Social Contract

14TH MALAYSIAN LAW CONFERENCE 2007

 AT

KUALA LUMPUR CONVENTION CENTRE 29-31 OCTOBER 2007

THE SOCIAL CONTRACT :  MALAYSIA’S CONSTITUTIONAL COVENANT 

By

TOMMY THOMAS  ADVOCATE & SOLICITOR  SOLICITOR 

CONTENTS PAGES

 A.

B.

C.

D.

HISTORY 

(i)

Immigration

3

(ii)

Imperialism

4-5

(iii)

The 2nd World War

5-6

(iv)

Malayan Union

6-7

OBSTACLES TO INDEPENDENCE

(i)

British Objectives : 1945 - 1955

7-9

(ii)

The Malayan Communist Party

9 - 12

(iii)

The Malay Rulers

12 - 14

 THE MERDEKA MERDEKA MOVEMENT  MOVEMENT 

(i)

UMNO

14 - 15

(ii)

The Alliance

15 - 16

(iii)

Tunku Abdul Rahman

16 - 18

 THE GENESIS GENESIS OF THE SOCIAL SOCIAL CONTRACT  CONTRACT 

(i)

Inter-Communal Bargain – The Alliance Memorandum to the

18 - 20

Reid Commission

E.

(ii)

The Reid Commission

20 - 21

(iii)

The Tripartite Negotiations – February – July 1957

21 - 23

(iv)

Dawn of Merdeka

23 - 26

ESSENCE OF THE SOCIAL CONTRACT 

i

26 - 28

F.

G.

SOCIAL CONTRACT : BASIC STRUCTURE UNDER THE CONSTITUTION

28 - 30

STRENGTHENING THE SOCIAL CONTRACT :

30 - 35

FORMATION OF MALAYSIA.

H.

I.

J.

K.

 MAY 1969 RIOTS AND ITS IMPACT IMPACT ON  THE SOCIAL SOCIAL CONTRACT  CONTRACT 

35 - 38

 NEP

38 - 42

FIFTY YEARS ON : THREATS TO THE SOCIAL CONTRACT 

(i)

Islamisation

42 - 44

(ii)

Islamic State

44 - 48

(iii)

Syariah Jurisdiction

48 - 49

(iv)

Racial Insensitivities

49 - 51

REAFFIRMATION OF THE SOCIAL CONTRACT 

END-NOTES

51 - 52

53 – 59

 APPENDIX  APPENDIX A – THE RUKUNEGARA  RUKUNEGARA 

60 – 63

ii

1.

In 1972 when Henry Kissinger asked Chou En Lai what he thought was

the true significance of the French Revolution, Chou gave the classic retort: “ It is too  early to say” , thereby recognizing that in historical terms even an epoch-making

revolutionary episode cannot properly be understood after 200 years, and that posterity meant centuries, perhaps a millennium. Seen in that perspective, 50 years is too short in the life of a nation to assess the historical significance of any event concerning it. Nonetheless, half a century of independence is indeed a milestone, and is worthy of  study, however imperfect the result. Likewise, 50 years of a nation’s Constitution. 2.

Lawyers have a natural tendency to regard a nation’s written constitution

in pure legal terms: how as the supreme law of the nation it balances the power structure by imposing legal limits, and so forth. In the realm of politics, constitutions serve another function: as a rulebook providing for the conduct of political activity indicated by the strength of competing interests and the balance of political forces at the time of their promulgation. According to a South East Asian political scientist of  distinction, Michael Leifer, the key to understanding the stability of the Malaysian Constitution is the critical fact that the prevailing governing system was firmly established in advance of constitutional discussions which preceded Merdeka. Ethnicity played a substantial role in that system. In political terms, the Malaysian Constitution seeks to provide in symbolic form and practical substance for an entrenched Malay dominance, though in such a way as to avoid the alienation of the non-Malays whose numbers are such that they cannot be treated as an insignificant minority. According to Leifer, “In so far as the governing coalition and its priorities have remained stable so  has the constitution which it was instrumental in shaping. In other words, continued   political success and a demonstrated ability to moderate communal

extremes have 

made possible constitutional stability” 1

3.

The striking feature of the Malaysian Constitution, which has given it

stability, is the pride of place provided for the social contract. It forms the bedrock or spine of the Constitution. In 2003, Sultan Azlan Shah declared:“We embarked on a journey as a constitutional democracy with  the full realisation that we were a multi-racial people with  different languages, cultures and religion. Our inherent differences  had to be accommodated into a constitutional framework that  1

recognised the traditional features of Malay society with the  Sultanate system at the apex as a distinct feature 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 into it the traditional features of  Malay society.

This Constitution reflected a social contract  between the multi-  racial peoples of our country.”  “It is fundamental in this regard that the Federal Constitution is  the supreme law of the land and constitutes the grundnorm to  which all other laws are subject. This essential feature of the  Federal Constitution ensures that the  social contract  between  the various races of our country embodied in the independence  Constitution of 1957 is safeguarded and forever enures to the  Malaysian people as a whole, for their benefit.” 2 

 Also in 2003, Tengku Razaleigh Hamzah, a former Vice President of  UMNO and Senior Cabinet Minister, stated: “We owe a debt of gratitude to our founding fathers and our past  leaders, for their vision, strength and singleness of purpose in  defending the principles of the social contract enshrined in our  Constitution.”  3 

4.

