Citizenship and Special Position – no Social Contract? (SSS Unity Series No.2)

10 05 2010

Perhaps we should acknowledge our past “inaccuracy” in saying that the citizenship right for the non-Malays was in exchange for the Special Position of the Malays. One of the following articles quotes the British Secretary of State (Foreign Minister) for the Colonies (Mr. Alan Lennox-Boyd), telling the British Parliament while debating the Malaya Independence Bill:

“All that the Reid Commission did was to continue to give cognisant to those special positions. There were no new position or right added as part of a compromise. To say therefore that citizenships were offered to the non-Malays in exchange of those special positions were not accurate. That is because those positions were already there and recognised from day one.

The special position of the Malays was recognised in the original treaties made by His Majesty in previous years, and Her Majesty Queen Victoria and others with the Malay States. It was reaffirmed when these treaties were revised. It was confirmed in the 1948 Agreement, and reference was expressly made to it in the terms of reference of the Reid Commission. So the Malay privilege clauses in the articles of the Constitution do not, in the main, introduce any precedent, but give recognition in the Constitution to the existing situation.”

Consequently, we would henceforth try to use this British declaration in their Parliament in our discussions on the subject of citizenship right, the Malay Special Position and of unity in the country. The Special Positon of the Malays, and of the Bumiputeras of Sabah and Sarawak when they joined Malaysia, was there “since day one” and was recognised by the British since the time of Queen Victoria. We are grateful to the writer for exposing this to the Malaysian public. It was dug from Hansards, the Parliamentary records of Britain.

The writer says, “His Majesty is to exercise the powers under article 153 as His majesty deems reasonable. This means the power cannot be exercised arbitrarily.” Let us discuss what are reasonable and what are not and what constitutes arbitrariness. Whether control of the economy and dominance in the various professional jobs by 23% of the population is reasonable. Whether the Malays and the Bumiputeras of Sabah and Sarawak, who form 70% of the population but have 18% corporate wealth of the country (not counting other forms of wealth) and, say, 30% jobs in the various professions, is reasonable. Whether policies that are discussed and approved in Parliament are arbitrary. Do have your say here, folks.

Also whether it is reasonable to have schools in the vernacular languages when Article 152 expressly states Bahasa Malaysia as the National Language of the country.

But the social contract does not exist, say some? Let’s discuss that, too.

Here are extracts from a few articles found in blogosphere relating to the above subjects. Let us discuss them in the usual serious but hopefully civil manner.

UPDATED 10 May 2010 @ 8.25 pm:

The writer said, “In drawing up the Federal Constitution, the Reid Commission was assigned the task to ensure that the position of the Malays was safeguarded. Its report says:

“Our terms of reference require that provision should be made in the Constitution for the ‘safeguarding of the special position of the Malays and the legitimate interests of other Communities’.”

That task and the said terms of reference must have been the request of the Malay and non-Malay leaders. Therefore there was an exchange between them – the Malays got the Special Position requested (which they were either not aware of or uncertain that it would be embodied in the Constitution until the statement by the British Colonial Secretary in Parliament), and, in exchange for that, the non-Malays got their legitimate interest viz right to citizenship, spelt out in the Constitution.

From the above, we were actually not inaccurate in our views in the past.

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http://art-harun.blogspot.com/2010/04/bastardisation-of-contract-part-1.html

Article 153 on the ‘special position’ of the Malays and other natives: The way forward

by art harun who, in his words, said he “believes that he is a failed government experiment, abandoned and left alone to roam the streets after all remedial efforts yielded no positive results.”

Wednesday, March 17, 2010

….

There is only the special ‘position’ of the Malays and the natives of Sabah and Sarawak. In general, this special position does not confer any right which is recognised by law to the Malays.

Specifically, what is contained in article 153 is the power vested in His Majesty the Yang di Pertuan Agong to ensure that places in the civil service and institutions of higher learning are reserved for the Malays and the natives of Sabah and Sarawak as His Majesty deems reasonable.

Additionally, His Majesty is also given the power to reserve a quota for the Malays and the natives of Sabah and Sarawak in the allocation of scholarships, and permits or licences required for business and trade. This power is similarly to be exercised by His Majesty as His Majesty deems reasonable.

