The social-contract/constitution equivalency

First Conference of Rulers in Kuala Kangsar, 1897 (Public domain)

LAST week, the Conference of Rulers issued a much-publicised statement. The statement reiterated the special position of the Malay rulers, Islam, the Malay language, and the genuine interests of other communities as enshrined in the Federal Constitution. The rulers reminded Malaysians that it is not proper to dispute the provisions of the Federal Constitution.

Many have pondered the significance of the statement’s issuance, since it comes immediately following a series of incidents that increasingly tug at Malaysia’s inter-ethnic fabric.

There was the decision by the Home Ministry to declare the Hindu Rights Action Force (Hindraf) an illegal organisation.

And then there is the continuing showdown between Seputeh Member of Parliament Teresa Kok and Malay-language daily Utusan Malaysia. Both parties are at psychological war with the other, although Kok was never proven guilty over the so-called azan debacle, which started the face-off.

Most recently, the daily published a fictional story about the murder of a Chinese woman politician, a character which many believe alludes to Kok (even though its author has denied any correlation).

Multiple interpretations

The rulers’ statement, just as the constitution on which it is based, is likely to be interpreted differently by various quarters. Barisan Nasional leaders welcomed the assurance that all communities in Malaysia are treated fairly.  

However, due to the timing of the statement, it could also be interpreted as a convenient legitimisation of the more racist factions within Umno. It could lead to an even more aggressive defence of the ketuanan Melayu (Malay supremacy) discourse.

Keris (Source: Wikipedia.org) The statement also comes at a time when Deputy Prime Minister Datuk Seri Najib Razak is almost assured of his ascent as Prime Minister come March 2009, barely five months away. And memories of his 1987 statement, that he would bathe the keris with Chinese blood, are still fresh for many Malaysians. One can only hope he has changed his sentiments in that regard.

On the other hand, the contents of the rulers’ statement were not all that surprising, really. Some might say it was a chilling warning sent to all citizens that the social contract should not be challenged. However, the rulers also emphasised that “all provisions in the Federal Constitution” are “known as the social contract”. This gives new meaning to the idea of a social contract.

In recent public discussions, politicians have only assumed it to be the exchange of Malay rights for non-Malay citizenship. But according to the rulers’ definition, the entire constitution is the contract between state and citizen.

(Mis)understanding history

The debate about the position of the Malays should therefore be interpreted in light of the Constitution as a whole. It is true that Article 153 highlights the special position of Malays, natives of Sabah and Sarawak, and the legitimate interests of other communities. However, it should also be read alongside Article 8, which guarantees equality before the law regardless of religion, race, descent, or place of birth.

I also find this sentence in the statement utterly intriguing: “Among the reasons identified for these [misunderstandings] … is the cursory knowledge of those concerned regarding the historical background as to why these provisions were enshrined in the Federal Constitution, and the influence of their attempts to implicate the principles of impartiality and justice without regard for the historical background and social condition of this country.”

It is unclear whether the rulers were chastising those who have questioned the social contract, or “Malay leaders” who have retaliated. Either way, the rulers seem to be ticking off those who misunderstand history, and those who are impeding upon the principles of impartiality and justice.

Therefore, to clarify a point on history, I quote the Constitutional Commission in developing the Constitution (1956):

“[A] common nationality was the basis upon which a unified Malaysian nation was to be created and that under a democratic form of Government it was inherent that all the citizens of Malaya, irrespective of race, creed or culture, should enjoy certain fundamental rights.”

A common nationality seems to have been the rightful objective of the Federal Constitution, which the rulers say is synonymous with the social contract.

Hindraf supporters at opposition leader Datuk Seri Anwar Ibrahim’s Aidilfitri open house on 12 Oct 2008

Safeguarding legitimate interests

Furthermore, the rulers’ statement actually called on the Malays to “be united to safeguard the … genuine interests of the other communities in Malaysia as enshrined in the Federal Constitution.”

That the interests of other communities are well taken care of is emphasised several times in the statement. Indeed, Article 153 is often cited as the legal basis that protects the special rights of Malays. But the article specifies the “special position”, which can be argued as socioeconomic position, of three categories: Malays; natives of Sabah and Sarawak; and legitimate interests of other communities. The latter is often a forgotten category, which is clearly stipulated in Article 153.

One could argue that the plight of the marginalised Indian community, as raised by Hindraf, falls perfectly under the purview of Article 153, too.

Due to the politicisation of race in Malaysia, Article 153 has been considered the be-all, end-all license for race-based affirmative action and ketuanan Melayu. Suflan Shamsuddin, in his book Reset, argues that it is not the article itself that people are disputing today, but rather the wrongful application of it.

(Source: Silverfishbooks.com) If, for example, the government of the day were democratically elected, with sufficient checks and balances, the application of Article 153 would not be in such a mess. There would not be blatant misinterpretation, and there would not be misuse and abuse of a legitimate contract. The arbitrary means of handling the special position of certain communities have led to great distress.

Encourage dialogue

I hardly imagine that ordinary citizens would question the position of the Malay rulers, Islam as religion of the state, and Malay as the national language. Instead, it is those policies considered as racist and discriminatory that many have problems with. Unmitigated ketuanan Melayu has little constitutional basis, after all.

In fact, the New Economic Policy (NEP) was introduced in 1971 to correct socioeconomic imbalances among the different ethnic groups. It was quite a fair policy to begin with, and it certainly was not introduced on the basis of Article 153. To claim that the NEP was formulated on the basis of Article 153 is a retroactive attempt to say the NEP has constitutional grounds. This is a misguided afterthought, and a false argument. 

The rulers stressed the need for peace, harmony and mutual respect to maintain order in the country. No Malaysian desires violence, instability and disaster. However, in seeking national unity, there must also be efforts at achieving a genuine peace and harmony that is not based on pretence.

The process of achieving this requires some civil discussion and conversation among all Malaysians. And this should be encouraged, especially among the younger generations who were not present during the formulation of the original social contract. Seeking rational dialogue — even regarding the social contract — is a much better solution than concocting political assassinations in short fiction.  

See also: Deconstructing the social contract
The prison of history

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Tricia Yeoh is Director of the Centre for Public Policy Studies. She believes that Article 153 of the Federal Constitution is itself not strong enough a basis to argue for racial supremacy or discriminatory policies.