English, Bahasa Melayu, Bahasa Malaysia, Definition of Malay by ‘form of identity’, and redundant clauses in the Constitution, must be depoliticised once and for all!
Commentary and Analysis . . . The issue, following the earlier op-ed on education and reforms, isn’t the English language per se.
In fact, the English language can never be an issue in Malaysia as it remains above politicisation. The Constitution first came in the English language and remains valid in law. The Constitution in Malay was mere translation. In case of conflict between the versions, the English version prevails.
The disconnect between the English language, Bahasa Melayu, Bahasa Malaysia, national language, the Definition of Malay by “form of identity” and redundant clauses in the Constitution must be depoliticised and resolved once and for all.
It can be argued that there’s thesis statement on the national language viz. it may no longer exist under Article 152 i.e. if it ever existed. In any case, the national language concept has never held water, with or without law. However, let’s not go there as we risk entering minefield in law, politics and linguistics.
It cannot be denied that the 20K Bahasa Melayu can no longer be found in usage since the 40K Bahasa Malaysia emerged, in the wake of the 13 May 1969 disturbances in the streets of Kuala Lumpur.
Bahasa Malaysia finds usage as the “unofficial” official language in Parliament, government, in court — except in the superior court and in the court in Sabah and Sarawak — schools and media. Bahasa Melayu can’t probably be found even in the pasar (bazaar or market) from where it came.
Universiti Malaya linguist Dr Asmah Omar, 91, has cautioned against using the term Bahasa Malaysia for Bahasa Melayu. She fears “Malay” would lose their identity if the term Bahasa Melayu was dropped.
Likewise, Prime Minister Ismail Sabri tried persuading Indonesia that Malay was one language but spoken differently in the Archipelago. Ismail, based on this theory, wanted Malay as the 2nd official language of Asean.
English In Asean
Indonesia reportedly said that English should remain as the sole official language and dismissed Ismail’s unproven theory on Malay as one language.
Bahasa Indonesia, it was stressed, wasn’t Bahasa Melayu although there were loan words from the latter in the official language of Indonesia. Indonesia has no national language. The 127K word Bahasa Indonesia was one quarter Dutch. There were many loan words from local languages and dialects, besides from Bahasa Melayu, and other loan words from the English language.
Language was no proof of “race”.
Article 152, with or without affirmative action programmes, props up the Definition of Malay in Article 160. The Article further supports Article 153 on “special position by way of reasonable proportion for the Orang Asal (original people), Orang Asli (aborginal people) and Malay as Defined in Article 160 in four specific areas viz. intake into the civil service, intake into training institutions owned by the government, government scholarships, and opportunities from the government on doing business.
Article 153, in the 2nd Prong, mentions the legitimate aspiration/interest of non-Malay i.e. including Muslim who are not Malay.
Form Of Identity
The Definition of Malay in Article 160 was about “form of identity” based on Muslim habitually speaking Malay and born or domiciled in Singapore or Malaya, by Merdeka 31 August 1957. They, and their descendants, are classified as Malay by “form of identity”.
Article 160 mentions no Malay race, for want of better phrase, no Malay blood and no Malay DNA.
The 1st Prong and 2nd Prong in Article 160 must be read together for Definition of Malay as “form of identity”. If they are read in isolation, i.e. separately, non-Malay who are Muslim even in Sabah and Sarawak may get MyKad which reads Malay in the chip. The front of the MyKad reads Islam for all Muslim, both non-Malay and Malay, on both sides of the Southeast Asia Sea.
The Constitution mentions no other “form of identity”.
Adat People
Orang Asal (original people) in Sabah and Sarawak and Orang Asli (aboriginal people) in Malaya are not about “form of identity”, native or citizen. They are about ancestral and historical property rights in the form of NCR (native customary rights) land under Adat — customary practices — which, like the Constitution, has force of law.
NCR land was protected under Article 13 (property rights), Article 5 (right to life), and Article 8 (no discrimination).
The same Articles protect non-NCR land.
