Protected Rights

Tuesday May 13, 2008
Protected rights
Articles of Law by BHAG SINGH
Our country’s top leadership continues to remind the citizens that unity, regardless of race, is a cherished goal and an essential element for continued well-being and progress.
Small disputes have the potential to develop into racial issues. Grievances of some legitimate expectations not being met have on occasion been somewhat exaggerated. On the other hand, there is a tendency for some groups to suggest that their rights and interests are being eroded.
But the nation's founding fathers had great wisdom. They crafted the Constitutional documents to ensure preservation and protection of basic rights. At the same time, they incorporated flexibility in the broader interests of the nation that they were establishing.
Ever mindful of the potential for disruption to racial harmony, subsequent leaders acted to amend the Sedition Act 1948 to make it seditious to even question matters that have come to be regarded as “sensitive” by reference to specific parts of the Federal Constitution.
Sensitive issues
The matters referred to as sensitive are in fact in relation to provisions that seek to provide both protection and balance on the aspect of life in the country, which are prone to trigger conflict if not dealt with in a prompt and adequate manner when these issues are touched upon.
Part III of the Federal Constitution deals with the subject of Citizenship. Article 152 deals with the position of Malay as the national language. Article 153 provides for the reservation of quotas for Malays and the natives of Sabah and Sarawak in matters relating to education, public service as well as permits and licences for operations of trade and business, amongst others. Article 181 deals with the sovereignty of the rulers of the states.
In respect of these matters it becomes an offence by the mere fact of questioning the rights and status as provided. Such questioning, unless it is in relation to the implementation, constitutes a seditious tendency and therefore amounts to sedition.
Numerous prosecutions under the act have taken place in the past based on speeches or statements questioning Malay special rights or words such as “abolish Tamil or Chinese medium schools in this country”, or amending article 152 to do away with rights under it.
Such rights are not only constitutionally enshrined, but any discussion of the subject is also restricted by law.
Mentri Besar issue
The suggestion that a non-Malay be appointed a Menteri Besar or deputy Menteri Besar and the reaction to it provides an interesting insight into the mindset of those who made the suggestion and those who reacted to it.
Anyone who cares to familarise himself with the state Constitutions will know that both in the case of what were formerly the Federated Malay States and the Unfederated Malay States, the Menteri Besar must be of the Malay race and profess the religion of Islam.
Some state Constitutions do have a provision for the appointment of a deputy Menteri Besar and some do not. Where there is no such provision, any such appointment whatever the race of the person appointed would be merely ad hoc and therefore give neither any Constitutional right nor power.
Of course the Constitution of the state of Perak is an example of a scenario that treats this aspect a little differently. It allows the Sultan with discretion to waive either one or both requirements whenever he considers it expedient to do so. However, the fact is that the power is with the ruler of the state.
On other occasions, there are yet different kinds of qualifications. The Constitution of Sabah, for example, has a provision that excludes a person from being appointed Chief Minister if he is a citizen by naturalisation.
Malay reserve land
Similarly, flexibility is reflected in the provisions relating to Malay reserve land in Peninsular Malaysia.
The provisions are to be found in state legislation that existed well before Merdeka and continue thereafter. This is because the Federal Constitution provides that any land in a state which immediately before Merdeka Day was Malay reservation in accordance with the existing law would continue as Malay reservation land.
The phrase “Malay holding” is used in all these laws to describe such land. The gist of the law is that no “Malay holding” can be transferred, charged, leased or otherwise disposed of by any person not being a Malay. Of course, executive discretion has been exercised to meet the need to charge or sell such land to corporations, amongst other.
At the same time, not every agreement to buy Malay reserve land by a non-Malay is illegal, invalid, null and void. Whether there is intent to evade the legislation is a relevant factor. In Foo Say Lee v. Ooi Heng Wan, the parties entered into an agreement relating to a piece of such land.
On signing the memorandum, the buyer, who was the plaintiff, paid the defendant, the seller, $1,500 and the balance of $3,500 was to be paid on the transfer of the land to the plaintiff. At the date of the agreement, the land was still held by a Malay. Condition 3 of the Agreement provided that the sale was subject to the approval of the Kelantan Government and the ruler in council.
Section 13A(i) of the Kelantan Enactment gave the power, as I believe it still does, to the ruler in council in his discretion to approve a transfer of a right or interest in Malay reservation land to any person not being a Malay. In holding that the agreement was not by the mere fact void Azmi C.J. in the Federal Court said:
“I am unable to come to the conclusion that any agreement to transfer such land by a method so provided by the Enactment and therefore null and void under Section 12; not could it be said that the agreement is an attempt to evade the provisions of the Enactment”.
Conclusion
Flexibility was incorporated in the laws created by our founding fathers and the present generation needs to understand, appreciate and implement these clearly enshrined basic principles as a basis to create a peaceful, stable and progressive environment.