Special Rights in the Malaysian Constitution and the Framers' Dilemma, 1956–57

Abstract

The provision for Malay special privileges in the federal constitution raised considerable debate among the framers and the political community in Malaya (now Malaysia) during the drafting of the constitution in 1956–57. Article 153, which provides certain preferences to Malays in the award of business licences, scholarships and employment in the public service, was an unusual provision as it conflicted with the principle of equality enshrined in the constitution. Yet, there was general acknowledgment among the political organisations that the Malays badly needed assistance to address their economic backwardness. The dilemma the framers faced was in reconciling how these safeguards could be framed without negating the principle of equality in Article 8 and the constitutional rights of the non-Malays. Article 153 has been a source of much debate over the last 50 years. Earlier studies have not been able to examine the classified primary constitutional documents to ascertain fully the intentions of the framers. This article, drawing mainly from declassified primary constitutional documents and Alliance Party papers, analyses the evolution of the article through the various drafting stages. It shows that Article 153 was intended by the framers, particularly the Alliance Party, as a temporary and transitional provision with an unwritten understanding that there would be a review of the special privileges after independence and their discontinuance after a certain number of years.

Notes

[1] Joshi, The Constitution of India, 70–74.

[2] Granville, The Indian Constitution, 64–66. In the context of the Indian constitution, seats were reserved for scheduled castes and tribes for ten years in the lower houses of the state assemblies and the Lok Sabha (the lower house of parliament) from the commencement of the constitution. This provision was further extended for another ten years until 1970 through an amendment in 1959. The minority Anglo-Indian community in India had special provisions in the constitution with respect to the grant of educational grants for ten years after the commencement of the constitution. See Joshi, The Constitution of India 72–74, 319; also Bakshi, The Constitution of India, 15–27.

[3] Bakshi, The Constitution of India, 25–26.

[4] The Constitution of the Union of Burma (School of Oriental and African Studies, University of London), 3–8.

[5] Makhdoom Ali Khan, The Constitution of the Islamic Republic of Pakistan.

[6] Constitution of the Republic of Ghana (School of Oriental and African Studies, University of London), 16. See also Bennion, Constitutional Law of Ghana, 213–53.

[7] See Wright, British Colonial Constitutions, 519.

[8] See Fernando, Making of the Malayan Constitution, 85–86.

[9] In the original draft constitution prepared by the Reid Commission this provision was numbered as Article 157. Article 89 in addition provided for the continuation of Malay land reservation in the states to provide fair representation in land ownership among the Malays.

[10] von Vorys, Democracy without Consensus, 130–31.

[11] Ratnam, Communalism and the Political Process, 58.

[12] Means, Malaysian Politics, 178. See also, Means, ‘“Special Rights”’, 29–61.

[13] Heng Pek Koon, Chinese Politics in Malaysia, 228.

[14] See Fernando, Making of the Malayan Constitution, 85–89.

[15] See, for example, The Star, 17 Oct. 2008, 30 Nov. 2010, 21 June 2012; New Straits Times, 1 Dec. 2010, 7 June 2012. See also the online news website Malaysiakini, 12 Aug. 2001, 31 Aug. 2012 and Free Malaysia Today, 2 June 2011.

[16] Winstedt, Malaya and its History, 13–23. See also Wilkinson, A History of the Peninsular Malays, 1–27. The earliest settlers of the Malay peninsula were the aboriginal peoples comprising the Negritos, Senoi, Jakun and several others.

[17] Cowan, Nineteenth-Century Malaya. Chinese and Indian communities were attracted to Penang which was promoted as a free port by Sir Francis Light after he acquired the island for the East India Company from the Sultan of Kedah in 1786. This was followed by British acquisition of Singapore and Malacca. The three territories became known as the Straits Settlements which was administered by the British crown from 1867.

[18] See Sandhu, ‘Some Preliminary Observations’, 40–50; Heng Pek Koon, Chinese Politics in Malaysia, 10–12. A sizeable number of Chinese and Indians traced their roots to the fifteenth century when the Melaka sultanate flourished.

[19] Cowan, Nineteenth-Century Malaya, 99–212.

[20] Tregonning, A History of Modern Malaya, 162–207.

[21] Ibid., 186–207. See also Sandhu, ‘Some Preliminary Observations', 40–72.