The social contract recognizes the plurality and diversity of Malaysia’s

population. Race imbibes every facet of life in the nation. It is without doubt the most distinguishing feature of Malaysia. When the majority race, the Malays, is defined in  Article 160 of the Federal Constitution in terms of professing Islam, thereby making Islam the sine qua non  of the race, the equation is complicated by religion. Thus not only does ethnicity divide the population, it is reinforced by religious differences. How the state, both before and after Merdeka, dealt with ethnicity marks the cardinal feature of Malaysia. It is critical to start with history.

2

 A. (i)

5.

HISTORY  Immigration

Popular history inaccurately attributes the British occupation of Penang in

1786 as the beginning of Chinese and Indian immigration to Malaya. Immigration in fact pre-dated imperialism. Malacca’s speedy growth 4 in the 15th Century was due to merchants and sailors from the Arab World, India and China forming a complex trading network covering South East Asia. Trade brought immigrants to 15 th Century Malacca, with Chinese and Indian immigrants forming distinct settlements in Malacca.

The

Malacca Sultanate’s acceptance of Islam was its major contribution to the evolution of  Malay culture, and the new religion became so closely identified with Malay society that to become Muslim was termed “ masuk Melayu” 5 . Alfonso dé Albuquerque’s capture of  Malacca in 1511 resulted in violent imperialism making its maiden appearance on Malayan soil, and was to be a constant of Malayan history through 4 waves of  imperialism for 446 years from 1511 to 1957. Hence, although immigration preceded imperialism, direct British intervention in Perak after the Pangkor Treaty of 1874 led to a marked increase in Chinese and Indian immigration to exploit greater economic opportunities.

Visibility marked the Chinese and Indian migrants.

In contrast,

foreigners from the Netherlands East Indies, whether Minangkabau or Achehnese from Sumatra or Javanese were regarded as “ Malay”  because of a basic similarity of  appearance, the use of Malay as a common language, and above all Islam as a shared religion. “ The continuing absorption of Indonesian migrants into Malay society meant  that the limits of Malayness were cultural and emotional rather than ethnic. When a  man of Bugis origin saw himself a Malay, then indeed he was”.

6

Large scale

Indonesian migration meant that by 1931 as many as 244,000 of the 594,000 Malays living in the Federated Malay States were either first generation arrivals from the Netherlands East Indies or descendants of Indonesian migrants who had arrived after 1891.7 (ii) 6.

British Imperialism

The core of imperialism is domination by one nation (imperial power)

over another nation (colony). Imperialism is thus a species in a genus of dominance and power relationship. As a state of mind, imperialism springs from the conviction in a

3

race or people that it is superior to others, combined with an urge by the former to dominate the latter. Imperialism involves the assertion assertion of alien supremacy, supremacy, and the denial of the right right and ability of people to to manage their own own affairs. Natives had to be the civilized. The desire for a people to be independent and self-governing was not confined to non-Europeans. non-Europeans. In the early 19th Century when Cavour was inspiring the Italians to form a nation, he stated “ We do not ask that Austria be humane and liberal in  Italy. We ask her to get out. We have no concern with her humanity and her liberation:  we wish to be masters in our own house.”  According to Louis Fischer, the biographer biographer of 

Mahatma Gandhi “imperialism is rule of other people, for other people by other people.”  7.

Without doubt the greatest empire in modern times was the British

empire. At its apogee prior to the outbreak of World War I in 1914, the British Empire stretched over 12 million square miles 8, roughly a quarter the earth’s surface (coloured pink on maps published in London, with the sun never setting on it). The preponderant view in 1900 held that the European empires would last for centuries to come 9 : no one then anticipated that the life-span of the empires would be relatively short. Similarly, at the end of the 2 nd World War in 1945 no one would have believed that the end of  empire would come so quickly, though it was already clear that India “ could not be held” . Even after the Suez debacle in 1956, over pink gins in a bar in Aden the following would be overheard: “Don’t you worry, old boy……we’ll be here for another 30 years”.10  8.

One of the myths surrounding the British empire was its origin, perhaps

best illustrated by the famous phrase by Professor John Seeley that the British seemed  “to have conquered and peopled half the world in a fit of absence of mind 11 ” ”.  Regardless of its origins, there was no doubt that in the 19 th and 20th centuries, sufficient members of the British decision making elite made clear their intention to rule the colonies permanently and not yield the empire. A sample includes: “Nothing we have done has taught them to govern themselves; we are  merely teaching them to co-operate with us…..I doubt if Asiatics will ever  learn to govern themselves: it is contrary to the genius of their race, of  their history, of their religious system, that they should.” 

Sir Frederick Weld, Governor of Straits Settlements, 1880-1887 12 4

 “…..if the British left India, majority Hindus would gain the armed  ascendancy, public services would collapse and the country would fall  back rapidly into the barbarity and privations of the Middle Ages.” 

Sir Winston Churchill, 1931 13: “I have not become the King’s First Minister in order to preside over the  liquidation of the British Empire.” 

Prime Minister Winston Churchill, 1942 14.

(iii)

9.

