The elusive definition of 'Malay'

Art Harun:

The supreme law of this country is our Federal Constitution (“FC”). That means every law and policy must be in adherence with the FC. Otherwise, such law or policy would be void for being unconstitutional.

We therefore have to look at the provisions of the FC to determine these so called rights of the Malays.

Generally, article 8 provides that all persons are equal before the law. I say “generally” because there are exceptions to this rule.

Clause 2 of article 8 says that there shall be no discrimination against citizens on the ground of religion, race, descent, place of birth or gender except as expressly authorised by the FC.

So, there you go. All of us are only equal up to the extent as provided by the FC. This means we may be discriminated against if the FC expressly allows it.

the rest of his article:
Malaysia-Today.net - Visiting the Malay ‘Rights’

I wish to highlight the following paragraphs:

Let’s cut a long story short. Article 153 of the FC is right at the centre of this issue. It is a fairly long article, with 10 clauses in it.

Basically, these are what that article provides.

Firstly, it says that HRH the YDP Agong has the responsibility to safeguard the “special position” of the Malays and natives of Sabah and Sarawak. Notice that the words used are “special position”, not “special rights.” Notice also that the safeguarding is not only restricted to the Malays but also the natives of Sabah and Sarawak (the “Natives”).
But that is not all. It also says that HRH the YDP Agong is also responsible to safeguard the “legitimate interests” of other communities.
Notice the differences at what is being safeguarded. As for the Malays and the Natives, it is their special position. While in respect of other communities, it is their legitimate interests.

At this juncture, we should know what Malay is. Article 160 defines Malay as a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom.

It is not a scientific definition. It is one of the most absurd definitions I had ever come across in any written law. How could you define Malay as a person who speaks Malay and conforms to Malay custom when the very word which was sought to be defined in that definition is the word “Malay”? It is like defining a “mango” as “a fruit which tastes like mango”. Anyway, I digress.
…
and his conclusion:

I think, rather, what is being questioned is the policy which underlies the exercise of the power as opposed to the power itself.
It must be noted that article 153 repeatedly provides that HRH the YDP Agong shall exercise his power as “he may deem reasonable”. Perhaps such “reasonableness” is the key.

We profess to have a democratic Government and system of politics. If so, surely Government policies, especially those which touch the very basic and fundamental rights of the people, such as the right to education for all citizens, could be discussed, analysed and even questioned.

And surely, a good Government whose heart is with the people and the country would not dismiss such questions nonchalantly.

Otherwise, I suppose, the people could effect a change in such policies by changing the policy makers.

Haris Ibrahim in his People’s Parliament advised others to read Art Harun's article and added:

I want to make one point of clarification.

Art refers to the definition of “Malay” in Article 160(2) of the Constitution.
Let me reproduce that relevant provision here.
160 (2) In this constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say:
…“Malay” means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and -
(a) was before Merdeka Day born 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;

Article 160 is an interpretation clause.

You will note that Article 160(2) expressly states that the meanings of the various words sought to be interpreted in that clause will not apply when, in the Constitution, the context in which the word appears would suggest a meaning different from that prescribed in clause (2). The first thing to note, then, is that the meaning ascribed to the words in clause (2), including “Malay”, are not necessarily exhaustive and must give way when the context demands it.

The second thing to note is that the meanings ascribed to the words in clause (2) are for the purposes of interpreting those words as and when they appear in the Constitution, and the Constitution only and that too, if the meaning ascribed is not displaced by the context.

In other words, the meanings ascribed here in clause (2), including “Malay”, cannot, as a matter of law, be applied and fixed to other laws enacted where similar words appear, simply because the Constitution stipulates the meaning for those words when they appear in the Constitution. It must be understood that these meanings have been ascribed for the purpose of the Constitution and the Constitution only.

The word “Malay”, as defined in the Constitution, has as such been defined so as to afford an understanding of the meaning of that word, as and when that word appears in the Constituion, unless the context affords a different meaning, in which event the latter meaning would have force.

It must not be thought that the definition of “Malay” in Article 160(2) is exhaustive and applicable everytime the word appears in any written law.

After all that, do you think the ordinary folks bother with the explanations? This is likely to be a common non-Malay or non-Bumiputera reaction:

Aiyah, they control everything, they say who is malay, let them say lah. They want to give everything to them let them lah. What they are interested is for us to mind our businesses, to do well and our taxes paid, and then keep our mouths shut, ok?

The current debate on unity government which seems more like Malay unity government is a non-issue to most non-Malays, because at the back of our minds it is already factored in. We do not expect much because we cannot, so we won't be too disappointed whichever way it turns out.