COMMENT Imagine legislating discrimination, and entombing it in the supreme law of the land. The Americans considered each black person as three-fifths of a person for the purposes of apportioning legislators based on population way before gerrymandering came into vogue.

Malaysia is no different when it comes to the legitimate interests of other races. The word “other” presupposes a distinct and unique race set quite apart through constitutional fiat. Passing a law loaded with bias to benefit one particular ethnic race is a serious flaw, especially when it is woven into the fabric of a supreme law called a constitution.

One can only wonder what the Reid Commission was instructed to do in the early 1950s while drafting and creating a new constitution for Malaya. The thinking behind what constituted Malaya, and later Malaysia, will always haunt Malaysians, especially knowing that no Malayan was invited to sit in the Reid Commission although I know there were several eminent local lawyers in the then fledgling Malaya.

Now available to the public, and occupying a safe spot and space in antiquity in the atmosphere-controlled British Museum, are letters written to Westminster from the colonial secretaries of Malaya, Fiji and other British colonies with fertile soils yielding untold spoils, inundated with tales, illustrations and examples of the ethnic races who are loathe to work under the blazing midday sun.

The British colonial economic watchdogs, and lapdogs, realised that imported labour was the only practical solution to exploit and extract the lucrative pecuniary promises of tin, rubber, and other precious commodities that attracted British investments, and its attendant avarice, to Malaya.

Confidential communications to Westminster also suggest that the Malay sultans were not too excited about the prospect of issuing citizenship papers to imported Chinese and Indians who may, by sheer hard work and numerical superiority, seize the economic and social opportunities to their obvious, and well-deserved, benefit.

Double speak

After the trouncing of the British at the hands of the merciless Japanese Imperial Army, and the not-so-heroic return of the British under the aegis of the British Military Administration (BMA), the Malay sultans were in a better bargaining position to seal a deal the BMA could not refuse in exchange for the benefit of citizenship to imported labourers.

The compromise came in the form of Article 153 which has always been a treacherously unforgiving thorn in the Malaysian flesh despite the language in Article 153(1) where doublespeak about the special position of the Malays and other Sabah and Sarawak natives included “the legitimate interests of other communities…”.

And then, as a sudden subdued expression of an about-face, Article 153(2) drops the phrase “legitimate interests of other communities…”.

The final nail in the coffin of legislated discrimination appears in Article 153(9) when Parliament is prohibited from making any law that restricts the special reservations for Malays and natives of Sabah and Sarawak.

The interests of other communities, according to the extreme flaw in our supreme law, quickly evaporates. I wonder if the Reid Commissioners were drinking cheap toddy, or smoking inferior weed, when they thought this through, and ultimately writing it in stone.

One can imagine what would happen if a constitutional challenge is mounted in court today to determine which will see the dawn of another day – Article 153(1) or Article 153(2)?

But, you may be judicially trumped by Article 10(4) which beefs up Article 10(2)(a) cleverly designed to discourage anyone from questioning the special privileges accorded to the Malays under Article 153. The command of equality in 153(1) is swiftly camouflaged into a licence for discrimination in 153(2).

Curiously, Article 153(5) stipulates that this Article does not deviate from the provisions of Article 136 which benevolently states that “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.” Really?

The Eighth Schedule (Article 71), Part I (18), echoes the same sentiment, as if impulsively, to state employees. More doublespeak, or someone tasked with the powers of constitutional amendments missed the import of these provisions? Whatever race is a curse word for non-Malays under the ramifications of our supreme law, no thanks to our second prime minister.

As of Dec 27, 2007, the federal constitution has undergone more than 200 constitutional amendments. The amendments to the judiciary are devastatingly loathsome.

The words “judicial power” is jettisoned for good. The judiciary is no longer a co-equal in the matrix of the three organs of state. Judicial independence is, of course, a nice proverb if not a cliché when viewed through the Malaysian prism of freedoms and liberties.

Naturally, Article 153, however, is untouched, and still in the pristine condition it was originally penned to entrench more than affirmative action.

Article 153 after regime change

So, who is to take responsibility for this? The British for advancing and legislating discrimination, or future Malaysian legislatures that cared not to consider the express will of the rakyat without express orders from the executive?

But, who, or what, is the executive according to our supreme law? Article 39 puts the onus on the Agong as the one vested with executive authority. No mention of Umno, or the prime minister, in this context. Somebody has to take the blame and responsibility so that a workable solution can be put in place, if at all that is in the thinking of conscience-stricken Malaysian parliamentarians.

I wonder if the regime change post-GE13 will amend, or commend, Article 153. Will amending Article 153 become the Malaysian dilemma with a good measure of a counter-dilemma to accommodate the legitimate interests of all races?

The Malaysian experiment with race has curiously survived this long because as a people we exercise a live-and-let-live attitude without political overtones or persuasion. Growing up in Kuala Kangsar and Ipoh in the 50s and early 60s, we super-naive young people never encountered race associated problems. But bring in politics, and the constitution, we have a powder keg itching for a trigger.

As I read Article 9(1) regarding the prohibition of banishment, I cannot help but think of Chin Peng (right). He received an OBE from the British for his Malayan Peoples Anti-Japanese Army exploits, which greatly helped the cause of liberty.

Thereafter, he took on the British Empire, and was labeled a communist terrorist while the Irish terrorist problem was growing in the British backyards with the solemn promise of never going away. If only we had military clout then, how would the Malayan armed forces handled the Irish terrorist problem? Again, the supreme law on the other side of the same coin looks askance as an extreme flaw.

I suppose the Malayan constitution was thought of and written in the English language. If language be the dress of thought, read Article 10(b) where peaceful assembly is granted to citizens “without arms.”

You think that is cute. I think it is an acute expression of a hudud edict. Maybe the Reid Commission could not think up the word “firearms”. Cheap toddy, or inferior weed. Maybe both.

JUDGE NAVIN-CHANDRA NAIDU is a lawyer based in Utah, United States.