Experts: ‘Social contract’ never in the Constitution

March 24,2019

Experts: ‘Social contract’ never in the Constitution

PETALING JAYA: The term “social contract” does not appear in the Federal Constitution and its misuse by some in society is worrying, say experts.

Moderation advocate Mohamed Tawfik Ismail said there was no such phrase as a “social contract” during the drafting of the Federal Constitution.

He said while the Constitution sought to address three issues, which were non-Malays’ citizenship, the national language and the special position of the Malays, it did not explicitly outline a social contract.

Muhamad Tawfik is the son of former de­­pu­­ty prime mi­­nis­ter Tun Dr Ismail Abdul Rahman, who was part of the delegation sent to London to negotiate terms of independence for Malaya.

He said the phrase was in fact coined by the late politician-cum-journalist Tan Sri Abdullah KOK Lanas Ahmad in 1986, which almost 30 years after independence.

Abdullah had in a speech in Singapore said that the “political system of Malay dominance was born out of the sacrosanct social contract which preceded national indepen­dence”.

As such, Abdullah urged that the Malaysian political system preserve the Malay position and meet Malay expectations.

Setting things straight: (from left) Mohamed Tawfik, Dr Lim and Dr Shad speaking at the forum at Universiti Malaya.

Since then, Abdullah’s definition of “social contract” has been appropriated by politicians.

“People have been talking about the social contract as though it was a real thing but Abdullah is a politician all the way.

“(Social contract) is actually a fiction.

“As far as the political parties are concerned, I can safely say that not one MP has defended the Constitution as they should and as they have sworn to do,” Mohamed Tawfik said at a forum titled “Social Contract and Its Relevancy in Contemporary Malaysia” at Universiti Malaya yesterday.

Public policy analyst Dr Lim Teck Ghee said Abdullah’s notion of a “social contract” was often repeated by Barisan Nasional and their supporters, and had now become an unquestionable truth in public consciousness.

Abdullah, he said, was more concerned about continuing the National Economic Policy, which was reaching its end in 1990.

Lim said the “social contract” phrase was never used by the Merdeka leaders and members of the Reid Commission, which was the body responsible for drafting the Constitution prior to Independence.

“The great majority of Malays accept the social contract as part of the Constitution.

“That’s a reality which unfortunately the Malay intellectuals, leaders and Rulers have to push back against.

“The political reality is that if the non­-Malays make a concerted effort to demystify the social contract alone by themselves, they would not be able to do it and they would suffer setbacks,” he said.

Lim recommended to replace racially­-based entitlements, handouts and subsidies that favour the rich or upper class with needs-based, race-blind programmes that benefit the B40, which includes Malays too.

“The Malays no longer need the handicap. They have exceeded standards and expectations,” he said.

He added that perhaps this handicap could be given to other more economically disadvantaged communities.

Constitutional law expert Emeritus Prof Datuk Dr Shad Saleem Faruqi said while the phrase “social contract” was not in the Constitution, what is more important is to fulfil its negotiated compromises.

Prof Shad urged that government policies must be aligned with Article 153 of the Constitution which has the spirit of affirmative action.

He said while the Constitution had provisions for the special position of Malays, it was “hedged in by limitations”.

“It is not across the board, it applies only in four areas: federal public service positions, federal scholarships, federal trade or business licences and tertiary education enrollment.

“The Constitution has a very important outline for affirmative action that can’t be denied.

“There are many communities still left behind, so we must review the workings of our affirmative action policy, for the orang asli, women or anyone who has been left behind so they can benefit from constitutional protection,” Prof Shad said.

He addressed some misconceptions about the Constitution, and explained that the International Convention on the Elimination of All Forms of Racial Discrimination does not contravene Article 153.

He also said the Constitution actually stipulated that federal posts were open to all races, barring a few exceptions.

“Recent talk that we can’t have non-Malays as Chief Justice, Attorney General and the Finance Minister, is very naughty and very dishonest.

“It has no connection with the Constitution,” Prof Shad said.

He urged Malaysians to improve their constitutional literacy. “In some respects if there was better know­ledge of the Constitution, we would have a much more peaceful and pleasant country.

“What’s happening now is politicians going around spreading their venom and people tend to believe them. This is made worse by social media,” he said.


15 thoughts on “Experts: ‘Social contract’ never in the Constitution

  1. Does it take Expert to voice such opinion if the Reid Commission would be made public? Perhaps, it is good to make public the full content of Cobbald Commission also? One can read both documents online with a simple Google search. It is good for the government to share the official version.

  2. Social contract means something not specifically written in the constitution but generally agreed upon by stake holders. Putting it down in writing would have possibly brought upon resistance and upheavals. So it is an interim arrangement until the ground is ripe for desired change.

    • Good point. A social contract is implicit.
      But, if one has gotten to read Reid and Cobbald Commission, one could then make a better judgement on what was the implicit agreement set during the foundation of the nation. I have read the unofficial documents of both Commission online. They could have been “doctored”. But, given that the nation is unwilling to release the official documents for the public to read, a rational individual could only argue that the government has wanted something that it wishes to hide. “Implicit” Social Contract could be one of them.

