Racial discrimination in Malaysia: Perspectives from the Constitution and international covenants

In this article I wish to highlight some important issues with regards to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on the Elimination of Racial Discrimination (ICERD) vis-à-vis the right of minorities and the position in Malaysia. ESC rights are basically related to labour related rights, right to health, right to housing, the right to education, the right to food and cultural rights. These rights have a great impact on the rights of minorities in any given country. The Committee on Economic, Social and Cultural Rights (CESCR) has stated that every ESC right, as with every human right, includes the duties to respect, duties to protect and duties to fulfil as part of the states obligation.

The states duty to respect includes protection state organized forced evictions, protection from direct threats to health by state actors and protection against arbitrary termination of employment etc. For example, in the case of the Islamic Community in Bosnia Herzegovina, the Human Rights Chamber of Bosnia held that denying the Muslim community the ability to rebuild destroyed mosques, breached the community’s religious and property rights. The states duty to protect is where the state is required to prevent third parties from unduly interfering in the right holder’s enjoyment of a particular freedom or entitlement. The duty to fulfil imposes on a state obligation’s to facilitate, provide and promote access to ESC rights.

An important aspect of the justifiability ESC rights involves claims of discrimination. The CESCR has made very clear, that within the provisions of the ICESCR and the ICERD, the prohibition on discrimination is an obligation of immediate effect. Several clauses enshrined in the ICERD and the Convention against Discrimination against Women (CEDAW) makes reference to their application to ESC rights in the implementation of social policies and the provision of social services. An important aspect of the current development of anti discrimination law is now applied to those cases where legislation or administrative practices subject certain groups of people to a disparate treatment which results in a denial or restriction of rights.

In Malaysia, the skewed implementation of affirmative action or positive action policies as some may call it, contained in Article 153 of the Federal Constitution has resulted in discrimination against the non- Bumiputra minority communities. The affirmative action policies by way of preferential treatment provided under Article 153 are mainly to alleviate the Malays and the natives of Sabah and Sarawak from poverty and economic disadvantage. It protects the majority Bumitputra population when in fact affirmative action policies are created to protect minorities in most developed countries. Malaysia is unique in this sense.

Article 153 provides for the reservation of quotas mainly in the areas of:

1. positions in the public service;
2. scholarships, educational or training privileges or special facilities;
3. permits or licenses for the operation of any trade or business required by federal law; and places in institutions of higher learning (universities, college and other educational institutions) providing education after Malaysian Certificate of Education (MCE).

It is implicit in Article 153(1) that “It shall be the responsibility of the Yang di-Pertuan Agong (YDPA) to safeguard the special position of the Malays and the natives of Sabah and Sarawak and the legitimate interest of other communities".

The phrase "legitimate interest of other communities" means that Article 153 does not allow simply any kind of preferential treatment in favour of the "Bumiputra". It is not a ‘blank cheque’, but it merely confers limited powers on the government and Parliament, pursuant to Article 153, to derogate from the principle of equality and equal protection of the law.  

The implementation of Article 153 has often been the bone of contention as many have argued that its implementation has been at expense of the non-Bumiputra communities in Malaysia. For example, although Article 153 provides for quotas only for the issuance permits and licenses to the Bumiputra, however, even government contracts and procurement have been awarded solely to Bumiputra companies.  Government-linked companies (GLC’s) and statutory bodies assign their work solely to Bumiputra companies and some major banks assign their legal work only to Bumiputra legal firms.  These practices are clearly against Article 153 of the Federal Constitution.

The majority of employees at the GLC’s and some major banks are Malay Bumiputra’s although the Federal Constitution only provides for reservation of quotas in the public service. Ethnic quotas are imposed on private companies by government agencies and licensing is used as a way to get private companies to observe Bumiputra quotas, a policy which is clearly against the Federal Constitution as Article 153 only provides for reservation of quotas in the public service. 

The lack of job opportunities in the public sector for the non- Bumiputra’s is a glaring example of an unreasonable application of affirmative action policies.

