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.
Kempen SSS 
The writer’s “About Me” says he is a lawyer. But he doesn’t say if he is a Constitutional lawyer. He also doesn’t say if he is a Constitutional law expert, or a legal expert of any kind, or how long he has been practising law.
One lawyer friend of mine says it is impossible to have any legal document as perfect. Indeed, there is no such thing as perfect. What it finally boils down to is the interpretation of what is said in the document. That’s what lawyers are for.
Which lawyer’s interpretation is correct? Everybody claims his is correct. That’s why there are Courts of Appeals until the Federal Court.
Yet another lawyer says, the more people disagree, the more money lawyers make. Can we make money disagreeing here, hehehe.
I’m also a lawyer. Tapi only loyar buruk.
Ambarikus,
Some say in interpreting the Constitution, people have to go into the intent of those involved when drafting it. This writer seems to also say so.
It’s clear from what was stated in the the British Parliament that the Reid Commission was asked to incorporate the Special Position of the Malays into the Constitution and that was done. It was made clear that the Special Position was there “from day one”, been so for hundreds, perhaps even thousands of years when this country was first settled (note the wording “day one”), recognised by the British since the days of Queen Victoria.
As to duration, etc, no doubt views were expressed to the Reid Commission and the Reid Commission came to Kuala Lumpur to talk to parties concerned and came to a decision to include only those that appear in the Constitution as we see it today. It was furthermore discussed and debated in Parliament and approved by democratically elected representatives of the people. So, the Constitution has to be respected and abided as such.
That Article 153 relates to the role of the rulers and the YDP Agong. Any talk of changing that is irresponsible and can cause a lot of anxiety, consternation and ill feelings among the Malays and the Bumiputeras of Sabah and Sarawak. They are the beneficiaries of the Special Position which is protected by the YDP Agong.
As regards reasonableness, what we say in the introduction of this post indicates our views on the matter. We hope others would see in the reasonableness of our views in the interest of justice for those who have been left far behind economically and educationally – the Malays and the Bumiputeras of Sabah and Sarawak. We agree fully with the writer that the Special Position includes the Bumiputeras of Sabah and Sarawak. It is clearly stated so in the Constitution that was amended upon the formation of Malaysia. We have been saying this out for some time now. DS Najib is aware of this and has pointed out the need to improve the economic and educational situation of the Bumiputeras there when talking about the New Economic Model.
He says, “Social contract is a legal theory or concept.
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.”
Is that theory rigid? After all, it is only a theory, isn’t it. There’s no hard and fast rule on its definition, is there? Can it also not apply to promises or understanding among groups of people, witnessed by the State, so to speak, and then what is agreed is enshrined in the constitution?
And our friend talks about reasonableness and splitting hairs.
Zen,
We are not sure why the writer wants to talk about the theory of the Social Contract when what happened was the leaders of the three major communities negotiating independence from the British agreed to citizenship for the non-Malays who were stateless all those years and to the Special Position the Malays had asked for, which the British Secretary of State later said had been there “since day one”.
Whatever it was, there were promises between the representatives of the people and that is an indisputable fact. Notwithstanding the statement that the Special Position had always been there since before Merdeka, the Malays had asked the Reid Commission, as pointed out by the writer, that the Special Position be written in the Constitution. That it was written into the Constitution, together with the citizenship right that the non-Malays had asked for, were clearly the consideration for an agreement or a contract between the Malays on the one part and the non-Malays on the other part. That, by any definition, must be a contract. The nature of it being social, that can definitely be called a Social Contract.
The writer may himself be trying to split hairs when he tries to say something else. No lawyer can be right until said so by the Judges which, in Malaysia, can reach the Federal Court. Even then, this lawyer may still think it is not right and criticise the severance of Malaysian Courts’ links with the Privy Council, the highest court of law in England, despite the fact that we have been independent for so long by the time that happened.
somebody said Art 153 is covered by Sedition Act. Why are you discuss it here? Because they talk it many places?
Anon,
Article 153 has been talked about since the time of the previous administration. The New Economic Policy, which was derived from Article 153, was criticised both in concept and implementation. Instead of admonishing, the former Prime Minister himself had used the word “Tongkat” when responding to comments against the NEP.
