It’s time we go back to the original social contract

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© Provided by Free Malaysia Today

From Kua Kia Soong

Nazir Razak’s suggestion for a new national consultation to discuss the economic, political and social path for the nation is a good one although I believe we should use the original Independence social contract as a starting point.

He further called for the setting up of a National Consultative Council (NCC) to bring leaders of respective fields together to carve out a new way forward for the nation. Again, I concur except to stress that “leaders” should be those who lead organisations representing the various ethnic, cultural, religious and gender communities rather than academics.

The original 1957 social contract

It is time for Malaysians to reaffirm the non-discriminatory basis of the 1957 Federal Constitution and to uphold our “Fundamental Liberties” in Part II which are strictly anti-racist.

Article 8 (1) of the Malaysian Constitution clearly spells out the principle of equality of all Malaysians while Article 12 (1) allows no discrimination against any citizens on the grounds of religion, race, descent, or place of birth.

Article 153 on the special position of Malays was inspired by the affirmative action provisions in the Indian Constitution to protect the minority underprivileged class of harijans.

Ours is fundamentally different in the context of such provisions because the ethnic group in whose favour the discrimination operates in Malaysia happens to be the one in political control, the Malays.

Nevertheless, at the time of Independence in 1957, four matters in relation to which the special position of Malays were recognised and safeguarded were: land; admission to public services; issuing of permits or licences for operation of certain businesses; and, scholarships, bursaries, or other forms of aid for educational purposes.

When the Constitutional (Reid) Commission was considering whether such a provision should be included in the 1957 Constitution, it made the following comments:

“Our recommendations are made on the footing that the Malays should be assured that the present position will continue for a substantial period, but that in due course the present preferences should be reduced and should ultimately cease so that there should be no discrimination between races or communities.”

We know what the original intentions of the “Malay Special Privileges” provision in the Merdeka Constitution were, but to maintain that as a carte blanche for all manner of racial discrimination, as we have witnessed since 1971, is a violation of the spirit of the Malaysian Constitution.

International law sets major limits on affirmative action measures. Notably, affirmative action policies must be carefully controlled and not be permitted to undermine the principle of non-discrimination itself nor violate human rights.

Holding the equality principle uppermost, the raison d’etre and reasonableness for differential treatment must be proven.

A consequence of the so-called affirmative action policies up to now is that for the poor of all ethnic communities, including the indigenous peoples in Malaysia, these objectives of wealth redistribution for their benefit have not been met.

Worse, the poorest community remains the Orang Asli of Peninsular Malaysia, the original people of Malaysia who are not even considered “Bumiputera” by the status quo.

The Federal Constitution certainly does not contain any reference to the concept of “Bumiputera” (“princes of the soil”) nor does it adhere to any notion of “Ketuanan Melayu” (Malay Dominance), which is a totally racist concept.

Post-May 13 New Economic Policy (NEP) was a fait accompli

As a result of the May 13 racial riots in 1969, the country was presented with a fait accompli by the new ruling elite in Umno who were keen to propagate their “Bumiputera-ist” ideology as a convenient populist ploy.

Thus, in early 1971, the Constitution (Amendment) Act was passed adding a new clause (8A) to Article 153 to introduce the so-called “quota system”.

We have lived with this new status quo for the last 50 years or so and it has created so much acrimony for that length of time.

Thus, strictly speaking, our original “social contract” certainly did not include Clause 8A of Article 153, since this clause was introduced 14 years after Independence. And if we scrutinise this Clause 8A more closely, we will see that it was not a carte blanche for the blatant racial discrimination as is the case of enrolment at institutions such as UiTM.

So, if any aggrieved party took the government to court for its enrolment policy at UiTM or any other Mara institutions, how do you think any judge would interpret clause 8A of Article 153, i.e “ … to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable … ”?

The 100% Bumiputera enrolment policy at UiTM certainly makes a mockery of Clause 8A of Article 153 and the justification of any affirmative action.

A stated goal of the NEP was a 30% Bumiputera equity share target by 1990. Even though that has clearly been reached, there seems to be no end to a policy that allows the Malay elite to continue reaping the benefits of the policy.

