Wednesday, August 25, 2010

SatuLimaTiga....A Tribute to Justice Hamid

First allow me to update you on the Baling Taik and Bakar Bendera incident...

Its a small bunch of extremist...the same bunch of folks who were planning to invade Malaysia last year...

Their logic was that the manner in which the "barter trade" between some Suspected Pencuri Ikan Vs Their Fisheries Official....shows that the Government of Indonesia is weak and TIDAK BERDAULAT......

Its kinda funny to me....on the timing of the release......why did the Malaysian Authorities released them simultaneously with the Indonesian Authorities....

Why can't we had released them earlier?

What ever it was......bikin macet gua nak balik bukak puasa aje.....

But I tot the shit thinggy was kinda overboard.........the last time I heard of shit being thrown at ...was when I was in boarding mafaker used to intai folks berak and laugh at them.....till one day one victim picked up his shit ....chased the mafaker and threw it at his face......kau kau siut.........

Now back to Malaysia.........apa sudah jadi Saudara-Saudari sekalian......

apahai kecoh

sebelum kita semua kelam kabut tak tentu arah..........

travel with me to investigate how the "Special Position" of the Malays came into existence......

First up......

The Read Commission Report......

The Special Position of the Malays

163. Our terms of reference require that provision should be made in the Constitution for the “safeguarding of the special position of the Malays and the legitimate interests of other Communities”. In addition, we are asked to provide for a common nationality for the whole of the Federation and to ensure that the Constitution shall guarantee a democratic form of Government. In considering these requirements it seemed to us that a common nationality was the basis upon which a unified Malayan nation was to be created and that under a democratic form of Government it was inherent that all the citizens of Malaya, irrespective of race, creed or culture, should enjoy certain fundamental rights including equality before the law. We found it difficult, therefore, to reconcile the terms of reference if the protection of the special position of the Malays signified the granting of special privileges, permanently, to one community only and not to the others. The difficulty of giving one community a permanent advantage over the others was realized by the Alliance Party, representatives of which, led by the Chief Minister, submitted that - “in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed…” The same view was expressed by their Highnesses in their memorandum, in which they said that they “look forward to a time not too remote when it will become possible to eliminate Communalism as a force in the political and economic life of the country”.
164. When we came to determine what is “the special position of the Malays” we found that as a result of the original treaties with the Malay States, reaffirmed from time to time, the special position of the Malays has always been recognized. This recognition was continued by the provisions of clause 19(1)(d) of the Federation Agreement, 1948, which made the High Commissioner responsible for safeguarding the special position of the Malays and the legitimate interests of other communities. We found that there are now four matters with regard to which the special position of the Malays is recognized and safeguarded.
(1) In most of the States there are extensive Malay reservations of land, and the system of reserving land for Malays has been in operation for many years. In every State the Ruler-in-Council has the power to permit a non-Malay to acquire a piece of land in a Malay reservation but the power is not used very freely. There have been some extensions of reservations in recent years but we do not know to what extent the proportion of reserved land has been increasing.
(2) There are now in operation quotas for admission to the public services. These quotas do not apply to all services, e.g., there is no quota for the police and, indeed, there is difficulty in getting a sufficient proportion of non-Malays to join the police. Until 1953 admission to the Malayan Civil Service was only open to British subjects of European descent and to Malays but since that date there has been provision for one-fifth of the entrants being selected from other communities. In other services in which a quota exists the rule generally is that not more than one-quarter of new entrants should be non-Malays.
(3) There are not also in operation quotas in respect of the issuing of permits or licenses for the operation of certain businesses. These are chiefly concerned with road haulage and passenger vehicles for hire. Some of these quotas are of recent introduction. The main reasons for them appear to be that in the past the Malays have lacked capital and have tended to remain on the land and not to take a large part in business, and that this is one method of encouraging the Malays to take a larger part in business enterprises.
(4) In many classes of scholarships, bursaries and other forms of aid for educational purposes preference is given to Malays. The reason for this appears to be that in the past higher education of the Malays has tended to fall behind that of the Chinese, partly because the Chinese have been better able to pay for it and partly because it is more difficult to arrange higher education for Malays in the country than for Chinese in the towns.

