Sunday, September 19, 2010

Part 1a : My Response to Malaysia or Malaysaja

Any intellectual exposition of the Malaysian Constitution would have to naturally decode the semantics of the relevant Article being analysed before attempting to critique the self-same Article with either historical, ideological or social theory based analytical tools. It would be intellectually dishonest if one claims that Article 153 is unjust without elucidating where is the “unjustness” inherent in Art.153. Additionally, it would be the hallmark of selective amnesia if one were to claim that ketuanan Melayu”, that other often misconstrued Malay socio-cultural-historical construct, is a recent phantasm created by so-called Malay “supremacists” to validate, perpetuate and defend the privileges accorded by Art. 153 when Ketuanan Melayu is actually a socio-cultural-philosophical construct of Malayhood that has been an acknowledged historical paradigm in Nusantara for centuries.

A. A simple definition of Constitution

1. I begin by outlining succinctly what the term “constitution” implies in terms of governance. For this purpose, it would be suffice to use the following definition as it more or less encapsulates the accepted meaning of the term: “A constitution is a set of laws that a set of people have made and agreed upon for government—often codified as a written document—that enumerates and limits the powers and functions of a political entity.”
I emphasize the highlighted portion to inform Nurul Izzah that the Malaysian Constitution was a mutually agreed upon document with signatories thereto being consciously aware of the provisions contained in the Constitution. Hence, it would be puerile to claim “unjustness” after the fact when the Malaysian constitution was in reality never ever foisted upon any racial group as a fait accompli in a take it or leave it scenario.

2. Corollary to a constitution, is the existence of a organizational framework that functions to “operationalize” the provisions of the constitution through the formulation of tangible policies that give effect to the dead letter of law. Scott (1999) in elucidating this noted that any such organization gains legitimacy when it “contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority" and when it does not transgress the limitations imposed by the Constitution although a particular provision may be deemed unfair by the constitutions of nature or society (Brownes, 1866). Based on the foregoing, several questions arise:

Q1: Does the Malaysian government lack legitimacy?
No. It is a democratically institutionalised structure legitimised every five years by vox
populi based on the 1 man 1 vote system and freedom of choice principle.

Q2 : Has it transgressed any Constitutional limitations?
No. because its enforcement of Art.153 is constitutionally provided for and vitiates no other Article within the said constitution.

Q3 : Donthe provisions of Art.153 violate natural/spiritual justice?
Superficially, it may be so but this is not an aberration from the norm for all constitutions do contain provisions that seemingly violate natural/eccelesiatical law. Since you sarcastically carped on our sense of fair play as Muslims, I would aver 153 to be no different from articles in the Sahifa al-Medina which also seemingly infringes the notion of fair play. Would you, Nurul, consider Articles 12, 15 or 46 of the Medinan Charter unfair by the tenets of Islam?. If so would you consider Muhammad (pbuh & HF) an unjust dictator, wa nauzubillah. By the same token, would you consider the imposition of jizya as mandated by the Quran to be spiritually reprehensible for its“discriminatory” nature as emphasised by Goiten (1963). Extending your perverted logic, would you also consider other verses such as “ ……berlembut sesama Muslim dan keras menentang kuffar” etc as indication of Allah azza wa jalla’s injustice, waunauzubillah, I sincerely hope not.

B. The Semantic , Etymological, and Implicit Ramifications of Art. 153 and its contents.

1. Next I will deconstruct the semantics in Article 153. Let me start by saying that the crystal clear import of Article 153 is obvious to all who read it dispassionately save for those with a pathological aversion for truth, those with ingrained racist chauvinistic inclinations, those with anarchistic tendencies, those “effeminized” and cuckolded by a skewed guilty conscience and those imbued with an intense self-loathing of their origins, a form of acquired schizophrenia. It is precisely because of such pathological and intellectual deviants and charlatans, that public consternation has beenis kindled vis-à-vis Article 153 by the willfully erroneous interpretation by a select few with nefarious hidden agendas.