Besides being on to a good thing, such a discriminatory policy has a populist appeal to win over the Malay vote by portraying the non-Malays as “immigrants” who cannot enjoy these “special privileges”.

The Rukun Negara must be inclusive

The formulation of the principles of the Rukun Negara in 1971 was the effort of the NCC which incorporated a few non-Malay academics. It is important to bear in mind that the country at the time was under the emergency rule of the National Operations Council, announced on May 15, 1969 and it was not until 1971 that the Malaysian Parliament was restored.

The attempt at fostering harmony and unity among the various communities in Malaysia in 1970 was certainly laudable although there was no attempt at legitimising these supposed “national principles” once parliament had been restored in 1971.

In other words, rather surprisingly, these “National Principles” have never been legislated by a democratically elected government.

Not only that, the views of representative organisations of all ethnic communities were not sought nor taken into consideration. Likewise, the ill-fated “National Cultural Policy” of 1971, which also incorporated a token number of non-Malay academics, had never been accepted by all the ethnic communities in the country to the present day.

Why were these two important steps not taken? The Rukun Negara has been taken for granted for too long.

After 50 years, is it not a good time to first have a national consultation to seek a consensus on what should constitute our national principles? And shouldn’t the representative organisations of all ethnic communities be given the opportunity to participate in the redrafting of our “National Principles”?

When we look at the first principle of the Rukun Negara itself – belief in God – we realise that it is not only contrary to the secular principle of the Malaysian constitution, but it also excludes all Malaysians who do not believe in a monotheistic God.

They include Buddhists, Hindus, Taoists, ancestor worshippers and animists among many Malaysian Chinese and Indians as well as most of our indigenous peoples in East and West Malaysia. Yes, our spiritually diverse world has always included pantheists (who do not believe in a distinct anthropomorphic god), and atheists (who do not believe in any god or gods) besides monotheists!

Malaysia is a secular state. A secular state, as practised across the globe as well as in the Malaysian Constitution, operates on the principle of inclusivity that grant
s religious freedom to all citizens.

“Belief in God” is not found in our secular Federal Constitution nor in the Constitution of any other nations which claim to be democratic. Instead, a new “national principle” would do well to prioritise “We the People” as in the US and Indian constitutions. In both their constitutions (one a Christian while the other a Hindu nation), there is no reference to “belief in God”.

Thus, it is time to review our “national principles”, to encourage a national consultation involving the representative organisations of all ethnic communities so that we can arrive at a consensus that should then be legitimised through a parliamentary Act.

It is time to revisit our “national principles” to ensure that they are inclusive of all religions and belief systems; humanistic and based on science, reason, and the rule of law; sensitive to preserving Malaysian nature and regenerative economy; committed to equality, social justice and democracy in order to make ours a better world for all Malaysians.

Affirmative action based on need not race

In Malaysia, since the passing of the deadline for the NEP in 1990, it makes developmental sense to implement a new socially just affirmative action policy based on need or class or sector.

Thus, if Malays are predominantly in the rural agricultural sector, the poor Malay farmers would be eligible to benefit from such a needs-based policy while the rich Malay land-owning class would not.

Only such a race-free policy can convince the people that the government is socially just, fair and democratic.

The cost and consequences of the racially-discriminatory policy in Malaysia have been immense, especially since the NEP in 1971. It has caused a crippling polarisation of Malaysian society and a costly brain drain.

Any policy based on “race” is seriously flawed and questionable since every ethnic community has its rich elite and its poorer majority. Every scholar worth his or her salt knew then in the 70s what the outcome of the NEP would be – thus, the “corrective” measures have mainly benefitted the well-placed elites.

Separating the control of funds by NEP “trustees” from nominal ownership by Bumiputeras has led to the flouting of public accountability. Without effective checks and balances, Malaysia has been beset by massive scandals like Bank Rakyat Malaysia, BMF, 1MDB and others since 1971.

More potentially dangerous and insidious is the effect this widespread racial discrimination has had on ethnic relations in this country. Unity can only be promoted through an affirmative action policy based on need, sector, or class, never on race.


Kua Kia Soong is adviser to human rights NGO, Suara Rakyat Malaysia (Suaram).

The views expressed are those of the writer and do not necessarily reflect those of FMT.