Social Contract and the Special Position of the Malays: Some Observations on the Historical Context

SOCIAL CONTRACT AND THE SPECIAL POSITION OF THE MALAYS

Some observations on the Historical Context

Excerpt
Malay ethnic nationalists (UMNO politicians in particular) in the past usually avoided making reference to the Social Contract. But recently, these UMNO politicians seem to have overcome their reservations and are urging Malaysians to respect the Social Contract. What is the reason behind this new openness and acknowledgement of the Social Contract? A closer analysis of their speeches would reveal a not-so-subtle attempt to reinterpret the terms of the Social Contract to conform to their ideology of Malay dominance and supremacy. That is to say, these ethnic nationalists are attempting to hijack the Social Contract and disregard for the original intent of the Founding Fathers of the nation. In this case, citing a text without respecting the historical context becomes merely a pretext for ideological manipulation of history.

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A prima facie reading of the Federal Constitution of 1957 which embodies the Social Contract of 1957 and 1963 would grant equal citizenship and equal protection before the law to all Malayans (and by extension all Malaysians in 1963). It is granted that the Constitution includes provisions related to the special position of the Malays (with inclusion of natives on the States of Sabah and Sarawak in 1963). But it should be emphasized that the special position to the Malays is a concession that is subordinated to the affirmation of equal citizenship and equality before the Law for all Malaysians regardless of race and religion.

Malay ethnic nationalists (UMNO politicians in particular) in the past usually avoided making reference to the Social Contract. But recently, these UMNO politicians seem to have overcome their reservations and are urging Malaysians to respect the Social Contract. What is the reason behind this new openness and acknowledgement of the Social Contract? A closer analysis of their speeches would reveal a not-so-subtle attempt to reinterpret the terms of the Social Contract to conform to their ideology of Malay dominance and supremacy. That is to say, these ethnic nationalists are attempting to hijack the Social Contract and disregard the original intent of the Founding Fathers of the nation. In this case, citing a text without respecting the historical context becomes merely a pretext for ideological manipulation of history.

To counter such a cynical exploitation of history of the Social Contract, I invite readers to read the doctoral dissertation by Joseph M. Fernando, published by the Malaysian Branch of the Royal Asiatic Society under the title The Making of the Malayan Constitution (MBRAS 2002). I hope the extracts given below will help readers come to an accurate understanding of the Social Contract in respect to the special position of the Malays and Islam.

Please note Joseph Fernando’s observations (I have italicized some sections for emphasis):

1) The majority of the Commissioners [Reid Commission] were uncomfortable with the requirement on Malay special privileges because they felt it was incompatible with democracy and would entail modification of the fundamental rights inherent in most modern constitutions.

2) Datuk Abdul Razak, who chaired the committee which prepared the Alliance memorandum, told the Commission at the start of their hearings that the Alliance wished to add a proviso to their memorandum to include a review of the privileges after 15 years.

3) In providing for the continuation of the special privileges, the Commission has safeguarded the Malay special position as required by the terms of reference. At the same time, in providing for a review after 15 years, the Commission sought to meet the other half of its obligations, the “legitimate interests” of the other communities. In view of the temporary nature of the provision as intended by the Alliances, the Commission inserted it in transitional section of the Constitution.

4) MCA’s chief publicity officer, Tan Siew Sin, argued that the Reid Commission’s proposals on the Malay special position were a correct interpretation of the original Alliance position. Siew Sin said that unless the article was carefully drafted it could be interpreted to the disadvantage of non-Malays by another party in power. “There would be nothing to stop such a party from saying that in the future half of any trade or industry should be given to Malays, and this could go on ad infinitum. There is a real fear among the non-Malays.” He noted that there was a general realization among the non-Malays that the Malays should be assisted economically, “but only with adequate safeguards for the interests, rights and opportunities of the other communities”. Razak, however, assured his Alliance colleague that he felt provision could be made in the Constitution to help the Malays without infringing the rights and interests of the non-Malays: “At any rate, there is recourse to the Court for redress in the event of the provisions of the Constitution being unreasonably interpreted.”