2. Article 153 reads as follows:
: (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.

l (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 in such manner as may be necessary to safeguard the special provision of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak 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.

3. For ease of argument, I will quote these 2 clauses to establish conclusively that “special position” implies the conferment of rights and privileges. Let me first begin by elucidating certain words that precede “special position”.

4. Firstly, the term “responsibility” alludes to an obligatory task devolved upon the person of YDPA to perform ( since Malaysia is a constitutional monarchy, YDPA should read the government of the day). 'His' task in this case is “ to safeguard (protect, defend etc.)” the following:

1. The SPECIAL POSITION of the Malays and natives of any of the states of Sabah and Sarawak
2. The LEGITIMATE interest of other communities.

Note 1: in terms of hierarchy, the special position of the Malays and natives precede the legitimate interests of other communities.

Note 2: the use of Malay in tandem with “natives” is a clear acknowledgement by the British that they considered the Malays and those natives of Sabah and Sarawak to be the true indigenous people of the land (Bumiputeras/Pribumi) whilst the unmentioned Chinese and Indians and others were merely interlopers (pendatangs) and any progeny issuing from such pendatangs, would ipso facto, be thus rendered as descendants of pendatangs/keturunan pendatang.

Note 3: the use of “other” in sub-clause (2) reinforces the distinction between 2 sets of racial groups- namely, the natives(pribumi) and the pendatang (interloper) – which in turn reinforces the implications ealborated in Note (2)

5. Having established the cardinal responsibility of the YDPA under this article and highlighted certain ancillary points of interest, let us deconstruct the phrase “special position” (adjective : special + noun: position)

a.” special” (in adjectival occurrence) as accessible in any dictionary, means:

1. distinguished by some unusual quality; especially : being in some way superior (Merriam Webster)
2. distinguished, set apart from, or excelling others of its kind (Free Online Dictionary)
3. better, greater, or otherwise different from what is usual (Oxford Dictionary Online)

6. Etymologically, the word “special” is traceable to old French “especial” which means better than ordinary. The historical antecedents of the word and its contemporary meaning imbues “special” with more profound imputations and when it is collocated with other words (a noun in this instance) as in “special position” the implications are clear. Hence, there are three plausible interpretations for the phrase as it occurs in the Federal Constitution:

a. the special position is accorded and acknowledged by all based on socio-political and/or historical reality, the acknowledgement of which accords the holder privileged access to and privileged receipt of certain rights NOT attainable by others by virtue of the fact they do not occupy that special position OR

b. the special position is automatically accrued by the holder of that position because he has historically and contiguously enjoyed certain rights, privileges etc NOT available to others due to them being interlopers of recent vintage disbarred socially and culturally from such privileges OR

c. the special position is an inalienable right derived from some socio-cultural or historical construct which confers upon the holder the right to access/ be provided certain privileges, with any such accessibility/provision accruing their legitimacy because of that special position.

7. The implications are therefore clear, immaterial of whichever interpretation is applied. It should be noted that there is no question of usurpation of “the special position” by the Malays as both historical and anthropological data have long acknowledged the Malays and other pribumis to be the indigenous people of Malaysia, a fact attested to even by the British colonialists and further validated by scientific data attributable to archeological studies and DNA profiling. Further, the consent by the Non-pribumi for the insertion of this Article, so worded, is by itself an explicit admission that the Malays and their other pribumi brethren are the rightful owners of this land.

8. However the term “special position” should not be viewed in isolation, sequestered from the whole as meaning is derived from context. For “special position” gains its connotative meaning and resonates with added significance when read together with rest of the article. Additionally, the usage of certain words by drafters of the Federal Constitutional will further augment my postulation that the term “rights” is in essence linked to “special position”.

