AG: Social contract basis for nation-building

The 900-pound gorilla in the room. 

AG quoting former LP and Sultan of Perak Azlan: "....a unique document without any parallel anywhere."

The question is, even if it were historically true that the Malaysian Constitution was realised with a bias for Malay Society and the sultanate, does this constitute 'special rights' that relegate minorities into a shrinking public space? 

Which civillised country modern economy separates and classifies its citizens in this way and then tell them to be happy they are 2nd class? I mean, if we are all equal taxpayers, does it not make sense that we should enjoy equal benefits and equal constitutional protection? 

AG: Social contract basis for nation-building

[From Malaysiakini]

Attorney-general Abdul Gani Patail reminded Malaysians the need to abide by the “social contract” developed by the country’s forefathers.
 
“Open any history book on Malaysia and it will recount that Malaysia’s communal approach to politics and social and economic structure today is the legacy of the British system of governance in Malaya,” said Gani in his keynote address at a national law conference last week.
 
Quoting Edmund Burke who said, “Those who don’t know history are destined to repeat it”, Gani emphasises the need to learn from the past.
The Chinese and Indians were brought in because the Malays did not want to engage in modern economy in 19th century Malaya, he explained.
 
“It has its genesis in the segregation of ethnic migrant workers according to sectors of work,” Gani said in his paper titled ‘Current challenges in preserving social order and national harmony - a critical note’ delivered at the Judicial and Legal Training Institute conference.
 
The Chinese and Indians were brought in because the Malays did not want to engage in modern economy in 19th century Malaya, he explained.
 
“It has its genesis in the segregation of ethnic migrant workers according to sectors of work,” Gani said in his paper titled ‘Current challenges in preserving social order and national harmony - a critical note’ delivered at the Judicial and Legal Training Institute conference.

“When the general Malay population refused to work with the British in the tin mines and rubber plantations - the two most important and profitable exports of the country in the late 19th century - the British encouraged the immigration of labourers from China and India to work in these sectors, as well as in public infrastructure works, rails and roads.
 
This, he said, resulted in the concentration of Chinese population in the towns and Indians in the rubber estates. Malays, mainly in the rural areas, were involved in the agricultural and fishing sectors.
 
The top-most legal officer in the country said the British were not interested in integration then and instead, encouraged the Chinese and Indian immigrants to pledge their loyalty to their homeland.
 
“As a collorary to the foreign workers Malaysia depends on today, Malaya was only to be considered “tanah tumpahnya peluhku” - the land where I toil for wealth without more.
 
“But when China fell to the communists and India was wrecked with poverty, the Chinese and Indian immigrant workers decided they should stay permanently for a better future,” he said.
 
Seeds of polarisation
 
Referring to World War Two as a great equaliser, Gani said when Japan attacked Malaya, the population under British rule took up guerilla warfare.
 
However, he said polarisation resurfaced after the war, following the state of emergency which was called then to address communist insurgency.
 
Preventive action was taken where Chinese are placed in new villages, with Malays and Indians forming the security forces.
 
With the coming of independence in 1957, Gani said there was marked disparity among the races economically and in education and other sectors.
 
Malays, he said, had no capital wealth and their participation in the modern economy was almost non-existent, even among the aristocratic class.
 
“The Chinese had become the main participant in the economic and commercial sectors while the majority of Malays remained in the rural areas.
 
“The lucrative modern industries and services sectors remained Euro-centric. Poverty, especially among the Malays, was widespread and the income inequalities between the races a matter of serious concern for the new, young government.”
 
Following the disparity, he said the “social contract” was mooted to achieve balance that underpins the relevant provisions in the Federal Constitution drafted by the Reid Commission.
 
Gani recalled what the late Perak sultan and former lord president Sultan Azlan Shah (right) had said of the “social contract” at the Malaysian Law Conference in 2003.
 
Azlan had said inherent differences had to be accommodated into a constitutional framework which recognised the traditional features of Malay society with the sultanate system at the apex of the Malaysian Constitution.
 
“Thus, there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminster model and built it into the traditional features of Malay society,” Azlan had said.
 
Respect 'social contract'
 
“This constitution reflected a social contract between the multiracial peoples of our country. Thus, matters of citizenship for the non-Malays, the Malay language, and special privileges for the Malays and the indigenous peoples of Malaysia were safeguarded and given the added protection of requiring the consent of the Conference of Rulers before change could be effected to them,” the Perak ruler said.
 
Azlan had added that it is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm (basic norm) to which all the other laws are subject.
 
“This essential feature of the constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever ensures to the Malaysian people, as a whole, for their benefit.”
 
Gani said the value of the “social contract” elements that we have inherited should never be underestimated or undermined.
 
“It must be appreciated that these elements in the Federal Constitution were engineered by the Alliance in consultation with the Malay Rulers as the best solution to protect the interest of the groups concerned.
 
“This in particular includes the trade-off between the granting of citizenship for the Chinese and Indian migrants for recognition of the special Malay rights.
 
“Similarly the protections for the customary aboriginal rights of the indigenous peoples are consciously entrenched in the constitution,” he said.
 
The top government lawyer said measures should be taken to observe the ideals established in the constitution - in letter and in spirit, whether it is concerning religion, citizenship of non-Malays, the special rights of Malay/bumiputera and the Orang Asal or the special position and privileges of the rulers or the rights conferred on Sabah and Sarawak.
 
He adds all these rights must be respected and implemented unless and until the Federal Constitution is amended by a vote or referendum of the people.
 
"This is because all these are elements of the ‘social contract’ and constitute the basic pillars of the Federal Constitution and Malaysia."