In a spate of heightened racial slurs in the wake of the March 8 general elections, the cabinet agreed to introduce Race Relations Act in order to promote racial harmony in multiracial Malaysia. But so far no details are made available for public scrutiny. Although most commentators are still in the dark as to what the proposed law actually entails, it does not deter them from giving either positive or negative responses to the proposal.
Those who viewed the proposal negatively reasoned that there are sufficient existing legislation in the country, such as the Sedition Act and the Internal Security Act, which would help the government deal with hate speeches that are likely to cause racial tension to flare up in our multiracial society. Introducing the new Act will therefore be redundant. What is even more, the proposal could be just a “knee jerk” reaction if it was nothing more than a hasty response to a recent hate speech by an UMNO politician against the Chinese community. Presumably, according to this view, racial harmony could be achieved if everyone manages to restrain himself from uttering hate speeches against others. Let we call this first view as “restraining approach”.
On the other hand, those who agreed with the introduction of the new law see it in different light. Taking the proposal one step further, they argued that the law should aim at outlawing discriminatory practices based on race, creed and color rather than dealing only with hate speeches. This, according to them, is the missing dimension in the existing legislation on race relations in Malaysia. The law should therefore be renamed “Anti-Discrimination Act” or “Equal Opportunity Act”, or something like that. Let we call this second view as “anti-discriminatory” approach.
Those who viewed the proposal negatively reasoned that there are sufficient existing legislation in the country, such as the Sedition Act and the Internal Security Act, which would help the government deal with hate speeches that are likely to cause racial tension to flare up in our multiracial society. Introducing the new Act will therefore be redundant. What is even more, the proposal could be just a “knee jerk” reaction if it was nothing more than a hasty response to a recent hate speech by an UMNO politician against the Chinese community. Presumably, according to this view, racial harmony could be achieved if everyone manages to restrain himself from uttering hate speeches against others. Let we call this first view as “restraining approach”.
On the other hand, those who agreed with the introduction of the new law see it in different light. Taking the proposal one step further, they argued that the law should aim at outlawing discriminatory practices based on race, creed and color rather than dealing only with hate speeches. This, according to them, is the missing dimension in the existing legislation on race relations in Malaysia. The law should therefore be renamed “Anti-Discrimination Act” or “Equal Opportunity Act”, or something like that. Let we call this second view as “anti-discriminatory” approach.
Both the "restraining" and "anti-discriminatory" approaches to race relations are not unfamiliar if one looks at similar legislation around world. The UK Race Relations Act and the US Equal Employment Opportunity legislation are mainly "anti-discriminatory", while the Singapore Maintenance of Religious Harmony Act is wholly "restraining".
In the Malaysian context, anti-discriminatory approach to race relations is quite new. This makes this approach more interesting, if not intriguing. It struck at the core of race relations in Malaysia as certain segments of Malaysian society feel that they are discriminated against. A recent survey by Merdeka Center for Opinion Research reveals that the majority of non-Malays (71%) feel that they are unfairly treated and discriminated by the government. The main complaint has been the implementation of the New Economic Policy (NEP) which provides preferential treatment in the provision of economic and educational opportunities for the indigenous Malays and the natives of Sabah and Sarawak. It is not surprising therefore that the non-Malays would want to see the new law promotes equality by putting an end to any kind of discriminatory practices in the country.
But the road to perfect equality is not without hurdles. Although the same survey indicates that the Bumiputera community is more open to treating other races more equally, another survey reveals that 93% Malay respondents opposed the idea of abolishing Malay special privileges. These “privileges” include the reservation of quotas in public service, scholarships, permits and licenses for the Malays and the natives of Sabah and Sarawak as enshrined in Article 153 of the Federal Constitution.
Here lies the real test of the viability of the “anti-discriminatory” approach to race-relation legislation in Malaysia. Hiding behind Article 8 of the Federal Constitution, which entitles every person to equality before the law and equal protection of the law, as a means to promote racial equality is to miss the salient point that Article 153 allows “positive discrimination” in favor of the Malays and the natives of Sabah and Sarawak.
What is more, the concept of “equality” under Article 8 is not absolute but qualified. Let us have a closer look at Article 8.
In the Malaysian context, anti-discriminatory approach to race relations is quite new. This makes this approach more interesting, if not intriguing. It struck at the core of race relations in Malaysia as certain segments of Malaysian society feel that they are discriminated against. A recent survey by Merdeka Center for Opinion Research reveals that the majority of non-Malays (71%) feel that they are unfairly treated and discriminated by the government. The main complaint has been the implementation of the New Economic Policy (NEP) which provides preferential treatment in the provision of economic and educational opportunities for the indigenous Malays and the natives of Sabah and Sarawak. It is not surprising therefore that the non-Malays would want to see the new law promotes equality by putting an end to any kind of discriminatory practices in the country.
But the road to perfect equality is not without hurdles. Although the same survey indicates that the Bumiputera community is more open to treating other races more equally, another survey reveals that 93% Malay respondents opposed the idea of abolishing Malay special privileges. These “privileges” include the reservation of quotas in public service, scholarships, permits and licenses for the Malays and the natives of Sabah and Sarawak as enshrined in Article 153 of the Federal Constitution.
Here lies the real test of the viability of the “anti-discriminatory” approach to race-relation legislation in Malaysia. Hiding behind Article 8 of the Federal Constitution, which entitles every person to equality before the law and equal protection of the law, as a means to promote racial equality is to miss the salient point that Article 153 allows “positive discrimination” in favor of the Malays and the natives of Sabah and Sarawak.
What is more, the concept of “equality” under Article 8 is not absolute but qualified. Let us have a closer look at Article 8.
