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."
 

No harm comes to woman walking 10 hrs in NYC?

I am wondering how the harm principle applies here.

Yes, there are limits.

I haven’t been on Facebook for a week and that’s a record! And here’s my response to Ethan. First part of another long reply. And quoting him, If anyone is wondering why I’ve spent so much (or too much) time on this: I cannot separate Mill’s tolerance from my faith.

The reason I pointed to Mill’s detractors is because there are a several (those I am familiar with and have read) whose views are scathing, and do say something important about Mill’s inconsistencies and other utilitarian/classical liberal philosophers of his ilk. Maybe I only read authors I agree with. Like Mill’s contemporary JF Stephen (who has sadly disappeared from popular discourse on liberalism), or the late Australian philosopher David Stove who wrote this snarky line: “Liberalism demands that people without guns be able to tell people with guns what to do.” Ok, quotes are not arguments, yet how these 2 skewer Mill with nothing but common sense.

There are those who do not necessarily say Mill is an idiot, but who admit to the philosophical conundrum of applying his ideas to justice, education, politics, economics, what’s good, what’s right, etc in the real world. As you say, it has to be worked out, the negotiations of which make for a whole lot of profit for publishers. But who’s to be the referee? Harvard’s Michael Sandel whose books argue for virtue and common good (and he’s not a Christian), because not doing so would be fatal to a society that wants to preserve liberty and freedom. So you need laws – and like it or not, the application of laws presupposes morality and restraint.

You know Rawles broadened Mill’s ideas into a theory of social justice: “Society is rightly ordered, and therefore just, when its major institutions are arranged so as to achieve the greatest net balance of satisfactions.” I may disagree with some conclusions but fact is, philosophers don’t like to say they are drawing a line, but a line is what they are talking about.  Rawls talks about fairness and social contract; Mill argues for the harm principle and happiness. Whose line is it anyway? Why should your lines be prettier than mine? 

Perhaps Mill is Malthusian because he is a child of his time (like Luther’s anti-semitism?), but his

inconsistency is carried through his belief that liberty as he espouses works best in civilized societies and won’t apply to barbarians. So backward societies (like Singapore and Malaysia?) need an education in virtue, even coercion, while enlightened ones don’t because they can reason values for themselves and are unlikely to rape women. It merely means that every idea is conditional or contingent, and depends on the position you define. That’s my beef – contingent. You always have to smuggle in some boundaries, or maybe a bearded man or two from ancient Greece.

Which is what JF Stephen referred to all things being equal, that there's no such thing to begin with: 

“Mr. Mill’s principle throughout assumes existence of an ideal state of things in which everyone has precisely the position which, with a view to the general happiness of the world, he ought to hold. If such a state of things existed there would be some plausibility in saying that no one ought to interfere with anyone else except for the sake of protecting himself against attack, by maintaining the existing state of things. But as no such state of things exists or ever yet existed in any age or country, the principle has at present no locus standi.”

Spidey’s Uncle Ben’s right on the responsibility bit. JF Stephen also wrote, 

“There is hardly a habit which men in general regard as good which is not acquired by a series of more or less painful and laborious acts. The condition of human life is such that we must of necessity be restrained and compelled by circumstances in nearly every action of our lives.”   

It was he who also said government is a mild form of coercion. That's how we are. People do not in general seek public or common good but personal interest first. Perhaps 'coercion' isn't nice, but it just means we need regulations. Unless you are a libertarian with an anarchic bent, you wouldn’t argue that’s a bad thing. Slavery was abolished in the US not because reasonable men and women agreed it was unacceptable. In fact they argued that abolishment would harm the economy. A government went to war to end it, unhappily for the South.

One of my questions was, if something is wrong and offensive, do we have the right to call it out? Gurmit’s daughter Gabrielle surely believes it was within her right to say raping women isn’t cool. More than that, she and I believe that raping or abusing women (or man or child) is evil whatever colour or creed you profess. I do not know any government on earth that will say raping women is one of 5 acceptable ways to treat women and let’s teach our children the freedom of choice. No, you want to be able to say, raping women is not on the table.

Lewd music may not turn everyone into a rapist, but it will surely diminish the value of women in time, demean sexual relations and thus increase the toxicity of society, and escalate sexual abuse. Society becomes poisonous, weakens social well-being, and that’s where the harm lies. We are after all connected selves aren’t we?  A simple illustration: political and advertising messages presume that frequent airing and persuasion of a cause do alter perception and sway public opinion. Otherwise why bother to advertise and communicate so feverishly? Why then assume that a negative message will have no effect? If something is bad or wrong, why is public restrain and curtailment not good?

Society already shows us what happens when liberty is unrestrained: a culture of indifference takes over. Harvard philosopher Robert Nozick admits that all that libertarians really want is to be left alone.

This is why Michael Sandel wrote that, “The public philosophy by which we live cannot secure the liberty it promises because it cannot inspire the sense of community and civic engagement that liberty requires.” Hmm, I wonder if he is referring to voter turnout too.

