The confusion between the constitutional definition and the understanding of the word Malay is because it is used in many contexts.
MOST people understand the term Malay as referring to an ethnic group and therefore look askance at the Federal Constitution as having a racial basis.
We are suggesting that it does not.
The first part of the definition of Malay in Article 160 of the Constitution reads:
“Malay” means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom ...
This oft-quoted meaning tends to suggest that:
(1) anyone could by religious conversion and adoption of custom and language belong;
(2) anyone born a Malay is compelled by law to be a Muslim.
There is a second half to the definition that has to be fulfilled before a person can be considered a Malay within the meaning of the Constitution:
(a) was born before Merdeka Day in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or
(b) is the issue of such a person;
That someone is a Muslim, speaks Malay and adopts Malay custom is not, without more, sufficient to qualify them as a Malay under the Constitution.
The beneficiaries of the “special position” accorded to the Malays are therefore not a race but a defined class of persons.
Being ethnically Malay has not been any part of the criteria laid down in the Constitution.
The provisions for the special position were enacted to cater to the political demands of a group going by the name “Malay” but impossible to define in any other practical or workable way.
The Constitution had to provide an artificial definition which rendered ascertainable whether a person is or is not a Malay – in the form of the requirement, as at Merdeka Day, of birth, domicile or descent.
The consequence of using a term so charged with ethnic, religious and cultural connotations has been to subsume the constitutional definition under the concept of “Malay Rights” or “Ketuanan Melayu”, which has made debate on the special position of the Malay not only difficult but also polemical.
As a result, the constitutional definition does little to arrest the idea of the Malays as a favoured race.
The confusion between the constitutional definition and the understanding of the word “Malay” as a race is due in no small part to the same term being used in more than one context.
In particular, the constitutional definition, which applies for the purposes of the special position mentioned above, does not apply in the context of Malay reservation land, which is governed by State law.
The definitions of Malay in the various State legislation on Malay reservation have two criteria in common – the Malay language and the religion of Islam.
So far as ethnicity is concerned, it takes the form of a requirement that the person be of “any Malayan race” and, in some States, of “Arab descent”.
The one common factor across the States is the religion of Islam, and there is a general absence of any birth, descent or domicile requirement.
The provision for the special position in the Constitution and the preservation of State laws on Malay reservation are founded upon a so-called “social contract” between the main racial communities in Malaya immediately prior to independence.
If indeed the social contract has been embodied in the Constitution, as the supreme law of the nation, all racial and ethnic considerations prevailing at the time of independence should be seen as having been fully incorporated in the founding document of Malaysia, and giving full effect to these legal provisions will be the best way to honour that contract.
Just as it is a fundamental principle of the law of contract that no additional terms and conditions can be raised to contradict such terms and conditions as have been agreed in writing, to reopen the discussion on the same issue on race and ethnicity would be to dishonour the concluded bargain.
It will soon be 50 years since the race riots of 1969, after which a policy of affirmative action was put in place and repeatedly extended to this day in favour of the Malays.
Perhaps it is time that the implementation of the policy be reviewed.
Such a review should begin by ensuring that the Malay who are accorded the special position are properly identified.
This would entail going beyond religion, language and custom to ensure that every person accorded the special position does in fact fall within the defined class.
Failure to adhere to the constitutional definition is a direct deprivation of the Malay of their special position and a legal injustice.
For example, a Muslim convert born after Merdeka Day who speaks Malay fluently, conforms to Malay custom and vociferously advocates Malay Rights may discover that he is not himself a Malay within the constitutional definition if he cannot trace his parentage back to Merdeka Day to a Muslim forebear who speaks Malay and conforms to Malay custom.
The child born in Malaysia of Muslim immigrants with no prior roots in Malaysia may become a citizen but will not be a Malay within the constitutional definition.
The special position under the Constitution is implemented by a quota system.
Including such persons in that quota will be a breach of the supreme law of the nation and an injustice to those who are properly entitled.
If such errors are currently being committed, they are building up to a constitutional disaster.