LAC 2083 CONSTITUTIONAL LAW II

SEMESTER 2 ACADEMIC SESSION 2022/2023

KLB 2 / TLB 5

GROUP 4

ARTICLES 152 AND 153 OF THE FEDERAL CONSTITUTION: THE SCOPE,

APPLICATION AND CHALLENGES

LECTURER: DR. INTAN NADIA GHULAM KHAN

GROUP MEMBERS:

NO NAME MATRIC NUMBER

1 MUHAMMAD NOR SYAMRIN BIN EZAMUDIN 1212379

2 NUR HANNAH ATHIRAH BINTI ZUHAINI 1212380

3 NUR IZZATI SYAKIRAH BINTI ZAINAL 1212382

(3000 Words)
1.0 ABSTRACT
The diversity in Malaysia has led the non-Malays and non-Native in Sabah and
Sarawak to raise the issue of discrimination and loss of rights in languages and economy by
challenging Article 152 and Article 153 of the Federal Constitution. The previous research
enhanced on the affirmative action principles against social injustice under the said Article.
Therefore, this paper enlightens on the scope, application and challenges under Article 152
and 153 of the constitution. This paper is using the analytical approach with the assistance of
law cases, article journals and other reliable online databases. In its finding, parliament's
intention in enacting both Articles were correctly deliberate and safeguard the position of
Malays by accepting and respecting other races. This study is significant in explaining each
scope, application, and challenge to comprehend the society's understanding.

Keywords: Article 152, Article 153, Justice, Challenges

2.0 INTRODUCTION

The Modern Malaysia is one of the pluralistic societies that comprise of communities
of different ethnic, cultural, and religious perspectives. The prevailing situation is because of
the British colonial social experiments. Prior to British colonization, Malaysia's population
was primarily made up of Malays, non-Malays, and the Orang Asli, an indigenous group.
This is the case as Malays make up most of the population. Currently, Malaysia is recognised
as one of the multi-ethnic and multi-religious nations, with an overarching goal imposed by
the provisions of articles 152 and 153 of the Federal Constitution. Malaysia is one of the most
well-known nations in the world, with a multi-religious and multi-ethnic outlook and written
racist provisions in the constitution. As a result, Article 152 come into view of Federal
Constitution to set a national language and article 153 to grant a special position to
‘Bumiputra’ which in a multi-racial community in Malaysia.

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3.0 DISCUSSION

3.1 ARTICLE 152

Article 152 of the Federal Constitution explains that the Malay language, also known
as Bahasa Malaysia, is an official language whose function and role as the National Language
cannot be disputed. The position of Malay as an official language was strengthened by the
National Language Act 1967. Its importance as a language of knowledge as a medium of
teaching and learning has led to the publication of the Education Act 1961 (Amendment
1996). But at the same time, the multiracial community in Malaysia uses other languages
such as Mandarin by the Chinese and Tamil by the Indians.

3.1.1 SCOPE OF ARTICLE 152

Malay is defined as Malaysia's national language in Article 152 of its constitution.

The status of the Malay language as the official language of Malaysia, however, does not
interfere with the use, study, and development of other languages, even with the aid of
governmental subsidies. Because Article 159(5) mandates that the Council of Rulers'
approval is necessary to change Article 152, its presence cannot be repealed.

The Constitution guarantees everyone's freedom to teach, learn, and speak any other
language, excluding those used for government functions. "Official purposes" refers to any
objective of the government, whether federal, state, or local, as well as any objective of a
public authority. "Any purpose of the Government, whether Federal or State and includes any
purpose of a Public Authority" is the definition of "official purpose" in clause (6). The usage
and study of any other community's language may be preserved or supported by the Federal
and State Governments at their discretion. According to Section 2 of the Education Act,
Chinese and Tamil language learning will be provided in all national schools upon request
from the parents of 15 students enrolled there.

The Acts also stipulate that all parliamentary and state assembly proceedings, as well
as court proceedings, must be held in Malay. However, the judge of the court, as well as the
Speaker or President of the legislative assembly, may make exceptions to the rule and allow
proceedings to be held in other languages.

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3.1.2 APPLICATION OF ARTICLE 152
The Malay language has been established as the national language by Article 152 (1)
of the Federal Constitution. However, Article 152(1)(a) does provide an exception that "no
person shall be prevented from using (other than for official purposes), teaching, or learning
other language." The Constitution protects "using" any language other than Malay if it is not
done for "official purposes. "Clause (6) of Act 152 defines "official purpose" as any purpose
of the government, as well as any purpose of a public authority. The issue associated with
such official purposes was demonstrated by the case of Merdeka University v Government of
Malaysia.

