Thursday, April 24, 2014
   
Text Size

RokAjaxSearch

A Race Relations Act for M’sia? (Part 2)

Contributors

 

The purpose of this article is to explore the implications of introducing race relations legislation in Malaysia and whether it would be inconsistent with the affirmative action measures in the federal constitution.

Examined in juxtaposition are the Race Relations Acts in the UK (Part 1 of article yesterday) and Canada.

One important feature of Canada’s Charter of Rights and Freedom is that it emphasizes on the merit principle in the context of affirmative action.

Canada has emphasized education and training designed to assist minorities and other persons in the designated groups benefitting from affirmative action. Such assistance is in the attainment of skills and professional qualifications which will provide them with proper qualifications for jobs. In this way the problem of filling educational and occupational quotas with unqualified or under-qualified persons from the designated groups has been avoided.

The above is a provision that can be adopted in any law in Malaysia and elsewhere which intends to promote better race relations, especially when one is told about the appointment of unqualified or under-qualified people in the public and private sectors. However a provision like this must be made to apply regardless to race in line with the requirement in Article 153(1) of the federal constitution.

Click here for summary of the relevant portions of the Canadian Charter of Rights and Freedom, Employment Equity Act (EEA) and other relevant legislation.

A case can be made for a Race Relations Act in Malaysia to promote better race relations here.

Any argument that the special position of the Malays and the natives of Sabah and Sarawak will be eroded, if similar provisions contained in the United Kingdom Race Relations Act and the Canadian laws on anti-discrimination were to be adopted, is misplaced and devoid of merit.

It must be emphasized again that the special position as contained in Article 153(2) of the federal constitution must be read to together with Article 153(1).

The special position of the Malays and the natives of Sabah and Sarawak does not envisage a situation where over-representation of one particular group is permitted in the administrative and business spheres of the government. It only talks of a reservation of quotas. It does not say that the civil service must be dominated by the Malays, or that the issuances of licenses /permits etc must only be given to the Malays.

The wordings of Article 153(2) must not be taken out of context to the extent of permitting ‘apartheid’ type policies. Clearly that was not the intention of the Reid Commission. 

The provisions of the federal constitution must be read and interpreted with some degree of reasonableness, particularly Article 153(2) of the federal constitution. If the provisions of the federal constitution are not tempered with reasonableness, then its provisions will be rendered meaningless for want of reasonableness.

In fact Article 153 must be read with Article 5 of the federal constitution1 since it guarantees every citizen of Malaysia the right to life which has been interpreted to mean the right to enjoyment of life. This would mean that any citizen of Malaysia cannot be subjected to unlawful discrimination which is not permitted by the federal constitution. 

The federal constitution only provides for lawful discrimination by virtue Art 153(2) in favour of the Malays and the natives of Sabah and Sarawak by way of affirmative action programmes and policies.

The current implementation of Article 153 which has resulted in reverse discrimination by the imposition unreasonable and unbalanced quotas – which has led to the domination of the Malays (and the natives of Sabah and Sarawak) in the public sector, government procurement, education, local authorities and GLCs – is clearly unlawful discrimination against the other communities. If the ‘reasonableness’ approach is adopted then it will give new life to Article 153(1) & (2) of the federal constitution and this would not pose a problem to the special position of the Malays and the natives of Sabah and Sarawak, and neither will it threaten it. 

There is no reason why affirmative action programmes cannot be extended to the non-Malays and non-natives of Sabah and Sarawak to address their under-representation. In fact it is clear that Article 153(1) permits such policies and programmes to be extended to “the other communities??? by virtue of the constitutional safeguard contained in it where the YDPA is required to safeguard their “legitimate interest???.

Therefore if an Act of Parliament in the likes of the UK RRA or the Canadian laws on anti-discrimination is created (modified to suit local conditions and needs, of course), it will not be unconstitutional.

The proposed act can be applied generally to cure the imbalances and at the same time give particular emphasis to a need-based policy, i.e. it can be targeted to help the following groups of Malaysians by introducing affirmative action programmes:

    * Malays and orang asal and other native groups in Sabah and Sarawak living in the kampungs, squatter areas, longhouses, low-cost and Program Perumahan Rakyat (PPR) housing and in the fringes of the jungle.
    * Chinese living in the New Villages, squatter areas and low-cost housing colonies.
    * Indians living in the estates and plantations, low-cost housing colonies, squatter areas and longhouses (a majority of these groups of people have been displaced from the estates and plantations as a result of development).