Although Article 136 of the Federal Constitution provides for impartiality in the public sector, there have been complaints by the non-Bumiputra in the various government departments that they have been deprived from getting promotions or have been sidelined in favour of Bumiputra candidates. This explains why non-Bumiputra’s shy away from seeking employment in the government sector and GLC’s and unfortunately it also explains the current brain drain that is currently plaguing our country.

Our public universities and our education system as a whole have also not been spared form this unfortunate state of affairs. This is evident from the incessant complaints by non-Bumiputra students that they have been denied entry into the local universities although they have sound academic results. Latest being in July of this year, where of the 41,573 applicants who were successful in gaining entry into public universities, a staggering 74.3% were Bumiputra applicants. Year after year only non-Bumiputra students complain about not being able to gain entry into public universities despite having achieved very good results.

The Education Ministry assures us that applicants are given fair consideration but yet a record number of high achievers are rejected year after year. The only logical deduction one can make is that the selection process is riddled with racial bias where racial considerations outweigh qualifications. Debating competitions in secondary schools are also subjected to a discriminatory policy since according to a Ministry of Education guideline on English language debating competitions held in secondary schools there must be at least one Bumiputra student in the debating team as required by Article 153 of Federal Constitution. It is policies like these that creates a socially divisive and uncompetitive environment in our schools. This is an example of an affirmative action policy made under Article 153 which has clearly gone beyond the limits of Article 153 of the Federal Constitution.   

Even local authority contracts, licenses and permits are only given to the Malays Bumiputra’s. For example local authority contracts for infrastructure work  are only given to Class F licensed contractors which is a type of license only given to Bumiputra contractors although nothing in Article 153 of the Federal Constitution permits Parliament to restrict business and trade solely to Malays and the natives of Sabah and Sarawak. This license which is issued by the Ministry of Finance under a Federal government policy is clearly unconstitutional.

There are some interesting issues about Class F licenses which is worth mentioning here. Under the Ministry of Finance guidelines there are six categories of contractors ranging from Class F to Class A. Each category of license determines the maximum amount that a prospective contractor is able to bid on. For e.g. the ceiling for a Class F contractor is RM 200,000 while Class A contractors can bid for jobs worth RM 100 million and above.

Now here comes the shocking piece of information. As of 2005, there were 42,313 registered contractors. Interestingly 35,253 of the total mentioned are Class F Bumitputra contractors. This basically means that a staggering 83% or four out every five contractors are Bumiputra contractors from the Class F category.

Therefore all government procurements valued below RM 200,000 are essentially a Bumitputra only affair. This is again another blatant example of how Article 153 has been abused to justify a discriminatory policy where only Bumiputra’s are able to bid for government contracts.

Since it’s an open secret that most of these contracts are subcontracted to a number of different contractors by the Class F contractor, the consequences of such procurement practices are highly inflated prices, kickbacks, wastages, shoddy work and goods not delivered according specification in quantity and quality.  In fact the weaknesses of such policies have already manifested itself, when one reads about collapsed stadiums and hospitals, serious leakages in newly built buildings and unfinished or abandoned public projects, all as a result cost cutting and shoddy work by incompetent contractors.  

Government and local authority contracts, permits and licenses  are given to people who are linked to the major ruling political parties and other powerful Bumiputra politicians who in turn rent out their licenses and permits for a fee or a percentage of profit, thus depriving others of these lucrative contracts. Again the result of such a practice are highly inflated prices, kickbacks, wastages, shoddy work and goods not delivered according specification in quantity and quality.

With all these race based policies which promotes racial discrimination in Malaysia, I am astonished as to how Malaysia was voted in as a member of the UN Human Rights Council ! Be that as it may, since Malaysia is a member of the UN Human Rights Council it has the obligation eliminate policies which promote racial discrimination.   

