DELVING INTO THE ‘SOCIAL CONTRACT’

By SHAILA KOSHY

In this first of a two-part series, Sunday Star looks at the terms ‘social
contract’, ketuanan Melayu and Article 153 of the Federal Constitution
that have been the subject of public debate of late. Of the three, only the
last is articulated in writing, but are they interchangeable?

TAN Sri Dr Abdul Aziz Abdul Rahman, 75, retired as MAS managing director
in 1991 after 20 years there. He is currently legal adviser for the Malay
National Consultative Council. More important, the senior lawyer was legal
officer to the National Operations Council in the aftermath of the 1969
race riots. The following are excerpts of an interview with Sunday Star
where he shares his views on the ‘social contract’.

Abdul Aziz: 'I don't think the definition is important but what is attached to its
meaning'

>Many use the terms “social contract”, Article 153 of the Federal
Constitution and ketuanan Melayu as if they are one and the same. What
is your understanding of the three terms?

> The term “social contract” is something new. It didn’t appear in the
Merdeka talks and I never heard it used when I was involved in drafting
some of the laws when I was in the National Operations Council.

So I did some research. It is a term used by Western philosophers to

describe a political relationship between the state and civil society:
normally the state imposes obligations and in return it provides protection.

It has nothing to do with the various components of society. I don’t know

how that term came to be used here.

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 Hot topic: Newspaper clippings on the public
debate over the term 'social contract'.

> It appears Tan Sri Abdullah Ahmad was the first to use the term in a
speech in 1986 in Singapore. The speech was published in The Star on
Aug 31 of that year.

> In the 1980s, some politicians started using it. Over the years, from
what I’ve read, different people have different interpretations, depending
on their intentions.

Now, almost everyone accepts it to mean the bargain or compromise

between the three races when they submitted their memorandum to the
Reid Commission in asking for independence.

But if we look deeper, I am inclined to define it according to the original

thought. What aspect of the compromise among the three races, the
Malay Rulers, the British and minorities like the orang asli were of
concern?

There were a number of difficult issues when the Constitution was being
drafted. Among others, they were the separation of state and federal
powers, Islam and the freedom of religion, protection of the Rulers’
position, the powers of the Conference of Rulers, the national language
and other languages, and citizenship.

We can’t say these issues relate only to the three major races. We must
include the Malay Rulers and the British, and the minorities. If we want to
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define social contract, it must embrace all of these and not just the special
position of the Malays and non-Malay citizenship.

Today, everyone, including the Conference of Rulers, uses the term

“social contract”. Since everyone seems to have accepted it, then we
need to define it properly.

> Who should be working on this definition?

> I don’t think we can... it is evolving. Let the future generations evolve it
some more and then... Then again, I don’t think the definition is important
but what is attached to its meaning. Certain people have certain
objectives –then it becomes controversial.

> Is there a connection between Article 153 and the term “social
contract”, which has become the common label for the inter-ethnic
bargain?

> If you take “the social contract” as the inter-ethnic bargain, then yes.
According to the records, there was a bargain among the Malays and non-
Malays and Article 153 is part of this. But that does not mean that is the
social contract.

Before independence, there were nine Malay states and two colonies
(Penang and Malacca). Each Malay state was independent and sovereign
powers were vested in the Rulers. They were not colonies but
protectorates. In 1946, the British tried to form a unitary government
called the Malayan Union but it was abandoned.

Finally, the Federation of Malaya was formed; each state and individual
Ruler had sovereign power but certain powers were surrendered to the
High Commissioner. This has great significance: citizenship came under
the state as the people were the rakyat of the Ruler.

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When independence was negotiated the people were represented by
Umno, MCA and MIC. But who did they ask independence from? It was
from the British and the Malay Rulers (as sovereign rulers).

> Is that the basis for Article 153 which puts the onus on the Rulers to
safeguard the special position of the Malays and natives, themselves and
Islam as well as protect the legitimate interests of the non-Malays?

> If the Rulers did not agree to independence, it would never have
happened. Many have ignored this point and treat the Rulers as ordinary
people but they had sovereign rights.

In the negotiations – the main group was the people who were
represented by the political parties that prepared a memorandum for the
Reid Commission. The Rulers also prepared a memo on what they wanted.
The British also put a condition to granting independence: that there must
be peace and harmony and that all must be happy.

The Commission then prepared a draft but almost all parties had problems
with it. The Malays were very unhappy with the proposal to review Article
153 after 15 years. The non-Malays and the Rulers were also unhappy.

Because of this, a tripartite working party was formed to thrash out

matters related to citizenship, a time limit on Article 153, rights of the
Conference of Rulers and the right of Rulers to be head of religion in their
own states.

They had 28 meetings, I think. It comprised four representatives each for

the people (two Umno, one MCA and one MIC), the British and the Malay
Rulers.

One reason why Umno objected to a limit on Article 153 was because the
special position of the Malays was already embodied in Clause 19(1)(d) of
the Federation of Malaya Agreement 1948. It states there that the British

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High Commissioner shall safeguard the special position of the Malays,
which included a quota system. (See table for the 1948 quotas)

I, myself, was a beneficiary of a federal scholarship in 1953. I was from

Kelantan and my father was a Malay school teacher. I went to the then
University Malaya in Singapore. Some of my friends got state scholarships
to study locally.

Other races should accept these privileges because they have always
been there.

A lot of people misunderstand Article 153. It is an enabling provision for

the King, through the Government, to implement policies as reasonably as
possible. If they don’t, then throw the Government out!