The 2nd World War

Despite the efforts of Mahatma Gandhi and the Congress Party in the

1920’s and 1930’s, independence independence was never in the horizon for India when the 2 nd World War started in Europe Europe in September September 1939. Independence Independence was absolutely unthinkable unthinkable for all the other colonies colonies of the British Empire. The Japanese invasion of Malaya Malaya on 7 th December 1941 followed by the surrender of Singapore on 15 th February 1942, without doubt planted the seeds of independence in Malayans and forever destroyed the myth of European invincibility. invincibility. 10.

British imperial planners were however not idle in London during the 3½

years of Japanese occupation of of Malaya. Colonial restoration restoration was uppermost uppermost in their calculation. calculation . The publication of the magisterial British Documents on the End of Empire Project (BDEEP) in 1995 brings to the public domain relevant documents from British official archives, and throw light on the minds of the Whitehall decision-making-elite. The BDEEP illuminate the British empire in a broad high policy sense, in which empire is viewed in terms of Britain’s position as a world power, and of the inter-relationships between what derives from this position and developments within the colonies. In sum, the metropolitan perspective. 11.

By July 1943, the post-war constitutional arrangements for Malaya

prepared in London had developed into the Malayan Union which would require consent of the 9 Malay Rulers. By a Memorandum Memorandum dated 28th July 1943, H.R Hone, the newly 5

appointed head of the Malayan Planning Unit in the Colonial Office stated that “ ….in   process of time Malaya may ultimately stand as an independent unit of the British  Commonwealth of Nations. Though the day upon which this result will be achieved in  Malaya must be far distant”.15

(iv). The Malayan Union 12.

The Japanese surrender on 15th August 1945 after the atomic bombing of 

Hiroshima and Nagasaki was accompanied by the Military Administration Proclamation of the same day issued by Admiral Louis Mountbatten, the Supreme Allied Commander, South East Asia in Kandy, Ceylon whereby the British Military Administration was established in Malaya under his command giving him full power over Malaya. Immediately, Immediately, attention turned turned to the Malayan Union plan. A memorandum asked: asked: “ how  far should I come into the open when negotiating the new treaties with the  Sultans……..It is also necessary for me to know whether Her Majesty’s Government is   prepared to go so far f ar as to remove from office any Sultan who refuses to sign away his  h is  independence” 16   Admiral Mountbatten, Mountbatten, by letter dated 29th July 1944, inquired from Mr

O.F.G Stanley, the Secretary of State for the Colonies: “ what happens if a Ruler, otherwise unexceptionable, declines to conclude a new treaty on the desired lines? Do  we have to find a successor who will?  17 ”  In a minute dated 6 th September September 1945 by H T

Bourdillon, an Assistant Secretary in the Colonial office, discussed the proposed visit of  Sir Harold MacMichael to Malaya, and “the simple annexation of the state”  18  was among the measures that the British Government would consider adopting to enforce their Malayan Union policy if any Sultan opposed it. The British documents accordingly dispel any notion that a free bargain was reached between the 9 Malay Rulers and Sir MacMichael: instead, the Sultans Sultans had no choice choice but but to sign. MacMichael’s high-hand treatment of the Sultans thereby securing their “ consent” under “duress” to a change in the treaty relationship with the British Government provided a focal point for what had hitherto been diffuse Malay political activity. activity . The publication of the White Paper on 22 nd January 1946 announcing the Malayan Union proposals proposals led to a call by Dato’ Onn Jaafar, the Menteri Besar of of Johore, for the convening convening of a Pan-Malayan Malay Congress. Congress. The hostility of the Malays and the indifference of the Chinese and Indians (that is, Malayan democratic opinion as a whole) whole) meant the death death knell of Malayan Union. Union. The Malay Rulers agreed with Dato Onn’s suggestion that they boycott the inauguration ceremony on 1 st April 1946 of the Malayan Union and the swearing in of Sir Edward Gent as the first Governor. On 11th May 1946, United Malay National Organisation (UMNO) was 6

established at the Pan-Malayan Malay Congress in Johore Bahru.

The Malays also

boycotted the installation in Singapore on 22 nd May 1946 of Sir Malcolm MacDonald as Governor-General of British territories in S. E Asia. On 18th June 1946, MacDonald and Gent met the Malay Rulers and UMNO leaders together for the first time, and despite their continuing mistrust of the British over the MacMichael treaties, the Malays signaled their willingness to commence formal talks which ultimately resulted in a replacement of  the Malay Union by the Federation of Malaya Agreement of 1948.

B.

13.

OBSTACLES TO INDEPENDENCE

 A popular myth, invariably fueled by critics of Tunku Abdul Rahman, was

that independence was granted to Malaya on a “golden platter” , and that there was in fact no real struggle for independence which was thrust on lackeys by a colonial empire on the retreat. The origin of this theory was the throwaway remark by Sir John Marten, a senior British civil servant in January 1955 when he met the Alliance delegation at London airport, “No, we are going to give it to you on a golden platter !” to a query by Tunku: “are you going to make things difficult for us?”  19 . When Lee Kuan Yew was criticised for his unilateral declaration of Singapore’s independence from the British on 30th August 1963 because the formation of Malaysia originally fixed for 31 st August 1963 was postponed at the request of the United Nations, he replied that unlike Malaya, Singapore had to fight for independence. In his typical sarcastic manner, Lee Kuan Yew noted “the naïve approach of some people to whom power had been handed over on a  silver platter with red ribbons by British Royalty in uniform.” 20

14.

