In the recent controversy over whether to base university intake on meritocracy or the racially discriminatory quota system, the public has been subject to the usual obfuscation by blind statistics and either/or choices.

Firstly, the government's recent statistics showing that "bumiputra" are better off under "meritocracy" fail to qualify the fact that many non-bumiputra have lost faith in the STPM as a mode of entry into Malaysian public universities. They have also been excluded by the racially discriminatory intake into Matriculation classes.

Others have already pointed out that the different criteria for basing university entry on STPM and Matriculation are non-transparent. The authorities have also not provided us with satisfactory explanations of how non-bumiputra with straight As have been denied university entry and scholarships.

The racially discriminatory quota system implemented since 1971 is not acceptable in an anti-racist world community. It is time for Malaysians to reaffirm the non-discriminatory basis of the Federal Constitution and to uphold human rights principles which are strictly anti-racist. This is especially vital after the World Conference Against Racism and Racial Discrimination held in Durban last May.

Article 8 (1) of the Malaysian Constitution clearly spells out the principle of equality of all Malaysians while Article 12 (1) allows no discrimination against any citizens on the grounds of religion, race, descent or place of birth.

Article (8A) makes it clear that the Yang di-Pertuan Agong can only order a reservation of a proportion of such places for the Malays. It would therefore mean that the quota system is applicable only on a faculty basis and more importantly every faculty or institution should reserve places for students of every race. No faculty or institution under this provision could cater for the Malays alone to the exclusion of the other races.

Years after the implementation of this racial quota system, there was no trace of any such order being made by His Majesty nor was there evidence of any such order having been gazetted. Such a directive would thus seem to have been made by the officials of the Education Ministry.

Thus, it is not clear whether the quota system is made applicable on an institutional basis or on the basis of the total number of places available in a particular course of study of all the universities in the country. To apply the quota system on the total number of places available in any particular university will again be a wrong interpretation of the provisions of the Constitution.

Article 153 (8A) does not authorise the administrators of any university to refuse admission to any student of a particular race. It only allows a proportion of the places to be reserved for Malay Malaysian students. On such a reasoning, the constitutionality of institutions which cater only for bumiputra students is doubtful.

Furthermore, the Constitution of the University of Malaya expressly prohibits discrimination on grounds of race for the admission of any student to any faculty or institution of the university. In this context too, the constitutionality of other institutions which admit students of a particular race only to the exclusion of other races is also doubtful as it violates the equality provision of Article 8.

From the above, it is clear that the question of the constitutionality of the quota system as it has been practised since 1971 especially in totally bumiputera institutions has never been tested.

International law sets major limits on affirmative action measures. Notably, affirmative action policies must be carefully controlled and not be permitted to undermine the principle of non-discrimination itself nor violate human rights. Holding the equality principle uppermost, the raison d'etre and reasonableness for differential treatment must be proven.

Another important criterion to ensure successful affirmative action and synonymous with international law is that such special measures should be introduced for a limited duration as was suggested by the Reid Commission in its Report of the Federation of Malaya Constitutional Commission in 1957.

A consequence of the so-called affirmative action policies up to now is that for the poor of all ethnic communities, including the indigenous peoples in Malaysia, these objectives of wealth redistribution for their benefit have not been met. Worse, the poorest community remains the Orang Asli of Peninsular Malaysia, the Original People of Malaysia who are not even considered "bumiputra" under the Federal Constitution.

Affirmative action must be based on merit and need. The poor and needy of every ethnic community in this country must be the only beneficiaries of affirmative action policies. At the same time, academic standards cannot be compromised, otherwise it defeats the purpose of education if our academic qualifications are not recognised as a result of that compromise.

The poor and needy must be given first priority in access to scholarships and loans and be provided with facilities for helping them cope academically, physically and mentally. There is absolutely no justification for the rich middle class of any ethnic community to be given special preferences with regard to university entry or socio-economic activities.