A few fundamental premises should be examined and borne in mind regarding the provisions contained in article 153. They are:

The special position is not only conferred to the Malays but also the natives of Sabah and Sarawak;
The power (enabling the quotas) belongs to His Majesty the Yang di Pertuan Agong;
His Majesty is to exercise the powers under article 153 as His majesty deems reasonable. This means the power cannot be exercised arbitrarily.
The injection of the element of ‘reasonableness’ in article 153 brings an element of dynamism in the implementation of the powers under article 153. This is because what was reasonable back in 1969, for instance, may no longer be fitting in 2010 and so forth.

A starting point towards dissipating the dissatisfaction currently felt by all parties (whether the Malays or non-Malays) over article 153 is, I believe, to commence a rational discussion to determine what is held to be ‘reasonable’ at this point.

Thereafter, I feel, the implementation of those facets of article 153 can then be carefully planned by incorporating whatever equitable formula guaranteeing the element of ‘reasonableness’ in time to come.

….

We as Malaysians should be more sensitive to any efforts made to gain a deeper understanding of various matters because it is only through knowledge can we arrive at the truth. Don’t simply swallow wholesale what people say. On the subject of article 153, there is a lot we can learn from history.

So let’s revisit history on it.

It is common knowledge that a commission was established to draft our constitution. This commission is known as the Reid Commission (named after its head, a renowned English judge, Lord Reid).

In drawing up the Federal Constitution, the Reid Commission was assigned the task to ensure that the position of the Malays was safeguarded. Its report says:

“Our terms of reference require that provision should be made in the Constitution for the ‘safeguarding of the special position of the Malays and the legitimate interests of other Communities’.”

….

“The difficulty of giving one community a permanent advantage over the others was realised by the Alliance Party, representatives of which, led by the Chief Minister, submitted that in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed …’ The same view was expressed by their Highnesses in their memorandum, in which they said that they ‘look forward to a time not too remote when it will become possible to eliminate Communalism as a force in the political and economic life of the country’.”

Such was the hope and good intentions of our forefathers in their common struggle to obtain independence from British colonialism. The Federal Constitution was formulated in cognizance of these intentions and aspirations.

This notwithstanding, the Reid Commission was presented with yet another difficulty. What was in actuality the special position of the Malays that was to be preserved? Where was the special position to be found? What guidelines should they have used to determine and establish this special position?

Their search ended when it was discovered that the Malays had always enjoyed a special position even from the start of British colonisation. This special position was already affirmed by the British in their earlier treaties with the Malay rulers. This culminated in the recognition of the said special position in clause 19(1) (d) of the Federation of Malaya Agreement 1948. It was explained as below:

“When we came to determine what is ‘the special position of the Malays’ we found that as a result of the original treaties with the Malay States, reaffirmed from time to time, the special position of the Malays has always been recognised. This recognition was continued by the provisions of cl 19(1)(d) of the Federation Agreement, 1948, which made the High Commissioner responsible for safeguarding the special position of the Malays and the legitimate interests of other communities.”

They found that the Malays had always enjoyed a special position in four areas:

Reserve land,
Quota in the civil service,
Quota in permits and trading licences, and
Quota in scholarships and education.

When they visited Tanah Melayu to solicit the views of the various parties before proceeding to draft our constitution, the Reid Commission did not meet with any objections from any parties for this special position to remain although there were some quarters that objected to it being extended for a long period of time.

After studying the special position of the Malays and the circumstances of the Malays who at that time were lagging behind the other races in the economic and education sectors, the Reid Commission decided to retain the Malay special position in the constitution that they drafted.

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Tuesday, April 20, 2010

The Bastardisation of the “Social Contract” – part 1

Social contract is a legal theory or concept. It does not exist in reality. It is a branch of legal, social or even political philosophy. This theory seeks to explain or rationalise why we, human beings, would band together and form a State.

It also seeks to rationalise why we would then agree to surrender our liberty, freedom and the ability to do whatever we like to the State when we, the human beings, were all born free and by our nature do not like to be restricted and constrained.

The philosophers surmised that we do so because we by nature are social creatures. We do so because we want to live together as a society. Furthermore, we do so because the State promises us some benefits. In fact we expect the State to give us the benefits that we want. That is why we surrender or agree to surrender some of our freedom, liberty and free will to the State.

