In the Malaysian context, ‘social contract’ refers to the bargain in a political society between the state and its citizens.
Citizens obey the state and its laws while the state in turn protects its citizens and undertakes to perform all its obligations with a sense of trust.
AT THE last Conference of Rulers meeting, the Malay Rulers issued a clarion call to all parties to respect the “social contract” chiselled out by the forefathers of the Constitution.
The unprecedented move by their majesties was timely, much needed and within the constitutional functions spelled out for them in Article 38(2).
Among other things, the Article permits the Conference to “deliberate on questions of national policy ... and any other matter that it thinks fit.”
Citizens and politicians of all hues must, therefore, seek knowledge of the solemn pact and the manner of its formulation.
To begin with, it must be pointed out that in political philosophy the term “social contract” has a different meaning than assigned to it in popular parlance in Malaysia.
The term refers to the bargain in a political society between the state and its citizens.
Citizens shall give obedience to the state and its laws.
The state, in turn, shall offer protection to the citizens and undertake to perform all its obligations with a sense of trust.
If the trust is violated on a large scale and those who abuse their powers are not punished, political and religious philosophy permits the subjects of the state to resort to “civil disobedience”.
The extent and manner of such peaceful, civil disobedience or non-cooperation is a matter on which there is no scholarly agreement.
In Malaysia, the term “social contract” has a unique meaning.
It refers to the painstaking compromises between the ethnic Malays, Chinese and Indians on their mutual rights and privileges and their bargains with the Malay Rulers and the British for the creation of a democratic, monarchial, federal and non-theocratic system of government.
When the Merdeka Constitution was to be drafted, an entirely neutral and external Commission of five distinguished foreigners was appointed to translate the ethnic compromises into entrenched rules of law.
The Commission was headed by the eminent British jurist Lord Reid.
The Commission did not act in isolation. It was guided closely by the 20-page memorandum drawn up by the pre-Merdeka Alliance among the major Malay, Chinese and Indian political parties.
The Commission held 118 public and private hearings between June and October 1956 and submitted a draft Constitution.
Its recommendations were scrutinised by a Tripartite Working Party consisting of four members of the colonial government, four representatives of the Malay Rulers and four leaders of the Alliance.
Significant changes were made to the Reid proposals on many critical issues. The “social contract” that took shape in 1957 covered some of the following salient features:
> The Federal Constitution contained many “indigenous features” of the Malay archipelago, among them the Malay Sultanate, special position of the Malays, Malay language, Islam as the religion of the Federation, Malay reserve land and special weightage for rural constituencies over urban ones for electoral purposes;
> State Constitutions of the nine Malay states contained provisions that the Ruler must be a Malay-Muslim and, subject to the discretion of the Ruler, the Menteri Besar must also be Malay. These provisions were not disturbed by the Federal Constitution;
> In an act of great accommodation, citizenship was offered to all persons of whatever race who were born in the Federation of Malaya. Though these generous “jus soli” provisions were repealed in the 60s, the multi-racial composition of Malaysia is largely the result of the 1957 recognition of the right to citizenship by birth;
> The Reid Commission’s time limit of 15-years on the special position of the Malays was removed. The special position of the Malays was made an integral and entrenched part of the Constitution. But clear provisions were added that existing non-Malay rights will not be extinguished in order to create quotas for Malays.
> Equality of treatment for all races in the service of the Federation was guaranteed by Article 136. It is not well known that Article 153(5) on Malay special position provides that Article 153 does not derogate from the provisions of Article 136;
> Contrary to the Reid proposal, a provision for Islam as the religion of the Federation was inserted. However, there was freedom to all other religious communities to pursue their faiths in peace and harmony. Documents were also exchanged that the addition of Article 3 on Islam will not convert Malaya into a theocratic state;
> Reid proposals on the use of Tamil and Chinese languages were modified. The permission to use Tamil and Chinese in the legislatures was replaced with the provision that these languages could be used for non-official purposes and that their teaching and learning would be allowed;
> Religious, linguistic and cultural pluralism were recognised and given constitutional protection in the chapter on fundamental liberties;
> There was an agreement to share political power. The politics of accommodation that the Alliance ushered in 1955 has provided Malaysia with the world’s longest surviving political coalition;
> The role of the Conference of Rulers was enhanced. In addition to electing the King, the Rulers were empowered to veto some constitutional amendments, to have the right to be consulted on important constitutional appointments and the right to deliberate on matters of national importance.
Evolutionary changes: On Sept 16, 1963 the Federation of Malaya merged with Sabah, Sarawak and Singapore to constitute the much enlarged Federation of Malaysia. With the admission of Sabah, Sarawak and Singapore on special terms, the “social contract” acquired a significant territorial dimension.
In some respects the formation of Malaysia diluted the “Malay features” of the legal and political set-up.
However, after the 1969 racial riots, the drafting of the New Economic Policy (NEP) and the Constitution Amendment of 1971, the Malay features of the Constitution were greatly enhanced.
After the expulsion of Singapore, the special position of the Borneo states was weakened a little bit. For example, their representation in the Dewan Rakyat has now fallen below one-third. This has one important implication – they cannot any more veto a constitutional amendment.
Since the 1990s, the Islamic dimension of the Constitution has gained great prominence.
As is the fate of all social bargains, once the original authors pass from the scene, the descendants do not always appreciate the rationale behind the original compromises.
The government of the day has to walk the tight rope between the need to honour the pacts of the past and to accommodate new demands and expectations.
The Malaysian Constitution is undergoing such a process of readjustment and reinterpretation. There is a lively and inconclusive debate about what the document of destiny actually ordained and how far the imperatives of the Constitution should be modified to meet the new aspirations of the electorate.
The Malay Rulers caution against such thinking and I am inclined to agree. Physics teaches us that any movement causes friction and friction produces heat.
There is very little doubt that any significant re-drawing of the contours of pre-Merdeka compromises is likely to open up a Pandora’s box of problems that may cause unnecessary friction and waste.