COMMENT | The Malaysian government is caught in a conundrum over the Indian Muslim community claiming ‘bumiputera’ status. This is because the term ‘bumiputera’ does not exist in the federal constitution. It was an elaborate plan thought up by the new state capitalists in Umno after 1970 for the ideological purpose of using the New Economic Policy (NEP) for their own agenda.

The constitution merely mentions the “special position” (not rights!) of Malays and the natives of Sabah and Sarawak. A ‘Malay’ is defined in the constitution as someone who is Muslim, speaks Malay habitually and practises Malay culture. If the former Prime Minister Dr Mahathir Mohamad, whose father was Indian, can claim Malay privileges, there seems no reason why Indian Muslims cannot claim similar ‘Malay’ privileges.

Transformation of affirmative action based on race

The so-called “social contract” at Independence was the product of colonial manipulation of the constitutional proposals, from the Malayan Union to the final Merdeka Agreement. Furthermore, it has in fact undergone transformations since Independence:

(i) After Independence in 1957, the affirmative action policy was sparingly used according to article 153;

(ii) After May 13, in 1971, while the country was still under Emergency decree, article 153 was amended to introduce the so-called “quota system” allowing wider affirmative action policies, but still within stipulated conditions.

In the 1957 constitution, article 153 was framed simply as follows:...