The new version of Article 157, redrafted as a result of objections expressed by the MCA, contained an additional protective clause which stated: “Nothing in this article shall empower Parliament to restrict or control any trade or business just for the sake of creating quotas for Malays.” On the question of the time frame, which has been the focus of much Malays criticism, the Alliance sub-committee adopted a suggestion by the MIC representative, Kather Singh, that it would be more suitable to use the phrase “from time to time” for a review of the provision in the Working Party Report or the White Paper outlining the constitutional proposals instead of stating a fixed period. The intra-party bargaining was thus characterized by a willingness of the parties to accommodate the views of their partners.

5) [However, the above provisions that was to be included in the transitional section of the Constitution somehow got shifted to the more permanent sections of the Constitution during discussions at the Working Party in London]: The compromise reached in the Alliance sub-committee dropped the time frame of 15 years for a review, on the understanding that the Agong should cause a review of the provisions from “time to time”. An additional proviso was added to Article 157 stating: “Nothing in this article shall empower Parliament to restrict or control any trade or business just for the sake of creating quotas for the Malays.” This was intended, as Razak noted, to allay the fears of discrimination among the non-Malays.

6) The shift in the inter-communal balance in the Constitution was not entirely lost among the politically conscious in Malaya or in the British Parliament. In the MCA, for example, dissenting voices began to surface when some officials realized the implications of the changes to Article 157 on the Malay special position.

The MCA representative in the Alliance delegation to the London Conference, Ong Yoke Lin, was questioned about this change on his return.

Ong merely responded that Ng [who argued that UMNO has “broken faith”] was misinformed on the votes required to amend the Constitution. At that stage Ng left the meeting. Clearly, the Alliance parties were not entirely agreed on the communal issues even though there was a public show of unity when the Constitution was debated in the federal legislature in July 1957.

My personal observations:

I leave the readers to work out the complex of motivation behind Omar Ong Yoke Lin’s unauthorized concession given to UMNO. Regardless of our historical judgment of Omar Ong, it seems pretty undeniable in view of recent race and religious base policies that indeed UMNO HAS BROKEN FAITH!

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Fuller quotations taken from Joseph M. Fernando’s book (Italics added for emphasis).

The Commission was required by its terms of reference to “safeguard the special position of the Malays and the legitimate interests of the other communities”. This requirement was a double-edged sword. Meeting the first requirement had serious implications for the second. Thus the Commission has to draw a careful and proper interpretation of the requirements of this all-encompassing phrase in order to achieve a balance between the communal demands. The majority of the Commissioners were uncomfortable with the requirement on Malay special privileges because they felt it was incompatible with democracy and would entail modification of the fundamental rights inherent in most modern constitutions. Nevertheless, they recognized that there was a constitutional precedent for the Malays special position in the 1948 Federation of Malay Agreement and were in agreement that the provisions should continue for some time to assist the Malays, socially and economically. Their difficulty was to provide for the continuation of these privileges while at the same time ensuring that the rights and interests of the non-Malays were not undermined.

In view of the changed political and constitutional conditions in which the provisions were to operate and its implications on the rights and interests of the other communities, the Commission framed the provisions with in-built safeguards to ensure that they would not be a permanent disability to the non-Malays. After considerable discussion, the Commission agreed that the privileges should continue, but not for more than 15-20 years unless Parliament otherwise provided. In the draft constitution, the Commission stated that the provision on the Malay special position should be reviewed after 15 years.

Datuk Abdul Razak, who chaired the committee which prepared the Alliance memorandum, told the Commission at the start of their hearings that the Alliance wished to add a proviso to their memorandum to include a review of the privileges after 15 years . The inclusion of this amendment to their memorandum was a result of a late compromise between UMNO and the MCA whereby it was agreed that the Alliance would verbally inform the Commission of the provision for a review. After the meeting with the Alliance leaders the Commission decided to accept the Alliance’s proposal for a review of the position after 15 years.

In providing for the continuation of the special privileges, the Commission has safeguarded the Malay special position as required by the terms of reference. At the same time, in providing for a review after 15 years, the Commission sought to meet the other half of its obligations, the “legitimate interests” of the other communities. In view of the temporary nature of the provision as intended by the Alliances, the Commission inserted it in transitional section of the Constitution (pgs. 126-128).