It cannot be denied that the improper and arbitrary application of affirmative action policies provided under Article 153 has contributed significantly to the deteriorating race relations in Malaysia. The deprivation of equal rights and opportunities has caused racial tensions to run high in recent years. The Reid Commission when drafting our constitution proposed that affirmative action measures  contained in Article 153 be limited for a period of 15 years but this was rejected by UMNO. The terms of reference of the Reid Commission in its report states:

“Our terms of reference require that a provision should be in the Constitution for the safeguarding of the special position of the Malays and the legitimate interests of other communities”. The special position of the Malays was already recognized even before Article 153 came into being. It is contained in the Clause 19(1) (d) of the Federation of Malaya Act 1948 and the Reid Commission took this fact into consideration and said “When we came to determine what is ‘the special position of the Malays’ we found that as a result of the original treaties with Malay states, reaffirmed from time to time, the special positions of the Malays has always been recognized. This recognition was continued by the provisions of clause 19(1) (d) of the Federation of Malaysia Agreement 1948, which made the High Commissioner responsible for safeguarding the special position of the Malays and the legitimate interests of other communities”. The Reid Commission then submitted the draft constitution and proposed that the special position of the Malays be continued under Article 153 with the qualification that it be limited to15 years. However this proposal was rejected by UMNO and it was removed thus making it a permanent feature of the Federal Constitution”.

The Reid Commission must have realized that if there is no limitation placed on the application affirmative action measures, the consequence would be disastrous to the nation. The Reid Commission must have known that the continuous application of affirmative action policies for the Malays would result in a culture of dependence on the government for aid and handouts, creating a community which fear competition and hard work that would ultimately lead to their downfall. In fact we can now see this happening. The affirmative action policies implemented over the past 40 years under Article 153 has in fact created a divided Malaysia. There is a widening income gap between the rich and the poor in the urban areas, creating phenomenon called "urban poverty".

The urban poor are dominant in areas where there are large numbers of low cost flats or Pusat Perumahan Rakyat (PPR Flats) in Selangor and the Federal Territories (FT). I call these areas as the "ghettoes" of Selangor and the FT. I have organised community programs in these areas and I have come across parents who can’t afford to buy school bags and shoes for their children, single mothers who can’t afford to take care of their children as result of the rising cost of living in the city, children from families which become unstable because of alcoholism and debts incurred by their parents who can’t earn enough money to sustain living in the city and then end up in poverty, children from these unstable families who drop out from school and end up in the streets working in car wash outlets, car workshops, factories, stalls,  restaurants and scrap metal yards and there are children and young adults from these unstable families who end up in crime in order to live. In fact a large number of youths getting involved in dangerous crimes are from these "ghettoes".

There are also people especially Indian youths who are enterprising and who want to get out of poverty but their efforts are hampered by the race based policies practiced in the public sector and local authorities in the areas of employment and business opportunities which I have pointed out earlier. Affirmative action policies should be implemented to reach people from these places and backgrounds but currently this is not happening.

A majority of these people known as the urban poor are Malays, who are settlers from other poorer states like Kelantan, Terengganu, Pahang, Perak and Kedah and Indians who are pre-dominantly Tamils who were displaced from the estates during 80’s and the 90’s. I have met some of these people from older generation and they have told me that they were better off living in the estates.

There is also a feeling of discontentment within the non- Bumiputra communities that they are actually second class citizens in their own country as result of being denied equal rights. This divide is getting bigger. The limitless affirmative action policy being practiced in Malaysia has created a feeling that such a policy are Malay and Muslim rights and thus anything and everything must be Malay and Muslim centric even when it comes to building design, dress codes, schools, universities and even in education and employment.  Our education system has unfortunately fallen victim to this Malay/Muslim centric affirmative action policies created to further and strengthen the Malay/Muslim agenda in Malaysia. For instance, since the English language was removed as the medium of instruction in government schools it has created a large number of unmarketable Bumiputra and non- Bumiputra graduates who are unable to speak and write proper English.

They are often unemployed as the private sector are unable to employ them because this of this deficiency. They can’t even compete globally in the global employment market because of this. Indians have always said that the greatest gift that the British had ever left them was the English language! Today most Indian professionals end  up being CEO’s of the worlds largest banks and multinationals, they are the most successful migrant community in the US, a large number of professionals in the US are from India, even in places like NASA. All this was possible for India because it gave the English language prominence.  It is very unfortunate that our education policy has rejected the English language since the Malays themselves could have been like the Indians from India. And there you have it, a Malay centric education policy which has gone wrong!