The appellant proposed to establish Merdeka University with Chinese as the only
language of instruction. The Government argued that Article 152(1) maintains the use of the
ethnic languages not as a means of expression or communication for the nation, but only to
the extent necessary to prevent the loss of the Malay language use as means of expression
within their respective communities. The Chinese educational institutions' stances were at
contrast with this argument. They view that usage as a teaching tool is covered by the Article
152(1) on the free use, teaching, or learning of Chinese. The Government's claim that Article
152(1) only guaranteed the teaching of Chinese as a topic, rather than the use of Chinese as a
medium of instruction in university.

The appellant application was rejected by the High Court and the Federal Court
decisions on the grounds that, the Merdeka University would be a "public authority". In the
Article 152(6), any purpose of a public authority would be an "official purpose." This imply
that Merdeka University's use of Chinese as a language of instruction would constitute
employing Chinese for "official purposes," which is against the Constitution. The use of
Chinese as a language of instruction in university would be using Chinese for official
purposes and is unconstitutional. This argument could be extended to Chinese vernacular
schools on the grounds that they are "public authorities".

The issue of public authorities has recently been discussed by the case of Federation
of Peninsular Malay Students (GPMS) & Others v Education Minister & Government of
Malaysia & Others. In the High Court decision, vernacular schools are qualified as
educational institutions for the purposes of the Education Act of 1996. The requirement that
the national language be the medium of instruction does not apply to them because they are
not public authorities. In contrast to a university, a vernacular school does not sufficiently

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demonstrate the required public element to be construed as a governmental authority.
Considering a "public authority" is unlikely to be represented for vernacular school, using a
non-Malay language as a medium of instruction is not forbidden under Article 152.

The Merdeka University was deemed to be "a public authority" and its use of the
Chinese language for education was "for an official purpose” which violated Article 152. In
contrast, a vernacular school is deemed as not a "public authority,". So, it could be protected
by Article 152(1)(a) which allows it to utilize non-Malay language as the primary medium of
instruction. The court made it clear that the Government cannot prevent Merdeka University
from providing courses for students to learn Chinese through teaching. However, because the
University is a public authority, it would be banned from offering Chinese as the only
language of instruction because doing so would violate the Constitution's definition of "for
official purposes."

3.1.3 CHALLENGES OF ARTICLE 152

Ethnicity and language are commonly discussed in conjunction while discussing

Malaysia's educational policies. According to Article 152 of the Federal Constitution,
disputes over the use of Malay language are exacerbated by Malaysia's population, which is
made up of roughly 70% Malays, 23% Chinese, and 7% Indians. Since they employ a
language other than the Malay language as their medium of teaching in school, vernacular
schools have come under fire over the years and more recently as a hindrance to racial peace.
Article 152 of the Federal Constitution, which declares the Malay language to be the
country's official language, is believed to have been broken by the language of teaching used
in vernacular schools.

Malay-medium National Schools and Non-Malay-medium National-type Schools,

often known as vernacular schools, are the two groupings that makeup Malaysia's public
primary school system in terms of the language of instruction. Malay is taught in all public
secondary schools, even though a few Chinese Independent Schools exist as an alternate
option outside of the required national curriculum. Even before Merdeka and the Federal
Constitution, vernacular schools were allowed under the existing educational legislation.

Vernacular schools are not managed similarly to universities and do not have the same
public elements. It is prohibited to establish a university except in accordance with the

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University Colleges Act 1971. In contrast, vernacular schools are merely required to register
with the Ministry of Education under Section 79 of the Education Act of 1996. The First
Schedule of the University Colleges Act of 1971, which stipulates that the Minister appoints
the Chancellor, Vice-Chancellor, and Board of Directors, must be included in the constitution
of a university. By comparison, a vernacular school is permitted by the Education Act of 1996
to create its own constitution. Due to these factors, a vernacular school is protected under
Article 152(1)(a) which allows it to utilize a non-Malay language as primary medium of
instruction.

3.2 ARTICLE 153

In essence, article 153 of the Malaysian Constitution gives the Yang di-Pertuan Agong
responsibility for "safeguarding the special position of the 'Malays' and natives of any of the
States of Sabah and Sarawak and the legitimate interests of other communities" and goes on
to specify how to do this. Or, to put it another way, it guarantees that a certain percentage of
positions in the civil service, public scholarships, and public education are reserved for
Malays and natives of any of the States of Sabah and Sarawak in whatever proportion he may
think reasonable.

3.2.1 SCOPE OF ARTICLE 153

Bumiputra is a term that is used to describe both Malay people and residents of any
Sabah or Sarawak state. Despite not having a specified meaning in the constitution, the term
"Bumiputra" is frequently used to refer to all Malays as well as the indigenous populations of
Sabah and Sarawak. Prior to that, we must ascertain who is Malay, who is a Sarawakian, and
who is a Sabahian. A person who is Malay was a person who practices Islam, regularly
speaks Malay, speaks in accordance with Malay customs, and was a resident of the
Federation or Singapore on Merdeka Day, or was born in the Federation or Singapore before
that day, or was the child of parents, at least one of whom was born in the Federation or
Singapore; or Is the problem with such person.

