTM.

At the 2004 Umno general assembly, you may recall then Higher Education Minister Shafie Salleh (right)declaring: "I will never allow non-bumiputera students to enter UiTM. I will not compromise on this matter.”

So, if any aggrieved party took the government to court for its enrolment policy at UiTM or any other Majlis Amanah Rakyat's (Mara) institutions, how do you think any Federal Court judge would interpret clause 8A of Article 153, ie. “…to give such directions to the authority as may be required to ensure the reservation of such proportion of such places (my emphasis) for Malays and natives of any of the States of Sabah and Sarawak as the yang di-Pertuan Agong may deem reasonable?”

The 100 percent bumiputera enrolment policy at UiTM makes a mockery of the quota system and the justification of any affirmative action in any country.

Tomorrow Part 2: NEP, the ‘Never Ending Policy’ of BN

KUA KIA SOONG, a former MP, is adviser to human rights group Suaram.
~ Malaysiakini

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