When 'special position' evolved into 'ketuanan'

A constitutional expert has outlined how he thought the special position of the Malays had subtly evolved into ethnic hegemony at a public forum yesterday.

Emeritus professor Shad Saleem Faruqi eloquently described the atrocities against equality in the constitution in a forum co-organised by the Bar Council and human rights movement Tenaganita in Kuala Lumpur last week.

In the four-hour forum entitled 'Race relations and religion: Towards equality and non-discrimination', Shad opined that provisions in the constitution contradict the ideals of equality.

The forum also featured Dimitrina Petrova (right), who is executive director of the Equal Rights trust from the UK, and Kuala Selangor PAS parliamentarian Dzulkefly Ahmad.

"No constitutional ideal is as worthy, as yet as unattainable, as the ideal of equality before the law," Shad noted in beginning his speech.

"I work in a Malay environment... some have told me that in 1957 there was a social bargain in terms of citizenship, social and cultural freedom that was permitted to the non-Malays and in return (we were guaranteed) Malay reserve land and the Malay special position," he said.

The renowned law lecturer with Universiti Tekonologi Malaysia (UTM) then stressed that the constitution's provision only offered a "special position" but the term has over the years underwent political evolution.

"As things evolved, what was a 'special position' became a privilege and what was a privilege became a right, and what was a right became ketuanan (supremacy).

"We need to put things right and say 'excuse me, that's not in the constitution'."

Social agreement

There are, however, arguments he said, questioning why only one area of the social agreement signed by the founding fathers of the country needs to be renegotiated.

"Since non-Malays got citizenship in exchange, we (the Malays) got privileges - now they are saying if privileges must go what then happens to the citizenship?

"But I don't have a simple answer to that," he said.

Shad (left) pointed out the that the constitution although "deeply flawed" from formation, was an experiment in social engineering.

"Many people would say that it is successful because it was a product of negotiation and compromise.

"It dealt with some existential realities so it took a path of compromise and pragmatism."

He went on to simplify the extensive provisions which had some grey areas, for instance Article 153 which speaks of special position, and Article 136 which states there should impartiality in treatment of employees regardless of race.

"(Mohamed) Suffian (Hashim), the former lord president, was able to straddle the gap between Article 136 and 153, by suggesting that at entry point, reservations and quotas are permissible under affirmative action," he said, adding however this has failed in implementation.

Affirmative policies to aid the much impoverished Malay community was embarked on in the 1970s to reduce the economic gap with the other races.

The absence of a time frame on the affirmative policies and the continual recognition on the need for the special position under Article 153, argued Faruqi, only benefited the politically dominant.

Permissible exceptions

In theory, affirmative policies are to assist minority groups, as practiced in India and Europe, and are to lapse after the goals are achieved.

Although Shad accepted that the Malays at one point were in need of such remedy to alleviate unjust positions, such provisions are no longer relevant, he added.

"Obviously, the constitution does have a great a many positive features. Regrettably, however, are the many permissible exceptions to equality," he noted.

"All this was not decided by an impartial commission but left to politicians and its implementation has often benefited the rich elite."

He also criticise a lack in the provisions that touch on legal pluralism.

"When you have two sets of courts and two sets of laws sometimes conflicts will happen and when conflicts occur, the difficult issue is which one will prevail.

"For example in England, equity courts and common courts used to clash but now the rule is that decisions by equity courts will prevail.

"In Malaysia, administrative tribunals and ordinary courts often clash but the decision by the ordinary court takes precedence."

He thought Article 121 which was amended with the clause Article 121(1)(a), that states that civil courts shall have no jurisdiction over matters under the jurisdiction of Syariah Court, was not well constructed.

"Sadly, under Article 121(1)(a) it doesn't say what happens if there is a clash of jurisdiction especially in the cases of conversion, when one party is a Muslim and the other is a non-Muslim," he said.

He raised the long-standing legal tussles in which injustice had been permitted on non-Muslims following Syariah Court decisions and complained on the hesitancy to resolve the issue.

Shad lamented that the "government's lack of political will" has hindered any progress in the area as amendments to laws pertaining to matters of conversion were withdrawn from Parliament at the eleventh hour following an objection from the Conference of Rulers.

"Sadly the legal system is thunderously silent about what needs to be done to redress this grave injustice."

Equal opportunities commission

Shad is concerned that, at present, any attempt to dislodge the provisions would tear society apart.

Instead he suggested an examination of its implementation and misuse or overzealousness in its enforcement.

This can be done by way of a "equal opportunities commission or tribunal", he said, to ensure that there are measures taken to scrutinise public and private practices that contradict equal treatment.

Petrova, who expanded on UK's Equality Act 2010 explained the features of the law which covered discrimination, harassment and victimisation, among others.

"(The purpose is to) end inconsistencies in the rights afforded to different discriminated groups within the same societies and nations and so end the current hierarchy of discrimination," she said.

She, however expressed shock to learn that Malaysia was not a signatory to various international human rights agreements and that at this point in time, pressure to enact a law to ensure equality was still an idea in its infancy.

Dzulkefly, on the other hand, was steadfast in his stance that "no amount of enactments on race relations or equality would resolve the matters at hand".

He reiterated the opposition's stance that "only a change in government" could end the tyranny of the ruling power and encourage further action on needs based policies.

Dzulkefly was also bombarded on questions on the formation of a Islamist state and whether would a be retrograde step in the path towards equality.

He stressed that should PAS run the federal government "Islam will never be used to surpass the principles of democracy".

Clarification: Dislodging Article 153 will tear society apart