Constitutionally, Mamak are not Malays

Shekh Fadzir brothers without Kadir: Indians or Malays?

Malay is so embracing that any Muslim that adopts the Malay and Islamic culture and way of life or the minimum of adopting an Arab name is considered Malay.

UMNO accepted Punjabi singer, DJ Dave as member. Both the KSN and KSP are Indian coverts though possess Arab sounding names.

One time inner circle adviser to Dato Najib, Dato Omar Ong once held the position of Treasurer for UMNO Gelang Patah. Back in school, he goes around by a Chinese name. His father reminded him during his wedding dinner to the now divorced first wife to not forget his root.

In UMNO and within Malay society, they take a blind eye to accept Muslim converts, including Indians and Mamak as Malay when they are constitutionally not. Yet many position holders in UMNO, government and king makers in Malay politics are Mamak.

The Star published an article which highlighted the legal reality that they are not Malay. Since they do not adopt Malay culture and their psyche are not Malay at all, the Orang Asli are more Malay. Thus, Orang Asli should be given more attention than these Mamak and Indian converts.

The Star article below:

Monday, 14 December 2015

Who is the Malay?

by ROSLI DAHLAN and Mohammad AFIF DAUD

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:

and...

(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.

> The above excerpt is from a chapter written by lawyers Rosli Dahlan and Mohammad Afif Daud for ‘Breaking the Silence: Voices of Moderation’ which was launched at the G25 forum, “Islam in a Constitutional Democracy” recently. The views expressed here are entirely the writers’ own.

------------------

Most of the Mamak that is known, they are technically Indians. They have the darker Indian complexion. The Pakistani have lighter complexion but still Pakistan is part of the Indian sub-continent and was a single nation before.

With the surging number of quick to pick-up Malay language Bangla Desh immigrant in the country, some will eventually put their foot down and assimilate with the local Muslim. Still they do not constitutionally qualify as Malay.  

Some Mamak speak Tamil at home. They eat curry than masak lemak at home. Could be found wearing Indian cloth. Hardly seen in Malay cloth and look awkward in them. Just because they marry a Malay does not make them Malay.

Even if they were to adopt Malay way of life, only Malay that are Malay before Merdeka qualify as Malay. They remain Keling.

For these Mamak and Keling, they should join MIC and help strengthen the party. If they had been involved with MIC before, it is better. Stop messing with UMNO politics, sabotage Islamic institution and try be king maker.

Some of these Mamak are more troublemaker than anything else.

Someone should champion their plight

Constitutionally, the Orang Asli are more Malay than the slick and crafty Mamak. Government should pay more attention and provide bigger allocation to help the plight of the Orang Asli than some pretentious Malays.

In fact, Najib is on the right track to show concern and allocate more money to the Iban, Kadazan, Bajau, Murut, Kenyah, Melanau, Penan, Punan, and all the more than 60 ethnics of Sabah and Sarawak.

It is of no consequence that some are not Muslims. They deserve a better life in their tanahair (homeland). No point being proud as a developed in 2020 when the Bumiputera - be them in Semenanjung or Sabah and Sarawak - leads a life devoid of basic amenities. 

Someone from the government side should champion the cause of the Orang Asli. There are groups and NGO showing interest but they come with vested interest.

If PM's wife, Datin Seri Rosmah have been successful at championing children issue, she should take up the welfare of the Orang Asli as another worthy cause. It takes someone feisty to bulldoze the bureaucrats in Jabatan Orang Asli.

After all, the home state of Najib and Rosmah have high population of Orang Asli.