This had encouraged others to do criticise NEP.
Blogs like Lim Kit Siang, Lim Guan Eng, Malaysia Today, Malaysian Insider and Malaysiakini have been doing it for a long time. So is this writer’s blog and several others that we know of. This writer’s article was also published and exploited by one of those blogs. It is not fair that readers can read only their arguments. We are merely trying to give the other side of the coin.
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.”
So by his own word he’s a failure, abandoned, left alone, no positive result..
So that is who Art Harun is…
No wonder he writes sad, pitiful, failed entries in his blog…
antuharu,
Some people write in pursuit of their political agenda, others write because of their personal agenda. Those with a political motive writing about the Special Position of the Malays and the Bumiputeras of Sabah and Sarawak are generally in disagreement with it and belong to opposition groups. Those with a personal agenda appear wanting to promote their own selves or their jobs, firms or profession. Yet a few others may write for the glory of it, seeking personal attention. Human beings are varied. It does take all sorts to make this world.
Aside from intent, what we are concerned about is the level of expertise people have when writing about a subject as sacrosant as the Constitution of the country. This is the highest set of laws in the country, all other laws emanate from it. It was drafted by constitutional law experts of the country, England, which has been practising law for many hundreds of years and from which our laws were based. The draft was discussed in the British Parliament, they being the authority of the then British colony, Malaya, wanting independence from them. Being responsible for what Malaya was to become as an independent country, they had to exercise prudence in drafting and in the approval of such a constitution in their Parliament.
Additionally, the draft constitution was brought to Malaya, discussed among the political parties formed and duly registered before Merdeka. They were finally tabled, discussed and debated in the Parliament of the then Malaya. Members of the then Parliament were also elected via the democratic process of general elections. When, finally, that was approved in our Malayan Parliament, the draft constitution had gone through various processes of scrutiny, discussions and debates not only in England, our then colonial masters, but also here in Malaya. Now, wouldn’t that have meant the Constitution of the country had become sacrosanct? Wouldn’t that mean that anyone wanting to criticise it ought to be not only well qualified but have expertise and good experience in constitutional law?
Furthermore, for some 50 years Article 153 had been left intact and inviolable. No real experts in constitutional law had questioned or dared take the matter to any court on grounds, as a few non-expert lawyers have alleged, of contradicting other articles on equality, discrimination, etc. It is because the real experts know that the matter of equality in our Constitution has a proviso – the special position of the Malays which, as this writer himself pointed out – per what the British Colonial Secretary and the Reid Commission members acknowledged – had been there “from day one” and had been accepted by the British for hundreds of years even since the time of Queen Victoria. It is therefore out of place (to say the least) for this writer, non-constitutional law experts and pseudo-liberals to question the validity of the Constitution of the country.
Finally, as someone has pointed out, Article 153 is covered by the Sedition Act.
“…those positions were already there and recognised from day one.” …
That being the case, when the DAP and its goons harps on it all these while, and “somewhat escapes scott free” …. it proves the Malays are too lenient on them. The Government too forgiving.
Far from the Malays being racist, and the Government being draconian and harsh towards them as they claimed, the Malays and the Govt have been magnanimous, patient and forgiving.
Now in Sibu the DAP are exploiting the Allah issue. Is there no limits?
Dal,
As Sir Frank Swettenham, a former Governor General of Malaya, said the Malays were a good-natured, pleasant and accomodating lot but may, under extreme provocation, “mengamok”. He had lived 30 years in this country starting service in the Straits Settlements and reached the top position of Governor General of the then Malaya, serving until 1902. He was therefore qualified to make such an observation on the character of the Malays. He had also of course taken note of the fact that the Perak Malays speared to death along the banks of the Perak River in Pasir Salak the first British Resident sent to enforce colonial rule after the Pangkor Treaty was “signed at the barrel of the gun” in 1874. The word “amok” in fact was adopted into the English language and exists in the Oxford Dictionary to this day.