….

However, it is not a one way or unilateral agreement. There is supposed to be an exchange of promises between us, the people, and the State. For example, we promise not to steal and if we steal we promise to abide by the law which would send us to prison. In return, the State promises to protect our property from being stolen by other people.

That is the social contract as a legal theory.

Now, the social contract which is so much talked about in Malaysia is a bastardisation of the theory of the social contract. Why do I say so?

It is simple. The theory of social contract postulates an agreement between the people of a State and the State. However the social contract which is so well loved by some people in Malaysia is a supposed agreement between the respective leaders of the three major communities among themselves which happened prior to our independence.

That in itself is the hijacking of the theory of social contract.

Apparently, the three community leaders met to decide the whole future of Malaysia before and after independence. And what they had agreed would bind all of us till kingdom come.

Apparently too, the Malay leader was generous enough to confer citizenship to the non-Malays who were not qualified for citizenship.

The two non-Malay leaders, out of sheer gratitude to the Malays (who were represented by the said Malay leader) for doing so, agreed that the Malays should have “special rights.” These special rights were then spelt out in the Federal Constitution.

This brings the oft-repeated argument that the Malays have sacrificed a lot in agreeing to “grant” citizenships to the non-Malays who were otherwise “not qualified” to gain one. Therefore the non-Malays should respect the Malay’s special “rights”.

….

The Secretary of State for the Colonies (Mr. Alan Lennox-Boyd), while debating our Independence Bill reported to the British Parliament:

The constitutional Commission had to find a solution which would work and which would find general acceptance, and in our view it has fully succeeded in its task. The present Federation Constitution represents a genuine compromise worked out between differing sectors. The citizenship proposals, I believe, are a triumph of good sense and tolerance, amidst widely conflicting views, and I believe that the balance struck between Malay and Chinese has been found to be a wise balance.

There are solid guarantees of fundamental liberties to meet Chinese fears of discrimination, with reasonable arrangements to safeguard the special position of the Malayans without injustice to other races. I am conscious that these two aspects of the settlement arouse particular interest in the House, and I hope that I may be forgiven if I devote a moment or two to those two most important matters.

Now, a word about the balance achieved between the rights of Malays and Chinese. The special position of the Malays was recognised in the original treaties made by His Majesty in previous years, and Her Majesty Queen Victoria and others with the Malay States. It was reaffirmed when these treaties were revised. It was confirmed in the 1948 Agreement, and reference was expressly made to it in the terms of reference of the Reid Commission. So the Malay privilege clauses in the articles of the Constitution do not, in the main, introduce any precedent, but give recognition in the Constitution to the existing situation. Most hon. Members will, I think, know something of what these privileges are.

As I said, I believe that a fair balance has been struck between the interests of Malays and Chinese, and I indicated how the special position of Malays enshrined in the new Constitution did not create a precedent because it had been provided for in very many other treaties and arrangements. I was about to say what form these special privileges had taken. In most States in Malaya, there are extensive Malay reservations of land. Elsewhere in States, there are systems of quota for admissions to the public service, a certain proportion having to be Malays. There are quotas for permits or licences to carry on certain businesses. There is preferential treatment for Malays in the granting of scholarships and bursaries and, generally, in education.

….

Yes, there was indeed a compromise by the various communities. And there was, at the end of the day, “a triumph of good sense and tolerance, amidst widely conflicting views.” Meanwhile, “the balance struck between Malay and Chinese has been found to be a wise balance.”

It should be noted that the special positions of the Malays had always been recognised by the British from day one. These have been specified in various treatises. And there were recognised in the Federation of Malaya Agreement 1948, an agreement which preceded our independence.

All that the Reid Commission did was to continue to give cognisant to those special positions. There were no new position or right added as part of a compromise. To say therefore that citizenships were offered to the non-Malays in exchange of those special positions were not accurate. That is because those positions were already there and recognised from day one.”

….

There was a balance achieved between the demands of the non-Malays and the absolute birth rights of the Malays. That is why it was called a compromise.

The Constitution was drafted to reflect this harmonious co-existence of all the major races in the then Malaya. It spells out all the rights and positions of the various communities who were expected to lead a peaceful and prosperous co-existence. The Constitution was designed to make the yet unborn Malaysia a fair and progressive country.