[22] Arasaratnam, Indians in Malaysia and Singapore, 10–102.

[23] See Stockwell, British Policy and Malay Politics, 1–108; Lau, The Malayan Union Controversy.

[24] See Short, In Pursuit of Mountain Rats, 11–149; Stubbs, Hearts and Minds in Guerilla Warfare, 42–86.

[25] See Fernando, Alliance Road to Independence, 89–102.

[26] See Fernando, Making of the Malayan Constitution, 100–03.

[27] Summary record of 11th meeting of Constitutional Commission, CO 1, 889/1 (15), The National Archives, Kew (hereafter TNA).

[28] Report of the Federation of Malaya Constitutional Commission, 2, DO 35/6282, TNA.

[29] See Fernando, Making of the Malayan Constitution, 95–114.

[30] Report of the Federation of Malaya Constitutional Commission, 2.

[31] See Federation of Malaya Agreement.

[32] See draft of Alliance memorandum to Reid Commission, c. August 1956, Tan Cheng Lock Papers (hereafter TCL), 125, Institute of Southeast Asian Studies, Singapore.

[33] See Alliance memorandum to Reid Commission, 27 Sept. 1956, 17–18, CO 889/6 (2), TNA. For the purpose of the special position, the Alliance memorandum recommended that a person shall be deemed Malay if: ‘(1) He practises the religion of Islam; (2) He habitually practises Malay Customs; (3) He habitually speaks the Malay language; and (4) He is a person, or the descendant of a person, who at the commencement of this Constitution (a) was domiciled in the Federation of Malaya, or (b) had been born in the territories comprised in the Federation of Malaya, or (c) had been born of parents one of whom had been born in the territories comprised in the Federation of Malaya.’

[34] See Straits Times, 21 Aug. 1956.

[35] Malay Mail, 25 Aug. 1956.

[36] See draft of Alliance memorandum to Reid Commission, c. August 1956, TCL, 125.

[37] See Malay Mail, 3 Aug., 17 Aug., 20 Aug., 25 Aug, 27 Aug., 28 Aug. 1956.

[38] See Malay Mail, 20 Aug. 1956.

[39] Malay Mail, 27 Aug. 1956.

[40] See earlier draft of Alliance memorandum to Reid Commission, c. August 1956, SP 13/A/16, TCL, Arkib Negara, Kuala Lumpur. See also Straits Times, 27 Aug. 1956.

[41] See Straits Times, 21 Aug. 1956; Malay Mail, 25 March 1957.

[42] Hearing given to Malay Forum. CO 889/1, CC2109, 23 Aug 1957, TNA. The Malay Forum was headed by Yaacob Abdul Latiff a director in the Information Services.

[43] Memorandum by the Malay National Congress, Johore Bahru, 17 June 1956, CO 889/3, C.C. 2006, TNA.

[44] Hearing given to Pan-Malayan Federation of Chinese Association, 24 Aug 1956, CO 889/1 C.C. 2060, TNA.

[45] Memorandum by Straits Chinese British Association, Malacca, to Reid Commission, 31 May 1956, See CO 889/3, C.C. 2002. See also Hearing of the Straits Chinese British Association, Malacca, 17 Aug. 1956, CO889/1 C.C. 2002, TNA.

[46] Memorandum by Labour Party of Malaya, 25 Sept 1956, CO 889/3, C.C. 2001, TNA. The memorandum noted: ‘All Malayans shall enjoy equal rights and share equal responsibilities. The Labour party does not regard the safe-guarding of the special position of the Malays as a provision which will benefit the Malays in the long run, inasmuch as any special treatment usually results in unfitting rather than fitting the recipient for an active and useful role in society.’

[47] Hearing given by Commission to MCA Kelantan, 19 Sept. 1956, CO 889/1, C.C. 2127, TNA.

[48] Memorandum by Associated Chinese Chambers of Commerce, 25 June 1956, CO 889/3, C.C, TNA. 2009. The memorandum noted: ‘Now that a new constitution is to be written, they naturally expect their rights and privileges restored so that in this newly-born independent and democratic Federation of Malaya, all nationals will become equal subjects enjoying equal rights and privileges and fulfilling equal duties, obligations and responsibilities.’