The best way to describe a Sabah native is as a person who was born there or whose
father has a place of residence there and is the kid, grandchild, or great-grandchild of an
indigenous person. The notion of a native or indigenous race in Sarawak, however, is no

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longer governed by the provisions of the Federal Constitution. Through Sarawak's own state
laws, the state government can totally control it. It's because the Dewan Rakyat and Dewan
Negara enacted the Constitution (Amendment) Bill 2021 in 2021 to amend Articles 1(2),
160(2), and 161A (6) and (7) of the Federal Constitution and establish the definition of native
or indigenous race in Sarawak.

So, the question at hand is what are the privileges and special position have been
bestowed upon the bumiputra? It is typically found in four grounds, as may be important to
protect the Bumiputras' special position. Positions in the federal civil service come first
which set by the authority to them. Besides, grants, exhibits, and specific facilities for
instruction or training was subject for them to have this special provision. Furthermore,
permits or licences for every industry or enterprise subject to federal regulation and the
legislation itself may set such quotas prior to them. Finally, locations in post-secondary
educational institutions including universities, colleges, and polytechnics that can be enjoyed
for every Bumiputra.

3.2.2 APPLICATION OF ARTICLE 153

The implementation of the said Article 153 was shown in the case of SP Boon Seng
Project v Pengarah Tanah & Galian Negeri Kedah & Anor which the defendants are the State
of Kedah's Director of Lands and Mines and Registrar of Land Titles. the plaintiff entered
into a sale and purchase agreement to purchase land. The plaintiff presented the necessary
documents to register himself as the new owner, but the second defendant denied the
application because the lot was only sold for the Malays. The Plaintiff filed this action to ask
the court to grant acquiescence of the land to Plaintiff wanted the court to determine that the
decision of the Defendants to reject the Plaintiff’s application to transfer the ownership of the
land is invalid. The plaintiff wanted the Defendants to be prevented from making
endorsement of the land in their reasons that the Lot is for the Malays only.

The court granted the plaintiff's claims and rejected the Defendant's counsel's
argument that the Plaintiff had violated the privileges granted to Bumiputra and Sabah and
Sarawak natives to enjoy land reservation. According to the court, Article 153 of the Federal
Constitution only addresses public services, education, and scholarships, permits for any
trade, and places in educational institutions. The Article did not address land issues. Hence, it

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is decided that the provision does not support the Defendant's contention that Article 153
empowers them to order the Bumi Lot endorsement.

This concluded that Article 153 of the Constitution intends to safeguard the rights and
privileges granted to Malays and bumiputras in Sabah and Sarawak. Article 153 clearly lists
several branches of rights and privileges that must be safeguarded. However, we must
consider the content of Article 8 of the Federal Constitution, which states that all people are
equal before the law. This aims to protect all Malaysian citizens' welfare and rights,
regardless of race or religion in the country. This also includes land in the country that is not
reserved for a specific number of Malays. All races can have equal and equitable freedom and
rights.

The government also implemented several of affirmative action to create justice in

relation to Article 153. Firstly, the government may launch a national economic program such
as the Malaysian National Economic Policy that can continue the inequalities between the
races. Secondly, the government may make a corrective action in economic and education
policies based on the need, sector or class, not based on the race. This can eventually create a
just and uniformity in those institution. Lastly, government also can create a joint venture and
working opportunities by collaborating between races and indigenous people who are
competent to increase the Malaysia’s income.

3.2.3 CHALLENGES OF ARTICLE 153

After years, the special status of Malays and natives of Sabah and Sarawak remains as
source of national contention under Article 153 of the Federal Constitution. Due to the
existence of Article 153, there were two waves of division in the race. The first group is the
Malays and natives of Sabah and Sarawak while the second group is the non-Malays and not
natives of Sabah Sarawak.

This racial division is the most obvious challenge that occurred after the contention.
This is due to human nature, which prefers to associate with their own race while excluding
other races. The community became divided into racist factions. Furthermore, another
challenge is the demand for government to confirm their citizenship status. This situation
arises because of the race's tension and dissatisfaction. This is due to the difference of
understanding the term "Malays" provides in the said Article.

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 According to Article 160 of the Constitution, a Malay is someone who professes
Islam, speaks Malay, practices Malay customs, and those who born or domiciled in Malaysia
or Singapore before Independence Day. However, the term “Malays” in the Federation of
Malaya Agreement 1948 includes Malays who accept non-Malays as federal citizens. Due to
this misunderstanding, the second race group challenged Article 153 by contending that it
only protects the first group.