It is therefore hoped that reasonableness will prevail among those who may not have realised, as pointed out in the articles above, that the Special Position of the Malays had been there “from day one” and recognised by the British for hundreds of years, even since the days of Queen Victoria. Obviously Sir Francis Light, the founder of Penang, acknowledged the Malays were ruling this country and negotiated with the Sultan of Kedah for the right to establish a trading post on the island of Penang. That was an example of the many “special positions” the Malays had that were referred to by the Reid Commission and spoken about by the then British Colonial Secretary in the British Parliament when discussing the Malaya Independence Bill.
Those uttering seditious statements must know their limits. We need to maintain peace and harmony in this country so that business can grow, the economy fully recovered and the country progresses at a reasonable pace towards a fully developed status.
“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 …’
All the above have been provided for in the Constitution. The Special Position of the Malays and the Bumiputeras of Sabah and Sarawak, though inherent in the nature of things in this country “since day one”, was also requested to be incorporated and it, too, was provided for in the Constitution. There’s no such thing as Article 153 contradicting or violating the other provisions. Article 153 on the Special Position of the Malays and the Bumiputeras was a mere recognition of what had been there since before.
Their Highnesses the Sultans said in their memorandum 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.” The fact remains that the political and economic life of the country have been developing along communal lines since British rule and since the advent of political parties based on race. Each party has been committed to pursuing the interests of the population that they represent. Inevitably, their politics became communal.
The opposition party that flogged the so-called Malaysian Malaysia slogan was not respecting Article 153 and was therefore communal in its stand. There is not a single political party with multi-racial composition that can attract a sizeable percentage of the population. The loose alliances of political parties that now exist are fraught with polarisation and divergence of individual party interests inside their own organisations. No truly Malaysian and crowd-pulling, non-communal political parties have emerged so far.
Similarly, communalism exists in the economic sphere of activities in the country. The shopping malls, arcades and plazas in the big towns hardly have Malay businesses except for 1-2 restaurants, and except in Kelantan and Trengganu where more Malay signboards are noticeable. Even in the rows and rows of shophouses in the smaller towns. There has been reluctance in creating a more equitable sharing of wealth. The Chinese control the economy and genuine multi-racial business co-operation has been lacking. The Chinese maintain the club-like exclusivity in business assistance among members that has been going on with the clan associations and business guilds. They strictly maintain the business attitude of competition with the killer instinct. The Malays with their culture of “berdagang” (barter trading, mainly for daily sustenance) have a long way to go in the development of a “culture of business” to compete openly with the Chinese. The Malays and the Bumiputeras of Sabah and Sarawak own only about 18% of corporate wealth despite being 70% of the population. The New Economic Policy (NEP) was designed to correct the huge imbalance. The NEP was derived from Article 153 of the Constitution.
British constitutional legal experts must have been involved in the drafting of the then Malayan constitution. The British know the principles of law much earlier than Malaysians did. It is true that the laws of this country are based on British laws. And for over 50 years now Article 153 on the Special Position has remained intact. Nobody should question it as it is protected under the Sedition Act. Criticising it brings unpleasant feelings and is not good for racial harmony and unity.
Maju,
Article 153 cannot affect equal rights of the citizens because the Special Malay Position had always been there, according to the British Colonial Secretary prior to Merdeka. The Article is a mere recognition of those positions that have existed “since day one”. This must be acknowledged by the liberals, pseudo-liberals and neo-intellectuals who may want to argue about a so-called “discriminatory” nature of that constitutional provision. It must also be accepted by those who are against the New Economic Policy because that policy was derived from that constitutional provision.
The rulers’ statement expressing the hope that communalism will be eliminated in the “not too remote” future was made before the revelation of the British Government’s stand by the Colonial Secetary that the “special positions” have always been there. Any suggestion of the Special Position being a part of communalism was therefore not relevant when it was declared that the Malay Special Position had existed for hundreds of years, if not longer, before independence.
Indeed, the fact that British constitutional law experts found Article 153 not violating provisions on equality, discrimination etc clearly shows those who think otherwise are merely thinking out of the can. Empty cans do not a united Malaysia make.
Ape ke name die ni buat begini? Gamaknye nak name aje die. Atau saje heboh tak tentu arah.
Is there such thing as “the bastardisation of a lawyer” like this fellow?