[49] Memorandum by Malayan-Born Indian Association, 12 July 1956, CO 889/3, C.C. 2032, TNA.

[50] See report of hearing given to Ceylonese in the Federation of Malaya, 24 Aug. 1956, CO 889/1, C.C. 2092, TNA.

[51] Paper on constitutional changes implicit in the terms of reference prepared by Sir Ivor Jennings dated, 23 Aug. 1956, CO 889/2, C.C. 2000/15, TNA.

[52] See Tun Ismail Papers, Folio 12 (2), ch 12, 47. The Ismail papers are deposited at the Institute of Southeast Asian Studies in Singapore.

[53] Record of Alliance meeting with Commission, 27 Sept. 1956, CO 889/6, C.C. 2167, 40, TNA.

[54] Ibid., 41.

[55] Ibid., 41.

[56] Ibid, 42.

[57] Summary Record of Alliance meeting with Commission, 27 Sept. 1956, CO 889/6, C.C. 2167, TNA. The minutes of the meeting noted: ‘At the end of 15 years it was intended that both Malay reservations and the matters for which the Federation were responsible would be reviewed.’

[58] Record of Alliance meeting with Commission, 27 Sept. 1956, CO 889/6, C.C. 2167, 40, TNA.

[59] Ibid.

[60] Submissions by Rulers' counsel Neil Lawson on 14–15 Sept. 1956, See CO 889/6, C.C. 2014, TNA. See also Rulers' memorandum to the Reid Commission, CO 889/8 (22), 12 Sept. 1956, 20–23, TNA.

[61] Paper on constitutional changes implicit in the terms of reference prepared by Sir Ivor Jennings dated, 23 Aug. 1956, CO 889/2, C.C. 2000/15, TNA.

[62] ‘Fundamental Liberties' tentative draft by Jennings, 28 Sept 1956, CO 889/2, C.C. 2000/26, TNA.

[63] Ibid.

[64] CO 889/2 (1), C.C. 2000/32, Paper on Special Position of the Malays by Justice Abdul Hamid, 9 Oct. 1956, CO 889/2 (1), C.C. 2000/32, TNA.

[65] Summary record of 46th meeting of Commission, 9 Oct. 1956, CO 889/2, C.C. 1000, TNA. At this meeting the Commission decided to postpone consideration of the provision relating to the percentage of places in business firms for Malays in order to ascertain the ILO conventions which had been signed by the Federation.

[66] Summary record of 46th meeting of Commission, 9 Oct. 1956, CO 889/2, C.C. 1000, TNA.

[67] Ibid.

[68] The provisions on Malay land reservations were eventually put in a separate article—Article 82 of the Reid draft constitution (later renumbered Article 89 in the new constitution). See Summary record of 46th meeting of Commission, 9 Oct. 1956, CO 889/2, C.C. 1000, TNA. See also Report of the Federation of Malaya Constitutional Commission 1957, DO 35/6282, TNA.

[69] Summary record of 46th meeting of Commission, 9 Oct. 1956, CO 889/2, C.C. 1000, TNA.

[70] ‘Fundamental Liberties' tentative draft by Jennings, 28 Sept 1956, CO 889/2, C.C. 2000/26, TNA. Clause two of Article 4 ‘Equality of Citizens' reads: ‘No citizens shall, on grounds only of religion, race, residence, or place of birth, be ineligible for office under any public authority, or be prohibited on any such ground from acquiring, holding or disposing of property, or from carrying on any occupation, trade, business or profession.’

[71] Summary record of 46th meeting of Commission, 9 Oct. 1956, CO 889/2, C.C. 1000, TNA.

[72] Paper containing tentative draft on Malay special position by Justice Abdul Hamid dated 9 Oct. 1956, CO 889/2, C.C. 2000/32, TNA. The first clause of the article reads (1): ‘Notwithstanding anything in the Constitution the appropriate Legislature may by law authorise— (i) the fixing of a quota for Malays—(a) in any branch of the public service or (b) in any business, trade or profession, or (c) in issuing any permits and licences in a trade, business, or profession controlled by law, or (d) in respect of scholarship, bursaries and other forms of financial aid for the purpose of education; provided that if in any year such quota cannot be filled by suitable Malays, such quota may be filled by qualified persons who are not Malays; and (ii) the reservation of areas of land for transfer to Malays.’