The third challenge is the racial discrimination. As widely understood, the article
guarantees the King absolute protection in safeguarding the rights of the Malays and
indigenous peoples of Sabah and Sarawak in variety of areas. However, it is still giving the
same opportunity to the second group to achieve luxury and wealth in various industries in
country. This clearly contradicts the discrimination principle that promoted by the second
group. This is because the dispute occurred until the second group demanded the government
to repeal the Article.

In conclusion, the debate of the second group in challenging Article 153 should be put
to rest pragmatically and properly. The government must demonstrate that the protection
afforded to Malays and Sabah Sarawak natives in this article does not in any way impede or
threaten the rights of the second group. It should be noted that the federal constitution was
enacted to safeguard the position of Malays and Sabah Sarawak natives by freely accepting
the principle of jus soli over non-Malays. Hence, the rights and interests of all races in
Malaysia must be respected and protected to harmonise the diversity in Malaysia.

4.0 CONCLUSION

To conclude, Article 152 of the Federal Constitution provided the Malay language is the
National Language and Article 153 is about special positions of the Malay and Bumiputera.
Both articles are closely related to the Malay and Bumiputera in Malaysia. The Malay
language is the language of the nation whose function and status as the National Language
cannot be contested. However, the multiracial society in Malaysia is also free to speak other
languages, such as Tamil by Indians and Mandarin by Chinese. Plus, it is important to
remember that Article 153 also protects the legitimate interests of other communities other
than Bumiputera. The Constitution also includes other clauses to fight persecution and
injustice against any Malaysian. Overall, the Federal Constitution protects all citizens' rights

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and includes additional safeguards that protect Malaysians from tyranny, injustice, and
potential abuses of power.

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5.0 REFERENCES

Legislation

Federal Constitution

Education Act 1996

Cases

(Federation of Peninsular Malay Students (GPMS), Islamic Education Development Council

(Mappim) and Coalition of National Writers’ Association (Gapena) v Education Minister &
Government of Malaysia & Others [2019] 4 MLJ 515.

Merdeka University v Government of Malaysia [1982] 2 MLJ 243.

SP Boon Seng Project v Pengarah Tanah & Galian Negeri Kedah & Anor [2018] MLJU 287.

Articles

Aisyah Bidin. 1993. The Historical and Traditional Features of the Malaysian Constitution.
Jebat: Malaysian Journal of History, Politics and Strategic Studies. Vol 21. pp. 3-20.

Wan Ahmad Fauzi Wan Husain. 2021. Article 153 of the Federal Constitution: Governing
Principle Affirmative Policy Against Social Injustice. Journal of Governance and
Integrity. Vol. 5. Issue 1. pp135-140.

Internet

Datuk Dr Wan Ahmad Fauzi Wan Hussain. 3 Disember 2018. “Perkara 153 Jamin Hak Semua
Kaum.”<https://www.researchgate.net/publication/358817845_Perkara_153_jamin_h
ak_semua_kaum>.

Kelly Adam. 2010. “Article 153 of Malaysia’s Constitution and the Human Right to Non-
Discrimination.” <https://www.grin.com/document/267616>.

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Nizamuddin Alias & Farid Sufian Shuaib. 2017. “Position, Status and Role of Malay
Language in Malaysia”.
<https://ejournal.upsi.edu.my/index.php/PERS/article/view/1683/1219>.

Pin Lean Lau. 27 November 2018. “Affirmative Action in Malaysia: Constitutional Conflict
with the ICERD?” <https://bura.brunel.ac.uk/bitstream/2438/23250/1/FullText.pdf>.

Rei Tiah. 21 Jan 2022. “The Constitutionality of Vernacular Schools in Malaysia”

<https://www.durhamasianlawjournal.com/post/the-constitutionality-of-vernacular-
schools-in-malaysia>.

Tan Sri Abdul Aziz Abdul Rahman. 6 July 2008. “Article 153 Intended for a Long Term.”
<https://www.malaysianbar.org.my/article/news/legal-and-general-news/members-
opinions/article-153-intended-for-long-term>.

University Utara Malaysia. 2022. “Article 3, 152 & 153”.

<https://www.studocu.com/my/document/universiti-utara-malaysia/constitutional-
law-i/question-1ii-article-3-152-153/27612068>.

News

Izzul Ikram. 2021. “The Case for the Constitutionality of Vernacular Schools”. The Edge
Malaysia, December 29. <https://theedgemalaysia.com/article/vernacular-schools-do-
not-go-against-constitution-high-court-rules>.

Lim Wei Jiet. 2019. “The case for The Constitutionality of Vernacular Schools”.
Malaysiakini, December 23. <https://www.malaysiakini.com/news/504604>.

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