| Spirit of the Social Contract |
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| Friday, 02 November 2007 08:57am | |
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The background to the social contract underpins the Federal Constitution was the subject of a highly pertinent paper presented by noted lawyer Tommy Thomas (pix) at the Malaysian Law Conference in Kuala Lumpur this week. Below are excerpts of the paper. Malayan Union “In a minute dated Sept 6, 1945 by H T Bourdillon, an Assistant Secretary in the Colonial office, discussed the proposed visit of Sir Harold MacMichael to Malaya, and ‘the simple annexation of the state’ was among the measures that the British Government would consider adopting to enforce their Malayan Union policy if any Sultan opposed it.” *** Obstacles to Independence “A popular myth, invariably fuelled by critics of Tunku Abdul Rahman, was that independence was granted to Malaya on a ‘golden platter’, and that there was in fact no real struggle for independence which was thrust on lackeys by a colonial empire on the retreat. The origin of this theory was the throwaway remark by Sir John Marten, a senior British civil servant in January 1955 when he met the Alliance delegation at London airport, ‘No, we are going to give it to you on a golden platter!’ to a query by Tunku: ‘are you going to make things difficult for us?’ British Objectives “The Labour Party, once elected in 1945, embraced empire with all the enthusiasm of the converted, despite its long-proclaimed opposition to imperialism. Thus, during the Atlee administration, there followed what has been termed the ‘second colonial occupation’. On April 13, 1949, Atlee stated to the House of Commons: ‘HMG have no intention of relinquishing their responsibilities in Malaya, until their task is completed ...We have no intention of … a premature withdrawal.’” *** “The ‘loss’ of India gave prominence to other, formerly less significant colonies, with Malaya becoming one of the crown jewels. She was a source of vital resources like rubber and tin and contributed to the hard currency pool through her dollar earnings. The British thus did not return to Malaya in 1945 ‘to collect butterflies’”. The Alliance “The next electoral test was the elections in July 1955 for
52 seats on the Federal Legislative Council. Umno demanded a lion’s share of the
constituencies. Tunku opposed it, calling on Umno to be fair to MCA and to adopt
‘a policy of racial unselfishness’. Tunku recognised British vigilance,
declaring to Umno that if the first *** “Uppermost of Tunku’s priorities in the independence struggle was the need to demonstrate to the imperial power that the three major communities could live and work together peacefully after their departure. This was the greatest obstacle to independence. British divide and rule policy had to be overcome.” The Reid Commission “The greatest contribution of the Reid Commission was to accept the proposals and recommendations of the Alliance party, particularly with regard to the social contract, and thereafter to draft in elegant, clear and fluent language a model constitution for consideration by the British Government, the Malay Rulers and the Alliance Government. Posterity owes a debt to the five members of the Reid Commission.” The Dawn of Merdeka “As Merdeka loomed, Tunku made repeated references to the
social contract. Thus, in a Statement to the Straits Times Annual 1957,
published at the dawn of 1957, Chief Minister Tunku stated: ‘Malay nationalism
has merged with Malayan Nationalism. This began when Chinese and Indians who
were domiciled in Malaya Essence of the social contract “Thus, the Social Contract, social compact or bargain reached by the three communities under the watchful eye of the British imperial power prior to Merdeka was in essence that in exchange for a place under the Malayan sun with full citizenship, a right to use their language and observe their religion, the non-Malays had to concede special privileges to the Malays to assist the latter to ascend the economic ladder. It was a quid pro quo. In this equilibrium, the non-Malays were not to be relegated to second class citizens: citizenship was not on a two-tier basis and there was going to be no apartheid, partition or repatriation. What was required from the non-Malays at the time of Merdeka was undivided loyalty to the new nation. Racial differences were recognised. Diversity was encouraged. There was no pressure to integrate into one Malaysian race. Assimilation was out of the question. Thus, a united Malayan nation did not involve the sacrifice by any community of its culture or customs. Malaya was always to remain a plural society.” *** May 1969 riots: “The National Operations Council (‘NOC’) under Tun Razak appointed to govern the country on May 16 issued a report in 1969. Thus, the NOC Report states: ‘The entrenched provisions in the Constitution are the result of agreement between all communities in this country. They are the product of consultation and compromises. They represent binding arrangements between the various races in this country, and are the underpinnings on which the constitutional structure such as fundamental liberties, the machinery of government and a score of other detailed provisions are built. If these entrenched provisions are in any way eroded or weakened, the entire constitutional structure is endangered, and with it, the existence of the nation itself. It was the failure to understand, and the irresponsible and cavalier treatment of the extended provisions, that constituted one of the primary cause of the disturbance on May 13, 1969.’” The NEP “Yet in one form, or other, the NEP is still in existence, and is still controversial. As Malaysia has just celebrated its 50th year of independence, and 36 years of NEP, what would Tun Razak and Tun Ismail, its architects, have found in today’s Malaysia? As a result of the interventionist affirmative policies of the Government at all levels of society, there has perhaps been the greatest creation of wealth in the shortest span of time by peaceful means in the history of the world. Thus, the major element of the NEP, that is, economic restructuring by wealth creation has succeeded beyond expectations, and the late Tun Razak and Tun Ismail would have been very proud of the achievements of their successors.” *** “The NEP has also not succeeded in reducing poverty. The coming years should focus on reducing absolute and relative poverty, in particular that affecting the small ethnic minorities: Tamils, Orang Asli and native communities from East Malaysia. There are also pockets of Malay and Chinese poor. Poverty reduction measures should be race-blind, and should attract the concentrated attention of government applying ‘positive discrimination’ methods in line with NEP philosophy.” Threats to the Social Contract “If Members of Parliament and leaders of all political parties do not think, speak and act as Malaysians how can they expect the citizens to do so. Indeed, a case can still be made in 2007 that on a comparative basis, all the communities in Malaysia (the record is even more impressive in Sabah and Sarawak) co-habit in a peaceful manner. It is the politicians for their selfish purposes who ignite the racial flames from time to time.” Reaffirmation of the Social Contract “Recent incidents demonstrate that all races have to peacefully live and work together in a give and take atmosphere consistent with the social contract. What is urgently required is the reaffirmation of the Rukunegara, which recognises and accepts the multi-racial and liberal — democratic nature of Malaysian society.” Comments (1)
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Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
Where can I have a full copy of this Conference paper?
Chin Chon Yen