Can we have an honest conversation on Article 153?

Proponents of UiTM’s Bumiputera-only policy say it is part of the Malay rights and privileges enshrined in Article 153 of the Federal Constitution. (Facebook pic)

By Lee Hwok Aun

History replays, time and again, with Article 153. Last week, we witnessed the latest incident in the thick annals of Article 153 pre-emptive strikes. Hindraf 2.0 demanded a 10% non-Bumiputera quota at UiTM; UiTM alumni fiercely countered and invoked “Article 153”, seemingly to quash further debate.

It is most unfortunate that Article 153, probably the most frequently mentioned article of Malaysia’s constitution, and one that bears huge consequences, is always brought up to end conversations. It should instead be the start of conversations.

So can we have an honest, sober and candid conversation on Article 153? Here’s hoping we can, at least in this “Malaysian spring” we are enjoying. And here’s a proposal for how we can interpret its contents reasonably, tactfully and constructively.

Let me state my case at the outset. If we want Article 153 to contribute to a more dynamic, productive and integrated Malaysia, we should understand it as providing for quotas and preferences for Bumiputeras: (1) for the purpose of learning and developing capability, and (2) under the condition that such special treatment is necessary. As the policy progresses and Bumiputeras are more economically empowered, then the special treatment becomes less necessary and can be rolled back.

If we want to talk about 153, we must also read it rather than allude to vague, and usually misrepresented, versions. Article 153, clause 1, sets out the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of Sabah and Sarawak and the legitimate interests of other communities.

It’s worth bringing up a point sometimes highlighted: Article 153 specifies “special position”, not “special rights” or “special privileges”. Special position does not necessarily entail entitlements or supremacy.

For the sake of fidelity to the constitution, the Pakatan Harapan government should purposefully and consistently propagate the correct terminology of Bumiputera special position. But I don’t want to stress this point too much, because Bumiputera special position, isolated from the rest of the text, can be taken to be permanent and limitless.

Another point often brought up about Article 153 is that protection of the Bumiputera special position must be balanced against “legitimate interests of other communities”. This clause places some constraints on racial quotas, especially in terms of lesser opportunities available to non-Bumiputeras, implicitly satisfying the “legitimate interests” condition.

This is a valid point, but it is still inadequate for moving Malaysia forward and bridging divides, because it does not address whether quotas are necessary and justified. It also keeps us fixated on Bumiputera versus non-Bumiputera quotas, and perpetuates public-private sector schisms: ethnic quotas or preferences in the public sector and public institutions; minimal such conditions in the private sector and private universities. Indeed, one retort against appeals for more non-Bumiputera access to public institutions is that other opportunities are available in private institutions.

To get out of this stalemate, we need to read 153 (2). The sentence is long and laborious, so here it is, abridged: “The Yang di-Pertuan Agong shall exercise his functions under this constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the states of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the states of Sabah and Sarawak of such proportion as he may deem reasonable of positions” in the public service, scholarships and training, and permits and licences.

One conventionally overlooked phrase is key. Article 153 does not confer an absolute mandate or obligation to apply racial quotas, but allows for those interventions “in such manner as may be necessary”. In other words, the constitution does not stipulate that quotas must be enforced no matter what, but quotas may be instituted if conditions call for them.

The specification of areas of intervention – scholarships, public sector employment and permits and licences – also implies that racial quotas should be in areas that involve learning, training and productive work.

A further implication is that racial quotas are contingent on evaluating whether circumstances warrant such measures and whether those programmes have attained a reasonable degree of success in cultivating Bumiputera capability and confidence, which renders them unnecessary.

This is a more constructive focal point for deliberating the relevance and efficacy of racial quotas, and the best hope for negotiating transitions away from the current system. I must add here that I believe Malaysia will continually need to be attuned to the issue of equitable racial representation – but through other means besides racial quotas.

Of course, there is still much room for debate on assessing whether the policy is still “necessary”. But that’s where we can and must have further conversation.

Focusing on this aspect of Article 153 is a deliberate and strategic choice. Other interpretations are also technically correct, as noted above, but engage us in perpetual turf battles of Bumiputera special position versus legitimate interests of others, and Bumiputera quotas versus non-Bumiputera quotas, or provide scant basis to adjudicate whether quotas are permanent or temporary.

The difference in focusing on the “as may be necessary” clause is that it compels the debate to be informed and inclusive, to evaluate the achievements objectively and deliberate policy alternatives and graduation plans constructively.

We must look beyond the narrow rhetoric that the system benefits Umno cronies instead of the masses. Consider Mara’s vast outreach through loans, technical education, and UiTM, microfinance assistance through PUNB, and the tens of thousands enrolled in matriculation colleges en route to public universities. Millions of Bumiputera households have benefited; that’s why they heartily support the system.

But is the system doing enough to cultivate capability and confidence as it should? Do the numerous Bumiputera programmes, including UiTM, need to rethink whether they are empowering the beneficiaries such that they can be more amenable to rolling back quota-based measures?

These are questions we should be asking. And these questions are anchored in Article 153.

Lee Hwok Aun is a senior fellow at the Institute of Southeast Asian Studies (ISEAS).

The views expressed by the writer are not necessarily those of FMT.