Monday, November 25, 2013

ON "MRSM as SUCCESSFUL FAILURE": A QUESTION of CONSTITUTIONALITY?

ON MRSM as 'SUCCESSFUL FAILURE':
A QUESTION on ITS CONSTITUTIONALITY

"was MARA's MRSM set-up unconstitutional? "

A well-respected, and nationally-reknowned lawyer and columnist good friend of mine Art Harun had recently provided this piece of information (via a threaded discussion) on the setting up of MARA Junior Science Colleges:

1) " ... Actually Doc, the MRSM is unconstitutional If it is a government initiative. Why? Because under article 153, the government, through the King, can only give preference to the Malays and the natives from Sabah & Sarawak, in areas concerning education AFTER MCE/SPM. I subscribe to affirmative actions being a necessary evil in order to elevate the economics status of the poor and rearrange the society into a more balanced economical sphere. But it must be done properly and fairly. .."

2) " ... Doc, just fyi:

(8A) Notwithstanding anything in this Constitution, where in any University, College and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the University, College or such educational institution to candidates for any course of study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable, and the authority shall duly comply with the directions. ... "

3) " ... Putting it simply Doc - where any learning institutions providing education ABOVE MCE level, has less places offered than the number of qualified students, The King may reserve places for Malays/natives of Sabah & Swak in reasonable proportion. "

4) Article 153 in detail

Special position of bumiputras: In relation to the special position of bumiputras, Article 153 requires the King, acting on Cabinet advice, to exercise his functions under the Constitution and federal law:

(a) generally, in such manner as may be necessary to safeguard the special position of the Bumiputras[23] and

(b) specifically, to reserve quotas for Bumiputras in the following areas:

positions in the federal civil service.
scholarships, exhibitions, and educational, training or special facilities.
permits or licenses for any trade or business which is regulated by federal law (and the law itself may provide for such quotas).
places in institutions of post secondary school learning such as universities, colleges and polytechnics.

Legitimate interests of other communities: Article 153 protects the legitimate interests of other communities in the following ways:

civil servants must be treated impartially regardless of race – Clause 5 of Article 153 specifically reaffirms Article 136 of the Constitution which states: All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.
Parliament may not restrict any business or trade solely for Bumiputras.
the exercise of the powers under Article 153 cannot deprive any person of any public office already held by him.
the exercise of the powers under Article 153 cannot deprive any person of any scholarship, exhibition or other educational or training privileges or special facilities already enjoyed by him.
while laws may reserve quotas for licences and permits for Bumiputras, they may not deprive any person of any right, privilege, permit or licence already enjoyed or held by him or authorise a refusal to renew such person's license or permit.

... .
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