synopsis
This dissertation examines the erosion of minority rights in Malaysia through the
implementation of special measures in favour of the majority Malays. This dissertation
will consider the appropriateness, effectiveness and legitimacy of these special
measures under cunent international law standards. This involves a comparison of
Malaysia's constitutional, legislative and statutory provisions with international
principles of customary and treaty law, and applicable regional declarations. This
dissertation will conclude by recommending appropriate policy and legislative reform,
if such measures are found to be appropriate in the circumstances.
Preamble
Malaysia achieved independence fiom Britain on 31 August 1957. The Merdeka
Independence Proclamation declared that the nation was to be 'founded upon the
principle of liberty and justice and ever seeking the welfare and happiness of its people'.
Insightful words for a nation built upon by racial, cultural and religious separatism, as
the term 'its people' was presumably meant to encompass both the majority Malays as
well as all ethnic minorities.' Unfortunately, the sentiment expressed in the Merdeka
proclamation was marred by ethnic polarisation and its resultant ethnocentric legal and
political system.
The reasons for this will be explored in chapter one, which considers Malaysia's
historical and cultural development and the eventual mass pluralisation of Malaysia
without a unifying national identity. An understanding of the formation of Malaysia's
cultural hegemony, and its subsequent ethnic polarisation, is required to appreciate the
current status of Malaysia's ethnic minorities. Part A will consider in detail the
preferential policies in favour of Malays introduced by the government following the
1969 race riots and the resulting effect this had on the economic, social and cultural
rights of non-Malays. The introduction of these policies also led to the implementation
of race based quota systems in the education, employment and business sectors.
Correspondingly, the socio-economic position of non-Malay minorities have been
affected. The legal implications of these policies are discussed in the proceeding
chapters and the reasonableness of these policies will be measured against international
law standards.
To undertake this assessment, Part B discusses the role of international law and
examines its implications to Malaysia. It should be noted fiom the outset that although
Malaysia is a member State of the United Nations, it has elected not to ratify significant
human rights treaties. Given this, chapter two considers the role of customary law as a
part of international law and its implications to the observance of fundamental human
rights. This chapter aims to establish that Malaysia as a member of the United Nations,
and by virtue of customary law, is bound to recognise fundamental human rights.
As this dissertation discusses Malaysia's observance of minority rights at international
law, part C examines the availability of fundamental human rights to Malaysia's
minorities. Part C reconciles Malaysia's pro-Malay preferential policies with minority
rights and considers whether minority rights in Malaysia have been eroded through such policies pursuant to international law standards. Chapter four determines whether the
language rights of Malaysia's non-bahasa speakers, who also constitute the ethnic
minorities, are recognised and protected by Malaysia's national language policy. This
chapter also assesses the impact of Malaysia's national language policy and planning on
the education and employment rights of non-Malays given the introduction of language
based quota systems in both sectors. Chapter five examines the role of Islam in
Malaysia and considers the extent of religious freedom available to non-Muslims in
Malaysia Chapter six deals with Malaysia's restrictive laws and how these laws were
relied on to revise and modify Malaysia's legal system and policies to benefit Malays
whilst simultaneously impacting on the civil, political, economic, social and cultural
rights of non-Malay minorities. Chapter six also considers the potential risks associated
with the government's continued reliance on these restrictive laws to 'control' interethnic
tensions.
On the assumption that Malaysia has breached relevant international law standards in
some instances, part D recommends possible methods of legislative and policy reform
which may be adopted by the government to remedy these breaches. Part D is the
concluding chapter of this dissertation. In concluding, this dissertation examines the
impact of ethnic divisions on social and political policies in Malaysia and considers the
extent of government intervention in the economy based on race which has ultimately
impacted on the protection and implementation of minority rights in Malaysia. It is the
writer's opinion that the source of ethnic conflict lies within the introduction of legal
doctrines which are purposellly detrimental to the rights of minorities. Accordingly,
the concluding chapter recommends reforms to Malaysia's legal system and policies to
rninirnise the risk of an eruption of inter-ethnic tensions.
The aim of this dissertation is to demonstrate that Malaysia's politicisation of competing
ethnic interests has resulted in the maintenance of preferential policies detrimental to
minority rights and contrary to international law.
| Identifer | oai:union.ndltd.org:ADTP/221840 |
| Date | January 2004 |
| Creators | Tania Jeyamohan |
| Publisher | Murdoch University |
| Source Sets | Australiasian Digital Theses Program |
| Language | English |
| Detected Language | English |
| Rights | http://www.murdoch.edu.au/goto/CopyrightNotice, Copyright Tania Jeyamohan |
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