The majority in the Commission, coming from a more liberal persuasion, framed the Constitution in order to achieve a balance between the communal demands, and sought to implant democratic values and norms with the clear intention of eradicating communalism from the political system. While they accepted that the Malays should be assisted in the improvement of their social and economic position, they did not want to burden the Constitution with provisions of a communally discriminative nature and preferred temporary provision to assist the Malays. Hamid, on the other hand, was genuinely concerned about the plight of the Malays and wanted to ensure stringent safeguards in the Constitution to offset what he perceived as possible changing demographic patterns and, consequently, the voting pattern in favour of the non-Malays. He felt that the Yang di-Pertuan Agong (for Federal matters) and the Rulers (for State matters) should be made the guardians of Malay special privileges instead of the legislatures, putting them beyond the reach of party politics. Hamid contended that this was what the Alliances had requested:

The new Constitution confers citizenship rights on a very large number of non-Malays and in the course of a very short time non-Malays will outnumber the Malays on the electoral roll and will be in majority in the legislature. The protection which a majority in a legislature enjoys will not be available to them for long.

Hamid claimed that even in the short period during which Malays would be in the majority in the legislature they would be unable to undertake any legislation in protection of their rights because such legislation would offend against the fundamental guarantees in the Constitution and would be ultra vires. He argued that it was in recognition of these “disabilities” that a provision for the protection of their interest had been inserted in Article 19(1)(d) of the 1948 Federation of Malay Agreement. Hamid stressed that the majority recommendation of the Commission on the Malay special position was inadequate: “In my view a guarantee of a substantial nature is necessary, a guarantee under which the Malays should, with peace of mind, be able to devote themselves to the amelioration of their educational and economic conditions.” He felt that because of the controversial nature of the matter the recommendations of the Alliance should be followed “closely and scrupulously”.

Further, Hamid’s reference to the change in demographic and electoral patterns to justify his arguments was not based on established facts. The weightage given to rural constituencies based on population density in the 1955 election and the Commission’s recommendations that the existing distribution of constituencies was “not unreasonable” meant there was little likelihood of Chinese “swamping” Malays in the legislature. Hamid’s decision to ignore ‘the legitimate interests of the other communities’ was criticized by the other members of the Commission as a partial interpretation of the terms of reference.

On the question of religion, on the other hand, while Hamid said it was “innocuous”, his contention that there was no opposition from nay important quarter was incorrect. A large number of non-Malays organizations, as we have seen above, urged the Commission not to provide for an official religion for the Federation. This concern among the non-Malays had led the Secretary to reiterate the point on religious freedom in his letter to the Commission. Further, Hamid himself had originally agreed to the decision of the Commission to omit any provisions for an official religion for the Federation although he made no reference to his previous decision in the note of dissent (pgs. 136-138).

The resolutions on the Malays special position provoked a stronger response from the MCA. While the MCA was agreed in principle on the constitutional provision for the Malay special position, it was concerned about the wording of the article in the Constitution and its political implications. MCA’s chief publicity officer, Tan Siew Sin, argued that the Reid Commission’s proposals on the Malay special position were a correct interpretation of the original Alliance position. Siew Sin said that unless the article was carefully drafted it could be interpreted to the disadvantage of non-Malays by another party in power. “There would be nothing to stop such a party from saying that in the future half of any trade or industry should be given to Malays, and this could go on ad infinitum. There is a real fear among the non-Malays.” He noted that there was a general realization among the non-Malays that the Malays should be assisted economically, “but only with adequate safeguards for the interests, rights and opportunities of the other communities”. Razak, however, assured his Alliance colleague that he felt provision could be made in the Constitution to help the Malays without infringing the rights and interests of the non-Malays: “At any rate, there is recourse to the Court for redress in the event of the provisions of the Constitution being unreasonably interpreted.”

The new version of Article 157, redrafted as a result of objections expressed by the MCA, contained an additional protective clause which stated: “Nothing in this article shall empower Parliament to restrict or control any trade or business just for the sake of creating quotas for Malays.” On the question of the time frame, which has been the focus of much Malays criticism, the Alliance sub-committee adopted a suggestion by the MIC representative, Kather Singh, that it would be more suitable to use the phrase “from time to time” for a review of the provision in the Working Party Report or the White Paper outlining the constitutional proposals instead of stating a fixed period. The intra-party bargaining was thus characterized by a willingness of the parties to accommodate the views of their partners (pgs. 155-156).