  3. ‘Social contract’ never in the Constitution, but Malay politicians says, it is. So it is a cheating, economically and morally incorrect, no wonder they are backwards!

  4. Social contract means something not specifically written in the constitution but agreed upon by stake holders. Putting it down in writing would have possibly brought upon resistance and upheavals. So it is an interim arrangement until the ground is ripe for desired change.

  5. Very simple. Opportunities in this beloved country, to remain beloved, must reflect the composition of the cabinet. Nothing more nothing less. The government must lead the way.

  6. The “social contract” DOES NOT EVEN MAKE SENSE. The non-Malay were the majority in Malaya, why would they have a “social contract”?? Why would the non-Malays trade second class citizenship of well run British colony for second class citizenship to Malay Ketuanan? IF there was “social contract” by `1957, why would LKY fight so hard to be part of Malaysia after? The real contract was that THERE WAS NO INDEPENDENCE WITHOUT FULL CITIZENSHIP FOR ALL. The reason why Singapore got kicked out of Malaysia is because there was full and equal citizenship and LKY plotted to be PM roping in Sabah, who would never have been convinced to join if there was a “social contract”. IF there was a “social contract”, there would never have been 1969..

    The narrative had never made sense and equally do not make sense the narrative of UMNO-PAS is equally a myth slandering DAP and non-Muslims in the fantasy of creating Malay Islamic state.

  7. None of the original members of the Alliance that negotiated the Independence of Malaya from the British are still alive. Thus no one can verify for sure that there was or wasn’t a Social Contract as promoted by Dollah Kok Lanas. All we know is that in the negotiations with the British the Malay leaders did agree to accept the Chinese and Indians as citizens of the new country Malaya. The acceptance of the Chinese and Indians is a major point that was raised by the British. In return for citizenship the Chinese and Indians accepted the special position of the Malays and the Royal families. But there was no formal “contract’ or agreement sighted just an agreement by the leaders of the various political parties involved namely UMNO, MCA and MIC.
    Today no one dared even discuss this even in Parliament without being label anti Malay, anti Muslim and anti Royalty. As long as the situation prevail Malaysia will continue chugging along on the presumption that there was a Social Contract.

    • THIS story is a myth. Tan Cheng Lock supported Malaya Union and was never going to accept anything else other than full citizenship on independence. The “special position” of the Malay as written in the constitution existed BEFORE independence and was just codified. There was no bargain..

    • It is not possible to know if there was a ‘social contract’. But, at the same time, one could infer the kind of ‘social contract’ it would have been (or would not have been), if the government would let the rakyat read both the Reid and Cobbald Commissions.

    • As a matter of fact, if the original Reid Commission that was circulated online is telling the truth, there ought to be a social contract by the founding fathers that Article 153 would not be permanent, as implicated by this entry in wikipedia.

      The Reid Commission which prepared the framework for the Constitution stated in its report that Article 153, the backbone of the social contract, would be temporary only, and recommended that it be reviewed 15 years after independence. The Commission also said that the article and its provisions would only be necessary to avoid sudden unfair disadvantage to the Malays in competing with other members of Malaysian society, and that the privileges accorded the Malays by the article should be gradually reduced and eventually eliminated. Due to …, 1972, the year that Article 153 was due to be reviewed, passed without incident.

      So, the question remains .. the rakyat would not know as the government has decided to not disclose the Reid Commission to the rakyat. Melayu, be brave and find out the truth yourself.

  8. Social contract? The only thing this nebulous concept did was to cause social contraction and failure of a truly multi-ethnic, multicultural Malaysian polity. We remain a Nation of Immigrants – Malay, Chinese, Indian or ‘Other’..

    The politicos and royalists will yodel and curdle it around as the factual base coded as ‘trade-offs’ in Articles 14-18 which leads to a self indulgent, if somewhat ‘woolly’ Article 153. So whether we like it or not, the Undefined Social Contract will remain Official Propaganda for eternity, unless the ‘Melayus hilang di dunia’. Won’t happen.

    Racial-Religious ‘Exceptionalism’ based on deliberate crippling and hobbling, exacerbated by politicizing an unending of “Affirmative” Policy will of course breed an opposing brand of Chauvinism and reverse Discrimination. Apartheid beckons and is worming it’s way, even into our Golf Courses..

    Throw in a bit of Jingoism, which Octo is also a master off – soon we will be in the throes of whacking both European interests and our Lil Red Neighbor. No problem if our new China or India made fighter jets are a fraction of the costs of the Grippen, Eurofighter or Typhoon?

    Tell me, who on earth would wanna to plunk their FDIs here, when every Tom Dick and Tokong insists on our sudden new-found Fiduciary, Accountability, Transparency and Competency Bullshi based on Apartheid?

    If you guys think that the Gostanism of the previous Regime was Bad, this Regime is just as Backward, for lack of proper policy.

    Palm oil, rubber, bauxite, Lynas, Musang King Lulian and many Sungai Kim-Kim. Plastic Man. Wow! My brain is exploding..

  9. Actually why Sabah and Sarawak agreed to join Malaysia was because Singapore was going to be in it and their leaders probably hedged their bet on Tunku and Lee Kuan Yew to counter any emergence or ascendancy of Malay supremacists and their toxic politics.

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