According to the Constitution..Posted: July 11, 2008
I reproduce here in full, a comment I received on something I wrote previously. Highlights are my own. There are a few points worth pondering:
It was recently reported that the Government will study the Public Service Department’s (PSD) decision to increase non-bumiputra scholarship quota from 10% to 45%.
“We will check it. We will look at it first,” Deputy Prime Minister Datuk Seri Najib Tun Razak told reporters He was commenting on the move by PSD to increase the quota for non-bumiputras which had created dissatisfaction among certain quarters.
Federation of Peninsula Malay Students (GPMS) president Datuk Reezal Naina Merican said the Government should review the move.
Universiti Teknologi Mara (UiTM) vice-chancellor Tan Sri Abdul Rahman Arshad, a former education director, also questioned the basis of the department’s calculation when raising the quota.
The department offers 2,000 scholarships annually. Previously, 90% of them were offered to bumiputra students but the under the new scheme, the percentage for bumiputras was lowered to 50%.
Umno Youth deputy chief Khairy Jamaluddin who is MP for Rembau questioned the move saying that the quota was determined at the discretion of Yang di-Pertuan Agong who had the absolute power over the matter according to Article 153 of the Federal Constitution.
I would like to offer Khairy 2 lessons,
1) Lesson in logic-
it is pointless to refer to just 45% allocation of PSD to non-malays which is very small in the first place,
what about MARA scholarship, Petronas scholarship , Felda scholarships and many others that are exclusively or overwhelmingly Malay.
A relevant comparison would be to compare the total number of scholarships given out nationwide, is the government ready to declassify this information ?
Education minister admitted for PSD it used to be 90/10, and offered the olive branch of 55/45 in the future, he most likely did this amid calls to make PSD receipient data transparent, when pressured by component parties as well as opposition, in short he avoided opening Pandora’s Box”, I doubt he did it out of sudden guilt or change of heart.
There has been mounting pressure calling for transparency of PSD scholarship awards, many have written about it including myself.
This Article was published in The Sun and a number of websites and blogs.
Khairy should confer with Education Minister Hishamuddin, before he shoots of his mouth and puts his own party in a bad light. He negates Hishamuddins attempts to reach out to the non-malays as the results of the March 8th elections this year, a clear message has been sent to BN and specifically UMNO that blatantly racist policies will not be tolerated.
An injustice has been perpertrated all these years by denying many deserving students because they were all fighting for a miniscule 10% allocated, and now Khairy is asking for the Yang Dipertuan Agong to help him perpetuate this injustice.
This is an insult to right thinking citizens as well as to His Majesty.
2) Lesson on how to read the constitution,
First lets look at what the constitution says , sorry to be long winded but please indulge me.
if its too long and tedious please skip right to the summary I have offered below.
It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.
Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, 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 provision 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 (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.
(8A) Notwithstanding anything in this Constitution, where in 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 for the management of the University, College or such educational institution to candidates for any course of study is less than the number of candidates qualified for such places, it 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 as the Yang di-Pertuan Agong may deem reasonable, and the authority shall duly comply with the directions.
(9A) In this Article the expression “natives” in relation to the State of Sabah or Sarawak shall have the meaning assigned to it in Article 161A.
Article 161 A reads
(7) The races to be treated for the purposes of the definition of “native” in Clause (6) as indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabit, Kayans, Kenyags (Including Sabups and Sipengs), Kajangs (including Sekapans,. Kejamans, Lahanans, Punans, Tanjongs dan Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.
The scope of Article 153 is limited by Article 136, which requires that civil servants be treated impartially regardless of race. Clause 5 of article 153 specifically reaffirms article 136 of the constitution which states: All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.
Clause 9 of article 153 states Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays.
Alright then, let me explain in simple terms-
The constitution is just a framework, it doesn’t spell out exact quotas and percentages, clause 9 of article 153 infers though not explicitly, that others shall not be deprived solely for the purpose of reservations for Malays.
As narrow as racially biased quotas go, by no fathom of imagination can allocating 90% of the quota to 60% of the population be seen as fair and just, let alone REASONABLE.
Clause 8A while giving the authority to the Yang di-Pertuan Agong states that “as the Yang di-Pertuan Agong may deem REASONABLE”. Article 136 clearly states the case of impartiality and acts as a conscience to prevent abuse of article 153.
Further to this article 161A clearly spells out who the native beneficiaries are including the Malays but not exclusively, In fact by virtue of the provisions in this article all the natives mentioned there can demand an equitable allocation.
I challenge the government to make transparent these figures. The East Malaysians can also demand allocations be shared equitably with them.
If Khairy and GPMS are not carefull in their demands the East Malaysians will demand for their rights too.
As Malaysian we should be working on increasing the allocation so all can benefit, not fighting over who gets what portion of the allocation which should be based on merit in the first place.
Reading articles of the Federal Constitution alone is not enough, one must understand the intent and spirit of the constitution.
Vijay Kumar Murugavell