Article 153 of Malaysia's constitution and the human right to non-discrimination
The Modern Malaysia is one of the pluralistic societies that comprise of communities of different ethnic, cultural and religious perspectives (Barlow & Loh, 2003, p. 135). The prevailing state of affairs is as a result of the British colonial social experiments. They happened between the 18th and 20th century during which a large number of the Chinese and Indian laborers were imported to the British Malaya. This is to enable the contribution of the labor force in the various plantations and mines. Prior to the British colonization in Malaysia, the population constituted of majorly the Malays, non-Malay natives and the Orang Asli as the aboriginal people (Barlow & Loh, 2003, p. 135). This is with Malays being the population constituting of the majority. However, as a result of the British colonists importation of foreigners as laborers in massive numbers Malaya, the population was fundamentally altered.
Following the importation of the foreign laborers in larger numbers to Malaysia during the colonization, the population of the Malaysian community underwent an alteration that saw the Chinese formation of one-third the population and the Indians forming one tenth of the total population (Barlow & Loh, 2003, p. 136). Malaysia is known presently as one of the multi-ethnic and multi-religious societies with an underlying objective dictated through the provisions of the article 153 of the constitution. Malaysia is one of the global most recognized countries with a multi-religious and multi-ethnic perspective with provisions supporting racism written in the constitution. The Malaysian population constitutes of the Malays as the majority making up to 50.4% of the total population, Indian 7.1%, the Chinese with 23.7%, and the indigenous population up to 11% (Barlow & Loh, 2003, p. 136).
The Article 153 has a regulative stipulation on the Malaysian leader bearing the significant responsibility for the Malays peculiar position safeguard through the cabinet advice and the indigenous people with the legitimate interest of other Malaysian communities (Jomo & Wong, 2008, p. 313). In the modern Malaysia, the privileges set in the article still remains in force. Article 10 section 4 of the Malaysian constitution permits the active parliament in making it illegal for any party to question article 153. Under the sedition act of the constitution, it is illegal to question the article inclusive of the parliament members with the freedom to discuss any of its provisions without considering the external censure fear (Jomo & Wong, 2008, p. 313). The constitutional provision of the special rights under the article 153 provisions have led to strained relations amid the Malaysian key races. During the year 1969, it contributed to the inter-ethnic violence between the communities of India, Chinese, and the Malays (Jomo & Wong, 2008, p. 313). The Indian and the Chinese community resented numerously the exceptional privileges provided by the article 153 on the Malays. The Malays mostly experienced unhappiness with the facts related to the Chinese aspect of control of the Malaysia wealth despite having exceptional status in the implemented institution (Jomo & Wong, 2008, p. 313).
This managed to give the government an excuse for the justification of the retention of the emergency powers with the necessity of the provisions. Following the riot carried out in the year, 1969 led to the development of new economic policies by the government to impose quotas percentage reversed for the Malays (Daniels, 2004, p. 316). This is within the social, economic and education sector. The argument of the government was that the economic gap amid the well-off Chinese and the poor Malays caused the riots. The Malaysian government also claimed that the dominating Chinese community had managed to give some of the significant constitutional bargains in accepting the exceptional privileges of Bumiputera during before independence (Daniels, 2004, p. 316). The community of the Chinese allegedly managed to accept the notion behind the Malay provided exceptional rights. This was in exchange of citizenship during the era before independence. The Chinese and Malay elite without the aspect of consultation with some of the corresponding communities managed to make negotiations of the informal bargains. The Malaysian parliament during the year 1971 made a decree with a foundation that prohibited the further questioning of the exceptional privileges provided in the article 153 for the Malays (Daniels, 2004, p. 316).
The evolution of Article 153 of the Malaysian constitution
The article 153 came into existence following the aspect of granting the leader, Yang di-Pertuan Agong, sole responsibility of safeguarding the Malays peculiar position (Verma, 2002, p. 97). This also includes the native who lives in the Sarawak and Sabah with the related community’s legitimate interests. The article specifies significant ways of carrying out the activities including the perspective of establishing public scholarship entry quotas, public education and civil service entry quotas. Article 153 gives the Malays exceptional privileges and rights since they belong to the Bumiputera group (Verma, 2002, p. 97). The government in Malaysia through the article also gives preferences to the companies of Bumiputera in the aspect of awarding out contracts. With the Malay, there are specially subdivided loans exclusively available. Under the article, some of the companies listed in the Kuala Lampur Stock exchange give 30 percent of ownership to the Malays (Bindloss & Brash 2008, p. 27). The special privileges that the article defines also led to the establishment of the Industrial Coordination Act of the year 1976. This necessitates the non-Malays companies to make an effort of having 30 percent of the Malay participation. The requirement has the element of threat of license revocation following cases of non-compliance (Verma, 2002, p. 97).
Article 153 in the Malaysian constitution goes into the Malaysian history books as one of the contentious articles. The majority of the critics considers it for the creation of the racialist and unnecessary distinction amid the Malaysians from different backgrounds ethnically since it has contributed to the implementation of affirmation action policies (Rosenfeld & Sajó, 2012, p. 1130). These benefits only the group from Bumiputra population comprising of the majority. Following its draft as one of the temporary articles, its discussion for repeal is considerable as illegal. Despite of the aspect behind the prohibition on the discussion, article 153 has undergone heated debates both publicly and privately amongst the Malaysians. The principal opposition groups in Malaysia have been in the long run against the article implementation although the support for it is ostensibly maintained (Rosenfeld & Sajó 2012, p. 1130). The article over the years has been viewed as a sensitive element through the Malaysians in majority, especially the politicians in the favour of the article or opposing it at the other end following the racist label. The relative modern identity conceptions in Malaysia roots back to the conceptions of the British colonial rule of the natives. The social understandings of the provisions of the article and the introduction of NEP have managed to implicate the perspective to which power operates under the administration tied to the colonial legal systems reconstructed during the process of transition (Barlow & Loh 2003, p. 135).
Originally, no reference was made for the other indigenous Malaysians inclusive of the Orang Asli but following the union of the Malaya with the Sabah, Singapore, and Sarawak in the year 1963, an amendment of the constitution followed. This provided for the similar privileges for the other indigenous population of the eastern Malaysia including Sarawak and the Sabah grouping them under the Bumiputra group. The scope of the article limited through the article 136 with the provisions that the civil servants in Malaysia face similar treatments impartially. This is regardless of their races. Clause 5 of the article 153 reaffirms with specifications in article 136 of the Malaysian constitution (Jomo & Wong, 2008, p. 313). During the process of implementation, the Reid commission suggested of the provisions being temporarily revisited in 15 years with a representation of reports to the appropriate legislature with the parliament as the legislature determining either the retention or reduction of the quota. Under the provisions of the article, the introduction of the new economic policy led to the recognition of the Malay population with the introduction of the NEP enabling the eradication of poverty (Daniels, 2004, p. 316).
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- Kelly Adam (Author), 2010, Article 153 of Malaysia’s Constitution and the Human Right to Non-Discrimination, Munich, GRIN Verlag, https://www.grin.com/document/267616