Wednesday, October 29, 2008

Constitution can be discussed...can be changed - it is not sacred or infallible

The government will continue to defend the special rights of the Malays and those of the other races as outlined in Article 153 of the Federal Constitution, the deputy prime minister said.

Reminding the country's leaders not to abuse their powers, he said the guarantees provided for in the Constitution should no longer be questioned.

"These are the basics and we will continue to defend Article 153 as the backbone of the nation.

"We can always sit down and discuss policies" but not the fundamentals of the Constitution, Datuk Seri Najib Razak said at a Hari Raya open house organised by Perak Barisan Nasional on Sunday. - New Straits Times, 28/10/2008 - Najib: Rights will be upheld
Malaysians (and other persons) should have the full right to discuss every aspect of the Federal Constitution - and this is important.

Unlike other laws, the Federal Constitution cannot be amended by simple majority vote - it requires a 2/3 majority for Constitutional amendments >> and that is the safeguard that have been put in.

And this 'sacred' Article 153 that Najib is talking about is as follows:-

153. Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.

(1) 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.

(2) Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.

(3) The Yang di-Pertuan Agong may, in order to ensure in accordance with Clause (2) the reservation to Malays and natives of any of the States of Sabah and Sarawak of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to any Commission to which Part X applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities; and the Commission or authority shall duly comply with the directions.

(4) In exercising his functions under this Constitution and federal law in accordance with Clauses (1) to (3) 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.

(5) This Article does not derogate from the provisions of Article 136.

(6) Where by existing federal law a permit or licence is required for the operation of any trade or business the Yang di-Pertuan Agong may exercise his functions under that law in such manner, or give such general directions to any authority charged under that law with the grant of such permits or licences, as may be required to ensure the reservation of such proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions.

(7) Nothing in this Article shall operate to deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him or to authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of a person any permit or licence when the renewal or grant might reasonably be expected in the ordinary course of events.

(8) Notwithstanding anything in this Constitution, where by any federal law any permit or licence is required for the operation of any trade or business, that law may provide for the reservation of a proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak; but no such law shall for the purpose of ensuring such a reservation -

(a) deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him; or

(b) authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of any person any permit or licence when the renewal or grant might in accordance with the other provisions of the law reasonably be expected in the ordinary course of events, or prevent any person from transferring together with his business any transferable licence to operate that business; or

(c) where no permit or licence was previously required for the operation of the trade or business, authorise a refusal to grant a permit or licence to any person for the operation of any trade or business which immediately before the coming into force of the law he had been bona fide carrying on, or authorise a refusal subsequently to renew to any such person any permit or licence, or a refusal to grant to the heirs, successors or assigns of any such person any such permit or licence when the renewal or grant might in accordance with the other provisions of that law reasonably be expected in the ordinary course of events.

(8A) Notwithstanding anything in this Constitution, 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 of 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; and the authority shall duly comply with the directions.

(9) Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays and natives of any of the States of Sabah and Sarawak.

(9A) In this Article the expression "natives" in relation to the State of Sabah or Sarawak shall have the meaning assigned to it in Article 161A.

(10) The Constitution of the State of any Ruler may make provision corresponding (with the necessary modifications) to the provisions of this Article.


Read it very very carefully - and note that there is a lot of improvements that could be proposed with regard to Article 153 ...

* There must be something to say that it should not be the SAME 'Malays and natives of any of the States of Sabah and Sarawak' who reap all the benefits.

* There could be a discussion to determine what is the meaning of ' of such proportion as he may deem reasonable' - is it 30% or is it 99%.

* There is a failure in our Federal Constitution to provide for special preferences for the poor and marginalised...

The practice of some banks requiring law firms to have a certain percentage of Bumiputra partners/lawyers in their firm before they will be appointed into Bank panels - is WRONG and unconstitutional. Thankfully, when the Malaysian Bar raised this matter - Bank Negara agreed and this practice has stopped...

Likewise, the practice of cheaper houses for Bumiputras is not something that provided for by Art. 153.... it is wrong and discriminatory.

Also note - the word 'Bumiputra' is not there in the Federal Constitution - it talks only about 'Malays and natives of any of the States of Sabah and Sarawak'

I have no issue with the fact that there must be special reservations/rights with regard to 'Malays and natives of any of the States of Sabah and Sarawak' but I feel it should also definitely extend to the other natives of Peninsular Malaysia - i.e. the Orang Asli (Temuan, Semai, Mah Meri, ...)

There are other matters that we all should and could discuss...and must have the freedom to discuss..

And discussion must never never be taken to be a challenge of the status and positions of natives of Malaysia...

7 comments:

Anonymous said...

agree with you mr hector. federal constitution is not sacred. article 153 can be changed if 2/3 of the MPs agree. likewise, if 2/3 of the MPs agree, we can also change this country into an islamic state. that's what we call democracy.

Anonymous said...

Oh Yes, I must add that The definition of Malays must be very clear. Only those pure Malays are entitle to the rights. Right now, even Pakistanis, Mamak, Filipinos, Arabs etc seem to call themselve malay and enjoy those rights.

SAMYAAVEE said...

"Storm in a teacup. I think what a man and a woman do with each other in the private is his own business. Why should double standards be applied to anybody - even a politician? If the majority of Malaysian men are having a good time with their women partner, then it's really not for us to care. Even politicians are human beings". The MIC had better come up with a good explaination instead, regarding the nude photo fiasco surrounding its Youth Member Dr. Punithan Shan. For more details go to http://darkjustice-lazarus.blogspot.com

Anonymous said...

You are right to highlight this !

Article 153 'applies' to States of Sabah and Sarawak 'only'.

I was shocked West Malaysia 'Orang Asli' not covered by Article 153.

Anonymous said...

Very well said. Constitution must be regarded as a 'living' document. We must continuously discuss so that it truly reflects the desires of every Malaysian citizen.

As long as there is special treatment given to certain people based on race or religion, there will not be true peace in this country.

Current constitution gives space for abuse of powers and economic wealth of this nation.

Anonymous said...

Way to go, Charles.

Let's have frank and open discussion.

Those who like to keep the whole thingy under wraps are the very people who are plundering and looting the country, just because they say they have special rights to do so and nobody should question them for doing so.

Cheers!

int said...

That the constitution is not a sacred document is made clear by the fact that BN has amended our constitution more times than the American constitution has been amended.

But in the spirit of things, I think the state governments should make amendments to theirs first, e.g. doing away with stipulations on the size of the state executive committee.