Sayong,
Kami pun tidak faham tujuan penulis mengeluarkan rencana-rencana tersebut diblognya. Dia sudah mendapat nama diblog-blog pembangkang. Satu darinya telah menerbitkan beberapa rencananya diblog mereka. Maka naik tocanglah mereka yang tidak setuju dengan Dasar Ekonomi Bahru.
Jika dia mahu tunjukkan bijak pandainya, nampaknya bijak pandai itu tidak kita nampak. Hujjah-hujjah yang dikeluarkan setakat ini mencukupi bahawa apa yang diperso’alkannya tidak menasabah. Dia tidak menyebutkan sama ada dia ada kepakaran dalam bidang undang-undang Perlembagaan. Jika ada pun, berapa matang kepakarannya, berapa lama dia mempraktikkan kepakarannya. Tambahan pula mereka yang diketahui benar-benar pakar tidak ada mengemukakan Perkara 153 kekhalayak ramai atau sebagainya. Itu mungkin disebabkan Perkara 153 dilindung oleh Akta Hasutan. Tetapi tidak ada juga tindakan demikian dimasa sebelom Akta tersebut dikuat kuasakan.
The Oxford English dictionary defines “bastard” as: (Child) born out of wedlock or out of adultery, illegitimate; (Of things) unauthorised, hybrid, counterfeit. As has been explained by the many comments above, there was a Social Contract between the Malay and the non-Malay leaders when both sides asked for and got the citizenship interest and the Special Position embodied in the Constitution of the country. As to whether the writer is a bastard, we are unable to say for lack of information. Whether there is any “bastardisation” of him, for example, unauthorised or counterfeit statements made by him, readers are free to decide for themselves.
Abdullah Badawi also say don’t want tongkat. Now so long already. We born in Malaysia, become citizens. Should have equal right, ma.
Help Malays ok but 40 years so long catching up.
How about Tongkat Bahasa? Belum fasih bahasa kebangsaan ke? so very long maaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa!!!!!!
antubahasa,
Bahasa Malaysia is clearly stipulated as the National Language of the country. It has been so for 53 years now. You are right in that it has been such a long time for those not conversant with Bahasa Malaysia. And there are very many of them in this country.
Irrespective of the fact that the authorities have swept thye vernacular schools problem under the carpet and such schools were allowed to carry on with vernacular languages as the medium of instruction, the fact is that Article 152 on the National Language has been there “since day one” as well. It has been the lingua franca of this region, of the Malay Archipelago, in various forms and dialects, since the birth of the Rumpun Melayu some 6,000 years ago according to the book, “The Malay Civilisation”, published by The Historical Society of Malaysia. Like the Malay Special Position, as the British Colonial Secretary said in the British Parliament, embodying it in the Constitution was merely stating it in a formal and sacrosanct manner. All Malaysians must respect and abide by the Constitution of the country.
Steven,
The former Prime Minister is known for his unpopularity. The 2008 general elections were disastrous for him; he lost the 2/3 Parliamentary majority his ruling coalition have always had except for another occasion in 1969 that led to the racial riots recorded in history. One significant reason for his unpopularity was his poor understanding of the sentiments of voters, including the feelings of the majority Malays on the New Economic Policy (NEP). His making use of the word “tongkat” (crutches) when commenting on the NEP was clearly insensitivity that bordered on stupidity. We would advise that non-Malays refrain from using that word as it will bring ill will and is not good for harmonious relations and national unity.
We appreciate that you feel OK with the concept of NEP. Perhaps you are not happy with its implementation methods and it is understandable. Cronyism, nepotism and corruption connected with it are simply not justifiable.
However, that notwithstanding, nobody could have estimated accurately the length of time it would take for the Malays to achieve the 30% corporate wealth and a reasonable percentage of presence in the various professional fields. As far as wealth is concerned, even the Chinese with all their knowledge and experince in business would not have been able to tell accurately how long it would have taken the Malays to do so because even hey did not know how well the Malays would progress in business.
You see, the Malays do not have a culture of doing business like the Chinese do. For thousands of years the Malays have been doing trading, but of the type called “barter trade”, involving the “exchange” of goods. It is not “buying and selling” based on weights, measures and prices. It never was based on taking profits and the accumulation of wealth. It was merely for daily sustenance. The book, “The Malay Civilisation”, published by The Historical Society of Malaysia, tells these.
