©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.