Article 8(1) states that “all persons are equal before the law and entitled to the equal protection of the law”. Article 8(2) further states, “except as expressly authorized by this Constitution (emphasis is mine), there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment”.
Notwithstanding the anti-discriminatory provision in Article 8(2), clause 5 of Article 8 does not invalidate or prohibit: (a) any provision regulating personal law; (b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion; (c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service; (d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election; (e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day; and (f) any provision restricting enlistment in the Malay Regiment to Malays.
The Federal Court in Datuk Haji Harun bin Haji Idris v. Public Prosecutor [1977] 2 MLJ 155 had the opportunity to consider the concept of equality under Article 8. Subjecting the operation of Article 8 to the limiting principles based on the classification permitted by the Article, the Federal Court adopted the view that the equality provision in Article 8 is qualified. As clause 5 of Article 8 envisages, there may be lawful discrimination based on “communal” classifications such as Muslims as opposed to non-Muslims, aborigines as opposed to non-aborigines, Malays and natives of Borneo as opposed to other communities, and “non-communal” classification such as residents in a particular State as opposed to residents elsewhere. Avoiding excessive idealism in treating equality as a legal concept, the late Tun Suffian in Datuk Harun said:
(W)hile we are all familiar with the idealistic concept of equality, Indian -- and Malaysian judges -- are not familiar with it as a legal concept, having been introduced in India only in 1949 and in Malaysia in 1957. As a legal concept it is easy to state, but difficult to apply -- because, first, equality can only apply among equals and in real life there is little equality and, secondly, while the concept of equality is a fine and noble one it cannot be applied wholesale without regard to the realities of life. While idealists and democrats agree that there should not be one law for the rich and another for the poor nor one for the powerful and another for the weak and that on the contrary the law should be the same for everybody, in practice that is only a theory, for in real life it is generally accepted that the law should protect the poor against the rich and the weak against the strong.
While the move toward promoting racial equality through anti-discriminatory legislation must be lauded, there must be some sort of reality check as well. Of late, there has been a tendency to label one race as “superior” and other races as “inferior” regardless of individuals’ possession of wealth and social status. According to this view, the problem of inequalities would be solved if the “inferior” race no longer feels disenfranchised. The fact is that the feeling of disenfranchisement is not only felt by any one particular race but across races. The poor Malays, Ibans and Kadazans would feel disenfranchised as much as the poor Chinese and Indians do. Thus lifting the race barrier alone will not solve the problem of inequality. It doesn’t make sense to treat the feeling of “disenfranchisement” among the rich Malays, Chinese, Indians, Ibans, Kadazans, etc. as the same as that of the poor and the marginalized among these communities. Such an approach would intensify rather than attenuate inequality.
Balancing the ideals of racial equality with the complexities of real life is a delicate game which could be beyond the reach of a Race Relations Act. To effectively address the problem of inequalities in our country, one must certainly go beyond race.
Notwithstanding the anti-discriminatory provision in Article 8(2), clause 5 of Article 8 does not invalidate or prohibit: (a) any provision regulating personal law; (b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion; (c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service; (d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election; (e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day; and (f) any provision restricting enlistment in the Malay Regiment to Malays.
The Federal Court in Datuk Haji Harun bin Haji Idris v. Public Prosecutor [1977] 2 MLJ 155 had the opportunity to consider the concept of equality under Article 8. Subjecting the operation of Article 8 to the limiting principles based on the classification permitted by the Article, the Federal Court adopted the view that the equality provision in Article 8 is qualified. As clause 5 of Article 8 envisages, there may be lawful discrimination based on “communal” classifications such as Muslims as opposed to non-Muslims, aborigines as opposed to non-aborigines, Malays and natives of Borneo as opposed to other communities, and “non-communal” classification such as residents in a particular State as opposed to residents elsewhere. Avoiding excessive idealism in treating equality as a legal concept, the late Tun Suffian in Datuk Harun said:
(W)hile we are all familiar with the idealistic concept of equality, Indian -- and Malaysian judges -- are not familiar with it as a legal concept, having been introduced in India only in 1949 and in Malaysia in 1957. As a legal concept it is easy to state, but difficult to apply -- because, first, equality can only apply among equals and in real life there is little equality and, secondly, while the concept of equality is a fine and noble one it cannot be applied wholesale without regard to the realities of life. While idealists and democrats agree that there should not be one law for the rich and another for the poor nor one for the powerful and another for the weak and that on the contrary the law should be the same for everybody, in practice that is only a theory, for in real life it is generally accepted that the law should protect the poor against the rich and the weak against the strong.
While the move toward promoting racial equality through anti-discriminatory legislation must be lauded, there must be some sort of reality check as well. Of late, there has been a tendency to label one race as “superior” and other races as “inferior” regardless of individuals’ possession of wealth and social status. According to this view, the problem of inequalities would be solved if the “inferior” race no longer feels disenfranchised. The fact is that the feeling of disenfranchisement is not only felt by any one particular race but across races. The poor Malays, Ibans and Kadazans would feel disenfranchised as much as the poor Chinese and Indians do. Thus lifting the race barrier alone will not solve the problem of inequality. It doesn’t make sense to treat the feeling of “disenfranchisement” among the rich Malays, Chinese, Indians, Ibans, Kadazans, etc. as the same as that of the poor and the marginalized among these communities. Such an approach would intensify rather than attenuate inequality.
Balancing the ideals of racial equality with the complexities of real life is a delicate game which could be beyond the reach of a Race Relations Act. To effectively address the problem of inequalities in our country, one must certainly go beyond race.
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