As stated by Mr. Geoffrey de Freitas (the MP from Lincoln):

“The test for the Federation will be whether it can become a real nation in other words, whether the Chinese people in Malaya can become full citizens and work with the Malays, the Indians and the Eurasians to make a new nation. I hope that they can.”

Have we, as a nation, passed the test?

….

http://art-harun.blogspot.com/2010/04/bastardisation-of-contract-part-2.html

Thursday, April 22, 2010

The Bastardisation of the “Social Contract” – part 2

Even at the outset of independence, there were people who raised concerns on the perceived inequality between the Malays and the non-Malays. The question of whether the respective leaders of the communities were truly representing the community was also raised. Graham Page raised that point:

“It appears that the Reid Commission took one single Indian party as speaking for the Indians as a whole, the Malayan Indian Congress, which had sunk its identity in the Alliance Party. I do not think the Malayan Indian Congress spoke for all, or even perhaps a majority, of Indians, certainly not the business, professional and artisan class of Indian, in Malaya. There were many other Malayan Indian associations which gave evidence before the Commission, but the Commission did not seem to take account of their views, or to pay very much attention to them.”

Arthur Creech Jones MP noted:

“It may be, and I believe it to be the case, that there are certain sections of opinion in Malaya who are not altogether happy. The fact that most hon. Members have received representations from the Malayan Party and the Pan-Malayan Federation indicates that, certainly so far as the Settlements are concerned, there is still some anxiety about what is likely to happen when the Constitution becomes effective.”

For the Alliance, an Alliance Committee was formed to negotiate with the Reid Commission. It consisted of Tunku Abdul Rahman, Tun Razak, Tun Ismail, Tun H.S. Lee, Tun Leong Yew Loh, Tun Ong Yoke Lin, Tun Tan Siew Sin, Tun Lim Chong Eu and Tun Sambanthan.

Be that as it may, the Constitution was quite a massive achievement in itself as the task of balancing the rights and demands of various communities was not an easy one to fulfill. The fact that the non-Malays had to also compromise and tolerate the demands of the Malays – as opposed to the supposed absolute sacrifice by the Malays alone – was also recognised as Mr. Arthur Creech Jones, MP for Wakefield noted:

“A number of Members drew attention to the fact that in the working of this Constitution a great deal of tolerance will be required by the Chinese population, and, possibly, by other minorities, for undoubtedly important concessions are made to the Malays with regard to religion, language, land and the public services; but one can only hope that by the practice of co-operation an answer can be found to any deficiencies or defects in the Constitution as it is now presented to us.”

….

In a nutshell, the special positions of the Malays were seen as inevitable in order to improve the financial, sociological and educational status of the Malays which were lagging far behind the Chinese.

In other words, there had to be inequality to achieve equality. It was said that:

“My hon. Friend the Member for Crosby asked whether we were sure that the special position of the Malay population was not to the detriment of the interests of other racial groups in Malaya. The answer is that during the very careful investigation made by the Reid Commission there appeared to the distinguished members of that Commission to be no evidence that the special position of the Malays was either to the detriment of other communities or was resented by those other communities. In those circumstances, I think that we can assume that the special position of the Malays is not likely to be an irritant in the body politic of the Federation after independence is achieved.

I believe that, taken as a whole, these long-established immunities and privileges provide the means of ensuring, not inequality between the various races of Malaya, but that those who have had some disadvantages in the past will, as independence comes, have a start which is relatively equal and will achieve the progress, development and prosperity which is already a significant feature of the life of many of the Chinese and Indian communities.” (Cuthbert Alport MP)

….

Interestingly though, the founder of UMNO, Dato’ Onn Jaafar had foreseen a citizenship issue, even for the Malays themselves. And he spotted the potential problems way back in 1950, a good seven years before the compromise was being negotiated and achieved, when on the 20th and 21st May, at the UMNO General Assembly at Majestic Hotel, KL, he said:

“Due to the fact that at present no such laws (citizenship laws) exist, hundreds of thousands of people descended from Indonesia, who have lived here all their lives, or who have the intention of living the rest of their days in this country, cannot be considered “citizens” of this country. Is this really what the Malay people want? I do not understand this myself…..

