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Tuesday, April 20, 2010

The Bastardisation of the "Social Contract" - part 1

In "The Social Contract - correcting the misconceptions", I have sought to explain what the social contract is all about.

I do not want to repeat what I had written before. However, I wish to revisit several salient points about the social contract.

Social contract is a legal theory or concept. It does not exist in reality. It is a branch of legal, social or even political philosophy. This theory seeks to explain or rationalise why we, human beings, would band together and form a State.

It also seeks to rationalise why we would then agree to surrender our liberty, freedom and the ability to do whatever we like to the State when we, the human beings, were all born free and by our nature do  not like to be restricted and constrained.

The philosophers surmised that we do so because we by nature are social creatures. We do so because we want to live together as a society. Furthermore, we do so because the State promises us some benefits. In fact we expect the State to give us the benefits that we want. That is why we surrender or agree to surrender some of our freedom, liberty and free will to the State.

That is why, in theory, we do what we do.

However, it is not a one way or unilateral agreement. There is supposed to be an exchange of promises between us, the people, and the State. For example, we promise not to steal and if we steal we promise to abide by the law which would send us to prison. In return, the State promises to protect our property from being stolen by other people.

That is the social contract as a legal theory.

In reality, that social contract does not exist, in writing or otherwise.

Now, the social contract which is so much talked about in Malaysia is a bastardisation of the theory of the social contract. Why do I say so?

It is simple. The theory of social contract postulates an agreement between the people of a State and the State. However the social contract which is so well loved by some people in Malaysia is a supposed agreement between the respective leaders of the three major communities among themselves which happened prior to our independence.

That in itself is the hijacking of the theory of social contract.

Apparently, the three community leaders met to decide the whole future of Malaysia before and after independence. And what they had agreed would bind all of us till kingdom come.

Apparently too, the Malay leader was generous enough to confer citizenship to the non-Malays who were not qualified for citizenship.

The two non-Malay leaders, out of sheer gratitude to the Malays (who were represented by the said Malay leader) for doing so, agreed that the Malays should have "special rights." These special rights were then spelt out in the Federal Constitution.

This brings the oft-repeated argument that the Malays have sacrificed a lot in agreeing to "grant" citizenships to the non-Malays who were otherwise "not qualified" to gain one. Therefore the non-Malays should respect the Malay's special "rights".

Over the years, these special rights were apparently challenged by the non-Malays, and even by some Malays themselves. So, according to some people, this is unacceptable. This is unconstitutional. This constitutes a breach of the so called social contract.

What does history show us about this bastardised version of the social contract?

The Secretary of State for the Colonies (Mr. Alan Lennox-Boyd), while debating our Independence Bill reported to the British Parliament:

"There were extreme views on the part of some sections of Malayan* (*I think when he said "Malayan", he was in fact referring to the Malays) opinion which are opposed to any political advance on the part of the Chinese people in Malaya. There were equally strong views held by some of the Chinese population demanding absolute jus soli citizenship for anybody born in the Federation and the complete abolition of any distinction between the races.

The constitutional Commission had to find a solution which would work and which would find general acceptance, and in our view it has fully succeeded in its task. The present Federation Constitution represents a genuine compromise worked out between differing sectors. The citizenship proposals, I believe, are a triumph of good sense and tolerance, amidst widely conflicting views, and I believe that the balance struck between Malay and Chinese has been found to he a wise balance.

There are solid guarantees of fundamental liberties to meet Chinese fears of discrimination, with reasonable arrangements to safeguard the special position of the Malayans without injustice to other races. I am conscious that these two aspects of the settlement arouse particular interest in the House, and I hope that I may be forgiven if I devote a moment or two to those two most important matters.

Now, a word about the balance achieved between the rights of Malays and Chinese. The special position of the Malays was recognised in the original treaties made by His Majesty in previous years, and Her Majesty Queen Victoria and others with the Malay States. It was reaffirmed when these treaties were revised. It was confirmed in the 1948 Agreement, and reference was expressly made to it in the terms of reference of the Reid Commission. So the Malay privilege clauses in the articles of the Constitution do not, in the main, introduce any precedent, but give recognition in the Constitution to the existing situation. Most hon. Members will, I think, know something of what these privileges are

As I said, I believe that a fair balance has been struck between the interests of Malays and Chinese, and I indicated how the special position of Malays enshrined in the new Constitution did not create a precedent because it had been provided for in very many other treaties and arrangements. I was about to say what form these special privileges had taken. In most States in Malaya, there are extensive Malay reservations of land. Elsewhere in States, there are systems of quota for admissions to the public service, a certain proportion having to be Malays. There are quotas for permits or licences to carry on certain businesses. There is preferential treatment for Malays in the granting of scholarships and bursaries and, generally, in education.

