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©The Nut Graph (Used by permission)
by Elizabeth Looi and Khairil Anhar

THE recent statement released by the Conference of Rulers on the social contract has generated much discussion.

Among others, the statement emphasised the provisions in the Federal Constitution that make up the social contract. The rulers also announced that "it is not proper to dispute and question this social contract, and more so to subject it to a review or change because it is the primary basis of the formation of Malaysia."

Although the rulers referred to Article 153 of the Federal Constitution, which they said encompasses the protection for all ethnic groups, many are still questioning the real definition of the social contract. Some see it as a mutual agreement among our forefathers in order to achieve independence, while others feel it is a concept that protects the rights and privileges of the Malays in the Constitution.

(Article 153 of the Federal Constitution grants the Yang di-Pertuan Agong responsibility for safeguarding the special position of the Malays and other indigenous peoples of Malaysia, and the legitimate interests of all the other communities. It specifies how the Agong may protect the interest of these groups by establishing quotas for entry into the civil service, public scholarships and public education.)

But academician Dr Mavis Puthucheary says nobody knows the real definition of the social contract. It is sometimes used to refer to "the inter-ethnic bargain" by the leaders of the parties in the Alliance coalition; but at other times, it is used to refer to Article 153.

"Nowhere in the Constitution is there any mention of a social contract. We need to challenge those who link the notion of a social contract with Article 153 in order to justify the symbolic affirmation of ketuanan Melayu," she tells The Nut Graph.

Puthucheary feels the rulers merely defend the social contract without attempting to define it. "I would say they have defined it in exactly the same way that Umno politicians have chosen to" — that is, linking it with Article 153, which allows those in power to define it according to their preference.

Puthucheary, an associate senior fellow at Universiti Kebangsaan Malaysia's Institute of Malaysian and International Studies, says that by doing this, citizens are denied the right to challenge such definition, and risk being charged under the sedition laws.

Explaining the historical context of the contract, Puthucheary says the term was "first used in the Malaysian context in the 1980s by Umno politicians. It was soon picked up by other politicians, both in Umno and the MCA, but with different meanings and in different contexts."

Given the current situation, "it is significant that the social contract is an Umno invention to serve an Umno agenda. This means that it can be defined in a way that gives it a strong ethnic edge," she says.

No physical contract

Puthucheary is not the only one who is concerned about the linking of the social contract to Article 153. Parti Keadilan Rakyat deputy president Dr Syed Husin Ali says he does not know when and how the term "social contract" first emerged; but as far as he knows, it was not used by those who formulated the Federal Constitution.

"The various issues in the Constitution related to the 'social contract' were agreed upon only by leaders in the Alliance then, and did not involve consultations with other parties and groups," he says, adding that the Malay rulers did not define the social contract in their recent statement, and merely stressed that Article 153 was the product of many discussions.

So, is there really something called the social contract in the Constitution? If so, what exactly is it?

Lawyer Shaikh Saleem says there was no real, physical "social contract", but there is an idea or accepted understanding based on the special position of the Malays in the Constitution.

"Herein also lies the problem," he says. "The scope is being continuously extended that it even prevents any party commenting on the injustices and abuses that are being perpetrated under the guise of 'enforcing' this social contract."

Universiti Teknologi Mara's professor of law Dr Shad Saleem Faruqi defines the social contract as the practice of give-and-take and tolerance among Malaysians, as compared with its definition in political science, which is about the relationship between the government and the people.

Under threat?

Shad agrees with the rulers that the social contract is under threat, saying it has been so for the past 10 to 15 years, but the situation was well under control then.

"During the 1990s, Tun Dr Mahathir's leadership was very strong; he was able to keep disputes in check and create the feeling that everyone had a stake in the country's future.

"The social contract has to be understood by reference to its origin, its method of formulation, and its painstaking compromises. The Constitution was not a populist document.

"But sadly today, there are certain sections of the leadership that are prepared to look the other way when a silent re-writing of the Constitution and an informal reviewing of the social contract is taking place," he says.

On the other hand, Syed Husin and Shaikh disagree that the social contract is under threat.

"Threatened by whom? Any significant group threatening it? I am convinced the majority of people accept the Federal Constitution," says Syed Husin.

Shaikh says no one is questioning the main crux behind the social contract — the special position of the Malays in the Constitution — but rather the implementation of the policies derived from it.

"There is a distinction here. The 'social contract', if implemented with policies that are true to the intention of its formation, would not lead to inequities and dissatisfaction," he explains.

He says the intention of the forefathers in formulating the core base that gave birth to the term was noble. The social contract was created to entrench and safeguard the rights of the Malays, with the intention of addressing the disadvantages they then faced.

"However, in the last 20 years, there was a slow and continuous move away from the true intention of the social contract. It is being used to justify mismanagement, abuse, and the unjust enrichment of certain quarters. This has lead to the creation of a new class of nuevo rich political elites, or bangsawan class, who proclaim to be the 'guardians' of the social contract for their own self interest. This was never the intention of the social contract," Shaikh explains.

A subject for public discussion

Despite these varying opinions, there is general agreement that the subject should be open for public discussion. In a news report on 21 Oct 2008, Umno vice-president Tan Sri Muhyiddin Yassin said nobody should question the subject, but it should be taught in universities. The Sultan of Perak also said as much in a Bernama report on 22 Oct.

However, Syed Husin feels it would not be wise to introduce the subject in the university curriculum, as the syllabus could become biased, following only the interpretation by the government of the day. That said, he is against any ban on discussing the Federal Constitution or any of the articles, and says responsible and rational closed-door discussions should be allowed and encouraged.

"We should not stop responsible intellectual or academic comments and discussions on the social contract," Syed Husin says. "The lay people should not be denied this freedom, too. But because the issue appears to be sensitive now, public discussions or discourse may need some constraints."

Tan Sri Ramon V Navaratnam, chairperson for the Centre for Public Policy Studies (CPPS), believes that although the social contract must not be questioned, there should be honest discussion on any wrongful interpretation and implementation of it.

"It would be relevant to review the implementation of the social contract. This is to ensure that all Malaysians, especially the poor and underprivileged rakyat, benefit much more significantly from the ideals of the social contract as it was originally envisaged.

"This review could then lead to improvements in the better implementation of the social contract to enhance national unity for all Malaysians, regardless of race or religion, in the long-term interests of and for a brighter Malaysia," says Ramon in a statement released to the media.

Shaikh, too, agrees that the core base of the social contract must not be disputed, but the implementation of the policies based on it must always be revisited and reassessed. He points out: "Our forefathers were not soothsayers in that they could predict what the country would be like 50 years later."

Shaikh feels there is a lack of knowledge of the depth and breadth of the social contract among the public, including political leaders, and says discussions must be held behind closed doors and with sensitivity.

But, he says, constitutional literacy must first be improved. "The discussion should be among informed people who have knowledge and understanding of history; who have the capacity to listen and who are capable of accommodation and compromise," he argues.

As long as the definition remains vague, there will always be those who try to hijack the social contract for their own purposes. But without discussion, be it in the public sphere or behind closed doors, there is little chance of preventing this.

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