If one were to consider (the matter) as I do, then one (should realise) that because they are currently no (citizenship) laws, international laws should be applied. At present, there are 1.2 million people of Chinese descent, 270000 of Indian descent, and approximately 45000 descended from other races, who, by virtue of being born within the Federation of Malaya, may claim to be either British citizens, or the citizens of any one of the Malay Rulers.”

….

“That is to say the laws that enable a non-Malay to become a subject of the Ruler of the Malay state. If, for instance, such laws were passed, and if other matters that have become clearly apparent to us were also approved, one of which will be discussed by this Assembly this afternoon or tomorrow, and if the issues were approved (by the proper authorities), it is my view that there should not be any objections to opening the doors of UMNO to admit non-Malays.”

That was a response by a true warrior of Tanah Melayu. A true statesman. A visionary.

And what did they do to him?

He was kicked out of UMNO because of that proposal of his.

….

The Constitution, however, provides for the safeguard of the special position of the natives.

This does not mean supremacy or privilege but rather a special position which requires special attention…It is known to everybody that the natives are economically backward, and therefore, in order to give them a fair chance to compete with other races they are given this special attention in the Constitution or in plain language a handicap. This handicap gives the natives a chance to have a share in the economic and business life of the country.” (‘Constitution: Equal Rights to All’, p 304)

Notice that Tun Razak was very precise in his choice of words. He did not use the word “rights” (as is so popularly used nowadays) but the word as used in the Constitution, ie, “position”. He also was careful to say it was the special position of the “natives” instead of the “Malays.” How more honest and sincere can a Malay leader be?

He also made it a point to emphasise that the ultimate goal was to have a moderate, fair and just Malaysia, where every race plays a part for the greater good of the country. He expressed his wish thus:

“I ask members of Umno to be loyal to the Party, to the aims and objectives and to the top leadership. To all good friends of Umno of other races, I ask them to help Umno because it is the duty of us in Malaysia today to help strengthen the sensible, moderate leadership which alone can lead this country in peace, harmony and unity towards meeting the rising expectations of our people of various races for a better life and a more just society. If this sensible and moderate leadership were to fail, then the country would veer either to the right or the left. If this happens then I am certain that misunderstanding and misfortune await all of us.

“Let us therefore rally to the help of this middle-of-the-road leadership – the right road towards peace, happiness and stability of our people and our beloved country, Malaysia.” (‘The Turning Point in the History of This Country’, p 386)

The words “social contract” were unheard of by the common people in Malaysia since 1957 (save probably for students of and graduates in sociology and philosophy). Not until 30th August 1986, at least.

This was when Datuk Abdullah Ahmad, the famous MP for Kok Lanas, made his now infamous “Ketuanan Melayu” speech in Singapore. He was perhaps endorsed by the then PM, Dr Mahathir. (Well, at the very least, Dr Mahathir has never ever said that he disapproved of that speech). He said:

“Let us make no mistake – the political system in Malaysia is founded on Malay dominance. That is the premise from which we should start. The Malays must be politically dominant in Malaysia as the Chinese are politically dominant in Singapore….

The political system of Malay dominance was born out of a sacrosanct social contract which preceded national independence….

There is thus no two ways about it. The NEP must continue to sustain Malay dominance in the political system in line with the contract of 1957….”

He then split hairs:

“Ours is not a system of discrimination but of Malay preservation which foreigners particularly refuse to understand. Ours is a system of Malay political dominance but not, as is often put across, of Malay political domination.”

With that speech, delivered with the obvious tacit approval of the then Prime Minister, Dr Mahathir Mohamed, all the honest intentions and sincere efforts of the likes of our father of Independence, the late Tunku Abdul Rahman Putra al-Haj, Dato’ Onn Jaafar Tu Ismail and Tun Razak were immediately undone.

From thence on, the NEP and the special positions of the Malays and the natives were no more there to alleviate the backwardness of the Malays and the natives. The NEP must be continued to “sustain Malay dominance in the political system in line with the contract of 1957.” How time has changed since the heady days of 1957.

Ketuanan Melayu was, on 30th August 1986 (one day short of Malaysia’s 29th year of independence), born.

The bastardisation of the “social contract” was, on 30th August 1986, complete.

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