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Mohd Nazim Ganti Shaari Paragraph 5 of the 1st Schedule to the Universities and University Colleges Act (UUCA), in which both provisions guarantee against racial or religious discrimination in tertiary education in Malaysia. Furthermore, Article 153(2) uses the word "proportion": 153(2): Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di- Pertuan Agong shall exercise his functions under this Constitutions and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion 34 as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or license for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licenses. The necessary implication from the word "proportion", as used above, is that a number of seats may be reserved for said beneficiaries in positions of public service, placements in universities and scholarships. The use of "proportion" cannot be understood so as to allow the total exclusion of the non-bumiputera students. Also, when Clause 2 of Article 152 is read alongside of Clause 9 35 of the same article, the understanding that reservation does not mean the total expropriation by one particular group to the total exclusion of the others becomes clearer. Many have been quick to defend the status of UiTM by pointing out the existence of the private universities and colleges, presumably owned and controlled by members of other ethnic groups. The main issue here is the suspicion as to why the spotlight should be on UiTM, given that there are scores of other educational institutions that are allegedly predominantly controlled by other groups. What many have chosen to ignore here is that, unlike UiTM, such educational institutions do not bar the entry of any person. Pursuant to the principle of generalia specialibus non derogant, 76 36 it may be possible to justify this dichotomy, hence defending this state of affairs on the basis of being a special case whereby UiTM is an exception to the general rule. UiTM was not created under the UUCA umbrella. It was created by its own Act,
Wither the Bumiputera Identity of UiTM? the Universiti Teknologi MARA Act of 1976. Furthermore, the right to equality is not an absolute right. It can be denied upon the fulfilment of two conditions. First, there must be a specific reason for the discrimination. Second, there must be a nexus between the Act and the reason for the classification. UiTM's status quo fulfils both conditions. Be that as it may, it does not change the fact that the reasons for the special classification have been compromised by the attendance of foreign students and students from affluent families. Can this special setup be protected under the principle of acquiescence? One could argue that there has been an implied acceptance because there is no legal challenge mounted against the structure of the institute/university from the time of its inception until today. This argument needs to be viewed in light of the injunctions contained in the Sedition Act, which could likely explain the refusal of any person to challenge the constitutionality of this setup. In addition, it has also been argued that while this arrangement cannot be seen as a form of quota on the micro level, it can certainly be seen as a form of quota on the macro level 37 when taking a holistic view of Malaysia's socio-economic reality. However, this approach is also ambiguous. More pertinently, it begs the question as to what the socio-economic reality of the country really is. The problem with affirmative action is that it is susceptible to abuse by elite members of minority groups. In theory, minorities are supposed to be the beneficiaries of such policies, though in reality the benefits are often monopolised and squandered by the elite members of the minority group. In the case of the special treatment for the bumiputera in Malaysia, many have argued that the system has been abused by politically and economically powerful elites and those connected to them. Derogatory phrases such as "UMNOputra" 38 have been coined to condemn the unscrupulous elite for using their political connections to amass personal wealth at the expense of the genuinely poor bumiputera. For instance, an explanation has been demanded from the government regarding the missing RM52 billion worth of bumiputera shares: Out of the RM54 billion worth of shares that were allocated to them, only RM2 billion remain in the hands of the bumiputera. 39 It is clearly wrong to label the attacks on the misuses and abuses of the system as attacks on the Malays/bumiputera, as concern for this issue transcends the ethnic divide. 40 Although affirmative action policies are also carried out in India for the benefit of the "backward classes," such policies are not carried out without first examining the true status of the beneficiaries. In the case of Balaji v. Mysore AIR 1963 SC 649, the Court held that the element of caste was not the sole criteria of "backwardness" in determining eligibility for the benefits of affirmative action policies. The Court was of the view that other factors should also be taken into 77
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