Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

• Social contract explained
• Priority is to attract the youths
• Delving into the ‘social contract’

©The Sunday Star (Used by permission)
by Shaila Koshy

In the second part of a two-part series on the ‘social contract’, Sunday Star speaks to a political scientist, a law professor and a constitutional lawyer on the history of the inter-ethnic bargain and what it means.

PUBLIC debate on the “social contract”, ketuanan Melayu and Article 153 of the Federal Constitution has been heating up, and there are also calls for the “social contract” to be taught to young Malaysians. How do we do this when most Malaysians, including politicians, don’t know how far back the inter-ethnic bargain went? Or what the final “bargain” was? Or whether the contract is carved in stone?

History shows the “terms” of the “social contract” have changed through political means and by the judiciary on cases related to Islam and conversion.

University of New South Wales Emeritus Prof of Sociology and Anthropology Clive S. Kessler, in the book Sharing the Nation, points out that the role of the Malay language has shrunk from what was intended in 1957.

But then, Malay special privileges have expanded beyond what was agreed; and there has been a slow overturning on the question of the secular nature of the state and status of Islam as the official and emblematic religion of Malaysia.

Sunday Star speaks to senior Malaysian political scientist Dr Mavis C. Puthucheary, International Islamic University law professor Dr Abdul Aziz Bari and senior constitutional lawyer Tommy Thomas for their take on the history of the inter-ethnic bargain and what it means.

THE first effort at inter-ethnic bargaining was undertaken by left-wing leaders, says political scientist Dr Mavis C. Puthucheary.

The coalition of Malay left-wing parties called Pusat Tenaga Rakyat (Putera) and non-Malay parties called All-Malaya Council for Joint Action (AMCJA) drafted the People’s Constitution in 1947.

Dr Puthucheary says that the People’s Constitution incorporated agreements on nationality and citizenship, a system of parliamentary democracy and that the new state be symbolically identified with Malay culture.

“But this was rejected by the British and Malay traditional elite as well as Umno. For Umno leaders, the object of the Malay struggle was to uphold Malay primacy.”

Bowing to Malay pressure, she says, the British withdrew the Malayan Union which had attempted to lay the foundations for citizenship.

“Under the ensuing Federation of Malaya Agreement, citizenship for non-Malays was very restricted.”

Of greater significance, she notes, was the fact that the agreement included a clause charging the colonial government with the responsibility to safeguard “the special position of the Malays and the legitimate interests of the other communities.”

The question still being asked is whether the moral weight of a “special position” is greater than or equal to that of “legitimate interests”.

With the many advantages in their favour, she says Umno had no incentive to negotiate terms of co-operation with non-Malay leaders.

“It was only in the municipal elections that it was forced to seek out MCA because the Chinese and Indians were the majority in urban areas.”

And so an informal pact was institutionalised with the formation of the Alliance in 1953, says Dr Puthucheary, who wrote on the “social contract” in Sharing the Nation.

“The first public document incorporating some points of agreement was the 1955 Alliance Election Manifesto.”

Since MCA had agreed to the 1955 elections before the issue of citizenship was resolved, she says, the manifesto stated that that question would be for the independent commission set up to draft the constitution.

The commission chose to go with the Alliance’s recommendations on the matter but it was concerned about the potential conflict of group rights over individual rights.

As such, it recommended that privileges for the economically disadvantaged Malays be reviewed regularly and withdrawn if no longer necessary. But the Alliance government rejected this, she adds.

Hence, Article 153 in the Federal Constitution, which safeguards the special position of the Malays, also qualifies the principle of equality.

She stresses that Article 153 did not imply that Malay political dominance was recognised by the Umno’s non-Malay partners.

Re-engineering the inter-ethnic bargain

In the mid-1960s, Opposition parties won several local government elections.

Dr Puthucheary says this challenged the Alliance’s claim that the only way non-Malay opposition parties could participate in government was through its own unequal power-sharing formula.

The 1969 riots gave the opportunity to re-engineer the terms of the inter-ethnic bargain, she adds.

“Most non-Malays regarded the New Economic Policy as going beyond the original scope of privileges to Malays but they accepted it for the same reason they had accepted the earlier privileges – to close the economic gap.”

While no one has a real definition for “social contract”, she says, it has been used to refer to the Alliance’s inter-ethnic bargain and Article 153.

She feels that linking the “social contract” to Article 153 is dangerous because it allows those in power to define it according to their preference.

She notes the term “social contract” was first used in 1986, by Tan Sri Abdullah Ahmad – then Umno MP for Kok Lanas – to argue the NEP was part of the “social contract” and so a “done deal”.

Having declared the bargain to mean that ketuanan Melayu was part of the founding constitutional bargain, Dr Puthucheary says, he then warned non-Malays that any attempt to break it would not be tolerated.

However, the recently published biography of Tun Dr Ismail Abdul Rahman confirms that the “special position” of the Malays in the Constitution was only “a temporary measure”.

Dr Puthucheary says the “social contract” idea has become a useful political tool, with both Malays and non-Malays invoking it to advance their own notions of the bargain.

Instead of making calls to uphold the “Malaysian social contract” as binding, she says it would be more useful to understand the term’s evolving meaning and use in Malaysian history and politics.