The Reid Commission found very little opposition in any quarter in Malaya to the continuance of the present system for a time, and it made certain recommendations which hon. Members will have read. The Alliance Government—this was accepted by the three parties composing the Alliance—wanted a number of changes, which have been made. They  relate mostly to quotas in the public service, to permits, scholarships, and land reservations. Very generally, the proposal to review the quotas after fifteen years has been dropped. The responsibility of the High Commissioner is transferred to the Head of State, but—and it is a genuine safeguard for other races—the Head of State will act on the advice of the Cabinet, and the Cabinet is bound to be sensitive to the feeling of public opinion at any time."

Yes, there was indeed a compromise by the various communities. And there was, at the end of the day, "a triumph of good sense and tolerance, amidst widely conflicting views." Meanwhile, "the balance struck between Malay and Chinese has been found to be a wise balance."

It should be noted that the special positions of the Malays had always been recognised by the British from day one. These have been specified in various treatises. And there were recognised in the Federation of Malaya Agreement 1948, an agreement which preceded our independence.

All that the Reid Commission did was to continue to give cognisant to those special positions. There were no new position or right added as part of a compromise. To say therefore that citizenships were offered to the non-Malays in exchange of those special positions were not accurate. That is because those positions were already there and recognised from day one.

It is also wrong for anybody to say that the granting of citizenship to the non-Malays was a sacrifice by the Malays of their "natural claim to the land of Malays ("Tanah Melayu"). That could not be farther from the truth.

That arrangement, from historical evidence, was a "compromise" which was achieved after intense negotiations between the major communities and the Reid Commission. Being a compromise, all parties - not the Malays alone - achieved certain demands while letting go some of their demands.

For example, not all non-Malays managed to obtain citizenship. On this, the said Alan Lennox-Boyd explained:

"Under this compromise, anyone who is now a citizen of the Federation or who was born in the Federation and is over 18, or is born there after 31st August next, will have citizenship of the Federation as a right."

There was a balance achieved between the demands of the non-Malays and the absolute birth rights of the Malays. That is why it was called a compromise.

The citizenship was not a gift by the Malays. Nor was it a total surrender by the non-Malays of their minority rights in exchange for citizenship as screamed about by Perkasa, Dr Ridhuan Tee Abdullah and even Tun Dr Mahathir. The special "rights" of the Malays was not a concession by the non-Malays. They had always been there in the first place.

The Constitution was drafted to reflect this harmonious co-existence of all the major races in the then Malaya. It spells out all the rights and positions of the various communities who were expected to lead a peaceful and prosperous co-existence. The Constitution was designed to make the yet unborn Malaysia a fair and progressive country.

As stated by Mr. Geoffrey de Freitas (the MP from Lincoln):

"The test for the Federation will be whether it can become a real nation in other words, whether the Chinese people in Malaya can become full citizens and work with the Malays, the Indians and the Eurasians to make a new nation. I hope that they can."

Have we, as a nation, passed the test?

It is also not out of place to mention here that in drafting the Constitution, the fathers of our independence were astute enough to consider each community's services and contributions to this land. This goes towards achieving the balance which I was referring to earlier. In other words, no one community could claim exclusivity towards the country as it was.

Miss Joan Vickers, the MP for Devonport noted:

"We should remember, in considering these different races, the part that they play. The Malayans are the indigenous people of the country, but we have to remember that had it not been for the Chinese the country would certainly not have been as prosperous as it is today. They opened up jungle roads and worked in the tin mines, and the prosperity of Malaya owes a great deal to the Chinese.

Furthermore, we had the Indians who, in a rather different way, as a result, in the beginning, of a contract system between the Indian Government and the Government of Malaya, have played their part in the prosperity of the country. In a great many cases they did not make Malaya their home and returned to India at the end of their contract.

We also owe a great deal to the Portuguese Eurasians in Malaya. Theirs is a very old community. They still keep something of their mother tongue, and very strongly to their own Roman Catholic religion. They have proved loyal and faithful civil servants in a great many of the States. Generally speaking, whichever State they have resided in, they have taken a leading part and have always been loyal to either the British resident or adviser, or whoever they have been serving.

Finally, I hope that in due course, the Orang Bukit will be able to be brought into the community, because I believe that through living in the deep jungles they have very remote ties with their own country, and they could be a source of trouble. I should like to pay tribute to them for what they did during the very difficult period when the Chinese guerillas were in the jungle, when they gave considerable help in tracking the enemy."

As evident, everyone's contribution was considered. And it was all done in the name of accommodating, to the fullest of possibility, every community's demands, rights and positions. Wherever there was a seeming imbalance, a check and balance mechanism was inbuilt within the Constitution in itself.

