Written by Shebanee Devadasan
“Our differences should not divide us when we [all] call Malaysia home.” 
- Boo Su-Lyn
This article shall examine the reason for the race-based policies in Malaysia and whether the original utilitarian intent is still relevant after 60 years or if it is, today, more of a tool of the political elite.
Malaysia prides itself on its multi-culturalism being a Muslim country with large minorities of Chinese, Indian and Indigenous people which make up almost half the population. The large number of Chinese and Indians can be attributed to colonialism (to a large extent), with the British ‘importing’ labourers from China to work in tin mines and from India to work in rubber plantations. The British saw economic growth and swells in profit from the tin mines, attributing this success to the Chinese labourers. The Malay population, which inhabited Malaya (name of the country pre-independence and post-independence in 1957 up to 1963) prior to colonialism, were somewhat unfairly deemed ‘lazy’ by the British, causing them to be relegated to work in rural areas on agriculture, thus leaving them out from the economic prosperity of the budding nation.
Prior to Independence in 1957, The British, recognizing the contributions of the Chinese and Indians in Malaya, desired to grant them citizenship. However, this was met with protest from the Malays who viewed this as a dilution of their cultural heritage and what they perceived as their rightful nation. As a compromise, special privileges for the Malays were written into the Constitution. This social contract ensured that the Indians and Chinese were given citizenship in exchange for additional privileges granted to the Malays. This was effectively enshrined in Article 153 of the Constitution.
All Malaysians have rights granted to them by virtue of the Constitution. Part II of the Malaysian Constitution emphasises that these fundamental liberties (such as the right to education) are granted to all Malaysians, regardless of race or religion, and must be upheld by the state. However, Article 153, clause 1 notes the following:
“It shall be the responsibility of the Yang di-Pertuan Agong [Head of State – the Constitutional Monarch] to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak” 
Article 153, clause 2 further notes:
“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 [through] scholarships, exhibitions and other similar educational or training privileges” 
Article 153 was a reaction, a way to rectify the perceived ‘weaknesses’ of the Malays who were behind economically. It was also to address the problems surrounding Malay poverty (which was disproportionately high in comparison to the other minority groups) following independence. When drafted, it was recommended that Article 153 be reviewed and repealed after 15 years, once these policies corrected the economic disparity. However, Article 153 was (and still is) often construed, by individuals and politicians alike, to mean that Malays have ‘extra rights’, beyond those granted to other ethnic groups in Malaysia. This is used as a justification to maintain Article 153’s position within the constitution. However, rights are not the same as privileges. Rights are inalienable; privileges are revocable once their desired result has been achieved. To prioritise privileges over rights, mainly Article 8 of the constitution which notes the right to equality amongst all citizens, is problematic.
Repealing Article 153 is an extremely sensitive topic. Citizens are wary to talk about it, due to fear of staunch opposition and the potential for being slapped with charges under the colonial-era Sedition Act 1948 (controversially used by the political elite to suppress dissent). Ministers are afraid to talk about it in Parliament for fear of losing political support. As a result, this became an accepted norm, and has been so for decades.
The Quota System and Affirmative Action
Following the Racial Riots of 1969, where hundreds were killed, the New Economic Policy (NEP) and Constitution (Amendment) Act were passed in 1971. This saw increased privileges given to the ‘Bumiputera’ (a new term used to collectively describe Malays, natives of Sabah and Sarawak and the Indigenous people, although often narrowly applied by some to mean the Malays only), including access to reserved lands and discounts when purchasing real estate. This also saw the inclusion of clause 8A into Article 153 which read:
“[I]n any University, College and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible // shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak” 
This was to further address the economic disparity between the races, but this effectively created a quota system, where the Bumiputera were entitled to a certain percentage (often majority) of places within higher educational institutions.
However, it can be argued that the creation of ‘Bumiputera only’ universities, such as Universiti Teknologi MARA (UiTM), is not compatible with clause 8A as ‘purely Bumiputera’ admission policies do not comply with the quota system, since non-Bumiputeras are not allowed to enrol. Clause 8A, despite implementing a quota, did not sanction exclusivity that in turn amounts to racial discrimination. However, mere talks of amending UiTM’s admission policy lead to protests and fuel further racial tensions.
The effect of such policies has been the rise of political parties that safeguard interests based on race. Political parties such as the Malaysian Chinese Association (MCA) and the Malaysian Indian Congress (MIC) advocate policies, seemingly exclusively, to the benefit of the race they claim to represent. The problem with race-based political parties is that instead of protecting interests, they seem to further strain racial relations. Pre-independence, despite there being race based political parties, the common aim of gaining Independence brought the many races in Malaya together in their common aim. However, post-Independence witnessed the rise of intolerance, right-winged views and polarisation. People began seeking political solace by automatically siding with the party that represented their race, irrespective of the merits of their policies. Race-based political parties also propagate the narrative that only ‘your kind’ can protect your interests.
Socially, racial tensions have often caused issues for the Chinese and Indians who often feel like second-class citizens within their own country. It can sometimes appear that any complaints about governmental inefficiency are met with the well-known political rhetoric of ‘go back to where you came from’, shutting down any substantive discussions from taking place. This also, again, pushes people towards the party that advocates for their race and builds intolerance.