The proof of a change in the people’s understanding in wanting to move away from race-centric policies and to a needs-focused administration was in the last general election.

As new allies in the municipal elections in the 1950s, Umno and MCA beat ideologically based non-communal parties such as the Radical Party and the Labour Party of Penang and the Independence Party of Malaya. This time, they suffered huge losses to the almost-non-racial coalition of PKR-DAP-PAS.

SENIOR constitutional lawyer Tommy Thomas understands “social contract” to be a social compact or bargain reached by the three communities under the watchful eye of the British.

He agrees “social contract” is not a precise term, with no acceptable or agreed definition.

He sees it as a quid pro quo: “In exchange for a place under the Malayan sun with full citizenship and a right to use their language and observe their religion, non-Malays had to concede special privileges to the Malays to help the latter climb the economic ladder.”

He says this did not relegate non-Malays to second class citizens.

“Citizenship was not on a two-tier basis and there was going to be no apartheid, partition or repatriation.

“Racial differences were recognised. Diversity was encouraged. There was no pressure to integrate into one Malayan race. Assimilation was out of the question.”

He describes the “social contract” as a charter of protection for the minorities and a Bill of Rights for the majority.

“There is no constitutional reason why the Malays should have a superiority complex and the non-Malays an inferiority complex.

“All Malaysians are entitled to be treated as Malaysians under the Constitution; that sums up the social contract.”

Thomas identifies the key social contract provisions in the Federal Constitution as Articles 3, 4, 8(1), 8(2), 11, 12, 14-31, 152, 153, 159(5) and 161-161(H).

Guardian of the Social Contract

Thomas says the Alliance Government held itself out as protector of the “social contract.”

However, power sharing in the Alliance did not mean partnership of equals as Umno was dominant from the start and the MCA and MIC were junior partners.

Thomas says the “social contract” was threatened by several events in the early years but the greatest challenges were in the 1990s:

*THE introduction of Islamic values into public institutions;

*THEN Prime Minister Tun Dr Mahathir Mohamad’s declaration in 2001 that Malaysia was an Islamic State;

*THE creeping in of Syariah jurisdiction and the abdication of duty by the common law courts in conversion cases; and

*THE keris kissing at the Umno Youth assembly.

Thomas says the March 8 election result was an indication of what voters thought of the threats.

“But a lot has to do with the non-Umno communal parties which allowed Umno to trample on them.

“The Opposition only had to rely on support which transcended race, religion, gender and age to gain such substantial increases.”

The MCA and Gerakan now face a test in Parliament with regard to the Internal Security Act (ISA) after calling loudly for its review.

“The Opposition is petitioning for a discussion of the ISA. Only one Barisan MP has signed the petition.

Stemming the erosion of the “social contract”

From its establishment in 1952 to contest the Municipal Elections of Kuala Lumpur, Thomas says the Alliance was never a partnership of equals. He notes it was in implementing the NEP that excesses occurred.

“The greatest abuse is the Approved Permits for motor vehicles and the 5% discount for bumiputera housebuyers. Both are discriminating and outside the scope of Article 153.

“The policy that requires a 51% equity stake by Malay partners in a law firm before it can be on a bank’s panel of solicitors is outrageous in both business and legal terms.”

On recent suggestions that the “social contract” be taught to young Malaysians, Thomas says: “I would rather we don’t teach it than teach it badly, in a partisan way or take the parts in isolation.

“Until we can write it in a fair and objective way, only then should it be taught.”

THE term “social contract” in Malaysia is different to that in social science but does involve a quid pro quo, says International Islamic University law professor Dr Abdul Aziz Bari.

Was the re-branding of the Alliance’s inter-ethnic bargain to “social contract” to legitimise the Umno-led government’s policies?

Dr Abdul Aziz says that politicians, especially from Umno, use the term for their own gain and narrow interests.

“To the non-Malays, I think the term means they should be accorded all the rights they are entitled to as citizens.

“It is sad to see the Hindraf people being demonised by the Government. This is a clear and blatant denial to a group of citizens.

“Similarly, in line with Article 152 of the Federal Constitution, non-Malays should be given assistance in teaching their native language.

“The position of Malay as the national language does not mean it denies the minorities their heritage and culture.”

He adds that the same principle should be applied to temples and burial grounds.

“The social contract is not ketuanan Melayu or Malay supremacy, meaning the Malays are masters and others are subordinates.

“Islam, the Malay language and the monarchy are simply the heritage and identity of the country, just like the English language and the monarchy in the United Kingdom.

“Obviously there should be only one identity to represent the nation and this is normally selected on the basis of history.”

With so many interpretations of “social contract”, how does one measure the value of a policy?

He says Umno has failed to deliver: “After more than 50 years we are still stuck in the mud.

“Malays should no longer expect special treatment from the Government which should be looking after everybody, especially the taxpayers.”

Dr Abdul Aziz says the present generation should understand the “social contract” but should not be expected to carry the old baggage.

“Even the young Malays, I think, are not interested in this and it does not make any sense to them. Only those in Umno.

“I notice those in PKR or PAS do not talk about this but they are more confident and willing to work with their non-Malay friends.”

He says the Pakatan Rakyat government in Penang so far has done what they can to make sure that everyone, especially the Malays, gets what he is entitled to.

Comments (1)

Subscribe to this comment's feed