The government set up the matriculation system which was initially only for the Bumiputra and then opened up a little bit for the non- Bumiputra’s in recent years.  It has failed to produce students who are in par with their counterparts from STPM examination system. Everyone knows that it’s easy to pass the matriculation examinations as compared to the STPM examinations and STPM graduates are of better quality and much sought after by employers and even reputable foreign universities for enrolment into professional degree courses. This is another example of an examination system created under a Malay/Muslim centric affirmative action policy to increase the number of Bumiputra professionals which has compromised on quality and emphasized on quantity and the result- a large number of unemployed Malay graduates.  Policies like these have done more harm than good for the Malays and other Bumiputra’s. On the economic and business side, the Malay/Muslim centric affirmative action policies like the Class F license has only created a large number of politically connected Bumiputra rent seekers promoting a business system riddled with kickbacks and corruption.

It is clear that the indefinite use of affirmative action policies has drained the country of its resources, be it human or economic and has undermined Malaysia’s economic standing. It has driven the Bumiputras backwards because the Malays have become a race that fears competition. In fact the ICERD has affirmed that the affirmative action policies cannot be used for indefinite period of time since it has a negative effect on its beneficiaries, thus there must be a review of these policies.                 

The government cannot pretend that everything is all and good in our country. The government should take the cue from the results of the last two general elections to realize that the majority of non-Bumiputra’s and some classes of the Bumiputra populace too are clamouring for equal rights and opportunities.  The government needs to take drastic steps to arrest this problem.

Firstly it needs to do away with the distinction between Bumiputra and non-Bumiputra and treat everyone regardless of race as Malaysians and guarantee each and every Malaysian equal rights and opportunities in education, employment and business procurement.

Secondly, the government needs to avoid any form of ethnocentric approach in dealing with poverty eradication or social restructuring. Poverty eradication and economic social restructuring policies should be implemented across the board. It must not be an initiative inclined towards helping the Bumiputra only but policy regardless of race. Being poor and socially disadvantaged cuts across race and religion and it is colour blind.  As Martin Luther King once said “If colour made them different, misery and oppression made them the same”.

Therefore Bumitputra centric economic plans like Teraju, the National Development Policy which has its roots from the New Economic Policy (NEP) and the recently announced Bumitputra Economic Empowerment Agenda (BEE) must be abolished and replaced with an open economic policy benefiting all deserving Malaysians. If the measure for equity is need rather than race, then I believe the problem facing our country will be solved.

Thirdly, the government must ratify the International Covenant on the Elimination of Racial Discrimination (ICERD) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) to show its commitment in eradicating racial discrimination which continues to hamper the country’s progress and fourthly the government must do away with the quota system since quotas in itself are discriminatory. India for example has had to battle with the issue of reverse discrimination for decades, where more and more high achieving students are being rejected from obtaining university seats on the grounds the quota is filled up and to make things worse more and more good students are being picked up by universities from the US and the UK and are employed there too, thus causing a brain drain. A situation our country is currently facing too.

Therefore meritocracy must be embraced to its fullest for Malaysia to achieve its fullest too. Fifthly,  Article 153 of the Federal Constitution must amended to reflect an affirmative action policy which is inclusive of other racial groups rather than a policy which is exclusive only for the benefit of Bumiputra’s and such a policy must be based on need, solely targeting the poor and the marginalized and limited to period of may be 20 years. 

Lastly, in order to improve race relations between the races in Malaysia there should be legislative intervention. I would call for the creation of a Race Relations Act and Race Relations Commission or the enactment an Equality Act based on the UK model. The Race Relations Commission will have powers under the Act to investigate and bring to book public and private institutions which practice racial discrimination based on race based policies and at the same time propose and formulate transparent policies free from racial bias.  – November 12, 2013.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.