To state all the mechanism of check and balance in the Constitution would make this article too long. Suffice if I point out that among others, an independent judiciary (which then includes the right to appeal to the Privy Council), was a part of that mechanism. As stated by the MP for Crosby, Mr Graham Page:

"Finally, I would draw attention to an important safeguard to the minorities. That is in the retention of the jurisdiction of the Judicial Committee of the Privy Council."

(Of course, some time ago, someone had to dismantle the Privy Council appeal process and the whole judiciary too leaving the government to lord all over the Judges!)

17 comments:

eiling lim said...

I didn't know that! This is very informative. Thanks.

donplaypuks® said...

But Maha Firaun, a "Constitutional Malay" asks of late (again) in his blog " I wonder who is hijacking the social contract".

That this senile old man continues to shit-stir racism and bigotry after 53 years of Independence and 40 years of NEP, is a sure sign that the elite, croneys and Umnoputeras (in that order) are not finished with their agenda of economic looting and plunder!!

Only now has Firaun corrected his misunderstanding of Special Rights vs Special Position, but he still raves and rants about:

"..The Tunku agreed to waive the conditions for becoming citizens so that one million non-Malays could become citizens with all the citizenship rights, ignoring the required qualifying conditions.

The Malays did not fight against the Malayan Union only to give up all that they had gained. But their leaders were realistic enough to have a quid pro quo arrangement. Does anyone seriously think that the Malay leaders would reduce their majority from 80% in the 1955 elections to less than 60% after the gift of citizenship to unqualified citizens? Only the weak minded would think so..."

dpp
we are all of 1 race, the Human race

bokjae said...

Thanks Art for this informative post! Its an eye-opener to many Malaysians, I included. Malaysians must not allow self-serving groups to twist the facts to their own advantage! Worst, to bend and spin the facts to cause animosity among the different races living in this land. Thanks!

Anonymous said...

But special rights are not meant to make a few billionaires without working while the the majority continue to work day and night in the fields and pay taxes to SUFFER.
Special rights are not license to practice corruption!
Special rights are meant to eradicate poverty and treat all man equal

Anonymous said...

cool, thank you lawyer art. lets all restore back our original constitution up hold it till our last breath. To start with, lets kick the “ Bastard Dr. M a/p kutty punndai first before he blow his last breath.I hope the bastard will live up to 99 years old to see all the CHANGES (yes we can *copy rights reserved B.Obama)we going to make

cheers,
sultans of swing

LAT said...

And the so call "special rights" has been enjoyed by those umno-chosen ones to enrich & indulge themselve as of "divine rights" and whosoever question it must be striken death !

Parody of Bolehland said...

Thanks for rekindling what history students before the BTN version came into being knew all along. The meaning of the 'social contract' didn't get lost in any translation but rather a manipulation by those in power to cling on to their status quo. Instead of drawing on the strength of our diversity, some choose to want to ignore the fact that we are interdependent for our growth and prosperity and think they are more 'superior' based on their misinterpretation of the social contract.
Always enjoy your way of ARTticulating a balanced view which sadly is missing these days. The irony of the bastardisation of the 'social contract' is those who seek to understand the spirit of it have been branded as such 'bast@%&$' for preventing the present generation of knowing the, for want of word, 'wisdom' of their forefathers in the crafting of the 'social contract'

Anonymous said...

All well and good except Malaya is not Malaysia. What has this so called social contract got to do with Sabah and Sarawak? Why is this and ketuanan always discussed as if Sabah and Sarawak is not part of Malaysia. Or are they considered irrelevant colonies.

1Malaysia said...

sultans of swing!!

fuck you!!! don't tell me your mother never teach you manners and respect an elder statesman??

a simple thanks is good enough if you have brains..

i hope one day your son will give you back what you have said to Tun Mahathir.

some goes to you donplaypuks!!! yeah right i know you only play jubur like Anwar AlJuburi hahahaha

Anonymous said...

Hi Art,

Nice piece of history digging!

Just a question,

‘It should be noted that the special positions of the Malays had always been recognised by the British from day one. These have been specified in various treatises. And there were recognised in the Federation of Malaya Agreement 1948, an agreement which preceded our independence.’

So the pre-requisite of the special positions of the Malay pre-dated the draft of the Federal Constitutions! In short, it’s an agreement by the then British colonial officials to ‘pacified & mastered’ the Elite Malayan Sultanates.

Why only the elites? Deeper research would show that the colonial officials had always being using these prescribed ‘special positions’ – such as;

these special privileges had taken. In most States in Malaya, there are extensive Malay reservations of land. Elsewhere in States, there are systems of quota for admissions to the public service, a certain proportion having to be Malays. There are quotas for permits or licences to carry on certain businesses. There is preferential treatment for Malays in the granting of scholarships and bursaries and, generally, in education.

to control the then Malay Elites. After all, who within the general Malay public then could actually lay a hand on these ‘allowances’ but the Elite Malay classes themselves? Example - how many peasant class Malays were been given such 'allowances' during the colonial British rules?

