UNDERSTANDING THE SPIRIT OF ACCOMMODATION

MINISTER in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz deserves praise for his courageous and principled stand on the 55:45 ratio for Public Services Division (PSD) scholarships for bumiputras and non-bumiputras.
His critics in Parliament – MPs Datuk Ibrahim Ali (Pasir Mas) and Datuk Tajuddin Abdul Rahman (Pasir Salak) – raised constitutional issues that require clarification.

Some of what was said by these honourable MPs was deeply defamatory of the Constitution’s sacred provisions and was also detrimental to preserving racial harmony in our dazzlingly diverse society.

To begin with, one must point out that the Constitution of the Federation of Malaya was founded on the courage, conviction and compromises of the leaders of the Alliance who had to grapple not only with inter-ethnic rivalries but also with the demands of the radicals within their own communities.

In the final blueprint, Malay-Muslim features were balanced by provisions suitable for a multi-racial and multi-religious society. Malay privileges were offset by safeguards for the interest of other communities. The spirit that animated the Constitution was of moderation, compassion and compromise.

This spirit was totally lacking in the diatribe by the honourable MPs from Pasir Mas and Pasir Salak.

Ibrahim’s interpretation that the Constitution provides for scholarships only for bumiputras is an extremist interpretation of the affirmative action provisions of Article 153 of the Constitution.

Article 153 (on the special position of Malays and natives of Sabah and Sarawak) is replete with clauses that seek to balance the interests of the various communities.

First, the Article provides for quotas and reservations and not outright or total or exclusive allocation. It is noteworthy that in Article 153 the word “reservation” occurs at seven places; the term “quota” is found once; the terms “such proportion as the Yang di-Pertuan Agong may deem reasonable” recur four times.
In Article 153(2) the Yang di-Pertuan Agong is enjoined 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 ? scholarships, exhibitions and other educational or training privileges or special facilities given or accorded by the Federal Government ...”

The proportion is not specified and, as Nazri correctly pointed out, the proportion is determined by considerations of fairness and justice.

Second, Article 153(1) also explicitly mentions that along with protecting Malays and the natives of Sabah and Sarawak, it shall be the responsibility of the Yang di-Pertuan Agong to safeguard “the legitimate interests of other communities”.

Third, the reservations and quotas are enjoined only in areas permitted by the Constitution. There are four such areas: positions in the public services; scholarships, educational or training privileges; permits or licenses for the operation of any trade or business; and places in institutions of higher learning providing education after MCE.

Fourth, Article 153 clauses (4), (7) and (8) expressly state that in safeguarding the special position of Malays and natives, no person can be deprived of any office, scholarship, educational or training privilege, right, permit or licence (including the renewal of licence) that was already held by him.

Fifth, nothing in Article 153 permits Parliament to restrict business or trade solely to Malays or natives.

Sixth, elsewhere in the Constitution protection is accorded to the orang asli: Article 8(5)(c).

The MPs for Pasir Mas and Pasir Salak must be reminded that the letter and spirit of Article 8 of our Constitution is equality before the law and equal protection of the law. The ideal that animates the Constitution is the ideal of justice for all irrespective of race, religion, region or gender.

However, the Constitution recognises that due to the weaker economic and educational position of the Malays and natives of Sabah and Sarawak, a scheme of reservations and quotas is necessary for their social amelioration and for bridging the gap between legal equality and socio-economic disparities.

Ibrahim’s suggestion that scholarships for non-bumiputras should come only from a special fund contributed by the private sector is puzzling. On what legal, moral or rational basis he advocates such a policy is difficult to understand.

Perhaps he is unmindful that the private sector contributes to taxes that fill the coffers from which government largesse is derived.

It is submitted that the spirit of Article 153 is of affirmative action for Malays and natives, not of hostile discrimination against “non-bumiputras”.

Outright or exclusive allocation of public scholarships for any one community was not envisaged by the Constitution. Instead, reservations and quotas to the extent deemed reasonable by the Yang di-Pertuan Agong were mandated.

This clearly means that the Public Services Division, Mara, the ministries, all universities, statutory authorities and government-owned companies that grant scholarships are entitled to give assistance to all deserving citizens irrespective of race, religion or gender but subject to the quotas set by the Yang di-Pertuan Agong on the advice of the political executive.

It is clear, therefore, that during the debate in Parliament on PSD scholarships, Nazri walked steadfast on the high road of constitutionalism. His detractors were taking pot shots from the undergrowth of race and prejudice.