[73] Paper containing tentative draft on Malay special position by Justice Hamid dated 9 Oct. 1956, CO 889/2, C.C. 2000/32, TNA.

[74] Ibid.

[75] Paper containing tentative draft on Malay special position by Jennings dated 22 Oct. 1956, CO 889/2 (2), C.C. 2000/34, TNA.

[76] Ibid.

[77] Clause 3 in the final Reid report reads: ‘After the expiration of fifteen years from Merdeka Day but not earlier the appropriate Government shall cause a report to be made to the appropriate legislature as to whether the quotas be continued, reduced or discontinued; and after considering such report the appropriate legislature may continue, reduce or discontinue any quota; and, if a quota is not discontinued similar reports shall be made to the appropriate legislature at intervals of not more than 15 years.’ See Report of the Federation of Malaya Constitutional Commission 1957, 183, TNA.

[78] Paper containing tentative draft on Malay special position by Jennings dated 22 Oct. 1956, CO 889/2, C.C. 2000/34, TNA. See also Reid report, 150.

[79] Reid report, 151.

[80] Hamid's original draft, undated (c. Dec. 1956), 1, B/X/6, Jennings Papers, Institute of Commonwealth Studies.

[81] Note on Hamid's dissent by Jennings, undated, B/X/6, Jennings Papers.

[82] Ibid.

[83] See Straits Times, 12 March, 18 March, 28 March 1957. See also von Vorys, Democracy without Consensus, 131–32.

[84] Ibid., 131.

[85] Minutes of Sixth Meeting of Working Party, 4 March 1957, CO 941/85 (15), TNA. This meeting was chaired by High Commissioner Sir Donald MacGillivray. The Alliance was represented by Tunku Abdul Rahman, Dato’ Abdul Razak bin Dato Hussein, V. T. Sambanthan and Ong Yoke Lin. The Rulers were represented by Tuan Haji Mustapha Albakri bin Haji Hassan, Shamsuddin bin Nain, Tunku Ismail bin Tunku Yahya and Neil Lawson. The other present at the meeting were Sir David Watherston, Attorney-General T.V.A. Brodie and E. O. Laird (Secretary).

[86] Minutes of Sixth Meeting of Working Party, 4 March 1957, CO 941/85 (15), TNA.

[87] Ibid.

[88] Ibid.

[89] Minutes of Alliance ad hoc political sub-committee meeting, 2 April 1957, UMNO/SUA 154/56.

[90] Ibid.

[91] Ibid.

[92] Ibid.

[93] Ibid.

[94] Tun Ismail Papers, 12, ch. 12, 47.

[95] Minutes of Alliance ad hoc political sub-committee meeting, 2 April 1957, UMNO/SUA, National Archives of Malaysia, Kuala Lumpur, 154/56.

[96] Minutes of the Twenty-third meeting of Working Party, 27 April 1957, CO 941/87 (23), TNA. See also minutes of Working Party meeting on, 4 March, 8 March, 12 March, 21 March, 25 March, 9 April, 27 April 1957 in CO 941/85 and CO 941/87, TNA.

[97] Minutes of Alliance National Council meeting, 5 May 1957, UMNO/SUA 154/56.

[98] Minutes of the Twenty-third meeting of Working Party, 27 April 1957, CO 941/87 (23), TNA.

[99] Berita Harian, 3 July 1957.

[100] Minutes of the Twenty-third meeting of Working Party, 27 April 1957, CO 941/87 (23), TNA.

[101] See Summary of minutes of 1st plenary meeting, 13 May 1957, CO1030/496 (1); Summary of minutes of Second plenary meeting, 14 May 1957, CO1030/496 (8); Summary of minutes of Third plenary meeting, 17 May 1957, CO1030/496 (9), TNA.

[102] Federation of Malaya Legislative Council Debates, 10 July 1957, 2860.

[103] Ibid., 2861.

[104] Ibid., 2861.

[105] Ibid., 2861.

[106] Ibid., 2861–62.

[107] Ibid., 2869–70.

[108] Ibid., 2882–83.

[109] Federation of Malaya Legislative Council Debates, 10 July 1957, 2892.