COMMENT This year, the 53rd since Malayan Independence, has heard numerous references to the 153rd Article of our constitution. People have weighed in from various angles, but stalemate persists because we keep repeating to the same positions.
A few bear mentioning. In March, the New Economic Model (Part 1) made cursory reference to the bumiputera special position and legitimate interests of other communities.
The NEM is slouching somewhere between the prime minister's desk and oblivion.
But its proposal for some liberalisation flipped Ibrahim Ali and Perkasa into a rage, and they launched an offensive with Article 153 and "Malay rights" front of the arsenal.
Nurul Izzah Anwar (left), in her excellent "Malaysia or Malaysaja?" Merdeka Day essay, challenged Perkasa to a debate on Malay rights and its connection or lack thereof to Article 153. They declined.
Najib Tun Razak's speech to the UMNO general assembly reiterated the party's notions of social contract and special privileges embodied in a raft of constitutional articles, including 153.
Koh Tsu Koon, at Gerakan's annual convention last weekend, called for a more balanced execution of the dual provisions in Article 153 for special treatment for some, and legitimate interests of others.
Like all the above, I respect the constitution and do not challenge its contents. But I propose that we focus on a critical and more constructive, yet routinely overlooked, element of Article 153, which says that racial quotas may be used if necessary.
Racial quotas
Among thoughtful responses to the assertion that the Constitution guarantees Malay rights or privileges, three stand out.
First, we can emphasise the undisputable fact that it spells out "special position" instead of "special rights" or "special privileges".
What special position means exactly, is hard to say, and best left to legal scholars and philosophers.
Ordinary citizens, however, can sufficiently grasp that the notion of a special position does not necessarily translate into entitlements and supremacy.
I affirm the importance of the distinction, but at the end of the day, we are left with a semantic victory, often topped off with clarification that these provisions were initially intended to expire after 15 years, that fails to inform deeper questions.
The special position of the bumiputera, isolated from the rest of the text, can be taken to be permanent and limitless.
Second, we can focus on the "legitimate interests of other communities" alongside the bumiputera special position. This clause places some constraints on racial quotas, especially in terms of opportunities denied to non-bumiputera.
Again, the point is valid, but inadequate and divisive. It does not address whether quotas and reservations are justified and relevant, and it effectively pits bumiputera against non- bumiputera in perpetual conflict.
Communal battle cry
Some will always be game to refer to the list of richest Malaysians or the access of non-bumiputeras to private education as evidence that "legitimate interests" are accounted for. It's a spurious argument, but a politically useful distraction and communal battle cry.
A third response highlights Article 153's limitation of quotas and reservations to public sector employment, scholarships, permits and licenses.
Thus, equity and property quotas are out - they were never there in the first place.
While technically correct, this is another treacherous path to tread, because it implies that racial quotas are constitutionally permanent as long as they are confined to public universities, public sector employment and licensing.
Yet these are arguably the areas that stifle bumiputera advancement the most, especially with the decline of public education institutions.
I am not calling for elimination of affirmative action, but for a reconsideration of how we can better pursue both equitable racial representation and excellence.
Lamentably, this discussion gets tossed out the window if we take Article 153 to mean bumiputera education quotas forever, or if we remain content to let public bodies be the domain of bumiputera special position while private bodies satisfy other groups' legitimate interests.
So how else can we read the law?
For a start, instead of extracting select bits, let's read in full the section that sets out Article 153 in practice: "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 position 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,... scholarships,... and permits and licenses." (italics added).
No absolute mandate
Article 153 does not confer an absolute mandate or obligation to apply racial reservations and quotas, but establishes those possibilities "in such manner as may be necessary".
In other words, the constitution does not stipulate that quotas must be enforced no matter what, but quotas may be instituted if necessary.
It is implied that this assessment of necessity must be grounded in productive activity, not wealth acquisition.
A further implication is that racial quotas and reservations are contingent on evaluating whether circumstances warrant such measures and whether those programmes have attained a reasonable degree of success rendering them unnecessary.
I believe this is a more constructive focal point for deliberating the relevance and effectiveness of racial quotas.
Of course, there is still ambiguity and room for debate on determining "necessity". That's the world for you. Deeply rooted national dilemmas are complex and cannot be completely codified in law or simplistically propagated - except if dictated by powers that be.
The difference in focusing on the "as may be necessary" clause is that it compels the debate to be informed and inclusive, to strive for objectivity and constructiveness.
After all these years, it seems we cannot get over Article 153.
No, not when we haven't even gotten into it.
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