No one can lose property except with compensation. The government can acquire private land, with compensation, but only for public purposes.
Sunset Clause
Article 160 defines many terms in the Constitution. Article 4 and the Conference of Rulers, for example, props up the clauses rendered redundant by the expiry of the sunset clause in 1972. In law, Article 8 in Malaysia, there can be no discrimination save as provided by law in the form of sunset clauses which must have expiry date. Otherwise, no one was above the law, all are equal under the law.
The letter of the law, by itself, isn’t law.
There’s greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law. (This writer read constitutional law in the form of public law and common law reasoning and institutions).
The greater emphasis on the spirit of the law trumps the letter of the law even when the latter was read together with the rule of law.
The Constitution, Parliament, and the court of law — all colour blind institutions — can’t get into anything but the rule of law, the basis of the Constitution, human rights and international law.
There’s private space and public space. The law cannot impose on private space.
Religion and civilisational values, which often impose in private space, are about guidance which isn’t mandatory.
The rule of law was about governance.
Court Case
In law, it must be stressed at the very outset, that there’s no such thing in Malaysia as bona fide Malay vs constitutional Malay as raised in the ongoing court case involving Umno President Datuk Seri Ahmad Zahid Hamidi and and allegedly dictatorial former Prime Minister Tun Mahathir Mohamad. The former has conceded roots in Java. The latter has been linked in the public mind with the “Kutty” (little in Malayalam) image in Kerala, southwest India.
Bona fide Malay, for those unfamiliar, are those considered by public perception as having roots and heritage in the Archipelago. It may be fall back on anthropology as mentioned by way of obiter dictum (opinion) in case law. Read Petmal Oil (Malaysia) Sdn Bhd v Che Mariah Mohd Tahir (Trading As Delta Mee Enterprise) [1994] 3 CLJ 638.
The case law by the High Court of Malaya states that “Malay in the Federal Constitution is an anthropological classification rather than based on ‘race’. It’s inclusionary in nature”.
The High Court can take the cue from Zahid allegedly describing Mahathir as “Kutty”. In that case, it would advise Zahid and Mahathir on moving on after apologising, shaking hands, and making up.
The Constitution cannot go against itself.
Mahathir
Mahathir, based on the Definition of Malay in Article 160, may be misleading on the term Malay, aberration in law, in the Constitution. The public perception remains that Mahathir isn’t “Malay” unlike those with family roots in the Archipelago, originally Indian, then Malay, now Indonesian.
Mahathir’s old identity card IC going viral in the social media even before he sued Zahid for the kutty remark has drawn no response so far from the former Prime Minister.
The word Malay arises from language — Johor Rhio Lingga version — as seen in the 20K word Bahasa Melayu.
Mahathir finally conceded that he wasn’t ashamed that he has Indian blood but claims that otherwise he’s Malay, implying by blood. It was not so long ago that Mahathir told the media that he doesn’t know from which part of India his people came from and that in any case he has only “spoonfuls of Indian blood, otherwise he’s Malay“.
Human beings come from various blood groups viz. A, AB, B, and O. It’s about which blood group can donate and/or receive and thereby preventing coagulation i.e. the blood thickening and causing death. There’s no Indian or Malay or other blood.
Mahathir has been allegedly mixing up Malay as “form of identity” and Indian as nationality by mentioning blood in the same breath.
Case Rested
We rest the case on the English language, Bahasa Melayu, Bahasa Malaysia, the Definition of Malay, habitually speaking Malay, as “form of identity”, and redundant clauses in the Constitution.
The Constitution, based on the rule of law, Parliament and the court of law cannot get into “race”, colour, looks, anthropology, language, culture, customs, traditions, rituals, food, habitat, DNA, geographical origin, religion, theology, civilisational values, sin, God, righteousness, justice and truth. — NMH
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#law #Malay #Malaysia #language #English #culture #Constitution #identity #Mahathir #Zahid #defamation #blood #Indian #DNA #origin
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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