Affirmative Action versus Equality in Malaysia

by | Nov 22, 2012

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Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast

By Dr Dimitrina Petrova

The Bumiputera (Malays and natives of Sabah and Sarawak) continue to benefit from decades-old affirmative action policies that have outlived their legitimacy. Article 153 of the Federal Constitution, continuing a system of ethnic privileges established by British colonial rule, requires the King of Malaysia to safeguard the special position of the Malays.

Following race riots of May 1969, Article 153 of the Constitution was implemented by the government in the form of wide-ranging pro-Bumiputera New Economic Policy (NEP) of 1971. The NEP was intended to be a temporary measure “to reduce and eventually eradicate poverty” and to restructure “Malaysian society to correct economic imbalance, so as to reduce and eventually eliminate the identification of race with economic function”. The key elements of the NEP were quotas for Bumiputera in admission to state universities and schools, in the granting of scholarships and in public sector employment; a statutory share of 30% of corporate equity for Bumiputera; employment quotas in the private sector; quotas in the tendering of government contracts and business licences; preferential treatment in the allocation of public housing; and discounts for the purchase of residential properties. Article 153 contains some checks and balances, but these are weak and ambiguous in a number of ways and have often been overlooked.

The privileges are entrenched in Malaysian law in a way making repeal very difficult. For example, any Bill undermining Malay privileges would be caught by the law of sedition, and the Constitution permits Parliament to prohibit the questioning of any matter, right, status, position or privilege protected by Article 153.

A report published on 12 November by The Equal Rights Trust (a London-based international organisation) in partnership with the Malaysian NGO Tenaganita analysed affirmative action in Malaysia. The 400 page report Washing the Tigers: Addressing Discrimination and Inequalities in Malaysiawhich covered all strands of equality concluded that, failing to meet a set of criteria defining positive (affirmative) action, the privileges contained in Articles 153 and 89-90 are preferences within the meaning of “racial discrimination”, as defined in the International Convention on the Elimination of All Forms of Racial Discrimination.

Affirmative action is an important tool for accelerating progress towards substantive equality for particular groups. It is an essential element of the right to equality – see Declaration of Principles on Equality, Principle 3. However, the Malaysian case is an example of a worst practice of affirmative action, ill-designed from the start despite its initial legitimate purpose. Today, having become a tool of unfavourable treatment of ethno-religious minorities such as the Chinese and the Indians, the Malaysian case is an example of race discrimination through a mis-application of the great notion of affirmative action.

The ERT report, which contains a number of recommendations related to equality, urged Malaysia to repeal its affirmative action laws. The report has received ample coverage in the Malaysian media and has started to have a real impact in this Asian tiger nation living in anticipation of change.

Dr Dimitrina Petrova is the Executive Director of the Equal Rights Trust in London.

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