You might have heard this coming from some politicians or political pundits in the past. The claims that the Bumiputera rights are firmly protected by the Federal Constitution and thus the Bumiputera population have absolutely nothing to worry about when it comes to who wins general elections. They purported that whatever party that gets to form the government after a general election will not be able to repeal the Bumiputera rights even if they want to. Well, let’s explore how true these claims are by going through what exactly is stated in the Federal Constitution and read the different interpretations that have been made on it. As always things are a little more complicated than it initially seems.
The term “Bumiputera” is not even in the Federal Constitution
Yes, you’ve read that right. Nowhere in the Federal Constitution does it mention the term Bumiputera. However, before you panic upon this revelation, you should be informed that albeit the term Bumiputera is not used the Bumiputera community is referred to in the Federal Constitution as “Malays and natives of any of the States of Sabah and Sarawak”. The surprise doesn’t stop there, it turns out that the word “rights” in “Bumiputera rights” is also nowhere to be found in the document. Now before you go on to think that the whole notion of Bumiputera rights has been a lie, let’s see what is written in the Federal Constitution on the matter.
Article 153. (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 by the provisions of this Article.
So the word “rights” that have often been invoked in the discussions on the Bumiputera rights is referred to as the “special position” in the Federal Constitution. This is however might not be as special as you might think considering that the Singapore Constitution has the same provision.
Article 152. (2) The Government shall exercise its functions in such manner as to recognize the special position of the Malays, who are the indigenous people of Singapore, and accordingly, it shall be the responsibility of the Government to protect, safeguard, support, foster, and promote their political, educational, religious, economic, social and cultural interests and the Malay language.
You guessed it right that while this provision purportedly protects the special position of the Malays in Singapore, the country does not implement any affirmative action policies to remedy the racial inequality that exists amongst the different races. From the Singaporean experience, it is evident that a constitutional provision alone is not enough to protect the interests of the Bumiputera community.
This may even be true in the case of Malaysia as the Federal Constitution of Malaysia may outline the areas in which the special position of the Bumiputera can be exercised but it does not specify how that special position privilege is to be exercised. This leaves plenty of discretionary powers for the executive branch of government to decide on how the policies concerning the Bumiputera special positions are to be implemented or not at all.
The areas for Bumiputera quotas are limited
It is worth mentioning that the Bumiputera quotas specified in the Federal Constitution are not exhaustive and only cover the area of public service, scholarships and training, and permits and licenses. Thus the imposition of the Bumiputera quota on areas that are not covered in this provision can be argued as to not be protected by the Federal Constitution. This sentiment has previously been raised by Datuk Jeffrey Ng Tiong Lip, the past President of the Real Estate and Housing Developers’ Association Malaysia (Rehda). He argued that the imposition of the Bumiputera housing quota is unconstitutional as housing is not listed as one of the areas covered in the provision for Bumiputera’s special positions. He went further to argue that a state’s imposition of Bumiputera quota in the housing industry can be challenged on the grounds of Articles 8 of the Federal Constitution that states that all persons are equal before the law.
The Bumiputera housing quota is not the only area of the Bumiputera’s special position that is currently being challenged. The former finance minister Lim Guan Eng has recently claimed that the Bumiputera equity requirement in the freight industry is unconstitutional and unfair. Without commenting further on how it is unconstitutional he went on to argue that the government is liable to compensate the companies that would suffer losses from the implementation of the Bumiputera equity requirement.
Even within areas that are covered in Article 153 such as education have recently been challenged. For instance, Kua Kia Soong, the former advisor of Suaram has argued that the Bumiputera quota in the education sector does not allow for the 100 percent Bumiputera enrolment policy currently being practiced in UiTM or any other MARA institutions. He went further to argue that the enrolment policies of these institutions can be reviewed by the Federal Court if an aggrieved party takes legal actions against the government over these practices.
It can thus be surmised that the Bumiputera quota in housing is being actively challenged by some developers due to it not being specifically listed in Article 153. Whilst areas that are listed in the article such as education and business licenses are also being actively challenged to be unconstitutional by either invoking Article 8 or the clause 8A of Article 153 of the Federal Constitution. If you’re already worried that the implementation of policies related to the special position of the Malays is not as ironclad as once expected, let’s make it worse by exploring whether Article 153 can be repealed altogether by a constitutional amendment.
Repealing Article 153 of the Federal Constitution
We’ve all heard before the claims that Article 153 is almost impossible to be repealed as it will require a constitutional amendment. A constitutional amendment is said to be difficult to achieve as it requires the support of two-thirds of the member of Parliament. Albeit this notion is true, it must be pointed out that there have been 57 amendments made to the Federal Constitution by 2015 since it was first enacted in 1957. It is also more common than not for the government bloc to have more than two-thirds of the member of Parliament in its bloc. In the 64 years since independence, the government bloc has had a two-thirds majority for 51 of those years.
There is a caveat, however, as according to Article 159 of the Federal Constitution any law amending Article 153 and the other Articles concerning the special position of the Bumiputera shall not be passed without the consent of the Conference of Rulers. As the Conference of Rulers is made up of the nine Malays rulers, it does give more assurance to the Bumiputera community that their interests will be protected even in the situation that a constitutional amendment is attempted by the Parliament to repeal the special position of the Bumiputera.
However, it must also be noted that the previous clashes between the Conference of Rulers and the government had always resulted in the government as the victor. This is especially apparent in the constitutional amendments of 1983, 1984, 1993, and 1994. These constitutional amendments passed have managed to strip the powers of the Yang di-Pertuan Agong to give his Royal Assent to a piece of legislation before it is gazetted as law, transferred the power to declare an emergency from the Yang di-Pertuan Agong to the Prime Minister, and have the Malay rulers legal immunities removed. This begs the question that if the Conference of Rulers has not been empowered enough to protect its interest in the past, how equipped is it to protect the Bumiputera’s community interest as a whole.
Conclusion
In conclusion, albeit the term Bumiputera rights is not used in the constitution it is referred to in the document as the special position of the Malays and the natives of Sabah and Sarawak. The special position of the Bumiputera however is not unique to the Malaysian Federal Constitution because Singapore also has a similar provision in its constitution. The special position of the Bumiputera includes provisions for a Bumiputera quota in a few key areas such as the public service, scholarships and training, and permits and licenses. The interpretation of this provision however is still in contention as there are still groups that continue to allege that the Bumiputera quota in the area of education, business, and housing is unconstitutional. As for now the special position of the Bumiputera can be regarded as safe as it requires the support of two-thirds of the members of parliament and the consent of the Conference of Rulers to repeal it. However, any attempt to portray that the special position of the Bumiputera is ironclad is misleading since constitutional amendments are common and the Conference of Rulers have many times been made subservient by the bulldozing of the government as can be seen in the case of the many constitutional amendments that have been passed that have eroded the powers of the Agong and the Malay rulers.