Asserting the native privileges — Part II

Borneo Post

6 days ago

MY article on native privileges, which was published last Sunday in this column, caused some controversy.
Yes, there were several criticisms, but those were almost all constructive, and I am grateful for those comments.
The main complaint was that I did not say about the privileges of the natives of Sarawak, in terms of privileges enshrined in the Federal Constitution.
Yes, the omission of the provisions was deliberate: for lack of space.
Today, I have copied out the relevant provisions of the Federal Constitution.
I hope the readers (two from Miri, and four from Sibu) who complained about the 'missing link', would read the provisions of Article 153 of the Federal Constitution, together with provisions of Article 39 of the Sarawak Constitution.
No more missing link!
It was good that some people noticed the omission.
As I am not aware of any amendment to the provisions of Article 153, so we will proceed looking at those provisions without delay.
Here goes!
• The Constitution of Malaysia (as of 31st March 2017)
◦ Article:
153. Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the states of Sabah and Sarawak.
1) It shall be the responsibility of the Yang Di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the states of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.
2) Notwithstanding anything in this Constitution, but subject to the provisions of Article 40* and of this Article, the Yang Di-Pertuan Agong shall exercise his functions under this Constitution and federal law to safeguard in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the states of Sabah and Sarawak and to ensure the reservation of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then subject to the provisions of that law and this article, of such permits and licences. [*Article 40 states 'Yang di-Pertuan Agong to act on advice'; advice from the Cabinet or of a minister acting under the general authority of the Cabinet].
3) The Yang di Pertuan Agong may, in order to ensure in accordance with Clause (2) the reservation to Malays and natives of any of the states of Sabah and Sarawak of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to any commission to which part X** applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges and the Commission or authority shall duly comply with the directions [**Part X- Article 132 – Public services].
4) In exercising his functions under this constitution and federal law in accordance with Clauses (1) to (3) the Yang di-Pertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.
5) This Article does not derogate from the provisions of Article 136 [*** This Article (136) is about impartial treatment of federal employees]. 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.
6) Where by existing federal law a permit or licence is required for the operation of any trade or business, the Yang di-Pertuan Agong may exercise his functions under that law in such manner, or give such general directions to any authority charged under that law with the grants of such permits or licences, as may be required to ensure the reservation of such proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with such directions.
7) Nothing in this Article shall operate to deprive or authorize the deprivation of any person of any right, privilege or licence accrued to or enjoyed or held by him or to authorize a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of a person any permit or licence when the renewal or grant might reasonably be expected in the ordinary course of events.
8) Notwithstanding anything in this constitution, where by any federal law any permit or licence is required for the operation of any trade or business that law may provide for the reservation of a proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak; but no such law shall for the purpose of ensuring such a reservation: (a) deprive or authorize the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him; or (b) authorize a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of any person any permit or licence when the renewal or grant might in accordance with the other provisions of the law reasonably be expected in the ordinary course of events, or prevent any person from transferring together with his business any transferable licence to operate that business any transferable licence to operate that business; or (c) where no permit or licence was previously required for the operation of the trade or business, authorize a refusal to grant a permit or licence to any person for the operation of any trade or business which immediately before the coming into force of the law he had been bona fide carrying on, or authorize a refusal subsequently to renew to any such person any permit or licence when the renewal or grant might in accordance with the other provisions of the reasonably be expected in the ordinary course of events.(8A) Notwithstanding anything in this Constitution, where in any University, College and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the University, College or such educational institution to candidates for any course of study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable and the authority shall duly comply with the directions.
9) Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservation for Malays and natives of any of the States of Sabah and Sarawak.(9A) In this Article the expression 'natives' in relation to the State of Sabah or Sarawak shall have the meaning assigned to it in Article 161A [Read clauses (6) and (7) of that Article 161A for yourself; it's about the definition of 'native'. Sorry, no space for the provisions in this column for today].
10) The constitution of the State of any Ruler may make provision corresponding (with the necessary modifications) to the provisions of this Article.
Quite a mouthful, isn't it?
Do not let yourself be intimidated by the legal language. Useful for an aspiring MP to learn how to read a document couched in the legal verbosity.
It would be useful for the reader to learn what the rest of Article 153 encompasses, and to compare those provisions with the provisions of Article 39 of the Constitution of Sarawak.
The same question that I would ask of the federal government is similar to what I asked the Sarawak government to specify: the reservation of quotas for each racial group in Malaysia, including the natives of the state of Sarawak.
Don't forget about the natives of Sarawak – thank you.
* The opinions expressed in this article are the columnist's own and do not reflect the view of the newspaper.