Need to honour social contract

The Sun, 24 March 2009

by Dr Ibrahim Abu Shah

RECENTLY, Datuk Seri Utama Dr Rais Yatim, the foreign minister, spoke on TV and lamented that knowledge of the pre-Merdeka "social contract" is lacking within the younger generation. In fact, many older citizens of all races are also unaware of this solemn pact and its specific aims and contents.

As Umno grapples with the twin challenge of assuring Malays of their special, pre-eminent position and the non-Malays of their legitimate rights, we need to revisit the painstaking process of negotiated settlement between the various ethnic groups and the Malay Rulers on their political, economic, linguistic, religious and cultural rights under the Merdeka Constitution. We need to take cognisance of the articulate and inarticulate presumptions of our basic charter.

As the forefathers of the constitution were chiselling out the scintillating details of the law, some facts and events, some ideas and ideals and some assumptions provided the foundation on which the superstructure of the Malayan state was constructed. These "foundational assumptions" constitute our social contract.

The constitution took note of the deep wounds inflicted on Malays by the Malayan Union and the McMichael treaties. These British agreements had deprived the Malays of their historical privileges and had abandoned the pre-war policy of recognising Malaya as a Malay country.

Consequently, at the insistence of the Umno leadership, the Alliance partners agreed that some traditional and indigenous features of the Malay archipelago would, with some modifications, be central features of our constitution. These traditional features are: Malay sultanate, Malay privileges, Malay custom, Islam, Malay reserve land and Malay language.

The Malay sultanate was retained but converted to a constitutional monarchy with some discretionary functions. In Articles 38 and 159, the Conference of Rulers was given veto powers over some types of constitutional amendments that affect their majesties, the special position of the Malays and the legitimate interests of other communities.

The Reid commission’s recommendation that Malay privileges should have a 15-year time limit was rejected. Article 153 made affirmative action policies an integral and permanent feature of the political and economic landscape. Any challenge to Malay privileges would be seditious. Any legislative proposal to amend them would require the consent of the Conference of Rulers.

Contrary to the Reid commission’s proposal to leave Islam as a matter confined to State Constitutions, Article 3 was inserted into the Federal Constitution to provide for Islam as the religion of the federation. The state was permitted to promote Islam vigorously, to provide for Islamic education, to set up syariah courts and to subject Muslims to Islamic laws in areas permitted by the Federal Constitution. There are restrictions on propagation of other religions to Muslims. The constitution implicitly recognises that Islam is the defining feature of the Malay way of life.

Malay custom was recognised as a source of family law for Malays. Malay reserve land was protected in Article 89.

The Malay language was chosen as the language that would unite the nation. Non-Malay insistence on other official languages was rejected but English, Chinese and Tamil may be used for unofficial purposes.

The constitutions of all nine states with Malay sultans provide that the mentri besar shall be a Malay. In some states even the state secretary shall be a Malay.

Side by side with these Malay features, the constitution conferred a vast number of rights on the non-Malays.

Foremost were citizenship rights granted to all persons, no matter of what origin, who were born in Malaya or Singapore. This generous constitutional grant was made in perpetuity with the consequence that the children and grandchildren of former immigrants have a right to call this country their permanent home.

Fundamental rights are available to all citizens irrespective of race or religion. Except in relation to personal laws permitted by Article 8(5) and to Malay privileges permitted by Article 153, there is no discrimination on grounds of race or religion.

Side by side with Islam as the religion of the federation, all other religions may be professed, practised and propagated in peace and harmony: Article 3 and 11. No person can be subjected to a religious tax of a religion other than his own. All religions have the right to set up their own religious institutions. No one can be compelled to receive instruction in a religion other than his own: Article 12.

Rights in respect of education are available to all persons irrespective of religion or race. All political, social, cultural and religious groups have freedom of association: Article 10(1)(c). Except for official purposes, there is a right to promote one’s language.

Malay privileges are offset by guarantees for non-Malays. For example, land reserved for Malays must be accompanied by an equal area of land available for general alienation: Article 89(2). Article 153 on Malay privileges specifically provides that quotas and reservations for Malays and the natives of Sabah and Sarawak will not be used to deprive non-Malays of permits and licences they already hold. The Yang di-Pertuan Agong is required to protect "the legitimate interests of other communities".

Under 150(6A), it is provided that even in times of emergency, rights in respect of religion, citizenship and language cannot be violated. The Conference of Rulers is made the ultimate guardian of citizenship rights of all persons. Any amendment to citizenship rights requires the consent of the Conference of Rulers.

Electoral rights to vote and to contest parliamentary and state seats is available to all citizens. A right to property, a right to trade and commerce and an entitlement to market rights in an open – and largely non-Malay owned – economy was permitted.

Unlike in some East African states where the properties and assets of immigrant communities were compulsorily expropriated, the policy in Malaysia has been to resort to peaceful and gradual social restructuring under the law. Evolution, not revolution, has been the Malaysian modus operandi.

In sum, the Constitution of the Federation of Malaya was built on a spirit of moderation, of give and take and of workable compromises between all stake-holders. The resulting agreements constitute our social contract. We need to study and understand the spirit of compassion and compromise that animated the basic law. We need to respect it, internalise it and build on it.

Datuk Seri Prof Dr Ibrahim Abu Shah is vice-chancellor of UiTM.