You can’t question Article 153 but you can certainly question its
implementation. It was the intention of those who drafted this provision
that the government would be just. You must be just, you must be fair in
exercising your rights.

> Few make issue with giving a discount to housebuyers from segments of
society that are poor. What many object to is an across the board policy
for race rather than need. Why should a millionaire Malay get a discount
to buy a million-ringgit house?

> That shouldn’t be the case. I agree. The leaders should go through all
the policies and see which are unfair.

For example, if there is only one house and you and I apply for it. I am
poorer and a Malay so I should get the house. If there are two houses, you
also should get.

> But if we’re both poor and there is only one house?

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> Then the Malay gets the house.

> Some Barisan Nasional politicians equate questioning the

implementation of affirmative action policies to breaching the law which
prohibits questioning the special position of the Malays.

> It is all right to question the implementation. I say this because I drafted
that law, that is the amendment to the Sedition Act 1948. We did that in
1970 when I was the legal officer with the National Operations Council.

> So, it’s not a blanket ban?

> No. The leaders at the time did not intend it to be that way. Article 153
is very important; it was to reduce the economic gap between the Malays
and non-Malays.

> Do you think that if the affirmative action policies were implemented
properly, Malay equity would be higher than the 18.9% the government
claims it stands at now? That more Malays would have benefited?

> Yes. One of the policies that failed was UDA (Urban Development
Authority). I also drafted this law then. There was mismanagement. Then
the government privatised UDA and some Malays benefited. Look at
Pernas; that also failed but some people became rich. Many of the projects
under Mara also failed. Why? Because there was no proper management,
appraisal system or accountability.

The non-Malays became angry - why were the Malays given that? The
Malays were also angry because they got nothing. All these must be
looked into if we are to move forward.

> There are different understandings of ketuanan Melayu: some think it

refers to the special position of the Malays by virtue of coming to this land
long before the Chinese and Indians; others impute a notion of supremacy
where the Malays are first class citizens and others are second-class
citizens because they are from immigrant stock.

> There is no such thing as two-tier citizenship. That is nonsense!

Ketuanan Melayu is a concept, I think, that relates to the sovereign power

of the Rulers. It means kedaulatan Raja-Raja which translates in modern
times to constitutional monarchy.

In those days, the Raja-Raja and the Malays, as subjects, were seen as
synonymous and so when they came here this became Negeri Melayu. But
now this concept is transformed because we now have one nationality,
one citizenship.

> So is the view that one is better than the others political manipulation?
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> Ignorance, I think (laughing). Ketuanan Melayu is there but it is not
domination or supremacy but to give respect to the system of the
monarchy and the fact the Malays have been here a long time as rakyat of
the Rulers. Every citizen has the same rights, subject to the limitations
allowed by the Constitution.

> You have said previously that Article 153 has nothing to do with the
ideology of ketuanan Melayu; and that the New Economic Policy (NEP) was
a socio-economic policy for restructuring society and eradicating poverty
irrespective of race or religion that was introduced to give substance to
the Rukun Negara as a result of the May 13, 1969 race riots. You have also
said the NEP has no direct relationship with Article 153 except for taking
into consideration the spirit and intent of the special position of the
Malays and the natives of Sabah and Sarawak. Would implementing the
National Development policy - the NEP’s successor - on need rather than
race challenge ketuanan Melayu or Article 153?

> The main thing is that the Government should help the poor. If you have
limited resources, it should follow the quota in dividing those resources.

> Do you think that maybe in your grandchildren’s time, when resources
have been more equitably distributed, there will no longer be a need for
quotas?

> When wealth is equitably distributed, I’m sure the people who
implement it will take that into consideration. But I believe it will take a
long time.

The main thing is the government must have proper planning to ensure
bumiputera provisions are properly implemented so they get its benefit,
without interfering with the legitimate rights of the non-Malays. I’m sure it
can be done but there must not be bad management or corruption.

> Do you think the March 8 election result reflects the public’s rejection of
race-based policies?

> I’m not so sure but I know people were fed up with cronyism and
corruption. They wanted a change from Barisan Nasional, to see whether a
new group can be any different.

Ketuanan Melayu does not mean Malays dominate non-Malays. That is

ridiculous. We have a constitutional monarchy where citizens have equal
rights under the law, subject to the law.

> What did you do at the NOC?

> My job was to draft emergency laws. I was there from May 1969 and
came out two years later. I watched the development of the NEP. That’s
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why when I hear some people talk about that time I am surprised because
I have never heard this before! (laughs) This I can tell you, the leaders at
the time were very genuine, they wanted to have peace and harmony and
to be fair to everybody.

Next week: Senior Malaysian political scientist Dr Mavis C. Puthucheary,

International Islamic University law professor Dr Abdul Aziz Bari and
senior constitutional lawyer Tommy Thomas have their take on the social
contract.
The Sunday Star, Sunday November 9, 2008

GOING TO ROOTS OF THE BARGAIN

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.

Dr Puthucheary: Linking the

‘social contract to Article 153 is
dangerous because it allows those
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 in power to define it according to
their preference.

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”.

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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.
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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.

Thomas: ‘All Malaysians are

entitled to be treated as one
under the Constitution; that sums
up the social contract’.
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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;

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*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.”

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 Dr Abdul Aziz: ‘The position of
Malay as the national language
does not mean it denies the
minorities their heritage’.

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.

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“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.

The Sunday Star, Sunday November 16, 2008

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