This first section briefly examines the concept of "affirmative action" and some of the theoretical claims surrounding it. But Pitt's definition of affirmative action seems to emphasize equality of opportunity, that is, giving underrepresented candidates. Proponents of substantive equal opportunity would allow a range of affirmative action measures compared to a very restrictive formal model of equality.
Which programs and policies fall into the affirmative action category depends on the definition of the concept and the underlying form of equality.
III AFFIRMATIVE ACTION AND INTERNATIONAL LAW
Rather, they will have to demonstrate a need for protection in order to obtain the equal enjoyment or exercise of human rights and fundamental freedoms. International law thus permits, or rather mandates, "special measures" in order to achieve the equal enjoyment of human rights and fundamental freedoms.
IV MALAYSIA - THE BACKGROUND
Another key outcome of British colonialism was the mass underdevelopment of the infrastructure and industry outside the areas of resource extraction such as tin and rubber. Education was not an area the British emphasized except for the benefit of the Malay elite. This segregation was problematic for the long-term stability of the country because of the clear ethnic disparities and inequalities between Malays and non-Malays.
The Malaysian constitution is important in several respects: firstly, it is the supreme law of the country and secondly, the special position and associated provisions in the constitution provide the symbolic if not the legal force for the affirmative action policies that emerged from it. 107 These political parties included the United Malay National Organization (UMNO), the Malayan Chinese Association (MCA) and the Malayan Indian Congress (MIC).108 In 1954 the ethnic parties had united under the banner of "the Alliance", but because of the larger number of Malaysian voters, it was dominated by UMNO.109. The "special position" provisions were an important continuation of British policy in form, but they were adopted into the Constitution not because of the indigenousness of the Malays, but rather because of the extent of Malaysian underdevelopment.
The causes of riots are of course multifaceted and it would be simplistic to try to reduce the root cause to one factor. However, Malayan leaders focused on:. a) the failure of the "Treaty" which caused great discontent on all sides, and (b) the widespread economic difficulties of the Malays.120. The constitutional amendment meant that the "principle" of the special status of the Malays could not be questioned, but its implementation could.
V THE LAWS IN RESPECT OF AFFIRMATIVE ACTION IN MALAYSIA
Article 153 under the General and Miscellaneous section allows the Yang Dipertuan (Head of State) to: 130. This provision has a very wide discretion granted to the Yang Dipertuan Agong ~ is what he/she deems "reasonable". 131 The scope of application of Article 153 is rather narrow, as it is limited to certain fields of activity, and with regard to education, it only refers to scholarships, exhibitions and similar training. However, the 1971 constitutional amendment added Article 153 (8A), which specifically permits the use of quotas in higher education.132 Article 153 (8A) allows the Yang Dipertuan Agong to reserve any quotas he deems reasonable in higher education institutions. for Malays and other natives.
34;134 However, both Article 153, para. 2 and Article 153, subsection 8A, Article 8 expressly subject its provisions to the phrase "Do not resist anything in this Constitution" which precedes the two provisions.135. Article 153 (8A) may state "Notwithstanding anything in this Constitution", but it is against the provisions of Article 12 to actually deny admission to any student of a particular race. Article 153 (8A) allows some of the places to be reserved for Malays to help them get places in specific courses where the number of Malays was small.137 In case of.
Article 153 is entrenched and there is no mechanism other than the courts to challenge it. Domestic laws in Malaysia relating to higher education certainly allow for affirmative action and indeed under the Constitution it is for an indefinite period of time. There appears to be little legal restriction on this power, however it is important to remember the spirit of the Constitution and Article 153; that it was a transitional arrangement designed to achieve equality.
VI HIGHER EDUCATION
The new economic policy, specifically in terms of education, has witnessed increased spending by the government in expanding universities and in the development of Bumiputra-only facilities. It is certainly debatable whether these institutions violate the right to education (free from discrimination in access) under Article 12 of the Constitution or the right to equality under Article 8. 150 This trend in the 1970s has led to the revival of independent Chinese high schools and to send children abroad for higher education.
The government refused to give approval to the establishment of the university, which was to use Chinese as the medium of instruction. Social utilitarian rationales for affirmative action theories argue that the benefits of affirmative action lie in the concepts of diversity and role models. There is actually greater diversity due to the increased number of Bumiputra students in higher education.