This is historical revisionism of the worst kind.

British documentary

evidence establishes unequivocally that British policy in the 1940’s and 1950’s was to deny independence to its colonies, save for the Indian sub-continent, which was regarded in London as an aberration. The official British policy only changed in 1960 when Prime Minister Harold McMillan during a visit to South Africa, made his famous  “Wind of Change”  speech warning European powers from resisting self-determination. Until the London mission of January 1955, Britain was opposed to granting independence to Malaya. It was certainly not an easy ride to independence. T. H. Tan,

7

who accompanied Tunku to an earlier London mission in May 1954, stated in his Reflections:“Often recurring in my mind are the words of Mr Justice van Lare  of the Gold Coast (Ghana), whom Tunku met at a private party in  London. The Judge, who was then drafting a new Constitution for  the Gold Coast, told Tunku : ‘The way to self-determination is not  through the Colonial office, it is usually through the prison gate” 21 .

Tunku was thus aware that fighting the colonial power was perilous, but he did not shirk his historical destiny.

(i) 15.

British Objectives : 1945 - 1955

 A central preoccupation of British policy during and after the 2 nd World

War was the preservation of sterling’s role in financing international trade and investment, and with it, the maintenance and growth of the earning power of the city of  London22. Between 1940, when the sterling area acquired formal status, and 1958 when full convertibility was restored, the pound was nursed within a framework of  controls in which the empire, and especially prosperous colonies like Malaya, had a starring role.23  As far as imperial policy was concerned, the immediate effect of the 2 nd World War was to strengthen links between Britain and the empire, and to centralize decisions in London, both to coordinate defence and mobilize strategic resources.  According to one commentator

24

the costs of the war, mountainous though it was, did

not crush Britain’s belief in her role as a world power at the head of a great empire. 16.

The fact that the empire had proved its value during the war

undoubtedly lent weight to imperialists like Churchill, who as Prime Minister instructed  Anthony Eden in 1944: “hands off the British empire is our maxim and it must not be weakened or smirched to please sob-stuff merchants at home or foreigners of any hue” 25.

This objective commanded bipartisan agreement.

The Labour Party, once

elected in 1945, embraced empire with all the enthusiasm of the converted, despite its long-proclaimed opposition to imperialism. Thus, during the Atlee administration, there followed what has been termed the “ second colonial occupation”. On 13th April 1949,  Atlee stated to the House of Commons: “HMG have no intention of relinquishing their

8

responsibilities in Malaya, until their task is completed….We have no intention of ……a premature withdrawal.” 26 . 17.

 Atlee’s Labour Government thus did not contemplate liquidation as an

option: instead, the empire was to be rejuvenated. India’s independence in 1947 did not bring down the rest of the British empire. The “ loss”  of India gave prominence to other, formerly less significant colonies, with Malaya becoming one of the crown jewels. She was a source of vital resources like rubber and tin and contributed to the hard currency pool through her dollar earnings. The British thus did not return to Malaya in 1945 “to collect butterflies”  27. In July 1948 after Emergency had been declared, the Secretary of State for Colonial Affairs, Creech Jones in a memorandum to the British Cabinet stated:

“During 1947 the total value of the exports of Singapore and the 

Federation of Malaya together was  ₤  15 million, of which dollar exports accounted for  ₤  56

million. It is by far the most important source of dollars in the Colonial Empire and 

it would gravely worsen the whole dollar balance of the sterling area if there were  serious interference with Malaya’s exports ” 28 .

Malaya’s wealth and contribution to

British coffers meant that the idea of independence in 1948 would have been repugnant and wholly unacceptable to the metropolitan power. It was just not London that was responsible for British policy; the influence of the British community in colonial Malay should not be discounted. Thus, British planters and merchants were highly critical of  Gent and Gurney as being “ soft”  High Commissioners which threatened their comfort. In the words of one commentator : “ not that there are some Europeans who are living  luxuriously, but that, broadly speaking, there are none who do not live in that  fashion 28a ” . It was wholly unrealistic to expect this ruling class to voluntarily relinquish

their “superior”  way of life. Even Onn Jaafar, shortly after his Malayan Union success, recognized the limits of Malay demands. Thus, in a dispatch dated 27 th January 1947 to London, with reference to the UMNO General Assembly held in Alor Star from 10 th to 12th January 1947, Gent noted: “In his opening address, Dato Onn stressed that the Malay people  are not ready for Independence.

He ridiculed those Malays who 

demand immediate Independence, pointing out that there is no  Malay fitted to be a Minister, or a representative to the United  Nations or an ambassador..” 29 

9

(ii) 18.

The Malayan Communist Party

Euro-centric histories of Malaya in the decades leading to Merdeka

overlook or substantially downplay the contributions of the Malayan Communist Party (“MCP”) to the independence struggle and the eventual departure of the colonial power. References are of course made to the Declaration of Emergency in 1948 and the Tunku/Chin Peng talks in Baling in 1955; otherwise the MCP is disregarded. This is hardly surprising since history is invariably written by the victors. Recent publications 30 have attempted to restore MCP’s proper role in the independence struggle. 19.

Ho Chi Minh, using the alias Nguyen Ai Quoc, established the MCP in a

rubber plantation near Kuala Pilah in Negeri Sembilan in 1930.

