Patterns of Discrimination and Inequality 2. PATTERNS OF DISCRIMINATION AND INEQUALITY This section discusses patterns of discrimination and inequality in Malaysia. Based on original direct testimony and analysis of existing research from sources including international organisations, governments, non-govern- mental organisations, academics and news reports, it seeks to elaborate the principal patterns of discrimination and inequality which affect people in Ma- laysia. This section discusses discrimination on grounds of race and ethnicity, gender, religion and belief, sexual orientation, gender identity, age, disabil- ity, health status, immigration status and political opinion. In respect of each ground, there is, to the extent that the necessary information is available, a discussion of different groups’ experiences in each area of life, including as a result of discriminatory laws, actions of state actors carrying out public func- tions, exposure to discriminatory violence and discrimination in areas such as employment, education and access to goods and services. impactA number upon of allkey areas themes of life, can not be leastidentified as a result as central of the to close these alignment patterns be of- tweendiscrimination. race, religion The andfirst politics.is the pervasiveness A second is the of rolerace playedrelations by theissues, dual which legal system, according to which civil law and Syariah law operate in parallel and Muslims and non-Muslims are subject to different laws, particularly in the areas of family and criminal law. Thirdly, the prominence of a conservative interpretation and implementation of Islam within Malaysian culture creates an environment in which societal attitudes and practices are governed by conservative perceptions of, inter alia, the role of women within society, and the appropriateness of behaviour deemed to be “irreligious”, such as sex out- side of wedlock, same-sex relationships and cross-dressing. Such attitudes provide a context in which discrimination against women, children, gay and transgender persons occurs in all areas of life. Fourthly, it is notable that pov- erty is a common thread running throughout most of the patterns of discrimi- and groups is usually directly related to their socio-economic standing or theirnation relative identified. position The severityof power. of Finally, discrimination Malaysia’s experienced large migrant by individualspopulation is the target of discriminatory conduct and is denied the ability to participate in most areas of life on an equal basis with citizens, despite the reliance of the expanding Malaysian economy on this additional work force. Each of these themes is discussed further in the subsections below. 21 Washing the Tigers 2.1 Racial and Ethnic Inequalities Race relations and race politics pervade any discussion of politics, economy, society and culture in Malaysia, but are particularly relevant when exam- adopted by the government of Malaysia in the early 1970s continues to ap- ply,ining and issues has disadvantagedof discrimination not and only inequality. those ethnic The groups affirmative who actionare excluded policy also those within the Bumiputera community who are on lower to average from the benefits of affirmative action (mainly Chinese and Indians), but- ployment and housing. incomes. The main areas of disadvantage identified relate to education, em Affirmative Action Policy Even before independence, race and ethnicity played an important role in Malaysia. During the British colonial administration, the British accorded a special status to the Malays, whom they regarded as the original inhabit- ants of Malaysia,37 even though many Malays had themselves migrated from Indonesia. The British propagated the idea that the Malays were in need of protection against the immigrant Chinese and Indians, and accorded them preferential rights in various spheres of society.38 Ironically, the same level of protection was not accorded to the Orang Asli (“original people”, “natural people” or “aboriginal people” in Malay) – the 18 tribes who had a longer his- tory of settlement in the country. As with many other laws and policies of the British colonial administration, this policy was continued by the Alliance Party after independence. The spe- cial position of the Malays was enshrined in Article 153 of the Federal Con- stitution of Malaysia which did, however, also acknowledge the “legitimate interests” of other communities. In 1963, with the inclusion of Sabah and Sarawak in the federation, the privileged position accorded to the Malays was extended to cover the “natives” of the two new states. Article 153 of the Con- 37 Experience”, in Colletta, N.J., Lim, T.G., and Kelles-Viitanen, A. (eds.), Social Cohesion and Conflict Prevention Crouch, in Asia, H., “Managing The World Ethnic Bank, TensionsWashington Through DC, 2001, Affirmative p. 230. Action: The Malaysian 38 Haque, M.S., “The Role of the State in Managing Ethnic Tensions in Malaysia”, American Behavioral Scientist, Vol. 47(3), November 2003, p. 244. 