165. We found little opposition in any quarter to the continuance of the present system for a time, but there was great opposition in some quarters to any increase of the present preferences and to their being continued for any prolonged period. We are of opinion that in present circumstances it is necessary to continue these preferences. The Malays would be at a serious and unfair disadvantage compared with other communities if they were suddenly withdrawn. But, with the integration of the various communities into a common nationality which we trust will gradually come about, the need for these preferences will gradually disappear. Our recommendations are made on the footing that the Malays should be assured that the present position will continue for a substantial period, but that in due course the present preferences should be reduced and should ultimately cease so that there should then be no discrimination between races or communities.
166. With regard to land we recommend (Art. 82) that, subject to two qualifications, there should be no further Malay reservations, but that each State should be left to reduce Malay reservations in that State at an appropriate time. Land is a State subject and we do not recommend giving overriding powers to the Federation in this matter. We do not think that it is possible to lay down in advance any time when a change should be made because conditions vary greatly from State to State. The two qualifications to the rule that there should be no further reservations are: first, that if any land at present reserved ceases to be reserved, an equivalent area may be reserved provided that it is not already occupied by a non-Malay; and, secondly, that if any undeveloped land is opened up, part of it may be reserved provided that an equivalent area is made available to non-Malays.
167. The effect of our recommendations (Art. 157) is that with regard to other preferences to Malays no new quota or other preference could be created. These preferences can only be lawfully created or continued to the extent to which that is specifically authorized by the Constitution. With regard to the existing quotas which we have referred to above we recommend that the Malays ought to have a substantial period during which the continuance of the existing quota is made obligatory, but that, if in any year there are not enough Malay applicants qualified to fill their quota of vacancies, the number of appointments should not be reduced and other qualified applicants should be appointed in sufficient numbers to fill the vacancies. We recommend that after 15 years there should be a review of the whole matter and that the procedure should be that the appropriate Government should cause a report to be made and laid before the appropriate legislature; and that the legislature should then determine either to retain or to reduce any quota or to discontinue it entirely.
168. The Alliance in their memorandum said " The Constitution should therefore provide that the Yang di-Pertuan Besar should have the special responsibility of safeguarding the special position of the Malays". The majority of us take the view that the Alliance intended that the Yang di Pertuan Besar should act in this matter as in others as a Constitutional Ruler and should accept the advice of his cabinet. Accordingly we think that the intention of the Alliance was that the whole matter should be dealt with by the Government of the day and Article 82 and 157of the draft Constitution give expression to the view of the majority. Mr Justice Abdul Hamid view is that the words "special responsibility" imply that in this matter the Yang di Pertuan Besar should act at his discretion and not on advice. His views are set out in his not appended to this report.
Refer here for the full document

So what exactly happen? 

Why did Justice Abdul Hamid objected to the Commission's position?