The provision for Malay special position again proved difficult in the Working Party discussions. While the Alliance has suggested a review of Malay special privileges after 15 years at the private hearing before the Reid Commission, the UMNO leaders now felt that this position was untenable. The UMNO leaders in the Working Party argued that the Commission’s recommendation had been “violently attacked by Malays and that they could not defend it politically”. The Rulers’ representatives said they preferred Article 157 to stand as worded in the Commission’s report because they felt that Article 8, which provides for equality for all persons before the law, would otherwise lose its force. The UMNO leaders reiterated that it would be easier to defend the article politically if it was recast in general terms. As we have seen above while examining the deliberations of the Alliance sub-committee, the MCA, also had misgivings over the UMNO-initiated amendments. The compromise reached in the Alliance sub-committee dropped the time frame of 15 years for a review, on the understanding that the Agong should cause a review of the provisions from “time to time”. An additional proviso was added to Article 157 stating: “Nothing in this article shall empower Parliament to restrict or control any trade or business just for the sake of creating quotas for the Malays.” This was intended, as Razak noted, to allay the fears of discrimination among the non-Malays. Back in the official Working Party, the Alliance, having reached a difficult compromise in its own sub-committee, was able to convince the High Commissioner and the Rulers’ representatives that there was little room for maneuver on the issue and the Alliance compromise was adopted (pgs. 163-164).

Further, the inclusion of a new article, Article 3, declaring Islam as the official religion created a degree of ambiguity in respect of the Alliance commitment to the secular status of the State as stated in its memorandum, and tension with Article 11 which guaranteed the right of the citizens to “profess, practice and propagate” their religion. Article 11, standing on its own, would have provided equal and adequate protection for all religions, as was the intention of the original article which was derived from the Indian constitution, in keeping with the democratic and secular status of the State envisioned by the Alliance, and provided for by the Commission in the draft constitution. The changes made to the article on language, to a lesser degree, also partially nullified the basic fundamental rights of an individual that a democratic constitution is expected to guarantee. In this regard, it is worth noting the reasoning that went into the framing of the provisions on fundamental liberties in the Indian constitution. G. N. Joshi, for example, explaining the necessity for the insertion of fundamental rights in the Indian Constitution, observed:

In order that the democratic principle may operate effectively both in its content and application, the citizens, and particularly the minority, require protection of their life, liberty and property, and free and full opportunity to assemble and express their opinion regarding public matters.

In other words, certain basic rights of the citizens are considered essential for the effective working of a democratic polity. Similarly, the original framers of the Malayan Constitution, in erecting a democratic constitutional structure with safeguards to ensure the observance of the basic rights of the individual, felt that it was the right approach to ensure a harmonious future for independent Malaya in the long term. The changes made by the Working Party, however, dislocated the Commission’s effort and, consequently, disrupted the long-term objectives. These changes created distinctions in the Constitution between Malay and non-Malay citizens of a more permanent character than intended by the framers; this had serious socio-political implications. It entrenched communalism more firmly in the fledgling political system, contrary to the spirit and intent of the Constitution formulated by the Reid Commission. It also deeply eroded the safeguards provided by Part II of the Constitution relating to fundamental rights and, equally important, had a dampening effect on the democratic character of the Constitution.

The shift in the inter-communal balance in the Constitution was not entirely lost among the politically conscious in Malaya or in the British Parliament. In the MCA, for example, dissenting voices began to surface when some officials realized the implications of the changes to Article 157 on the Malay special position. This article was transferred from the transitional provisions of the Constitution to the permanent section at the final meeting of the Working Party on 27 April 1657, but the MCA representatives on the Working Party did not grasp the implications of the move until after the London Conference when the Constitution was all but finalized. The MCA representative in the Alliance delegation to the London Conference, Ong Yoke Lin, was questioned about this change on his return.

Too Joon Hing, another member of the Alliance delegation on the Working Party, joined in the debate, adding that the question of transfer was taken so hurriedly at the Alliance meeting that he did not grasp the implications. He was now inclined to support Ng, who argued that once the provisions were moved to the permanent section it would be irreversible because the Chinese would never be able to command the necessary two-thirds majority vote to effect a constitutional amendment. He said that UMNO has “broken faith” in the matter since, by agreeing to a review of the position after 15 years, UMNO had originally intimated that the provisions would be temporary. Ong merely responded that Ng was misinformed on the votes required to amend the Constitution. At that stage Ng left the meeting. Clearly, the Alliance parties were not entirely agreed on the communal issues even though there was a public show of unity when the Constitution was debated in the federal legislature in July 1957 (pgs. 166-169).