It must be noted that affirmative action programmes are usually targeted at the minority groups but Malaysia is unique in this sense since affirmative action programme are targeted at the majority races. 

Given this situation, it would not be misplaced if a law like the UK RRA is introduced in Malaysia to cure the current imbalance of racial representation in the various sections of the public and private sectors in terms of jobs and government and local authority procurement and educational opportunities in the institutes of higher education. In fact such a law can complement Article 153 of the federal constitution in that it can contain the various positive steps and measures that are to be taken to help the visible minority groups, i.e. the poor and the marginalized, and who should administer it. 

It can specify the restrictions and qualification of affirmative action measures that are currently not specified in the federal constitution to prevent the extreme and lopsided implementation of such policies. Administrative practices, instructions and policies that hinder better race relations and are currently being enforced by certain local authorities and public sector organizations can come within the purview of the act for review and scrutiny.

There have also been suggestions that a class-based affirmative action system should be introduced in Malaysia2.

A class-based system will definitely run foul of Article 153 of the federal constitution, as Article 153 is race-based and does not provide for preferential treatment based on class, i.e. between the lower income groups, the middle income groups and the higher income groups. Such a system if introduced via legislation, it will risk being declared unconstitutional until and unless the federal constitution is amended.

Governing authority

A body can be set up under the act to enforce the provisions and duties imposed on public and private institutions, similar to the UK CRE and the Canadian organizations tasked to administer race relation policies with some modifications to suit local conditions.

One of the institutions that have been talked about is an ombudsman. However an ombudsman institution may not be appropriate as it is more akin to a public complaints bureau which focuses on public complaints against public administrative authorities.

What is required is a Race Relations Commission to be created under a proposed Merdeka Act which will be given powers and functions similar to the UK Commission of Racial Equality and the Canadian organizations. 

The primary duty of the commission will be to identify the areas where there is racial under-representation and it must be allowed to cure the imbalance by introducing positive steps and measures. It will also have powers to identify racially discriminative administrative instructions, orders and policies in all sectors of the public and private sector in order to ensure fair representation and at the same time, issue warnings and implement other punitive measures to ensure compliance with the act.

It can also be mandated to ensure that public bodies introduce race equality in all aspects of employment in the areas of recruitment, promotion, training and educational opportunities. 

In fact this is nothing new as Article 136 (a provision which is often forgotten) of the federal constitution guarantees that all federal employees of whatever race must be treated impartially. Often this is not the case currently.

The commission can also be empowered to embark and organize recruitment programmes in order to recruit persons from the under-represented racial groups. This can be done by the formation of an official recruitment agency under the act. These are some of the important functions that the commission must be empowered to perform and if there are others, it can be ventilated when the bill is proposed to be tabled in parliament or when it is introduced for public views.

The act must also provide for a forum to settle disputes concerning specific complaints of discrimination in the workplace. A Race Relations tribunal can be set up under the act with specific powers to deal with such complaints from employees from the public and private sectors and also from individuals or companies who have business dealings with these institutions. It can be modelled upon the Industrial Court.   

The commission proposed under the putative Merdeka Act should also be given constitutional recognition like Police Commission and Public Service Commission and its reports on its activities or its official findings to a particular problem affecting race relations must be tabled before both houses of parliament similar to the reports of the various commissions in the federal constitution3. 

Conclusion

It cannot be denied that if a Race Relations Act is mooted in Malaysia, its passage – politically speaking – will be tough one since the introduction of an act like this will be exploited by Umno as being anti-Malay, etc.

However that should not be a reason for not having it at all as any law, controversial as it is, will be exploited to suit vested interest. With proper education of the proposed Race Relations Act given to the people and its transparent implementation, the rakyat will come to accept it as a necessary law to move Malaysia forward in the face of globalization.   

Part 1 which includes a discussion of the UK RRA was published yesterday. 

Jeyaseelen Anthony is a practicing lawyer and a member of the Bar Council Law Reform Committee. He trains widely on basic constitutional rights, human rights and police powers.   

Endnotes: 

1 Article 5(1) No person shall be deprived of his life or his personal liberty save in accordance with law.
2 Dr Aneez Esmail, Head of Equality and Diversity, University of Manchester, speaking at a roundtable organized by the Institute of Ethnic Studies (KITA) Universiti Kebangsaan Malaysia on June 18, 2009.
3 Article 146 of the Federal Constitution.

Announcement

History series

malaya-aaa

edu

Connect



Latest Articles