In an immeasurably important and remarkable work by Dr. Joseph M. Fernando of the Universiti Malaya, based on records that have recently become publicly available at the Public Records Office in London under the United Kingdom’s thirty-year rule, he recounts the history of the special position clause from the Alliance Memorandum, through the Reid Commission’s deliberations and the tripartite talks between the “Malay” United Malays National Organization (or “UMNO”), the “Chinese” Malayan Chinese Association (“MCA”) and the “Indian” Malayan Indian Congress (“MIC”), to the final insertion of that clause in the “permanent” part of the Malayan Constitution of 1957. According to Dr. Fernando, the special position clause was initially the subject of inter-ethnic compromise at the Alliance Memorandum phase where there was agreement within the Alliance (principally the Malay UMNO under the leadership of TunkuAbdul Rahman, and the ChineseMCA led by Tan Siew Sin) that the Malay special position should only amount to a transitional measure to assist the Malays economically. Likewise, the Reid Commission resolved to insert that clause only in the “temporary provisions” part of the draft Constitution, thereby requiring a two-thirds majority to preserve it after 15 years while bolstering fundamental liberties, achieving a compromise on multi-linguism with Malay being the “official” language (but that Chinese and Tamil should be used “exceptionally” in the legislature for ten years, leaving Parliament thereafter to decide on this), and by not specifying an official religion.
At this juncture, there was controversy within the Reid Commission caused by the dissent of Justice Abdul Hamid ofWest Pakistan. At issue was the liberal approach taken by the majority of the Committee members, which would have the Malay special position clause phased out in time as had been agreed in the Alliance Memorandum. Justice Hamid’s genuine concern that special protection accorded to the Malays could be eroded if not more firmly entrenched spurred him on to lone dissent.Eventually, Hamid was persuaded by the other members to withdraw his dissent.
However, during the “tripartite talks” (the Working Party negotiations under the chairmanship of Sir Donald MacGillivray) between the UMNO, MCA and MIC the “special position” clause was removed and placed in the “permanent” part of the Draft Malayan Constitution, thus in radical reversal requiring (instead) a two-thirds majority in Parliament for its subsequent amendment or removal. What is curious is that the MCA representative had apparently not grasped this last legal implication of moving the “special position” clause to the permanent part of the Draft Constitution.
Race Multicultural Accommodation and Constitution, drawing from the Making of the Malayan Constitution Joseph Fernando (page 125 refer here)

Let us look at Justice Abdul Hamid's dissent now...

6. It is one of the terms of reference of the Commission that the new Constitution should include provisions for  "the safeguarding of the special position of the Malays and the legitimate interest of other communities". A safeguard in the same language exists in Clause 19 (1) (d) of the Federation Agreement of 1948. Recommendations for a safeguard of this kind were made by the Alliance Party and the Rulers in their memoranda submitted to the Commission.
7. The Commission has agreed to insert certain safeguards relating to the special position of the Malay in Articles 82 and 157 of the draft Constitution and all that is required to be seen in whether the safeguards embodied in these articles are in accordance with the recommendations of the Alliance.
8. The two provisions stand on a different footing in their effect. As regards to the special quotas for the Malays (Art 157) the quotas in existence on 1st January 1957, are to continue for a period of 15 years. After the expiry of that period a Committee shall be appointed to review the position and after such a review Parliament can by law reduce or discontinue the quotas then in existence if it so chooses. In the case of Malay reservation (Art 82) no law adversely affecting Malay reservation can be enacted unless the law is passed by the majority of the total number of members of the State legislature and also by majority of not less than 2/3 of the members present and voting
9. In my opinion special quotas of the Malays under Article 157 should either be made the special responsibility of the Yang Di- Pertuan Besar in respect of matters which are within the legislative competence of the Parliament, and of the Rulers of the states in respect of matters which are within the exclusive legislative competence of the State Legislature, as the Alliance unanimously recommended, or a provision on the lines of the proviso to Article 82 should be inserted in Article 157 as well, so that the Special quotas of the Malays may also be alterable by Parliament only if Parliament takes a decision by a majority of the total number of members of each House and by a majority of not less than 2/3 of the members present and voting. The safeguards in this case should be in line with that provided in Article 82. If any at any time the Malays or those who think that it would be unjust to abolish the quotas are in the minority in Parliament then the special quotas mentioned in Article 157 will be subject to abolition by a bare majority of the members.

