Experts: ‘Social contract’ never in the Constitution


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

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

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

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

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

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

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

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

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

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

“(Social contract) is actually a fiction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He urged Malaysians to improve their constitutional literacy.

“In some respects if there was better know­ledge of the Constitution, we would have a much more peaceful and pleasant country.

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

The forum was moderated by Dr Khoo Ying Hui, who is a lecturer at Universiti Malaya’s International and Strategic Studies Depart­ment.


   

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