9. That this interpretation is justifiably right is evidently replete in the subsequent portions of Article 153(2). Here are a few words that impute the same meaning as “rights”, which charlatans and poseur intellectuals brazenly seek to obfuscate or deny: “reservation”; “privileges”; “proportion deemed reasonable”, “special facilities”* all of which clearly indicate economic, educational, vocational entitlements to be conferred by law to the Pribumi through the powers vested in the YDPA (read: government). That such rights are inalienable entitlements is also explicitly alluded to by the verb “ensure” which implies a mandatory obligation on the part of the YDPA to guarantee the provision of these privileges to the target group. Further, the phrase “duly comply “in Clauses 6 and 8(a) give further credence to the fact that the Pribumi must be accorded these privileges if so directed by the YDPA.

**9a. As a digression, let us analyse the aforementioned words which imply “rights” to illustrate my point:

a. reservation: (Law) a right or interest retained by the grantor in property granted, conveyed, leased, etc., ... (Free Online Dictionary)

b. privilege: a special right, advantage, or immunity granted or available only to a particular person or group (Oxford Dictionary)
privilege : benefit 1) n. any profit or acquired right or privilege (Free Legal Dictionary)

c. proportion: a share ; a preemptive right (Free Legal Dictionary)

10. Given all these words and phrases screaming their heads off in unison for attention, it is laughably understandable why idiots, like the (de)sultry Nurul for instance, conveniently overlook them because any acknowledgement would skewer the butt of their erroneous contention and ravish their nefarious designs of economically marginalising the Malays. This is especially noticeable whenever they pig-headedly and stupidly assert that the Constitution confers NO “special rights” for the Malays. ( I will have another post on this group of charlatans later, including a non-government organism who in truth inhabits shitholes rather than being the vainglorious conscience grater he proclaims to be with much false bravado. Talk about artful dodgers and sundry bastards!! ).

11. To further objectify my argument, allow me to provide two analogous circumstances to illustrate my point that the word “ special” connotes the provision and enjoyment of certain privileges.

a) Hong Kong is a Special Administrative Region within the PRC with a constitution, the Basic Law, that confers far more civil liberties, judicial autonomy, political freedoms than any other region of the PRC can ever dream of attaining. That such liberties are provided and a constitution promulgated for HK is the direct outcome of being designated a Special AR. In simple language, the civil liberties accorded and the provisio for its own Constitution is the net result of being special, something other regions of the PRC are denied of because of their “commonality” within the PRC. (In fact, it wouldn’t be far-fetched to surmise that HK represents an example of quasi-autonomous nation state within the framework of an independent sovereign State.)

b) Another analogy would be the special economic Zones in China and elsewhere. In the PRC for instance, there are numerous Special Economic Zones of which Shanghai, Shenzen, Guangdong are classic examples that are “primarily geared to exporting processed goods, the five special economic zones are foreign-oriented areas which integrate science and industry with trade, and benefit from preferential policies and special managerial systems”

These two examples and many others of a similar nature patently show that the word “special” is inextricably linked and intrinsically alludes to the enjoyment of “rights”, “entitlements”,” privileges” etc

14. Ancillary to the above is the notion of “special” itself. For aren’t the constitutional frameworks of HK and the economic structures of the SEZs derivatives of that “special” staus, in the same way quotas, reservations, privileges are the logical derivates of occupying a “special Position” as in the case of the Malays . Isn’t it obvious that the term “special” implies certain privileges, rights, entitlements, preferential treatment etc that is manifestly apparent in the constitutional and commercial entities, I have mentioned. It becomes increasingly clear now that the adjective ‘special” intrinsically contains certain inalienable rights/advantages accruable to anyone umbrellaed by the term and those citing the absence of “special rights” are merely quibbling over inconsequential crumbs whilst indulging in a spot of verbal gymnastics . (To Be Continued ……………………………..)

In the next part (Part 1b), I will demonstrate how Article 153 is NOT inimical to any other provisions of the constitution.

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