Celebrate National Day By Tossing Out the Social Contract, Part III

It has come to my attention that my previous discussion of the social contract may not be completely clear in its meaning or intention. As one blogger (desiderata) has put it, "I'd temper your call to 're-visiting' the Social Contract in order not to cause alarm -- as 'we can't throw the Baby out of the window with the bath water'." (Speaking of desi, I am one of his guest bloggers for today, so if you tire of the pessimism here, I have a little piece there which could cheer you up, although it's liable to throw some chauvinists into a murderous rage.)

First, let us define what is meant by "social contract". Wikipedia defines it as "the agreement made by the country's founding fathers in the Constitution". However, I am not going to be so general as to criticise the foundation stone of this country (even if it's been treated like toilet paper and been amended hundreds of times by our government). My treatment of the social contract is and always has been far more specific; Wikipedia describes this aspect as: "a quid pro quo trade-off through Articles 14–18 of the Constitution, pertaining to the granting of citizenship to the non-Malay people of Malaysia, and Article 153, which grants the Malays special rights and privileges".

Some would argue that the social contract also includes those articles relating to the Malay language, the Malay rulers, Islam, and so forth. All well and good, I suppose. Still, I do not intend to question the position of any of these issues; I do not even mean to question Article 153. What I am suggesting is that we take a different interpretation of the Constitution and its provisions.

In my opinion, the social contract is nothing more than an interpretation of the Constitution. The Constitution does not make a single reference to any "social cotnract". The social contract does not exist in any document or in any shape or form outside our minds. The social contract is an interpretation of our Constitution, and it is nothing more than that.

I suppose it would be harder to alter our minds than amend the Constitution (seeing as the government has done this so easily over the past 49 years of independence). Nevertheless, as the social contract exists only in our minds, and as I have no intention of amending the Constitution, changing our minds is what must be done.

Let's take a look at the essence of the social contract. The social contract has never been put forth in any document, and no formal agreement has ever been made by Malaysians that we engage in a quid pro quo trade concerning the issues touched on by the social contract. The government has constantly and consistently assumed that we give our tacit agreement to this "contract" by being born as Malaysian citizens. I do not know if naturalised Malaysian citizens swear to uphold the social contract, or are even taught about it, but whatever the case there, at best one can say that only naturalised citizens have given their consent to this social contract.

And remember - this social contract is nothing more than an interpretation of the Constitution. There is no quid pro quo trade-off in the Constitution. Section III of the Constitution relating to citizenship provisions does not contain a statement along the lines of "These provisions are granted in return for acceptance of Articles so-and-so". Likewise, Article 153, etc. do not state that "In return for the enactment of these Articles, Section III has been enacted". The social contract is all in our heads.

Some have gone as far as to suggest that Malay supremacy is also enshrined in the Constitution. Again, this is another subjective interpretation. The Constitution does not mention the supremacy of one race above another; as a matter of fact, it takes pains to state that all citizens are considered equal. Even Article 153 contains a number of checks and balances to ensure that it is not used as a sledgehammer to browbeat the non-Bumiputra into submission; note, for instance, how universities had to (at least ostensibly) open their matriculation programmes to non-Bumiputra because this clashed with Article 153's insistence that admission never be denied to students solely on grounds of ethnicity.

Tunku Abdul Rahman supposedly once stated: "The Malays are not only the natives but also the lords of this country and nobody can dispute this fact". Well, I am presently disputing that "fact". The fact is, the Malays have never been described as "lords" of this country in the Constitution, and although I have not perused every statute ever enacted, I assume the same can be said for all other legislation that has taken force here. The Malays may think that they are "lords of this country" because of the social contract or ketuanan Melayu, but when neither of these concepts are enshrined in the Constitution, it can be seen that - to put it symbolically - the emperor has no clothes, whatever he may say or claim.

The government has always claimed and insisted that the Constitution does enshrine the social contract; many, including those from the opposition (notably the present Parliamentary Opposition Leader, Lim Kit Siang) have taken to treating "social contract" as a synonym for "the Constitution". However, I believe this is wrong. The "social contract" is a particular interpretation of the Constitution used to "bully" the non-Malays (as D.R. Seenivasagam once put it).

Not too long ago Lim Keng Yaik asked how non-Malays could love Malaysia and die for it when we have continual harping on this "social contract". You may disagree with Gerakan or with what Lim has to say, but it can't be denied that nobody would be in a mood to die for a country that holds their citizenship to ransom. No pendatang would dare die for a country that isn't his, and yet somehow, it is expected that second-class citizens (after all, that is what the social contract makes us; one class of citizens has no conditions for citizenship, while another class is expected to accept particular privileges for the other class prior to being granted citizenship) do just this.

Now, you may ask, what interpretation of the Constitution would I like to take? In statutory interpretation, there is a particular rule entitled the mischief rule, which seeks to determine the intent of Parliament - to divine what "mischief" they legislated a particular law to address. So, what is the purpose behind the various Constitutional provisions associated with the social contract?

It is difficult to determine the particular intent the government had when it enacted the Constitution, seeing as they have been rather fond of contradicting themselves on a regular basis. E.E.C. Thuraisingham of the MIC said: "I and others believed that the backward Malays should be given a better deal. Malays should be assisted to attain parity with non-Malays to forge a united Malayan Nation of equals." Certainly good grounds for the New Economic Policy and Article 153 - assuming one interprets Article 153's purpose to be solely addressing economic imbalances, and not enshrining one race as the master of all others. The Reid Commission (for those who have forgotten their sejarah, the Reid Commission drafted our Constitution) took the same tack and declared that it found strong opposition towards long-term maintenance of Malay privileges; it insisted that Article 153 would be necessary only in order to address economic disparities, and that once this was accomplished, the Article be repealed (rather, allowed to lapse; the Reid Commission originally provided for a review of Article 153 fifteen years after independence).

Even the Tunku seems to have agreed: "For those who love and feel they owe undivided loyalty to this country, we will welcome them as Malayans. They must truly be Malayans, and they will have the same rights and privileges as the Malays." Even after independence and after Malaya merged with Singapore, Sabah and Sarawak to form Malaysia, the government insisted (in the words of Cabinet member Lim Swee Aun) that the non-Malays were not mere pendatang: "we are co-owners, not lodgers, not guests."

The problem that arises is that not all government members have been so unequivocal in their calls for equality. Take Tunku Abdul Rahman's earlier mention of "lords of this country", or his 1952 declaration: "Malaya is for the Malays and it should not be governed by a mixture of races." Influential Parliamentarian and UMNO leader Syed Jaafar Albar had a passion for denouncing non-Malays as penumpang or bangsa asing - this despite the fact that he was an Indonesian pendatang turned Malaysian.

We have reached an impasse with the mischief rule. The government clearly has never had a consistent intent with regard to the Constitution. It is quite possible that some voted to enact the Constitution with an emphasis on affirmative action and equality, as E.E.C. Thuraisingham did, while others voted to enact it on the presumption that it enshrined ketuanan Melayu. Fortunately, statutory interpretation hasn't let us down yet. There is a rather liberal "golden rule" which seeks to prevent a "manifest absurdity" by taking a ridiculous view of the statute in question.

Now, let me ask you: what is more ridiculous? Is it ridiculous to consider all Malaysians as equals, and to therefore take Article 153 as a necessary provision to counter economic inequality? Or is it ridiculous to describe the Malays as "lords of this country", and browbeat the non-Malays into accepting second-class citizenship when some of them have been here long before some Indonesians turned into first-class Malaysians? I don't know about you, but I know what's ridiculous.