The Malays had achieved slightly over 20% of corporate wealth in the past but the Asian Financial Crisis of the 1980s took its toll. So, the catching up may take quite a while yet and we trust all good fellow citizens will not grudge the continuation of the NEP in the New Economic Model (NEM) now being planned and aired for public feedback.
The NEM needs to continue the NEP in order that the Malays and the Bumiputeras of Sabah and Sarawak can get the assistance they require because, as the British had acknowledged, they are the disadvantaged lot in this country. That disadvantage was largely due to the British colonial policy of not providing adequate schools in the rural areas, providing only primary Malay school education unlike in the towns where they built English schools up to secondary level. The British hardly helped and did not encourage the Malays to do business because they wanted the malays to continue as farmers and fishermen. It is not fair to expect the Malays to compete on an uneven playing field. Even golf has its handicap. Even the Chinese in mainland China had the quota system under the Manchus.
Must thank this writer, bastardised or not, for putting out what was said in British Parliament:
“… 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 … 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”.
Telima kasih ciakap “very careful investigation made by the Reid Commission” oh olang putih.
Must thank the bloody British for taking some responsibility for their colonial policy of tak paluli olang Melayu, kasi sekolah inglis dipekan saja, kasi lesen niaga macam macam pada olang Cina saja. Maciam itiu olang ciakap lalam sana Inglis Palimen –
“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.”
Mana Malayu atak “progress, development and prosperity” dia ciakap, “which is already a significant feature of the life of many of the Chinese …”
Kongsi kaya sikit lah, kawan. Nyiangan mahu angkat semua. Nyiangan ciakap tongkat la, apa la. Tatak baik loh. Lu sutak lapat jiadi lakyat Malaysia, ati mau baik sikit loh.
Alamak,
The British were a smart lot. Imagine, with just a small country and hardly any natural resources except coal, they owned an Empire from North America to Australia-New Zealand, to Falkland Islands at the tip of South America, to India, Malaya and Hong Kong (which was returned to China only in 1999). British diplomacy, scheming and manipulating in international affairs had been practised for hundreds of years, sometimes with unhappy consequences like Tony Blair coat-tailing Geroge W Bush into the Iraq War, and his long-time colleague Gordon Brown lost his post of Prime Minister yesterday, partly due to association with the Iraq War. Nevertheless, all told, they have been a formidable player in the diplomatic scene, their words and actions always carefully chosen and invariably reflect the truths, the facts of history. What unpleasant truths there might have been they would rather not say. Being “diplomatic” sometimes refers to the British art of not saying.
Hence, when the British Colonial Secretary (Foreign Minister in charge of the Colonies) spoke in the British Parliament on the Malaya Independence Bill, his words were loaded with facts of the history of Malaya, his opinions having been carefully deliberated upon, his conclusions became a part of history. Similarly the words of other Members of Parliament; they were generally men of character and far different from the kind who stood on the table shouting to their opponents in the State Assembly Hall that HRH Sultan Perak admonished recently. Thus the words, “very careful investigation made by the Reid Commission” were uttered seriously, that is, after due checking and enquiry. Therefore what were stated were reliable.
The British gave up the colonies because the tide of imperialism was going down world wide. After World War II, new rules of international behavaiour came to be based on human dignity, decency and the desire for a longer lasting peace than what had happened in the Prussian and Napoleonic Wars and World War I and II. The British therefore wanted their colonies to progress and prosper; they continued to depend on the colonies as trading partners after granting them independence. Hence the prudence in the negotiations and the drafting of the constitutions for those countries concerned. Therefore the wordings “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 … 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” were factual and reliable.
Have we passed the test? Did we passed the test? How did we do in the test?
One MP asked in the British Parliament when talking Malaya independence:
“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.”
The MP asked if the Chinese can worked with the Malays, Indians and others. After 50 years, the Chinese have Chinese schools (also Indians). Chinese have control economy. Are they helping Malays, Indians and others to have share economy? Many Chinese, malays and Indians business co-operation? You answer your selfs. Chinese also biggest number as doctors, engineers and others.
Are we made new nation? Are we doing real nation? Maybe just the cleverest, the fastest win. Don’t care about others. Why worry. What me worry? No worry. Just thinking what the British MP say hope we can, hope we can.