Countries like the USA also implement affirmative action policies, but they are for marginalised minority groups. In Malaysia, Bumiputera policies are extended to all Bumiputera individuals, regardless of their socio-economic position. One of the poorest and most marginalised groups in Malaysia, the Indigenous people, are often left out from the benefits of these policies. The USA’s affirmative action policies are also used to correct social inequality amongst citizens within a certain time period, rather than grant ‘privileges’ to certain groups (again, regardless of their economic position) for seemingly unlimited amounts of time, such as in the case of the NEP. There are a significant proportion of Bumiputera individuals that do not believe such race-based policies need to still be in place. They recognise that many of these policies are used as a political tool by some politicians to pander to voter insecurities and gain further support for their race-based parties.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) fiasco in 2018 highlighted that after 60 years, we are still unable/unwilling to have a civil conversation about Bumiputera/Malay privileges.
Malaysia is one of the few countries that has yet to ratify ICERD, a United Nations convention that aims to tackle racial discrimination. Despite the government’s desire to improve human rights within Malaysia, talks of ratifying ICERD were met with staunch opposition from the Malay community. Thousands gathered to protest in Kuala Lumpur after weeks of outcry, forcing the government to withdraw any plans of ratification. Many protestors shared the same sentiment; ICERD and racial equality would end Malay privileges granted by the Constitution. This could be due to some political parties parroting false information on what ICERD actually entailed, causing many to jump to rushed, inaccurate conclusions.
It is impossible to achieve true racial equality when a significant proportion of people believe that they should be placed on a pedestal above everyone else. Some of the darkest moments in Malaysia’s history stemmed from a build-up and spill-over of racial tensions. Further, how can we strive to be recognised as a nation that upholds and protects human rights when we cannot hold ourselves to international standards? ICERD should be seen as an opportunity for us to better protect our citizens, rather than another tool used to instil fear and cause racial tensions for political gain.
Race-based policies can fuel racial tensions. The first way to tackle this is by having honest and open discussions on race-based policies - on their merits and faults. Citizens and politicians alike cannot be dissuaded to do so by fear of backlash or legal consequences. Secondly, policies must be adjusted to aid those who are socially/economically disadvantaged in society; they cannot be purely based on race. Political parties cannot stop to check if a poor person is of a specific race before deciding whether to help them. Thirdly, if we concede that the poorer Bumiputera are left out by Bumiputera policies (since they indiscriminately aid all Bumiputera, regardless of socio-economic status), we must also concede that the poor non-Bumiputera are also left out and need to be aided. Fourthly, race-based politics cannot be used as a tool to further divide. They cannot be used to instil fear of the other races. It must be used to tackle stereotypes and push for racial harmony. Only then, can we live in a Malaysia we can all call home.
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
 Boo Su-Lyn, Unapologetic (Gerakbudaya 2018) 121  Barbara Watson Andaya and Leonard Andaya, A History of Malaysia (Macmillan 1982) 160  Erna Mahyuni, ‘Why Is The ‘Lazy Native’ Myth Still Being Propagated By Our Own Government?’ (Malay Mail, 11 September 2019) https://www.malaymail.com/news/opinion/2019/09/11/why-is-the-lazy-native-myth-still-being-propagated-by-our-own-government/1789290  Barbara Watson Andaya and Leonard Andaya, A History of Malaysia (Macmillan 1982) 261  Kia Soong Kua, Racism & Racial Discrimination in Malaysia: A Historical & Class Perspective (Suaram 2015) 23  Part II, Malaysian Federal Constitution (as at November 2010) http://www.agc.gov.my/agcportal/uploads/files/Publications/FC/Federal%20Consti%20(BI%20text).pdf  Ibid, Article 153 clause 1  Ibid, clause 2  Tun Mohamed Suffian Hashim, ‘An Introduction to the Constitution of Malaysia’   Article 8 Malaysian Federal Constitution (as at November 2010) http://www.agc.gov.my/agcportal/uploads/files/Publications/FC/Federal%20Consti%20(BI%20text).pdf  Sedition Act 1948 http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Act%2015.pdf  Article 153, clause 8A Malaysian Federal Constitution (as at November 2010) http://www.agc.gov.my/agcportal/uploads/files/Publications/FC/Federal%20Consti%20(BI%20text).pdf  Tharanya Arumugam, ‘UiTM Alumni Protest Against Hindraf 2.0 Demand Varsity To Be Opened All Races’ (New Straits Times, 29 May 2018) https://www.nst.com.my/news/nation/2018/05/374461/uitm-alumni-protest-against-hindraf-20-demand-varsity-be-opened-all-races  Harry Holzer, ‘Affirmative Action: What Do We Know?’   International Convention on the Elimination of All Forms of Racial Discrimination 1969 https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx  Martin Carvalho, ‘Saifuddin Pledges To Push For Ratification Of Six International Human Rights Conventions’ (The Star, 2 July 2018) https://www.thestar.com.my/news/nation/2018/07/02/saifuddin-pledges-to-push-for-ratification-of-six-international-human-rights-conventions/  Amir Yusof, ‘Thousands Arrive In Kuala Lumpur From Across Malaysia For Anti-ICERD Rally’ (Channel News Asia, 8 December 2018) https://www.channelnewsasia.com/news/asia/malaysia-anti-icerd-rally-in-kuala-lumpur-thousands-arrive-11012828  Syed Umar Ariff, ‘Anti-ICERD Rally Organisers Claim They Have Met Their Target’ (New Straits Times, 8 December 2018) https://www.nst.com.my/news/nation/2018/12/438643/anti-icerd-rally-organisers-claim-they-have-met-their-target