Ho acted as a

Commintern representative, and was implementing a decision taken by the Far Eastern Bureau of the Commitern based in Shanghai 31. In 1938, the notorious triple agent, Loi Tak, became the Secretary-General of the MCP. A Vietnamese by birth, Loi Tak while holding office in the party, had “ loyalties”  to the French, British and Japanese. He used numerous aliases, including “ Wright ”. Chin Peng joined the party in 1940. 20.

The Japanese occupation of Malaya resulted in a coalition of interests

between the British and MCP: both wanted to defeat the Japanese. It was a marriage of convenience: neither side fully trusting the other. A common enemy did not change Britain’s long-term aim to a return to the colonial state prior to 1941, while MCP’s objective was independence from colonial domination with their party playing a role in post-independent Malaya. As a reward for their wartime co-operation, in January 1946 Chin Peng received medals from Lord Mountbatten, the Supreme Allied Commander, South-East Asia and in 1947 an OBE from the Crown32. 21.

In his account of history, Chin Peng takes issue with the version given by

 “western”  historians that violence began in June 1948 with the killing by the MCP of 3 British planters in Sungei Siput which gave birth to the Emergency. According to Chin Peng

33

the violence actually began on 21 st October 1945 when British troops were

called to disperse large crowds in Sungei Siput, Ipoh and Batu Gajah. 10 demonstrators were killed by the British troops in Sungei Siput and 3 in Ipoh. On 15 th February 1946 British troops fired at a Labis crowd listening to speeches by MCP leaders, killing 15 people 34.

10

22.

 According to Chin Peng, MCP opposed the Malayan Union proposals, in

particular that its citizenship proposals were too restrictive and the legislative and executive councils “ would be entirely under the supervision and control of the British  government”. MCP was of the opinion that “ the political framework of Malaya should be  decided in full compliance with the Atlantic Charter and the UN Charter”.35  MCP’s

opposition to the re-imposition of British rule was further influenced by the maladministration of the BMA.

Graft, exploitation and discrimination dominated every

aspect of British colonial. “The Courts were corrupt. The civil service was corrupt. The   police was corrupt. The troops and their commanders were trigger-happy 36.

23.

The Declaration of Emergency 37 in June 1948 increased the level of 

violence on both sides. The Batang Kali massacre of 26 Chinese civilians by the Scots Guards on 12th December 1948, Malaya’s equivalent of the My Lai massacre in Vietnam by US troops in March 1968, was a blot on the British record. The Brigg’s Plan, the tactics of Supremo Sir Gerald Templar and the lack of financial support from foreign communist parties sapped the strength of the MCP, which in a conference held in London in 1954 for the British Empire communist parties, sent peace feelers. Incidentally this was the very first overture for peace talks by any side involved in the Emergency. Shortly thereafter, the MCA President Tan Cheng Lock announced that he was prepared to go into the jungle to met Chin Peng for initial discussions. British response was immediate: they opposed it. The British enjoyed distinct advantages in the maintenance of a contained communist threat which justified their continued presence in Malaya. Tunku offered amnesty to which MCP sent a letter in May 1955 seeking talks to end the fighting.

The British stonewalled.

The stunning electoral

victory of 51 our of 52 seats by Alliance in July 1955 and the appointment of Tunku as Chief Minister meant that the British could not impede Tunku any longer in pursuing peace talks with the MCP. 24.

The failure of the Baling talks of December 1955 between Tunku, Tan

Cheng Lock and David Marshall and Chin Peng and 2 others representing MCP did not delay independence for Malaya. In his history written nearly 50 years after the abortive talks, Chin Peng speculates38 on the reasons for their failure. He blamed the British who insisted on MCP’s unconditional surrender and continuing humiliation. Emotional outbursts by the grand-standing Marshall poisoned the atmosphere. Chin Peng was confident that if he could only have negotiated with Tunku and Tan Cheng Lock, history may have been different. Chin Peng’s letter, written in February 1956, to Tunku after 11

his successful London conference when independence was promised by 31 st August 1957 was not responded by Tunku. MCP welcomed Merdeka and requested for fresh talks which were not forthcoming. The approximately 2000 surviving MCP fighters were demoralized, and slowly significant numbers surrendered.

By the end of 1958 the

numbers had dropped to about 350 fighters. The Malayan Government declared the Emergency over in 1960.

Finally in 1988, talks were held between the Malaysian

Government and the MCP, brokered by Thailand, and in December 1989 a Peace Accord was signed in Haadyai. 25.

 According to Tunku:  “The only good thing the Emergency produced was my meeting  with Chin Peng. Because of these Talks of mine in Baling we were  able to wrest the initiative from the MCP, then sit at a conference  table in London to negotiate our independence with the British, and win our freedom as a nation.

Baling led straight to 

Merdeka” 39 .

26.

From an objective perspective, MCP contributed positively to the

independence movement.

As freedom fighters and genuine nationalists opposed

ideologically to foreign rule, their efforts must be recognized.

The ultimate test is

whether Britain would have granted Merdeka in 1957 if there had been no communist led insurgency in Malaya. Tan Sri Rahim Noor leading the Malaysian delegation at the 1989 talks stated that “Malaysia did not deny or dispute the CPM’s contribution to the  struggle for independence. As to the extent of this contribution…..should rightly be an  issue left for historians”.40 

27.