Okay, Sandel also confesses he hasn’t figured it all out (same as all of us here who are arguing in a closed universe). But Obama’s credited in Sandel’s 2010 book, Justice, when he referred to moral transformation via religion:  “Our fear of getting ‘preachy’ may… lead us to discount the role that values and culture play in some of our most urgent social problems,” and that would be a serious mistake. That so-called act of tolerance needs a subject, something to direct at; and surely somethings are intolerable - because it makes society less tolerable for human flourishing. 

Let’s put religion aside for now. We would agree that it’s more preferable to live in a society where laws respect personal rights and where personal rights uphold laws, for the common good. And common good means ‘good’ values, morality, that which contributes to human flourishing. We may disagree on the fine print, but we must be able to say that some rights do diminish our right to a just, decent, and fair society, and that’s plain wrong.

Predators on the prowl in Setapak

I have just met up with a few Myanmar refugees who are residents at the Danau Kota flats off Jalan Genting Klang, Setapak. They have been living there on the upper floors of these low cost flats between 4 and 10 years, earning a simple livelihood teaching in a refugee school while minding their own business, waiting to be resettled in a third country.

As Joan tells it, “The crime is getting worse. It was a safer place last time, but not now.” The situation has become so bad, many refugee families are afraid to leave their home or take the lift up to their floor, she added. Others have decided to move away from Setapak.

The robbers, they are Malaysians, I interjected?

“Yes. Many live here also and we know where they live. They wait for us. Nowadays there is a robbery nearly everyday. More than 10 gangsters usually wait around the lift, and some of their friends wait on the 1st or 2nd or 3rd floor. When they see a Myanmar coming, they whistle like this (she makes a bird sound) or make some signal. Then they surround you.”

Family man and fellow teacher George nodded. “My wife works in the restaurant and comes home at midnight. It’s very frightening for my wife, so we moved to another flat with security nearby. A bit more expensive, but safer.”

You have been robbed? “Sure, a couple of times,” George said. “They surround us, take our wallets, our handphones. If you are slow, they hit you or show you a knife. That's why I walk with my wife back from work at night.”

George explained that Myanmar refugees working the night shift are most at risk. “The robbers know we come home at 3 or 4 am, so they wait. These gangsters always wait in groups. So we wait until they go away before we go home, sometimes using the fire escape stairs.”

The Danau Kota flats in Setapak are a low cost maximum density housing development comprising five 18-floor blocks. Most of the units are about 700 square foot each on average. Small, compact, with 3 rooms and a bathroom. Community facilities are limited and dilapidated, hygiene is lacking, and basic amenities such as lifts are constantly broken.

The problem is exacerbated in this aging development (nearly 20 years old) by poor essential maintenance and complete indifference of residents and housing authorities alike. No wonder it has become a breeding ground for crime. Gangs operate openly while residents have learned to look the other way.

Like low-cost housing everywhere in the city, the Danau Kota flats attract a large number of undocumented migrant workers and refugees. As condominiums and shopping malls sprouted overnight on tracts of ex-mining land, the promise of employment lured newly arrived foreigners here, many of whom are Myanmars, away from familiar but crowded refugee enclaves in the city.

“My wife is so scared we moved to another area. She said at work, already scared of boss. Walking home, scared of police. Reach the flat, scared of gangsters,” George smiled warily.

What makes matters worse is that the authorities are no help either. Having accompanied Myanmars to the Police Station to lodge reports, I have witnessed first-hand how our men in blue treat these unwelcomed foreigners. They are easy pickings too. And more trouble for you if you do not have an UNHCR Refugee card.

Peter who has been here for ten years told of an incident that happened last month. A young Myanmar man was accosted after work near the lift by 6 local youths, one armed with a knife. In the tussle, the Myanmar grabbed the knife and ran for his life. Speaking in Bahasa, Peter said, “Itu geng, dia orang jerit, ‘Tolong! Ada Myanmar perompak bawa pisau.’ Lepas itu, orang lain pun kejar sambil orang Myanmar kena tangkap. Dia kena hentam juga. Kami punya komuniti bayar Polis RM5000 bagi dia bebas.”

Malaysians have become brazen predators preying on helpless refugees. And it appears no one is surprised.

On another occasion I was summoned to help out a Myanmar refugee who did not have an UNHCR card. There he was looking like a trapped animal, his eyes fixed on the floor, while 4 other unsmiling policemen sat with him in a sidewalk mamak store, pulling on their cigarettes. A spokesman took me to a side and told me that RM300 would help the Myanmar. “Kalau kita hantar ke Immigresen, lagi teruk. Kena bayar RM3000.”

It’s hard not to be cynical about law enforcement, human rights and justice in our blighted nation. But by sitting on our hands we lose the right to complain.

Tomorrow, my friend and church community liaison Ravee and I are accompanying 3 Myanmar victims to the court. All three – they are unrelated - were robbed during a particularly violent weekend blitz in November last year.

According toThanga, two men broke into his home in broad daylight, held a knife to his young daughter and robbed his family. Thankfully these robbers were apprehended - now that's something you don't see everyday! Well done!

So these saksi-saksi who were subpoenaed to testify will have their first taste of Malaysia’s legal system. What stories will they tell when this episode is finally over? The case has been postponed twice already. I hope for their sake the wheels of justice will turn in their favour. For once.

 (All names have been changed to protect their identity)