"There shall be no discrimination on the ground only of race." This excerpt from the equality clause of Article 8 (2) of the Federal Constitution means that discrimination only on the ground of race is not discrimination under the law. There is no double speak although the provision as drafted often require a double take.

The "special position of the Malays" arose out of a historical consensus. There is little to quibble by that restatement. Much of this historical consensus will continue to influence the emotional, political, legal and cultural discourses on the issue.

One of the consequences of the special position of the Malays is affirmative action. The emotive historical consensus may complicate the inquiry to affirmative action measures for Malays but it cannot mean that inquiry and challenge become impossible or equated as a challenge to national sovereignty. Consensus is a key element in democracy and nation building.

Most post-colonial nation states adopt affirmative action as a measure to ensure that a group or groups who had been unfairly discriminated against in the past, would have real chances in life. Affirmative action signifies a concerted effort to enable them to overcome obstacles to develop their capacities to the full and increase participation of the under-represented group.

India had a caste hierarchy pre-dating colonial rule. The United States had about 200 years of African American slavery. South Africa had a colonial, post-colonial and pre-independence apartheid. In these scenarios, the issue is not whether to have or not have affirmative action but rather how best to handle affirmative action. There is no uniform model of affirmative action or even the best model.

Common trait

Malaysia and South Africa share one common trait. Independent South Africa has an affirmative action programme for a historically discriminated majority race. While it is not always useful to make comparisons because inevitably our histories and our socio-political situations will show up differences, information and exchanges will help shed light on home grown strategies.

The discrimination in South Africa against people of color is both racism* and deliberate, systematic state-organised discrimination. This then becomes South Africa's historical consensus, its "prior text" to its independence constitution.

The African National Congress (ANC) papers on affirmative action for South Africa are instructive. South Africa had the benefit of hindsight in the experiences of the US, India and Malaysia.

In the US, there is a growth of commentary that affirmative action has helped a minority black professional class to grow and advance their professional careers but it has not improved the lives of the mass of poor black persons. There are comments that the issue is highly controversial in the US because it gets caught up in electoral politics. Whatever it is, the US is still talking about affirmative action. It is reviewing the situation and considering alternative measures to ensure anti-discrimination.

The ANC sees Malaysia's example as significant in opening up the economy and the civil service to Malays but at the price of encouraging a communal rather than a national consciousness. It gave people a stake in identifying themselves as members of the Malay race simply because it gives them material advantages - quota access and state employment.

These observations are by no means a condemnation of the models employed so hold on to your sticks and stones. Rather it helped identify the possible consequences of adopting particular strategies and provide insights in crafting a model for South Africa.

Dual measures

South Africa has decided to employ two measures, affirmative action and anti-discrimination with full knowledge of the on-going attendant problems in any model. It is conscious of vigilance. In that, South Africa may hold the key to its programme to remedy historical discrimination.

In some countries, it is the Human Rights Commissions or Equal Opportunity Commissions rather than the courts who has the primary task of tackling discrimination. A hands-on approach before it festers into something awful. Globalisation, migration of labour and immigration require modern democracies to work an agenda for managing its intergroup relations beyond the colonial-post-colonial historical discrimination.

Whatever the problems and sentiments on the ground, good governance requires that we continue to explore and develop the institutions and structures to work the measures or mechanisms to address discrimination.

What shows up clearly in the affirmative action debates worldwide is that equality is still a work in progress. It is still very much an unfinished project in democracies. As a work in progress, our societies must always remain open to views and criticisms and protect speech and press freedom.

Affirmative action is also employed for other categories or groupings like women, the disabled, sexual orientation, age and status (the state of being single or married). In a way, we are at some point or other, a part of a "minority" under these categorisations or are discriminated against under these sectors for just being who we are.

In this light, each of us may be able to walk in each other's shoes even if race does appear to invite special sentiments. It may be an exercise in futility to find reasons for this. It could be any number of factors from our cultural histories, the values each culture prioritises or something else.

Remain vigilant

To evolve into an ethnically, racially, religiously or spiritually conscious society, we need to expand our horizons a little and to consider the cultural and institutional histories that have brought us here today. We must participate in public affairs, maintain our respect for each other, accept criticisms and above all, remain vigilant. We have to do this collectively.

The million ringgit question is: Is affirmative action unfair? Affirmative action is not opposed to merit. The merit argument is in a real sense a non-issue, since no one who wants to be taken seriously would be opposed to it.

Affirmative action is not discrimination. Affirmative action is about result or outcome. It is the difference between an unfairness that visits us as the unintended effect of a policy rationally conceived and an unfairness that is pursued as an end in itself.

* Racism assumes that psycho-cultural traits and capacities are determined by biological race ("Malays are lazy", "Chinese are calculating", "Whites are a superior race") and that races differ derisively from one another. This is to be distinguished from "racialism", defined as racial prejudice or discrimination or race hatred. Racialism is simply antagonism towards another group, while racism incites genocide and subordination.