In 1999 the Australian National University organized a workshop

attended by leading historians to interview Chin Peng, the dialogues were published in 200441. When asked about the MCP’s contribution to Merdeka, Chin Peng stated: “ But  we didn’t experience defeat in forcing the British to grant independence to Malaya. Without our struggle, I don’t think the British would grant independence to Malaya. Or  it will be many years later. According to Sir Robert Thompson, he admitted we at least  accelerated the Merdeka for 10 to 15 years” 42 .

Hence, from an objective historical

perspective, the communist insurgency, Emergency and Baling led ultimately to Merdeka. 12

(iii) 28.

The Malay Rulers

 Another subject often overlooked in the discussion on the road to

Merdeka is the role of the 9 Malay Rulers. The uneasy relationship between UMNO’s prickly leader Dato Onn Jaafar and his own Ruler, the mercurial Sultan Ibrahim of  Johore perhaps best exemplified the tension between the interests of hereditary rulers and the emerging Malay party espousing democratic and nationalist goals, with each contesting leadership of the Malay community. Tunku, himself of royal lineage, was more acceptable to the Rulers, and Tunku was responsible for suggesting that the representatives of the Rulers and Alliance should leisurely travel by sea for the London Conference of January 1956.

The Rulers were concerned about their proper role,

particularly against the background of the poor treatment of royalty in India’s independence.

A compromise was reached by the joint terms of reference which

recognized a Head of State as symbol of a strong central government while safeguarding the position and prestige of the Malay Rulers as constitutional rulers in their respective states. Reaching practical accommodation for mutual benefit thereafter was however paved with obstacles. 29.

 Again distancing himself from Dato Onn, Tunku was mindful of not

alienating the Malay Rulers, thereby giving the British another reason to delay Merdeka. In his memoirs, Tunku record that “ at all costs I wanted to avoid having a split with the  Rulers”.43  Tunku organized loyalty processions in July 1954 to display loyalty and good

faith to the Rulers to encourage them to support Alliance’s policies. 30.

The withdrawal of the British adviser from Johore in 1955 precipitated a

head-on clash between Sultan Ibrahim and the Alliance, with the Sultan during the celebrations to mark his Diamond Jubilee in September 1955, publicly attacking the  Alliance for demanding independence to be granted to Malaya.

This speech

immediately received the support of the British, especially in private correspondence, again confirming to them that Malaya was not ready for self-government, let alone independence. 44

Sultan Ibrahim did not give up easily, for he suggested in letters

written in December 1955 to MacGillivray and Lennox-Boyd that Johore should secede from the Federation of Malaya and continue with British protection 45 which then inspired a small local party, the Persatuan Kebangsaan Melayu Johore, led by one 13

Ungku Abdullah bin Omar, to advocate those policies. Fortunately, for Tunku, Sultan Ibrahim’s secession suggestion did not receive any support from his brother Malay Rulers, and the British adviser withdrew in February 1957. 31.

That the Rulers and Alliance continued to have separate interests were

demonstrated by their submissions of separate memorandum to the Reid Commission, as well as meeting it separately whereat Neil Lawson Q.C. of the English Bar represented the Rulers. However, the Rulers and the Alliance resolved their differences through the Working Party set up in early 1957 to discuss the recommendations of the Reid Report.

Tunku was principally responsible for granting a larger role to the

Conference of Rulers than the sole function assigned to it by the Reid Report of  selecting a Yang di-Pertuan Agong once in five years among the 9 Malay Rulers. As Merdeka approached, again thanks to Tunku’s personality and charm, the Malay Rulers slowly but surely embraced Malaya.

C.

THE MERDEKA MOVEMENT (i)

32.

UMNO

 After UMNO had successfully led Malay opposition to the Malayan Union

which saw its replacement by the Federation of Malaya Agreement in 1948, UMNO focused its attention on building Malay unity.

Dato Onn Jaafar, founder and first

President of UMNO, proposed at the annual UMNO Assembly in 1950 that a form of  Malayan Nationality be agreed upon, which proposal was reluctantly accepted by UMNO when Onn resigned from the Presidency. The Assembly, totally unprepared for this extreme tactic, voted Onn back into office. In the next Assembly in August 1951, Onn proposed full membership in UMNO to non-Malays, and announced that if the proposals were not accepted he would resign and form a new party. This time UMNO was not prepared to be black-mailed, and its leaders approached Tunku to take-over UMNO’s Presidency. Tunku assumed the Presidency on 26th August 1951. In his acceptance speech, Tunku criticized Onn’s call to form a pan-Malayan party.  “Who are these Malayans that Dato Onn speaks off. This is a  Malay country. The Malays will decide who should be included in  the term ‘Malayan’.

The Malays will welcome people of other 

races who give their undivided loyalty to our country 46 ”. 14

Tunku ended his speech by demanding that independence should be granted to Malaya as soon as possible. “Hidup Malaysia” was replaced by the call for “Merdeka”. 33.

