YB Kit,

You may not take this seriously but, frankly, Marina Undau can try challenge (with DAP’s lawyers’ help) the decision of Student Intake Management Division, Higher Learning Department and Higher Education Ministry (for convenience, termed as “HEM”) on gounds that the term “Bumiputra” as used by HEM is “unconstitutional”. It is high time someone did.

Of course one may question, what nonsense is this about”Bumiputra” being unconstitutional when for 30 years the bumiputra/non bumiputra dichotomy is cast in stone, the very foundation of the NEP, the very fulcrum of UMNO’s policies and basis of every facet of national life from scholarship to corporate ownership and awarding of licences and contracts.

But consider this line of argument:

1. “bumiputra” derived from sanskrit word ‘Bhumiputra’ [translated literally, it means “earth son” (bhumi= earth, putra=son) or son of the soil…] is a coinage anchored upon expedience, supposedly embracive of Malays, Javanese, Bugis and other indigenous ethnic groups carved out to receive benefits of affirmative policies under NEP.

2. However mark this: the word “”bumiputra” was coined AFTER the promulgation of the Federtal Constitution, and UNTIL NOW the Constitution makes no explicit reference to this term. The Constitution only defines what is a “Malay” for special privileges under Article 153 and “aborigine” (Article 160(2)), “natives” of Sarawak (161A(6)(a)), and “natives” of Sabah (Article 161A(6)(b)).

3. Now if “Bumiputra” were not defined or provided for explicitly in the Constitution, it means this concept of “Bumiputra” can be struck down as invalid if it can be somehow shown that it’s definition and application conflicts and contravenes some other provisions of our Constitution, the basic and most superior law of the land.

4. Reference is made to article 8(1) of our Constitution that states, “All persons are equal before the law and entitled to the equal protection of the law.

5. HEM’s critria/definition of what constitutes “bumiputra” (both parents must be natives of Sarawak) clearly violates article 8(1) of our Constitution of equality before law. It rests on the fundamental assumption that if the term “Bumiputra” as defined by HEM is however NOT defined or sanctioned expressly by our Constitution (unlike the term “Malay”) it will be subject to article 8(1) and to the demands that the “discrimination” and the difference between how a “Bumiputra” is defined in Sarawak from the way it is defined in Sabah or West Malaysia must be subject to a ratiuonal differentia/criteria (based on principle that like must be treated alike and unlike treated must be treated differently upon rational grounds). I argue that there is no rational reason why (say) a Sabahan is entitled to patriarchal advantage of being treated a ‘native’ based on his father alone being a native whilst a Sarawakian is not so entitled to this patriarchal consideration of his father’s status as native and hence is not considered Bumi unless both parents are natives! There is no rational reason to differentiate a Sabahan and Sarawakian in this sense relating to Native parenthood status, is there? If no, then the term “Bumiputra” as used by HEM is unconstitutional for being in conflict with Article 8(1) guaranteeing equality of treatment before the Law!

6. I invite you think of the vast implications if “Bumiputra” were argued as an invalid concept for being inconsistent with the article 8(1) of the Federal Constitution and by public policy, equally inconsistent with 1 Malaysia as espoused by the Prime Minister!

The fact that concept of Bumiputra is as a concept vague and defying precise definition implies too that it is evolving and not static and can be challenged (constitutionally) for being contradictory to Article 8(1).
At the moment what we know for purposes of who is entitled to NEP’s benefit seems roughly as follows:

The Bumiputra (son of soil) is to be contrasted with “pendatangs” ie immigrants and descendents of immigrants.

So logically Malays being historically here (in the sense of having an established settlement and social organization with culture and laws as in Malacca Sultanate) earlier and prior to immigrants are accorded Bumiputra status (in Semenanjong) just like other people of indigenous origin in cases of Sabah & Sarawak..

Dealing with Malays and then next people of indigenous origin in Sabah & Sarawak : as for Malays, the Constitution defines a Malay as being one who “professes the religion of Islam, habitually speaks the Malay language, conforms to Malay customs and is the child of at least one parent who was born within the Federation of Malaysia before independence on the 31st of August 1957”. So Tun Mahathir qualifies on all counts, as long as one of his parents is Malay. It need not have to follow patriarchal criterion relating to father. Even maternal side is OK. [Indian Muslims do not qualify because although professing Islam do not meet other criteria in combination besides habitually speaks the Malay language (like a Malay) also conforms to Malay customs…..That’s why their association KIMIA is still lobbying for bumi status]. Orang Asli being earlier than Malays ought to qualify as Bumi but for the fact that they are disqualified for not “habitually speaking the Malay language and conforming to Malay customs”…
How that provides a justification for embracing within Bumi concept recent pendatangs (immigrants & their descendants) from Indonesia who are muslims is puzzling because though they meet all criteria they are short of the last one – “the child of at least one parent who was born within the Federation of Malaysia before independence on the 31st of August 1957”.