10. My suggestion in this connection are as follows:
if the special quotas mentioned in Article 157 are to be the special responsibility of the Yang Di Pertuan Besar and the Rulers, the the following changes should be made-

(a) A provision to the following effect should be inserted in the Constitution as Article 157A:

Article 157A (1) The Safeguarding of the Special position of the Malays and the legitimate interest of other community in relation to matters specified in Article 157 shall, in respect of matters which are within the legislative authority of Parliament be the special responsibility of the Yang Di Pertuan Besar and in respect of matters which are within the exclusive legislative authority of the Legislature of the State by the Special responsibility of the Ruler or Governor of the State as the case may be.

(2) In the discharge of the aforesaid special responsibility of the Yang Di Pertuan Besar or, as the case may be, the Ruler or the Governor may take such action and make such provision as he may deem fit, and no such action or provision shall be invalid by reason of the fact that it is contrary to the provisions of any Federal and State Law

A provision like this will be in conformity with the position obtainable under the Federation Agreement 1948. It will also be in accordance with the recommendations of the Alliance

Let us now travel back to England on 12th of July 1957.....

The Secretary of State for the Colonies (Mr. Alan Lennox-Boyd)

I know that the House recognises the difficulties which faced the Constitutional Commission. The Commission had to listen and take serious note of very many different views and it has discharged its tasks admirably. There were extreme views on the part of some sections of Malayan opinion which are opposed to any political advance on the part of the Chinese people in Malaya. There were equally strong views held by some of the Chinese population demanding absolute jus soli citizenship for anybody born in the Federation and the complete abolition of any distinction between the races.

The constitutional Commission had to find a solution which would work and which would find general acceptance, and in our view it has fully succeeded in its task. The present Federation Constitution represents a genuine compromise worked out between differing sectors. The citizenship proposals, I believe, are a triumph of good sense and tolerance, amidst widely conflicting views, and I believe that the balance struck between Malay and Chinese has been found to be a wise balance.

There are solid guarantees of fundamental liberties to meet Chinese fears of discrimination, with reasonable arrangements to safeguard the special position of the Malayans without injustice to other races. I am conscious that these two aspects of the settlement arouse particular interest in the House, and I hope that I may be forgiven if I devote a moment or two to those two most important matters.

As to citizenship, the House will know what a very difficult problem this is, and how immensely complicated it has proved in many parts of the world in recent years to reconcile different wishes and aims. I believe that this compromise is a fair one. I cannot go into this in great detail, but the Under-Secretary of State for Commonwealth Relations may do so, if asked, when he replies to the debate. Under this compromise, anyone who is now a citizen of the Federation or who was born in the Federation and is over 18, or is born there after 31st August next, will have citizenship of the Federation as a right.

Now, a word about the balance achieved between the rights of Malays and Chinese. The special position of the Malays was recognised in the original treaties made by His Majesty in previous years, and Her Majesty Queen Victoria and others with the Malay States. It was reaffirmed when these treaties were revised. It was confirmed in the 1948 Agreement, and reference was expressly made to it in the terms of reference of the Reid Commission. So the Malay privilege clauses in the articles of the Constitution do not, in the main, introduce any precedent, but give recognition in the Constitution to the existing situation.

As I said, I believe that a fair balance has been struck between the interests of Malays and Chinese, and I indicated how the special position of Malays enshrined in the new Constitution did not create a precedent because it had been provided for in very many other treaties and arrangements. I was about to say what form these special privileges had taken. In most States in Malaya, there are extensive Malay reservations of land. Elsewhere in States, there are systems of quota for admissions to the public service, a certain proportion having to be Malays. There are quotas for permits or licences to carry on certain businesses. There is preferential treatment for Malays in the granting of scholarships and bursaries and, generally, in education.

The Reid Commission found very little opposition in any quarter in Malaya to the continuance of the present system for a time, and it made certain recommendations which hon. Members will have read. The Alliance Government—this was accepted by the three parties composing the Alliance—wanted a number of changes, which have been made. They relate mostly to quotas in the public service, to permits, scholarships, and land reservations. Very generally, the proposal to review the quotas after fifteen years has been dropped. The responsibility of the High Commissioner is transferred to the Head of State, but—and it is a genuine safeguard for other races—the Head of State will act on the advice of the Cabinet, and the Cabinet is bound to be sensitive to the feeling of public opinion at any time.

