Article 153 of the Constitution of Malaysia

The article has been a source of controversy since the early days of Malaysia. In particular, it was not entirely clear if Article 153 was predicated on the Malays' economic status at the time, or if it was meant to recognise Bumiputra as a special class of citizens. Some took the latter view, like Singaporean politician Lee Kuan Yew of the People's Action Party (PAP), who publicly questioned the need for Article 153 in Parliament, and called for a "Malaysian Malaysia". In a speech, Lee bemoaned what would later be described as the Malaysian social contract:

"According to history, Malays began to migrate to Malaysia in noticeable numbers only about 700 years ago. Of the 39% Malays in Malaysia today, about one-third are comparatively new immigrants like the secretary-general of UMNO, Dato' Syed Ja'afar Albar, who came to Malaya from Indonesia just before the war at the age of more than thirty. Therefore it is wrong and illogical for a particular racial group to think that they are more justified to be called Malaysians and that the others can become Malaysian only through their favour."[5]

Lee also criticised the government's policies by stating that "[t]hey, the Malay, have the right as Malaysian citizens to go up to the level of training and education that the more competitive societies, the non-Malay society, has produced. That is what must be done, isn't it? Not to feed them with this obscurantist doctrine that all they have got to do is to get Malay rights for the few special Malays and their problem has been resolved."[6] He also lamented "Malaysia—to whom does it belong? To Malaysians. But who are Malaysians? I hope I am, Mr Speaker, Sir. But sometimes, sitting in this chamber, I doubt whether I am allowed to be a Malaysian."

Lee's statements upset many, especially politicians from the Alliance. Then Finance Minister Tan Siew Sin called Lee the "greatest, disruptive force in the entire history of Malaysia and Malaya."[7] The Tunku considered Lee to be too extremist in his views, while other UMNO politicians thought Lee was simply taking advantage of the situation to pander to the Chinese Malaysians.[8] PAP-UMNO relations were chilled further when UMNO officials publicly backed the opposition Singapore Alliance Party in Singapore's 1963 general election and PAP responded in turn by fielding several candidates in the Malaysian federal elections in 1964. These acts were seen by each party as challenges of the other's authority in their respective domains, and in violation of previous agreements made by the PAP and UMNO before merger not to contest each other's elections until Malaysia had matured enough.[9] The tension led to the 1964 racial riots in Singapore that killed 36 people. Eventually, the Tunku decided to ask Singapore, through Lee and some of his closest confidantes, to secede from Malaysia. Eventually, Lee (reluctantly) agreed to do so, and Singapore became an independent nation in 1965, with Lee as its first Prime Minister. The Constitution of Singapore contains an article, Article 152, that names the Malays as "indigenous people" of Singapore and therefore requiring special safeguarding of their rights and privileges as such. However, the article specifies no policies for such safeguarding.

On 13 May 1969, a few days after the 10 May general election, a race riot broke out. In the preceding election, parties like the Democratic Action Party (DAP, formerly the Malaysian branch of the PAP) and Parti Gerakan Rakyat Malaysia, which opposed special Bumiputra privileges, had made substantial gains, coming close to defeating the Alliance and forming a new government. The largely Chinese opposition Democratic Action Party and Gerakan later secured a police permit for a victory parade through a fixed route in Kuala Lumpur, the capital city of Malaysia. However, the rowdy procession deviated from its route and headed through the Malay district of Kampung Baru, jeering at the inhabitants. While the Gerakan party issued an apology the next day, UMNO announced a counter-procession starting from the head of Selangor state Dato' Harun bin Idris on Jalan Raja Muda. Reportedly, the gathering crowd was informed that Malays on their way to the procession had been attacked by Chinese in Setapak, several miles to the north. The angry protestors swiftly wreaked revenge by killing two passing Chinese motorcyclists, and the riot began. The official death toll was approximately 200, although some would later estimate it to be as high as 2000. The riot was later attributed to the underlying discontent among Malays due to poverty.[10]

UMNO Parliamentary backbencher Mahathir Mohamad soon became the face of a movement against the Tunku, arguing that he had been too accommodative towards the non-Malays. In a letter to the Prime Minister, demanding his resignation, Mahathir argued that the Tunku had given the Chinese "too much face" and that the responsibility for the deaths of the people in the riot rested squarely on the Tunku's shoulders. Mahathir was expelled from UMNO not long after, and Home Affairs Minister Ismail Abdul Rahman warned that "[t]hese ultras believe in the wild and fantastic theory of absolute dominion by one race over the other communities, regardless of the Constitution".[11]

The government suspended Parliament and the executive branch governed on its own through the National Operations Council (NOC) until 1971.[12][13] The NOC proposed amendments to the Sedition Act that made illegal the questioning of, among others, Article 153. These amendments were passed by Parliament as law when it reconvened in 1971.[14]