Another positive outcome postulated by affirmative action advocates in Malaysia is the relative political stability in the country. Another possible consequence of the kind of large-scale affirmative action policies in higher education that Malaysia has implemented (especially in light of the Merdeka University controversy) could be the increase in ethnic tensions, alienation and resentment that non-Bumiputra feel. There is certainly little "integration" or ethnic understanding created in the context of a segregated education system.169 However, many non-Bumiputra from upper and middle class backgrounds have managed to find an alternative route to higher education, which may have offset some of the ethnic tensions and costs to government and society.
VII MALAYSIA AND INTERNATIONAL LAW
In III. part I examined the implementation of CERD in New Zealand domestic law under the Human Rights Act. 34 "international" norms on human rights is the tension between the concepts of universalism and cultural relativism. In recent years, the issue of "Asian values" and human rights has come to the fore on the international stage.
Malaysia is not a party to any international human rights covenants, although Mahathir has recently proposed revising the Universal Declaration of Human Rights and other key United Nations documents.197 Underlying Malaysia's refusal to comply. 34;international norms" is the belief that these norms were established by Western imperialists and represent only a certain view of human rights that does not take into account the uniqueness of each country.198 Malaysia justifies its restrictions on political freedom on the grounds that western ideas of democracy and freedom would undermine political stability and therefore economic development.195 The conununitary nature of "Asian values" is clear in another of the preambular statements: "The people of ASEAN recognize that human rights have two mutually balancing aspects; .
Malay leaders would argue that Western ideas about human rights do not take into account the difficulty of managing issues of ethnicity in an underdeveloped country. The difficulties that developing countries would face in ensuring "the full enjoyment of human rights and fundamental freedoms" were recognized by the Commission on Human Rights in its draft CERD debate. And indeed, from a culturally relativistic perspective, one could maintain a tenable argument that "international human rights" norms are not necessarily appropriate for a country like Malaysia, especially at the time of independence.
VIII CONCLUSION
IX APPENDICES
APPENDIXB
APPENDIXC
APPENDIXD
8A) Notwithstanding anything in this Constitution, where in any University, College and other educational institution providing education to Malaysian Certificate of Education of 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 study are less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this section to give such directions to the authority as may be necessary for the reservation ensure such proportion of such placed 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 must properly comply with the directives. In this section, the expression "natives" in relation to the State of Sabah or Sarawak shall have the meaning assigned to it in section 161A. 10) The Constitution of the State of any Ruler may make provision corresponding (with necessary modifications) to the provisions of this Article. Source: LA Sheridan and HE Groves The Constitution of Malaysia (Malayan Law Journal Pte. Limited, Singapore.
APPENDIXE
APPENDIXF
APPENDIXG
X BIBLIOGRAPHY
A Bloch "Minorities and Indigenous Peoples" in A Eide et. eds) Economic, Social and Cultural Rights (Martinus Nijhoff Publishers, Dordrecht, 1995) 309. AM Johnson "Defending the Use of Quotas in Affirmative Action: Attacks on Racism in the 1990s U. RLM Lee "Symbols of Separation: Ethnicity and Status Politics in Contemporary Malaysia" in RLM Lee (ed.) Ethnicity and Ethnic Relations in Malaysia (Center for South East Asian Studies, Illinios, 1986) 28.
WF Menski "The Indian Experience and Its Lessons for Britain" in B Hepple and EM Szyszczak (eds) Discrimination: The Limits of Law (Mansell Publishing Limited, London, 1992) 300. C Muzaffar "Ethnicity, Ethnic Conflict and Human Rights in Malaysia" in CE Welch and VA Leary (eds) Asian Pen, Pectives on Human Rights (Westview Press, Boulder. CJ Nan "Adding Salt to the Wound: Affirmative Action and Critical Race Theory". eds) Economic, Social and Cultural Rights (Martinus Nijhoff Publishers, Dordrecht, 1995) 189.
G Pitt "Reverse Discrimination Justified" in B Hepple and EM Syszczak (eds) Discrimination: The Limits of Law (Mansell Publishing Limited, London, 1992) 281. Z Tzannatos "Reverse Discrimination in Higher Education in Malaysia· Has it reduced inequality and at what cost to the poor International Journal of Educational Development, 177. United Nations The United Nations and Human Rights United Nations Department of Public Information, New York, 1995).
LAW LBRARY