In regard to land, the general effect of the changes is to entrench the existing system, though there is a general safeguard that the total area of land in a State declared as a Malay reservation must not at any time exceed the total area of land in that State which has been made available for general alienation. As the Malays form roughly half the population, this seems reasonable in the particular circumstances of Malaya.

Go here for the full hansard

Now this Monkey wanna ask you.....

What exactly happened between UMNO and MCA ? 

What is this "balance struck between Malays and Chinese"?

The use of their Language? 

The protection of their Culture?

The Perpetual Continuation of Vernacular Schools?

Think about it folks......think very very hard......and look at the current situation.....sounds familiar?

What we know from the above is that the Alliance original memorandum suggested for 


Boleh cita ka...tiba tiba selit 15 years timeframe? .......Did the 1948 Agreement kasi timeline?

IN RETURN FOR WHAT?......Meritocracy?

Citizenships for the Long Term Immigrants sudah cover cantik punye dalam 1948 Agreement

And had the 15 years timeline be accepted what could the Malay achieve in 15 years..back in the 60's-70's mind you?

And what if come 15 years there was "significant" political control in the Parliament by the Non-Malays or Malays who are seduced by the Concept of Equality? What if Justice Hamid had not spoken for the Malays?

Now imagine if there was no 1969...the said clause would have been reviewed in 1972 .....and to top it all imagine Lee Kuan Yew is still a Citizen of Malaysia...........interesting tots don't u think......

As of today the Safeguards measures are covered under Article 159 of Our Constitution...
(5) A law making an amendment to Clause (4) of Article 10, any law passed thereunder, the provisions of Part III, Article 38, 63 (4), 70, 71 (1), 72 (4), 152, or 153 or to this Clause shall not be passed without the consent of the Conference of Rulers
The Malays should all thank the TRUE Champion of Malay Special Position Justice Abdul Hamid for his foresight on the matter.......

Pic Source here

I will be posting further on this topic once I get my hands on the Alliance Memorandum and the Subsequent Working Party negotiations under the chairmanship of Sir Donald MacGillivray.....

Stay tuned people........join me on this journey....

if you got materials send me a link in the comment section

I would also like to take this opportunity to Call for A Royal Review of the Implementation of the Article 153 and the Corresponding affirmative actions of the NEP & NDP.

The Agong needs to know how he has discharged his function...don't you think

Were the policies successful?

What were the key challenges to implement them? 

How can we fix it? 

If I may quote Pak Pandair

An important aspect of our ‘reconciling’ and ‘accounting’ with the DEB is understanding, giving full account of the following questions. What were the principles of the DEB and abuses of them, clearly distinguishing between the two? Are there positive aspects of it which need to be incorporated in 'new vision' or 'model'?What were the causes of the DEB being ‘bastardised’? Who were responsible for ‘bastardising’ it or should be held accountable for it? All this is important. Without such understanding, we may end up in the ridiculous situation where those responsible for ‘bastardising’ the DEB, now cry foul of it. Having ‘bastardised’ the DEB they now choose ‘to dump the baby’. Without understanding the DEB and ‘accounting’ for it, we may see the same cycle afflicting other new policies and models. They would all be ‘bastardized’ in time, and subjected to ‘baby dumping’, in vicious cycles! It is the psychology of having soiled one spot, move on to another place, soiling it in turn and so on and so forth. Should not they be taking responsibility, cleaning the mess at least, before moving on? To make it worse, they blame and scape goat on others for the mess they leave behind.This is certainly not the way to give leadership to a nation! More here

On a lighter note check out this new blog the Poems of The Annoyingly Anonymous Leman Pulut 
Minds are like parachutes; they work best when open. -Lord Thomas Dewer