During the period of NOC governance, the Malaysian New Economic Policy (NEP) was implemented. The NEP aimed to eradicate poverty irrespective of race by expanding the economic pie so that the Chinese share of the economy would not be reduced in absolute terms but only relatively. The aim was for the Malays to have a 30% equity share of the economy, as opposed to the 4% they held in 1970. Foreigners and Chinese held much of the rest.[15] The NEP appeared to be derived from Article 153 and could be viewed as being in line with its wording. Although Article 153 would have been up for review in 1972, fifteen years after Malaysia's independence in 1957, due to the May 13 Incident it remained unreviewed. A new expiration date of 1991 for the NEP was set, twenty years after its implementation.[16]

Under the terms of the affirmative action policies implemented in line with Article 153, Bumiputra are given discounts on real estate.

Mahathir, who had been a strong supporter of affirmative action for the Malays since the late 1960s, expounded upon his views in his book The Malay Dilemma while in political exile. The book argued that stronger measures were needed to improve the Malays' economic lot.[17] It also contended that the Malays were the "definitive" people and thus "rightful owners" of Malaysia, which also entitled them to their privileges but he also criticized the Malays for being "easily forgetful".[18] Mahathir was rehabilitated under the second Prime Minister, Tun Abdul Razak, and was appointed as the Deputy of the third Prime Minister, Tun Hussein Onn. When Hussein Onn resigned, Mahathir became Prime Minister.[19]

During Mahathir's tenure as Prime Minister, the NEP, after its expiry, was replaced by the National Development Policy (NDP), that sought to create a Malay class of entrepreneurs and business tycoons.[16][20] However, allegations of corruption and nepotism plagued Mahathir's administration, and Mahathir's goal of creating a new class of Malay tycoons was criticised for ignoring the rural Malays, who comprised the majority of the Malay population.[21] Under Mahathir, quotas for entry into public universities were enforced, with some universities such as Universiti Teknologi MARA (UiTM) admitting only Bumiputra students.[22][23] In 1998, then Education Minister Najib Tun Razak (son of Tun Abdul Razak who implemented the NEP) stated that without quotas, only 5% of undergraduates in public universities would be Malays. Najib argued this justified the need for the continuance of quotas.[24]

These policies also mandate that publicly listed companies must set aside 30% of equity for Bumiputras; discounts that must be provided for automobile and real estate purchases; a set amount of lots set aside for Bumiputras in housing projects; companies submitting bids for government projects be Bumiputra-owned and that Approved Permits (APs) for importing automobiles be preferentially given to Bumiputras.[25] The equity in the publicly listed companies is disbursed by the Trade Ministry, and sold to selected Bumiputras at substantial discounts. However, the recipients frequently sell their stake in the companies immediately.[26] The policies continued the Bumiputra advantage in higher education. In practice, however, most of these privileges went to Malays, and non-Malay Bumiputras, like the Orang Asli or aboriginal peoples, did not appear to have benefited much from Article 153 or policies such as the NEP.[27]

In 2003, Mahathir began stressing that Malays needed to abandon their "crutches," and implemented a policy of "meritocracy". However, this policy by and large streams Bumiputras into what is termed matriculation, as a prelude to university admission, whereby students take a course and later sit for a test set by the instructor. The non-Bumiputras generally sit for the Sijil Tinggi Pelajaran Malaysia (STPM) standardised examination to enter university. Although it is possible for non-Bumiputras to enter matriculation, and Bumiputras who prefer to take the STPM may do so, in practice, it is difficult for non-Bumiputras to gain entry into the matriculation stream.[28]

The meritocracy policy itself came in for criticism from both sides of the political divide, with some quarters of UMNO calling it "discrimination," leading to an "uneven playing field," and asked for the restoration of the quota system that set the ratio of Bumiputra to non-Bumiputra students in public institutions at 55 to 45.[29] Others, however, branded meritocracy as a sham due to its division of students into the two different streams.[30]

In 2003, Mahathir was succeeded by Abdullah Ahmad Badawi, who, like his predecessor, warned the Malays that over-reliance on their privileges would be fatal. "A continuing reliance on crutches will further enfeeble [the nation], and we may eventually end up in wheelchairs."[31] However, within UMNO, some, such as Education Minister Hishamuddin bin Hussein - Hussein Onn's son, and UMNO Deputy Permanent Chairman Badruddin Amiruldin, appeared to disagree and in turn argued for the protection of Malay privileges.