22 Patterns of Discrimination and Inequality stitution requires the King of Malaysia to “safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the le- gitimate interests of other communities”. He is also required to reserve for the as “Bumiputera”, even though the latter term has no legal meaning) such pro- portionMalays and that natives he deems of any reasonable of the States of: of Sabah and Sarawak (often identified (i) positions in the public service (other than the public service of a State); (ii) scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government; and (iii) any permit or license for the operation of any trade or business as required by federal law, subject to the provisions of that law.39 Since its enactment, Article 153 has been extended to cover places in post- secondary education.40 Article 153 is supplemented by Article 89, relating to “Malay reservation” land, which is land reserved for alienation to Malays or to natives of the state in which it lies.41 The 1960s saw rising ethnic tensions and increasing challenges against the policy of according special status to the Bumiputera. There was a lack of con- sensus on the need for, and rationale behind, the policy. While some insisted ketuanan Melayu),42 others ral- the policy was justified by Malay supremacy ( 39 Federal Constitution of Malaysia 1957 as amended, The Commissioner of Law Revision, Malaysia, in collaboration with Percetakan Nasional Bhd, 2006, Article 153(2). 40 Ibid., Article 153(8A). 41 Ibid., Article 89(6). 42 See Wade, G., “The Origins and Evolution of Ethnocracy in Malaysia”, Asia Research Institute Working Paper Series No. 112, Asia Research Institute: National University of Singapore, April 2009, p. 33. 23 Washing the Tigers lied behind the idea of a “Malaysian Malaysia”.43 Ethnic tensions were exac- erbated by the perceived inter-ethnic economic inequality.44 These ethnic tensions culminated in the race riots of May 1969, following a dismal perfor- mance by the Alliance Party in elections and strong electoral gains by politi- cal opposition parties associated with Indian and Chinese minorities. Almost 200 (mostly Chinese) people were killed.45 Post-1969 governance in Malaysia was characterised by moves to redress the ethnic socio-economic imbalance that the government identified as the root cause of the 1969 riots. In 1971, Article 153 of the Constitution was implemented by the government in the form of the explicit and wide- ranging pro-Bumiputera policies in the New Economic Policy (NEP). The Policy broadened the scope of preferential treatment for the Bumiputera even further. The NEP was intended to be a temporary measure “to reduce and eventually eradicate poverty” and to restructure “Malaysian society to correct economic imbalance, so as to reduce and eventually eliminate the identification of race with economic function”.46 The key elements of the NEP were: ● Quotas for Bumiputera in admission to state universities and premier residential schools; ● Quotas in the granting of scholarships; ● Quotas for Bumiputera in public employment positions; ● A statutory share of 30% of corporate equity for Bumiputera; ● Bumiputera employment quotas in the private sector to ensure increase in the number of Bumiputera businessmen; ● Bumiputera quotas in the tendering of government contracts and business licences; 43 Ibid., p. 19. 44 See above, note 37, p. 230. 45 Minority Rights Group International, Malaysia Overview. 46 Government of Malaysia, Second National Plan (1971–75), 1971. 24 Patterns of Discrimination and Inequality ● Preferential treatment in the allocation of public low-cost housing; and ● Bumiputera discounts for the purchase of residential properties. In 1990, the NEP was replaced by the National Development Policy. While the two-pronged objectives of poverty eradication and economic restructuring remained, the 1990s saw discontinuation of some pro-Bumiputera measures through liberalisation of certain investment and education policies, for exam- ple in foreign equity ownership, and teaching of maths and science in English rather than Bahasa Malaysia. Today, preferential treatment of Bumiputera continues in land ownership, employment, business permits and licences and education, with the complete exclusion of some groups from participation in certain cases. Positive action is an important tool