What does he mean by “become full citizens”? Does he know something to use those words in 1957? The MP has some doubt has he? He hoped those in Malaya then can make a new nation.
Sir,
The Reid Commission visited Kuala Lumpur and talked to various parties. They also must have been getting briefings and reports from the British High Commissioner, business people and plantation owners at that time.
The Communists were also active then. Most of them were Chinese and the British had records and proofs of Chin Peng wanting to bring Malaya under communist China’s control at that time. So, the words “becoming full citizens” would have been well chosen.
Another point: The writer himself pointed out that the Reid Commission was headed by a renowned English judge, Lord Reid. The Judge would have known the ingredients of a contract between the Malays, who had asked for protection of their Special Position, and the non-Malays, who had asked for the protection of their interest in becoming citizens. Those were embodied in the Constitution. Then why is the writer saying no Social Contract implying no agreement or understanding between the Malays and the non-Malays?
And why can’t he use the word Bumiputeras of Sabah and Sarawak instead of the word natives? Nasty man.
Jingo,
53 years is a short span of time in history. In the first 50 years of the last century, 2 world wars occurred. After that, the Korean War, the Vietnam War, the Falkland Islands War, the Arab-Israeli Wars, the Iran-Iraq War, the Iraq War took place. We in Malaysia suffered the 1969 racial riots – today is in fact its anniversary. Some argue that we should not commemorate it or even talk about it. But that might be wanting to pretend as if nothing has happened in the past that should remind us to do things to avoid it in the future, sweeping problems under the carpet as done in many instances. We need to learn from history and the racial rights of 1969 is a part of our history.
Nationhood is where all citizens respect for, abide by and live with the Constitution of the country, where loyalty is evident among the people. But one wonders if the word “loyalty” is even fully understood by the rakyat. There are those who say, “Give me what I want then only I’ll give what the country wants of me”. And those who say loyalty is just by paying tax which even the foreign labourer pays by way of a levy. Patriotism is questionable when even serving in the Armed Forces or the Police Force is shunned.
But we must recognise that the majority of Malaysians are law abiding citizens. We carry out our duties and obligations under the Constitution. We are on the way to nationhood, if not already there, in that respect. We must nevertheless continue with efforts to get those not doing so to do so
I don’t understand why this guy say no social contract or bastardisation of the social contract.
The Bbritish said in Parliament:
“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.”
No promises between the malays and the non-Malays there? If so why the hell talk of “solid gurantees”? They were talking about citizenhsip and Special Posdition, isn’t it?
What the ….
Juju,
The guy defined social contract in the historical sense. The theory of an agreement or understanding between the State and the people. But the definition must not be rigid for, after all, it was a theory. We must recognise that there was an agreement between the Malays and the non-Malays on the Malay Special Position and citizenship for the non-Malays (spelt out as “the interest of the other communities” that the YDP Agong is obliged to protect under the Constitution).
The wordings “genuine compromise” you quoted tells of the agreement between the two parties. It was therefore a social contract. To say otherwise is splitting hairs and suggests an undeclared motive of the part of the writer. There is no benefit to be gained by doing so except creating suspicion and ill feelings among the various communities in the country.
This lawyer cannot presume to be better than the constitutional law experts involved in drafting the Malayan Constitution. The British have been practising law long before he was born or any Malaysian knew about law. Talking about “the bastardisation of the social contract” may even lead some people to wonder if he is not bastardising himself. The dictionary definition of a bastard includes “unauthorised, counterfeit”.
suka nak tahu pendapat dr kedua2 pihakdn berkecuali..
kassim,
Kami kurang faham apa yang dimaksudkan dengan perkataan “berkecuali” yang tersebut itu. Jika ini bermakna pendapat Melayu disatu pihak dan bukan Melayu disatu pihak lain dalam Kontrak Sosial itu, maka ada pendapat kedua-dua pihak itu dikeluarkan diatas.
Pos bahru kami sudah mengelamkan pos ini. Silalah mengambil bahagian dalam pos terbahru itu untuk dapat mendengar pendapat kedua-dua pihak yang berlanjutan berkenaan perkara ini dan perkara perkara yang berkaitan dengan dengannya.