Are the NEW Malays also entitled to Article 153 Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak?
This was a QUESTION that I was asked, and I decided to look at this from a legal perspective?
NEW Malays - well, there are many Muslims from Indonesia, Brunei, Pakistan, Palestine and other countries that have come to Malaysia after MERDEKA - and some have do acquire PR which means that their kids are Malaysians. Others may have acquired citizenship...
In a case, I handled years back, it was about an Indonesian man who had been granted PR, who then married an Indonesian national - and all the 3 children were Malaysian citizens. What would they be Indonesian Malaysians, or simply Malay. If they are Malay, can they then reap the privileges accorded to Malays in Article 153?
AND Malay is really not a specific ETHNIC group, and in some State Law like the Perak Nationality Enactment 1952, section 2 defines a Malay as follows...
Malay
means a person who-
(a) habitually speaks the Malay language; and
(b) professes the Muslim religion; and
(c) conforms to Malay custom;
This means anyone who satisfies the conditions can become a Malay - it can also an Indonesian Malaysian, Indian Muslim Malaysian, a Pakistani Malaysian...REASONABLY, the biggest group in Malaysia ought to be the Indonesian Malaysians > but somehow, there seem to no government statistic - and one may assume they all now form part of the MALAY population.
This can all be confusing, but at the end of the day, we have to look at the definition of Malay in the Federal Constitution - and it is ONLY these Malays that can claim the benefit of the QUOTAS and preferences provided in Article 153
However, Art 160 of the Federal Constitution says
"Malay" means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and—
(a) was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or
(b) is the issue of such a person;
HENCE, only the Malay as defined by the Federal Constitution is entitled to the benefits accorded by Article 153 - '...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...'
So, should not PM Anwar Ibrahim and this PH-led coalition government INVESTIGATE to determine whether NON-QUALIFIED 'Malays' have wrongly been getting scholarships, permits, licenses, etc ....that are ONLY for the benefit of Malays, as per defined by the Federal Constitution? Should the government take steps to recover by way of compensation, things mistaken taken by the unqualified.
MAHATHIR's claim that Malaysia is not a multiracial state - also deserves a legal opinion... Looking at the Constitution, the very existence of Article 153 makes it clear that there are many other ethnic groups in Malaysia > if not, then there is no need for a provision that provides for quotas for specific ethnic/racial groups.
The fact that Malaysia is MULTI-RELIGIOUS is also clear Art.3(1) ..(1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
Looking at CITIZENSHIP provisions - it is again clear when there is also no mention of ethnic groups...it is all about persons. [Remember that the granting of citizenship was a British colonial strategy to garner support for the colonial government then, and to reduce support from the 'communist terrorist'(or rather those fighting for independence from the British?)
CITIZENSHIP BY OPERATION OF LAW OF PERSONS BORN BEFORE MALAYSIA DAY
1. (1) Subject to the provisions of Part III of this Constitution and anything done thereunder before Malaysia Day, the following persons born before Malaysia Day are citizens by operation of law, that is to say:
(a) every person who immediately before Merdeka Day, was a citizen of the Federation by virtue of any of the provisions of the Federation of Malaya Agreement 1948, whether by operation of law or otherwise;
(b) every person born within the Federation on or after Merdeka Day and before October 1962;
(c) every person born within the Federation after September 1962, of whose parents one at least was at the time of the birth either a citizen or permanently resident in the Federation, or who was not born a citizen of any other country;
(d) every person born outside the Federation
MULTIRACIAL Malaysia is a fact - there are many different ethnic groups in Sabah, Sawarak and the Peninsular Malaysia. Likewise many different religions and beliefs amongst the people of Malaysia.
One must also remember that RACISM or the divide and rule using ethnicity/race was introduced and promoted by the British colonial government. In fact, in the plantation sector, the British got Tamils to be tappers, and for the mandors or management, they used Malayalees from Kerala, Ceylonese, etc..Sadly, the British handed power to a coalition of 3 ethnic based political parties being the UMNO, MIC and MCA - who continued the 'divide and rule' based on ethnicity.
What will the new multi-racial multi-religious PKR and PH government do - would they still practice the divide and rule policy based on ethnicity, or will they stop asking us(or forcing us) to always identify the ethnic groups of our forefathers.
Indonesia and Thailand emphasized nationality, rather than ethnicity. Will Malaysia under Anwar Ibrahim change or will this government still promote the ethnic religious differences in policy and practice...will they stop asking us to identify ourselves ethnically in government forms/applications...or not? Remember, our Federal Constitution allows for a non-Malay non-Muslim to become Prime Minister. A woman can also be Prime Minister...
TIME may also come for a change in policy promoting quotas based on poverty(B40,M40 and T20) - with the intention of eradicating poverty as the emphasis.
Tabung Haji has recently stopped providing subsidies to T20, the super rich in Malaysia. Will we stop providing scholarships to students from T20 and upper M40 families, as they can afford to pay without any government financial assistance. Monies saved can help the POOR more...
How many Indonesian Malaysians? How many Thai Malaysians? ...is there a need to simply have statistics on Chinese Malaysians and Indian Malaysians?
The Federal Constitutions have been amended countless times - maybe the non-inclusion of the Orang Asli as one of the groups that deserve special preferences in the Constitution could be remedied at last?
Personally, acknowledging that all ethnic groups are in the T20 class - may a preferential quota system for the POOR is better, rather than simply an ethnic or religious based quota.
HENCE< Mahathir is WRONG, but it was good that he raised this issue which gives us an opportunity to openly discuss this 'once thought taboo' issue.
Is there a NEED to distinguished the Malays entitled, and those not entitled - maybe the entitled could be called Malays-MERDEKA, and others just Malay?
I hope my legal opinion on this matter will help those that are curious..
Mahathir claims promoting Malaysia as multiracial is unconstitutional
KUALA LUMPUR: Former prime minister Tun Dr Mahathir Mohamad has claimed that promoting Malaysia as a multiracial country is against the Federal Constitution.
In a Twitter posting, Dr Mahathir had responded to Umno Bukit Gelugor information chief Mohd Huzaidi Mohd Hussin's calls for him to stop playing up racial sentiments.
"I am just voicing out on what was stated in the Federal Constitution. It's not against the law to defend the constitution.
"But what is against the constitution is promoting the country as a multiracial country," he wrote.
Dr Mahathir also questioned whether the current government had rejected the rule of law and the Federal Constitution as the constitution never mentions the country as a multiracial country.
"Is the current government rejecting the Rule of Law including the Federal Constitution that never said Malaysia is a multiracial country.
"In fact, the constitution stresses upon the 'Malay-ness' of Malaysia."
He also claimed that prime minister Datuk Seri Anwar Ibrahim is adhering to DAP's manifesto.
"Despite DAP having only four ministers in the cabinet, there are 40 DAP members in the government. If they pull their support, Anwar's government could topple.
"Therefore, Anwar must heed DAP's manifesto especially in making the country a multiracial one and that the official religion of Islam be changed to a secular country."
Earlier on June 16, Huzaidi had called on Dr Mahathir to stop stirring up racial sentiments.
He had also dismissed claims made by the former prime
minister that DAP had a significant influence on the unity government as
DAP holds only four ministerial positions.-NST, 3/7/2023
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