Who's To Say We Can't Change the Social Contract?

I am probably one of the most vocal critics of the Malaysian social contract out there. I don't believe any such contract exists; the evidence for it is scant, the Constitution itself is silent about any quid pro quo trade, and if there was any deal at all, it was a bargain struck between our founding fathers in private, in the normal course of negotiating the terms of a Constitution.

Let us say that there is some "social contract". Who is to say that we cannot change it? Who is to say that it is set in stone, to never be changed for time immemorial?

There is some idea out there that if Malaysians reject the notion of royalty, Islam as the official religion, Malay as the national language, or the special position of the Bumiputra under Article 153 of the Constitution, then the provisions conferring citizenship on non-Bumiputra Malaysians are fair game.

This is utter bull, as anyone who has actually read the Constitution can tell you. The Constitution entrenches all these provisions equally (and mind you, this entrenchment is far from part of the original "social contract", having been enacted only in 1971).

What this means is (assuming for our purposes, we ignore the fact that the Sedition Act bans the questioning of any of these provisions), any of these terms can be altered at will, following the process set out by the Constitution. (Being entrenched, the process of amending these provisions is more complicated than your garden variety Constitutional amendment.)

There is nothing to say that if we reject, say, Malay as the national language, it follows that the non-Malays should be stripped of their citizenship (although one does wonder where these stateless people would go, seeing as most of them have known no home other than Malaysia and never even set foot outside the country).

You can, of course, argue that because we are not staying true to the original terms of the "social contract", the non-Malays should be shipped out of the country. But that argument has no power as far as the legal system is concerned, because all parts of this "social contract" are treated equally, and because there is no provision that if one thing goes, all the rest goes too.

Moreover, let us put things in their historical context. You must ask yourself, why did our founding fathers not put this "social contract" explicitly in the Constitution?

Of course, my point of view is that it is because there is no such "social contract". The Alliance leaders did privately hammer out agreements among themselves; of that, there is no question.

These agreements, however, are like any other bargains made by a group of negotiators preparing a Constitution. To say that the social contract is immutable because of this is to say that the Americans should never touch how their Congress is organised because the American founding fathers struck a compromise between large and small states in determining how they would apportion the two houses of Congress.

The fact is, there is a reason why any Constitution is amendable. (Our government of all people should know this, seeing as they have made hundreds of amendments to the Constitution over the years.)

Things change. It's as simple as that. The Reid Commission which drafted our Constitution recognised that, proposing that Article 153 expire after 15 years (this was not adopted by the Alliance). Later, Tun Dr Ismail argued that although the affirmative action policies should remain in place indefinitely, they would eventually be repealed at the behest of the Malays themselves once rendered unnecessary.

This treating of the "social contract", which has hardly any historical evidence in its favour, as immutable and sacrosanct is stupid. It is avoiding change for the sake of avoiding change, rather than considering whether change is necessary.

If our founding fathers wanted our social contract to remain forever, they would have said so. Even the new regime which took over after the 13 May 1969 racial riots did not make the relevant provisions of the Constitution untouchable — just more difficult to touch.

The debate with joshvinder alluded to in the earlier article dealing with the ahistorical nature of Malay supremacy is still ongoing, though it hardly seems worth paying attention to since joshvinder is now reduced to making unsubstantiated claims about the majority of Chinese being communists.

But the debate is important, because in it, joshvinder recognised an important truth — that the power of this social contract lies not in any explicit document or statement, but in our heads. As I pointed out when I argued we should celebrate national day by tossing out our "social contract", this is the only reason why it holds any sway at all.

Once the mystique and grandeur of this false "social contract" is gone, there is no reason to consider it binding. The only reaosn it has any power at all is because people believe it has power — it is a self-fulfilling prophecy.

The social contract is a lie. And even if it were not a lie, there is no reason at all that it cannot be changed, cannot be renegotiated. Saying we cannot change it because we cannot change it is circular reasoning — and it is circular reasoning which has no legal nor historical standing.