Wednesday, September 22, 2010

Part 1a* : A Response to Nurul Izzah's Malaysia or Malaysaja

Note : This article is a response to debunk 'Malaysia or Malaysaja" and is for discussion purposes ONLY.

I was just getting into my stride and was about to unravel 1(b) when whoa! I was upended by a slew of emails I received on my cogitations regarding Article 153. I will quote from two of the more lucid ones as much of the rest were just gutter garbage of cheapskate threats, obscene drivel and imbecilic rants, the net result of helpless pentup rage against yours truly for daring to speak the truth as it is. Thus with no choice, I have to generate this Part 1a*

Madam Gan, who was rather upset by the contents of Part 1, called me a spinmeister extraordinaire (thanks for the tribute) for the way I ‘twisted the said Article with my perverted logic’ to quote her. She continued her vitriol as follows:

I find it disgusting for you to address Nurul Izzah in such an uncouth manner. Have you no manners in addressing a MP or anyone for that matter? Even more troubling was the fact that you absurdly called those born and bred Malaysians as ‘pendatangs’. Surely that is not true and vile!!. Your reading of article 153 in particular is absurd. I find nothing to suggest the Malays enjoy special rights. Maybe, you should put on your reading glasses for the words you mentioned are applicable to ALL and not the Malays/Bumiputeras alone as in : “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.” Clearly, the above extract is indicating that these privileges are available to all who are qualified and NOT the Bumis alone! The fact that you chose to read these as implying Malay rights is downright silly and illogical . Finally, your use of everyday online dictionaries to explain obviously legal terms is clearly misdirected……………………..

Mazlan in his email, lambasted me for dragging religion into the equation:

As a Muslim, shame on you for dragging religion into the argument……..You seem ignorant and unqualified. Where did Nurul Izzah ever raise Islam in her argument? You are an Umno balachi or Perkasa extremist (Good one lan, thanks for the compliment). The Constitution guarantee equal rights. Period

My Response:

Well, there you have it, folks, hell hath no maelstrom for a chingkie exposed, or a PaRian disrobed hahahaha. Go ad hominem if you cannot debunk with facts. I will address Madam Gan first and leave Mazlan on the backburner. To Salleh (another email), terima kasih kerana email anda yang sopan. Yes, I am going to translate the gist of this 4 part response and distribute it via our unregistered Malay NGO network (Barisan Pertahanan Hak Istimewa Melayu) to reach the marhaen out there and I invite others to download the translation when it is up for dissemination to our brethren.

I partially concede that I have misconstrued Article 153 (2) particularly as to the imputations of the words contained therein as alluding to Malay rights when they are of general applicability. However, that is a minor error which does not in any way negate my thesis that the Pribumis enjoy special rights as provided by the Constitution. For the sake of clarity, I will retrace my steps in order to disembowel Madam Gan’s erroneous conclusions. But beforehand let me provide a legal grounding for ‘privileges’ since the gauntlet has been thrown at me:

Luxmoore LJ defines privileges in Le Strange v Pettefar (1939) 161 LT 300 p.301:
“ The material words of the section [s.62] appear to be ‘liberties, privileges, easements, rights and advantages’. First, what do these words mean? A ‘liberty’ must, I think, be something which results from a permission given to, or something enjoyed by, a particular person or body of persons, as distinguished from something enjoyed by sufferance by all and sundry, while a ‘privilege’ describes some advantage to an individual or group of individuals, a right enjoyed by a few as opposed to a right enjoyed by all. ‘Easement’ and ‘right’ are obviously words not appropriate to universal enjoyment nor is the word ‘advantage’, for it necessarily connotes the enjoyment of something which is denied to others.
It seems to me that something which by sufferance no one is prevented from doing or enjoying cannot properly be described by any of the words ‘liberty, privilege, easement, right or advantage’ for each connotes something which is the subject of individual or class enjoyment as opposed to general enjoyment”. (Emphasis added).
This definition has been widely cited in case law, and I will provide 3 instances of such citation in 3 commonwealth/ex-commonwealth jurisdictions:
a. Canadian Union of Postal Workers (Plaintiff) v.Canada Post Corporation (Defendant) Trial Division, MacKay J."Halifax, March 30, 31 and April 1, 2, 1992; Ottawa, March 14, 1994

b. Rees v Sinclair Court of Appeal, Wellington[1974] 1 NZLR 180; 1973 NZLR LEXIS 722; 20, 21 August, 3 October 1973

c. KUNG MING TAK TONG CO. LTD (Plaintiff) (Appellant) v PARK SOLID ENTERPRISES LIMITED 1st Defendant and INFO KING LIMITED 2nd Defendant (Respondents) HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL; CIVIL APPEAL NO. 227 OF 2005 (ON APPEAL FROM HCA No. 1926 OF 2001 ) Dates of hearing: 17 February and 23 November 2006 Date of Judgment: 12 March 2007
Now if we look back at the relevant portion of Art.153 (2) Mrs Gan quoted from, we will note the following:

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…………………..

Now look at the construction above : The YDPA (the government) shall exercise his functions UNDER the Constitution (a)to safeguard the special provision………………………………. and (b)to ensure the reservation……………………………..

(a) Clearly stated as before, it is incumbent upon the YDPA to safeguard the special provision of Malays/other pribumis. This is reiteration of Article 153(1) and there is no doubt in that.

(b) Now observe ‘to ensure the reservation for Malays/Pribumis……………of such proportion he may deem reasonable………………………………..”

Now what does this phrase mean? It means, the YDPA is obligated to ensure the reservation of positions, privileges, special facilities etc. for the pribumi

As noted above, a privilege is a right enjoyed by few (LJ Luxmoore). For example, a scholarship is correctly a privilege as it is enjoyed by a select few. Hence to put a caveat (via a reservation) on a privilege is akin to creating a privilege within a privilege. Absurd as it may be, this is what the Constitution legally permits: “to ensure the reservation for Malays/Pribumis……………of such proportion 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.

