Malaysia’s Constitution and Social Contract

We need to know about our Constitution so we know when our rights are being stepped on – and defend them accordingly.



“The social contract is essentially a legal concept. In exchange for the protection of the state, citizens consent to surrender a certain extent of their rights by allowing themselves to be subject to the laws of the sovereign. These laws may prevent them from enjoying absolute freedom but they are necessary in order for citizens to be able to live in a civil society.” – Firdaus Husni, lawyer and Chairperson of the Malaysian Bar’s Constitutional Law Committee."


In plain English, that means as citizens of Malaysia, we agree to give up some of our freedom to comply with the country’s laws, and this stops us from descending into absolute chaos.

In Malaysia, though, people who talk about the social contract are referring to a deal the government struck back in the day so that Bumiputeras and non-Bumiputeras could live together in peace and harmony. Specifically, they’re talking about Articles 14–18 of the Constitution, which grants citizenship to non-Bumiputeras (particularly the Chinese and Indians), and especially, they’re talking about Article 153, which grants the Malays special privileges.


If you feel like being intellectual and lawyerly, the full text of the Malaysian Constitution can be read here.


http://www1.umn.edu/humanrts/research/malaysia-constitution.pdf


Article 153 talks about special privileges for Malays. But it was also amended after Sabah and Sarawak joined Malaya to include the Orang Asli, and it talks about making sure the interests of other communities are also taken care of:


“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.”


There’s a difference between the word “privileges”, which is what the Constitution uses, versus the word “rights.”


“The difference is more than semantics. A right implies something inalienable. A privilege on the other hand is a benefit, presumably given to those who need it.” – Prof Madya Dr Azmi Sharom in a letter to The Sun

“As is the fate of all social bargains, once the original authors pass from the scene, the descendants do not always appreciate the rationale behind the original compromises.” – Dr Shad Saleem Faruqi, Professor of Law at UiTM.

Okay, let us break this down for you with a simple analogy.


Say you teach a class of 20 kids, and you’ve taught them for a few years now, and you have a certain comfort level with them. Then suddenly you’re give an additional 15 kids to put in with the same class. You don’t know much about these new kids, but you do know that you’re expected to stretch the same amount of resources you always had for 20 kids to now, 35 kids.


You worry that your original 20 may be deprived of some things, which doesn’t seem fair when they were there first, so until they all learn to get along and share your resources you put a couple of rules in place. Maybe your original 20 get a special section of the class to sit in, or maybe they get a certain share of your nice new books compared to the other kids, or maybe they get to go to recess 10 minutes earlier so they can be done eating by the time the other kids come out and have a shot at playing with the good toys.


Eventually, after a couple of weeks, you phase out these rules, gradually letting the kids mingle more, introducing activities they all can do together, and sharing out resources fairly so that everyone gets to participate in classroom activities.


The Constitution (and the government) is the teacher, and the rakyat are the kids. The only problem is that we’re still stuck in segregated groups, watching some kids leave for recess early or sit in their special spots while the rest of us wait our turn. Which brings us to our next point…


In 1956, a fella called Lord William Reid was appointed to create a report that would become the basis for a Malayan Constitution. This became known as the Reid Commission (duh) and can be read here:


http://www.catholiclawyersmalaysia.org/sites/default/files/Reid%20Commission%20Report%201957.pdf


Part of this included many, many conversations with Tunku Abdul Rahman and the Malay Rulers. At the time, Tunku was the leader of UMNO, which lead the Alliance coalition (which would eventually become Barisan Nasional). Tunku had expressed doubts about the loyalty of the non-Malays to Malaya, and as a result, insisted that this be settled before they be granted citizenship.


So basically, after doing a lot of digging and asking around and whatnot, the Reid commission reported that “provision should be made in the Constitution for the ‘safeguarding of the special position of the Malays and the legitimate interests of the other Communities’.” This became what we know as Article 153.


“…in due course the present preferences should be reduced and should ultimately cease.” The Commission suggested that these provisions be revisited in 15 years, a report should be made to Parliament, and that the “legislature should then determine either to retain or to reduce any quota or to discontinue it entirely.”


For whatever reason, unfortunately, this review didn’t happen. In fact, thanks to the New Economic Policy (NEP) introduced after the racial riots of the May 13 Incident, Bumiputra privileges were actually extended to other areas: quotas are set for Bumiputra equity in publicly traded corporations, and discounts for them on automobiles and real estate ranging from 5% to 15% are mandated.


The Constitution CAN and HAS been amended – many, many times. After all, our forefathers were smart fellas who realised that laws made in the early days of the country would have to evolve over time. “Yes, the Federal Constitution recognises that there may be instances where an amendment to the laws is necessary.


However, there are safeguards in place to ensure that amendments cannot be easily made,” explains Firdaus. “As at 2005, there have been more than 650 individual amendments made to the Constitution. The number is staggering compared to other countries.” (By comparison, from the 11,539 proposals to amend the United States Constitution since 1789, only 33 have made it as amendments).


“Our Constitution matters because it belongs to all,” says Firdaus. “It seeks to protect the interest of all Malaysian citizens, not just a certain section of the society. It is in the Constitution that our rights are guaranteed, that the powers of government institutions and limit of those powers are set out.


Source: http://cilisos.my/social-contract-apa-tu-we-break-it-down-into-8-easy-points/



Wallahu'alam