In short, these were the tools that the British colonial offices played all over their empire. Do check out this title - British documents on the end of the empire series.

Coming back to the context of M’sia, since the citizenship-&-special positions trade-off, as alleged by many of the umno extremists/ignoramus, IS non quid pro quo among the races. Then, wasn’t the non-Malay M’sians acted generously in accommodating such pre-dated pre-requisites that only benefit a small section of the Malay elites.

So who’s been benevolent & considerate for the good of the M’sia?

Mamak, the chorus boys of deminegara & the one the I wont named – eat your heart out.

Should re-study Goebbels’ truth of propaganda – lies told many times over would always be accepted as truth by the general publics!

anomie

Anonymous said...

This is the treasure we have looking for - THE TRUTH. All Malaysians must be let known of this TRUTH. The people must not allow any politician to manipulate and hijack the Constitution to suit their own selfish aims and gains.

borlevi

Anonymous said...

I believe "the non-Malays who were not qualified for citizenship" refers only to those from the Federated Malay States! The non-Malays from the 3 straits settlements were considered qualified and given citizenship automatically under the independence arrangement. Am I right?

Anonymous said...

To 1malaysia,

from sultans of swing

first of all a very BIG FUCK YOU 2

I presume your mother teach you to respect elderly statesman , even he screw your back . It like you are asking to respect the KKK bastard, Hitler and Ibrahim Ali. Go back and ask your mother.

Mr Harun sorry for wild languages.

Kutty pundai destroyed Malaysia, its a fact no one can dispute. Malaysia would be better if in 1988 semangat 46 taken over the power, we just missed. Anyway its only 2 more years to change the gorvt.

givemeliberty said...

Those born before 31 August 1957 in Malacca and Penang, regardless of ethnic origin, were British subjects and they were and are automatic citizens of Malaya. I am one and a Peranakan or Straits-born Chinese. Don't anyone tell me that I and my descendants owe anybody for our Malaysian citizenship.

As for the people, of all ethnic background, of Sabah and Sarawak born before 16 September 1963, you and your descendants, too, owe no one least of all, Malays, your right to Malaysian citizenship.

mae said...

Citizenship is a Western concept. Before the British conquer Tanah Melayu, there is no such thing as citizenship. What exist at that time is that Tanah Melayu is part of Nusantara or the Malay archipelago, it is the Melayu stock (Java, Bugis, bajau, Iban, kadazan etc) playground. It is the British/Dutch/Spain/US that divided the Nusantara. They brought the Chinese and Indian into Tanah Melayu. Because the Melayu in tanah Melayu was under the control of the British, they have to accept what the British told them. Now since the British is no longer in Tanah Melayu, the Melayu must get back what they deserve on their own playground. Nothing wrong with that. The Melayu must determine their own destiny. As for the Chinese and Indian, their root is in China and India respectively. The Chinese and Indian conveniently forget the history before merdeka. This is an attitude of a leech.

Anonymous said...

mae,

Citizenship is a Western concept?

Then how do u define the Melayu stock playground? Where r the demarcation boundaries of the Melayu playgrounds? From N to S poles? Perhaps u accept fiefdoms & hamba? Then, to where does one Melayu fiefdom separated from the others? By the draw of the line via kris on the ground? How do u distinguish one Melayu hamba of one raja from the other raja?

Pariah!

‘Now since the British is no longer in Tanah Melayu, the Melayu must get back what they deserve on their own playground. Nothing wrong with that.’

So u think u has that right based on jus soli. Then, so r ALL the other M’sians who r born in this land. No?

FYI, tanah Melayu is a very recent invention. Tanah Melayu was NEVER the name until the British came and colonized the Peninsular. ok?

Or u want to bring in the element of time – meaning u r here earlier &longer, then go & tell that to the orang asli. A ok?

Leech is a honorable invertebrate. Though leeches suck blood; they don’t get a single bloody meal without some concrete hardworking effort. Whereas there r known rent-seekers around bolihland, day in & day out shouting for their so-called birth-rights to be given on a platter. So who is having the attitude of blood sucking? Where is the honorable part?

One more thing, based on the Federal Constitution article 153, the Iban, kadazan might not be classified as Melayu.

Anyway, have u try calling the Non M'sian people of Java, Bugis, Bajau, Iban, Kadazan descendant as Melayu, u would most likely get a bloody nose.

Why?

Because people like u has given the Melayu term a bloody BAD BAD connotation. Period.

Anonymous said...

From an authentic Malaysian bumiputra not pendatang or pribumi dari Indonesia, India Middle East, Bosnia, etc. Interesting . . .

http://dayakbaru.com/weblog08/2009/06/19/who-are-these-bumiputras/