Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

Our "Social Contract" is a Lie

Written by johnleemk on 6:05:59 am May 9, 2007.
Categories: ,

Raja Petra Kamarudin, the editor of Malaysia Today, has written a column on the machinations of constitutional law in Malaysia, and how ketuanan Melayu is protected by it.

There are a number of problems with his presentation of the facts, however. It is unquestionably correct that the British started this nonsense about Malay supremacy.

But still, to conclude that it was the British who entrenched Malay supremacy in the Constitution, subjecting things like Article 153 to the purview of the Malay rulers to avoid any change in the situation, is simply wrong.

The Reid Commission which drafted our Constitution actually featured eminent jurists from all over the Commonwealth — not just Britain. But even more damning for Raja Petra's argument, the last thing the Reid Commission wanted to do was to entrench Article 153, which makes it the prerogative of the Yang di-Pertuan Agong to protect the native communities of Malaysia.

In their view, Article 153 was meant to be a temporary thing. Like the New Economic Policy, Article 153 has been twisted by the government into becoming a permanent feature of our legal landscape, when the Reid Commission wanted it subject to a 15-year sunset clause.

The entrenchment of Article 153 was thus nowhere in the Constitution for 12 years, from independence in 1957 until 1969. It was only after the May 13 racial riots that our Constitution was amended to prevent the amendment of Article 153 and other portions of the Constitution without the consent of the Malay rulers.

I am not sure if Raja Petra's suggestion that since the Yang di-Pertuan Agong's consent is now no longer necessary for a bill to become binding law, this entrenchment of Malay supremacy is gone. I doubt that this is a correct interpretation of the law, because as long as the Constitution states that the Malay rulers must consent to any amendment which touches on the entrenched portions of the Constitution, then they still hold the power to check attempts to remove Malay supremacy.

What I find truly troubling, though, is the implicit assumption that Article 153 represents Malay supremacy, and that it must be done away with to destroy ketuanan Melayu. Reading this article, it is difficult to see how it can be interpreted as supporting supremacy of the native communities.

After all, as has been astutely noted before, Article 153(1) states:

It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.
Article 153 in reality is an article for all Malaysians! The only issue of course, is the "special position" of the native peoples — but what exactly is this "special position"? This is not spelled out by the Constitution.

I personally think that the "special position" is the fact that these communities, like it or not, are part of the country and its backbone. Much of our identity, like it or not, comes from them and their traditions. Our head of state, our flag, our state religion, our national language — they are all derived from the Malays.

With this in mind, it makes perfect sense to protect the people who gave our country its name and its initial identity, to ensure they are not left behind by economic development. This interpretation — that Article 153 is meant to give the Bumiputras parity, not supremacy — sounds very strange to our modern ears.

But this is the interpretation I believe that would be favoured by the Reid Commission, which saw Article 153 as a temporary means of helping the Malays catch up with the non-Malays, and to prevent their rights as equal Malaysians with an equal right to participate in the economic life of our country from being infringed.

The idea of course was that at some point this would be unnecessary — but I would not object to maintaining Article 153. All we have to do is understand that it protects these communities, who have a special position in our country's history, from being treated unfairly. This is borne out by the fact that Article 153(1) seeks to protect all Malaysians, holding the Yang di-Pertuan Agong responsible for protecting the legitimate interests of the other communities as well.

The "social contract" as it is understood by our government, and accepted by people like Raja Petra, is completely and totally flawed, and must be thrown out. The true meaning of our social contract is to give all Malaysians a fair stake in our country and its socioeconomic life. That is the point of our Constitution and our social contract, and to understand it otherwise is to do a disservice to our founding fathers and the Constitution they gave us.

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