Informed opinion suggested that Onn’s proposal in 1951 was trying to go

 “too far too fast” , and that the very great majority of Malays desired to keep UMNO free from non-Malay members so that they could pursue whatever policies they wished without influence from non-Malays. Tunku’s perception was more acute that the races of Malaya could not be united within a simple political party. He believed that each community needed its own political organization and leaders. Even after the passing of  some 55 years Tunku has been proven correct, with absolutely no sign on the political firmament that Malaysians have the maturity to form a non-racial party which could become a governing party.

At the time of his resignation, Onn had predicted that

UMNO would disintegrate within 3 months 47” .

Although some Chinese and Indians

became members of Onn’s new party, the Independence of Malaya Party (“IMP”), very few Malays joined. Tan Cheng Lock, President of MCA, sat beside Onn when the IMP was formed, but he adopted a neutral role, later withdrawing and ultimately supporting UMNO.

(ii) 34.

The Alliance

The Kuala Lumpur Municipal Elections held in February 1952 provided

the first opportunity to gauge popular support for UMNO and IMP.

A temporary

electoral alliance between the Selangor State Branch of the MCA and the Kuala Lumpur branch of UMNO was brokered by Colonel H S Lee and Yahya bin Dato Abdul Razak with the objective of jointly contesting the elections, and to defeat the IMP.

The loose

arrangement was done without the prior knowledge 48 of the national leadership of both parties. Tunku immediately supported it. 49 The partnership proved a great success, winning 9 out of the 12 seats (MCA won 6 and UMNO 3). The IMP only won 2 seats, and its poor performance was a harbinger of its early demise.

The successful

experiment in electoral co-operation was repeated in other municipal and town council elections, including Johore Bahru, Onn’s base, where UMNO/MCA won all the seats. In February 1953, UMNO and MCA agreed to establish a permanent alliance with Merdeka as its primary objective.

15

35.

The next electoral test was the elections in July 1955 for 52 seats on the

Federal Legislative Council.

UMNO demanded a lion’s share of the constituencies.

Tunku opposed it, calling on UMNO to be fair to MCA and to adopt “ a policy of racial  unselfishness” 50 . Tunku recognized British vigilance, declaring to UMNO that if the first

federal elections were to hurt racial harmony, “ our hope of early independence may be   jeopardized”. MIC joined the Alliance which contested all 52 seats, with UMNO being

allocated 35 seats, MCA 15 and MIC 2 constituencies. Tunku led the Alliance to a brilliant victory, winning 51 seats and securing 80% of the popular vote. PMIP (the forerunner to PAS) won the other seat. Parti Negara was exterminated, and Onn Jaafar lost whatever slim hope of becoming independent Malaya’s first Prime Minister. Despite Tunku’s appointment as Chief Minister, the British did not accord him the respect that a democratically elected Prime Minister-in-waiting of an independent nation to be deserved. Tunku’s response was typical: it motivated him to achieve independence in 2 years rather in 4 years which was the period mentioned in the party manifesto during the election campaign.

(iii) 36.

Tunku Abdul Rahman

That Tunku Abdul Rahman, independent Malaya’s first Prime Minister

made a remarkable contribution to Merdeka, earning him even on 31 st August 1957, the richly deserved title “ Bapak Kemerdekaan” , has never been in doubt. What has become evident 50 years after the tumultuous days of Merdeka, is the scale and magnitude of  the hurdles that Tunku had to overcome in order to unite a multi-ethnic, multi-religious and plural society par excellence and peacefully gain independence from a reluctant colonial empire. Indeed, Tunku is one of the few historical personalities who enjoys the distinction of founding not just one country, but two countries: Malaya in 1957 and Malaysia in 1963. If the United States was blessed with the leadership of its Founding Fathers, Washington, Jefferson and Madison in the 1770’s and the Indians blessed with Gandhi, Nehru and Sardar Patel in the 1940’s, then Malaya and Malaysia was blessed with the trimviurate of Tunku, Razak and Ismail, with Tan Cheng Lock and Sambanthan playing vital supporting roles. But without a doubt, Tunku was “ primus inter pares ” in this group of outstanding statesmen.

In an article published in June 1975, Tunku

referred to a letter written to him by Tan Siew Sin, who was also major participant for

16

MCA, when Tan Siew Sin recalled the Merdeka struggle and stated:  “I must say that the magnanimity and understanding of the UMNO  leaders impressed me deeply…..I thereupon decided that to the  end of my days I would support you and UMNO to the hilt.

It is obvious, however, that in the last analysis what converted not  only me, but many other Chinese, was your magnificent  leadership. It is no exaggeration to say that had anybody  but you been at the helm of the Alliance in the early days  of independence, the history of Malaya, and later Malaysia,  could well have been different.

The decisive factor, so far as I was concerned, which  removed lingering doubts was your personality .

I was 

convinced without any persuasion that, so long as you are the  head of the Alliance, we could not have a better leader, a warm, human personality who is generous and loyal to a point which  sometimes becomes an embarrassment even to yourself”.51 

With the benefit of half a century of history, Tengku Razaleigh Hamzah and Robert Kuok each described Tunku as the “ greatest Malaysian of the 20 th  Century”  52 . In my opinion, Tunku was the greatest ever Malaysian: no one from the documented history of the nation stretching back to Malacca’s establishment in 1403 poses a credible rival for this encomium. Without Tunku, Merdeka would not have occurred in 1957: if at all, independence would have been granted years later and in totally differing conditions which may not have been conducive to the survival of the nation. Hence, Tunku was indispensable to the achievement of Merdeka in 1957.