This begs the question what entitles the emplacement of such caveats to which the answer is : by virtue of the native’s special position, as provided for in the same Article, such caveat arising from the 'special position.'

It clear as daylight then, Madam Gan that the Constitutional accordance of special position to the pribumi automatically confers the Pribumi certain rights beyond those enjoyed by the pendatang.

Lets for clarity sake say there are 50 scholarships being offered by the Federal government and the pool of applicants consist 60 (30native and 30 nonnative).Going by Art.153(2), the YDPA reserves 30 for Malays/pribumis (based on his situation based “reasonable” quotient, which in this case is 30 applicants).

a. Doesn’t this reservation/apportionment constitute a privilege within a privilege given that all natives are certain of getting one whilst 30 interlopers have to scrum for 20 crumbs

b. If such is the case, one may ask on what grounds can (a) be derived from? By virtue of “special position - an inalienable status granted to the indigenous and acknowledged by the interlopers by default once they agreed to the provisions.

In other words, the interlopers went along willingly with eyes wide open and no grounds exist for grouses now. Caveat emptor applies, Nurul Izzah, Mrs Gan The situation could have been changed by a rejection of the Constitution through plebiscite. But in the first display of vox populi in 1959, the Alliance won by a landslide effectively signaling the ratification of the Constitution by Native and Non-native alike. This is not surprising as the notion of multiracial parties ala Malaysian Malaysia has long been rejected in a series of poll commencing with Partai Negara’s demise in 1951, which proves that the Malayan/Malaysian polity,on the whole, has chewed on the cud of ideologicalbased parties nd eschewed the notion of such parties, preferring to demarcate their comfort zones within race based entities.

2. Pendatang?! How obnoxious!!. I will be frank. Thematically, the constitution undoubtedly embodies the Ketuanan Melayu socio-cultural construct. Analyze the federal constitution rationally, and one will be struck by how the triumvirate of political, cultural/religio, economic Malay/Muslim-hood is embedded in the Articles contained therein:

1. Religion : Islam (the religion of the Malays as per Article 160(2) is the Official state religio {Art. 3(1)}
2. Culture : Malay (the language of the Malays as per Article 160(2) is the Official language of Malaysia (art.152}
3. Political : the Constitutional Monarchy is structured along the lines of the Malay Sultanate ( also a Malay politico-socio-cultural construct) The Prime Minister must be a Muslim by convention etc.
4. Economy: Entrenched by provisions of Article 153

Supplementing this Ketuanan Melayu bias are other clauses pertaining to origins. Hence we have a clear and concise definition of a Malay (ART.162(2)when no such specific definition is extended to others save for our fellow pribumis (Art. 150 for aborigines and Art.161(6) &(7) for Borneo natives) . What is the purpose of such articles?

a. A tool to clarify as to who constitutes a native for the sole purpose of ensuring that only the proper target groups enjoy the right (special position) enshrined in Article 153 and other similar articles and in doing so cementing the fact that the non-native does not enjoy equivalent rights as the native.

b. An implicit acknowledgement of the prevailing demographic realities at independence i.e., 2 distinctive groups of people: the natives/indigenous and the non-native.

Now a non-native is by convention and necessity, an interloper: One that intrudes in a place, situation, or activity: "When these interlopers choke out native species, ecologists see a danger signal" (William K. Stevens).( free Online Dictionary)

In fact in Malay, interloper is rendered pendatang as in Pendatang tanpa Izin (PATI). I have not seen any human rights honcho or lawyer wallah quibbling over this presumably because the term is derogatorily applied on our saudara serumpun, the Indonesians. A moment of schadenfraude But wrath floweth over when the selfsame ‘pendatang’ is used to denote an earlier wave of migrants. Perhaps the more we accept truth, the easier it would be on ourselves and others. So given all the preceding, is highlighting a term derived from constitutional facts, vile, Madam Gan?

Finally, Nuru Izzah calls all the aforementioned like “special position” etc as the net outcome of the Malay agenda, But pray what is the Malay Agenda but Ketuanan Melayu by another name and a rose by any name smells just the same. The whole process by which the framers of the Constitution crafted the document is an eample of cunning draftsmanship. I call it so as it has successfully embedded Ketuanan Melayu into nation-state fabric by mutual consent without so much of a ruckus. Even the AMCJAite, Tan Cheng Lok couldn’t fathom the repercussions. It is ultimate triumph of the superior Malay mind, getting KM institutionalized into the pillar of our nationhood without raising the ire of the interlopers and to cry foul now is to bawl after the Nespray had spilt and dried into oblivion.

To put it simply, the framers of the Constituion embedded symbols associated with Ketuanan Melayu in acknowledgement of Malaya’s socio-historical reality, the signatories acceded to and affirmed that reality through their OWN volition and the polity ratified that compact through successive plebiscites post 1957. Habis Cerita!. However, as you will see KM is not the Ku Klux Klan supremacist evil it is reviled as.........(TBC)

My uncouth treatment of Nurul Izzah. I don’t deny that I am vile in that regard but civility is only to be accorded to rational people not pushy charlatans bent on pursuing their nefarious agenda using dubious logic. Bear in mind, Madam Gan that this is just a normal exchange of opinions and I am under no obligations to observe the norms of civility. Nether am I unaware of the reality that my brethren, their culture, religion has been the target of vile insults emanating from the PaRian corner. What is good for the goose should be equally good for the gander right? Unless we are seeing the early signals of discrimination manifested in poultry diet control. U know the type that leads to fat buxom geese and emaciated scrawny ganders, something so evident within our neighbourhood.

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