In 2005, several Malays, led by Hishamuddin at the UMNO Annual General Meeting (AGM) argued that the 30% equity target of the NEP had yet to be met and called on the government to restore the NEP as the New National Agenda (NNA).[32] At the past year's AGM, Badruddin had warned questioning Article 153 and "Malay rights" would be akin to stirring up a hornet's nest, and declared, "Let no one from the other races ever question the rights of Malays on this land." The year before, UMNO Youth Information Chief Azmi Daim had also said, "In Malaysia, everybody knows that Malays are the masters of this land. We rule this country as provided for in the federal constitution. Any one who touches upon Malay affairs or criticizes Malays is [offending] our sensitivities."[33]

At the 2005 AGM, Hishamuddin brandished the traditional Malay dagger, the kris, while warning the non-Bumiputras not to attack Malay rights and "ketuanan Melayu" (translated variously as Malay supremacy or dominance).[34] His action was applauded by the UMNO delegates. Then Higher Education Minister Shafie Salleh also stated that he would ensure the amount of new Malay students admitted would always exceed the old quotas set, and that UiTM would remain an all-Bumiputra institution.[23]

Anwar Ibrahim has been critical of the New Economic Policy since his recent release from prison.

At present, the Bumiputra privileges both enshrined in Article 153 and as set out by other acts of law, remain in force. Many opposition parties including, the DAP and Parti Keadilan Rakyat (PKR), have pledged themselves to undoing the NEP. The DAP has argued that it does not have anything against the special position of Bumiputras as set out in Article 153, but seeks to undo the government's policies such as the NEP that they believe discriminate unfairly against the non-Bumiputras.[35] The PKR, which was founded to fight for the release of former Deputy Prime Minister Anwar Ibrahim, who had been detained for charges of corruption and sodomy after he publicly opposed Mahathir's policies, also has criticised the NEP. After Anwar's release in 2004, he criticised the NEP as having failed the Malays and stated that he would seek its replacement by a more equitable policy.[36][37]

The NEP and other privileges accorded to the Bumiputras or Malays under Article 153 have been noted for not explicitly seeking to eradicate poverty among the Malays, but instead largely aiming to improve the Malays' overall share of the economy, even if this share is held by a small number of Malays.[38] However, the NEP has also been defended as having been largely successful in creating a Malay middle class and improving Malaysian standards of living without compromising the non-Bumiputra share of the economy in absolute terms; indeed, statistics indicate that the Chinese and Indian middle classes also grew under the NEP, albeit not as much as the Malays'. It has also been contended that the NEP defused racial tensions by eradicating the perception of the Chinese as the mercantile class and the perception of the Malays as mere farmers.[39]

Article 10 (4) of the Constitution permits Parliament to make it illegal to question, among others, Article 153 of the Constitution. Under the Sedition Act, questioning Article 153 is indeed illegal—even for Members of Parliament, who usually have the freedom to discuss anything without fear of external censure.[1] The government can also arbitrarily detain anyone it desires theoretically for sixty days, but in reality for an undetermined length of time, under the Internal Security Act (ISA). In 1987 under Operation Lalang (literally "weeding operation"), several leaders of the DAP, including Lim Kit Siang and Karpal Singh, were held under the ISA. It is widely believed this was due to their calling for the NEP and other Malay privileges to be reviewed.[40] Others have questioned the constitutionality of the NEP.[41]

In 2005, the issue of the Constitution and its provisions was also brought up by several politicians within the government itself. Lim Keng Yaik of the Gerakan party, which by now had joined Barisan Nasional, the ruling coalition, asked for a re-examination of the social contract so that a Bangsa Malaysia (literally 'Malaysian race' or 'Malaysian nation' in the Malay language) could be achieved.[42] The social contract is the Constitution's provisions with regard to the different races' privileges—those who defend it and Article 153 often define the social contract as providing the Indians and Chinese with citizenship in exchange for the Malays' special rights or ketuanan Melayu.

Lim was severely criticised by many Malay politicians, including Khairy Jamaluddin, the Prime Minister's son-in-law and Deputy Chairman of the UMNO Youth wing, and Ahmad Shabery Cheek, a prominent Malay Member of Parliament from the state of Terengganu. The Malay press, most of which is owned by UMNO, also ran articles condemning the questioning of the social contract.[43] Lim was adamant, asking in an interview "How do you expect non-Malays to pour their hearts and souls into the country, and to one day die for it if you keep harping on this? Flag-waving and singing the 'Negaraku' (the national anthem) are rituals, while true love for the nation lies in the heart."[42]

A year earlier, Abdullah had given a speech where he mentioned the most "significant aspect" of the social contract as "the agreement by the indigenous peoples to grant citizenship to the immigrant Chinese and Indians". Although Abdullah went on to state that the character of the nation changed to "one that Chinese and Indian citizens could also call their own,"[44] the speech went largely unremarked.

In the end, Lim stated that the Malay press had blown his comments out of proportion and misquoted him. The issue ended with UMNO Youth chief Hishamuddin Hussein warning people not to "bring up the issue again as it has been agreed upon, appreciated, understood and endorsed by the Constitution."[45]