Coming next to the definition of people of indigenous origin in Sabah & Sarawak to be treated as Bumi, it is equally perplexing. For Sabahan to be “indigenous” there are two categories – (a) if his father is Malay (by above definition) or (b) a native (in latter case he does not need to profess the religion of Islam, habitually speak the Malay language, conform to Malay customs). That illogically excludes Sabahan whose maternal side is Malay or a native. They will ask why are they different from Semenanjong (West Malaysia)’s definition where it suffices for the maternl side, the mother, to be a Malay, hence bumiputra as in TDM’s case.
In Sarawak (because of many different tribes/natives) there is no need for paternal parent (or for that matter any parent) to be Malay – by Article 161A(6)(b) of the Federal Constitution, it suffices if BOTH the father and mother are “natives” of Sarawak. This means intermarriage as in the case of parents of Marina Undau disqualifies bumi status. Why that is so defies comprehension. [It will be interesting to ask what if Marina Undau’s father were a Malay and mother a native. Strictly she is still not bumi because both parents are not natives!] Again this defies comporehension.

This is then a sad state of affairs. Of whatever race, all human beings hope to have an equal chance in life esp to education when all have responsibilities as citizens to follow the nation’s laws and pay tax! Education is a human right under UN’s Charter! They can accept discrimination if it is drawn on rational lines but from what’s being discussed, it does not appear so! So how can people accept it? There’s no point in expensive national service programme and 1 Malaysia mantra when this irrational distinctions of what constitutes Bumiputra & Non Bumiputra are divisive of the peoples of Malaysia as a whole.

The various inconsistent applications or interpretations by officialdom of the concept of “Bumiputra” (which it not itself defined in Constitution) and their vagueness and lack of rational and coherent criteria are precisely the reasons why they may be open, in law, to challenge in courts whether the applications/interpretations are consistent or inconsistent with the Constitution (esp article 8(1)). It is true that, on the practical side, the courts may well not likely entertain such challenge. That however is a different issue.

When you have this bumiputra/non bumiputra dichotomy drawn on something less than rational/coherent basis, the side bereft of affirmative action programme will not accept that differentiation/discrimination, which means that in terms of national unity, this is the first negative factor exacerbating divisiveness contrary to 1 Malaysia aspiration opf the PM.

The second negative point : the institutionalized dichotomy of bumi/non bumi has prevented the full tapping of human capital from the non bumi section in GLCs, tertiary institutions civil service etc . The country is utilizing less than 50% the national talent pool, so how could it climb the value added ladder and help this country be “high income” in terms of international competiveness as the PM exhorts?

The third negative factor: Bumi/Non Bumi quotas on corporate ownership structure (listed) and on government licenses, government contracts, and employment are not only upsetting price mechanism and discouraging growth but also provide convenient pretexts to acts bordering in grey area that may arguably constitute or facilitate corruption and leakages, neutralising the political will to combat political corruption.

Bumi/non-Bumi dichotomy/distinction is at the very heart an expression of feudal political culture of patronage based on the basic exchange equation (between politicians and their constituency) of absolute political loyalty to the ruling elites/party (notwithstanding whatever deficiencies in governance) in exchange (quid pro quo) for its protection from legal consequences if one does wrong, and awarding of positions, contracts and other unfair benefits over others, where all other macro considerations of fairness, justice, rights, fair dealing etc take back seat!

As such a kind of feudal culture seeps and permeates every strand of society together in a seamless web – this has been going on in last 30 years – it naturally tends to influence (or, in vocabulary of detractors, “taints”) the neutrality and fairness of many key/strategic players occupying decision making authority within the institutions of the State, whether they be economic institutions, judiciary, civil service, security enforcement agencies, etc

Everyone learns on which side of the bread to spread the butter.

Which further of course undermines our international competitiveness and irks both locals aspiring for a better future for the country s well as foreign investors evaluating taking positions in the country.

Malaysia’s problems on corruption/international competitiveness/brain drain are structural.

Since the time of Mahathir administration we have seen this feudal political patronage culture based on the Bumiputra/Non Bumiputra axis takes deep root in all corners of the system.

To dismantle and unwind (esp mindsets/habits) that have grown roots for nearly 30 years cannot be achieved even by the sincerest of leader in the short term. Of course this is not an excuse not to start.

//Is someone trying to say that discrimination, domineering and bigotry are ok so long as they are constitutionally or legally done?// – Lim Kam Put

It never ceases to amaze me how (owing possibly to my poor writing/communication skills, for I can’t think of any other plausible reason) an argument for constitutional challenge can ever be mistaken for that of a constitutional justification though both entail a common necessary explanation of the constitutional aspects of “discrimination, domineering and bigotry”.

// Challenge or justification, what difference does it make? // You’re the only one who thinks they are the same.

///Putting the two together did you not imply that bumiputraism and Malay are justified?///

I shall let readers judge for themselves your powers of reasoning – that putting 1 and 2 implies that one is implying that bumiputraism and Malay are justified. LOL. At a certain point, there’s no need to explain further. You conclude as you wish. I am at a lost for words on how you think.