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Sosial Contract
Sosial 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.
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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.
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.
> 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.
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)
Other races should accept these privileges because they have always
been there.
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.
> 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.
> 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.
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.
> 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.
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.
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.
“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.
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.”
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.
She stresses that Article 153 did not imply that Malay political dominance
was recognised by the Umno’s non-Malay partners.
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.
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.
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.”
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.
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*THE creeping in of Syariah jurisdiction and the abdication of duty by the
common law courts in conversion cases; and
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 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.
“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.”
“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’.
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.
“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.”
He says Umno has failed to deliver: “After more than 50 years we are still
stuck in the mud.
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.
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