Shortly after Tunku became

UMNO’s President and advocated Merdeka, the British unsuccessfully organized behind the scenes manoeuvres to oust him, and replace him by “ moderate”  leaders like Nik  Kamil and Bukit Gantang52a:

this is, perhaps, the best credential for Tunku as a

supreme nationalist and freedom fighter. 37.

Tunku was blessed with insight, instinct and intuition. He was a natural

leader whose psychic and antennae were finely tuned to resolving problems by fair means. Compromise, consensus, tolerance and mutual respect for competing interests 17

were the hallmarks of his statemanhip.

These gifts assisted Tunku in overcoming

British imperialism, MCP and the Communist Emergency, the demands of the Malay Rulers, Dato Onn Jaafar, PMIP, UMNO, MCA and MIC in the run-up to Merdeka, and if  that was not sufficient to guarantee his historical legacy, 4 years after Merdeka, from May 1961 to September 1963 Tunku had to overcome Sukarno’s Indonesian Confrontation, Macapagal’s Philippines claim to North Borneo, Lee Kuan Yew and Singapore, the British, Sarawak, North Borneo and the Brunei Sultan in establishing Malaysia. A rare double achievement! 38.

Uppermost of Tunku’s priorities in the independence struggle was the

need to demonstrate to the imperial power that the 3 major communities could live and work together peacefully after their departure.

This was the greatest obstacle to

independence. British divide and rule policy had to be overcome. The Onn Jaafar route of having one party of all communities was not acceptable to the Malays. Thus, Tunku chose the Alliance route, which began fortuitously with the UMNO/MCA electoral cooperation for the K.L. Municipal Elections of 1942, and which Tunku nurtured, evolved and developed into a functioning Alliance under his leadership. The seeds of the social contract were thus sown in 1951/1952, and the architect was Tunku. 39.

In order to appreciate Tunku’s role in the social contract, it is of value to

recall his contemporaneous speeches. Upon the return of the Merdeka Mission, at the Padang Merdeka, Malacca on 20th February 1956, Tunku stated:  “Our

independence

struggle

was

uncommon to any other country.

an

outstanding

feature 

Here people of various 

communities, Malays, Chinese and Indians, and others, are all  united

with

one

Voice,

MERDEKA

and

have

a

common 

understanding. We thank God for all this.” 53 

40.

 A year later, upon the return of his last trip to London prior to Merdeka,

Tunku declared in Kuala Lumpur on 3 rd June 1957: “Of course, we are not used to independence. Both ourselves and  our grandparents once believed we should be colonized forever  under one or more colonial power. Because of this, developing an  independent country gives rise to feelings of anxiety, suspicion, 18

fear and concern. …Malays, Chinese, Indians and other races that  wish to be loyal, live together, defend the nation and work  together, live in harmony because the situation in this country is  different from other countries. Because of this, one really cannot  take everything for itself.

In order to set up an independent 

country we must compromise and make sacrifices.

These 

sacrifices will enable us to establish a nation which is an example  to the world of how all races can live together in friendship.” 54 

D.

THE GENESIS OF THE SOCIAL CONTRACT (i)

-

41.

Inter-Communal Bargain

The Alliance Memorandum to the Reid Commission

The overwhelming victory in the July 1955 elections gave the Alliance a

powerful legitimacy as the true democratic voice of all the people of Malaya. Because of the popular support it received, the Alliance Memorandum submitted in September 1956 was given much weight by the Reid Commission. The Working Committee set up by Alliance in preparing its Memorandum comprised the major leaders of the 3 parties, including Tunku, Razak, Ismail, Tan Siew Sin, Ong Yoke Lin, H S Lee, Sambanthan, Devasar and Manickavasagam. problem.

As expected, communal issues posed the greatest

The closed door Alliance intra-party negotiations focused on the 3 most

contentious issues that had dogged Malaya since 1946: citizenship, the special position of the Malays and language.55 42.

First, citizenship. Under the Federation of Malaya Agreement of 1948,

Malays automatically became Federal citizens, while non-Malays acquired citizenship by fulfilling residential qualifications. According to one study 56, at the end of 1953,out of  the total population of Malaya of about 5.7 million, some 1.3 million (nearly all of whom were non-Malays) were not citizens. Thus, for the non-Malays, citizenship and the doctrine of “ jus soli”  was top of the agenda. For the Malays, the special privileges were of principal concern.

The 1948 Federation of Malaya Agreement had accorded

privileges to the Malays in business, employment, education and land was reserved for the Malays to improve their economic position, with the High Commissioner being 19

entrusted with the responsibility of “ safeguarding the special position of the Malays”.  As to language, the major concern was the status of Chinese and Tamil in schools, and the use of English for official purposes.

Although the Razak Education Report,

published in April 1956, accepted the role of vernacular schools, it did not solve all the communal concerns. In trying to bridge the gulf “inter alia”  on these subjects, the Working Committee was walking a delicate line between party sentiments and the wider interests of the nation to be. 43.

The Alliance Memorandum contained compromises acceptable to the

leaders who represented the 3 communities and comprised the Working Committee, but it meant that no party was wholly satisfied. In essence, there was a trade-off; “ jus  soli’”  and a liberal 8 years as a period of residence for persons becoming citizens by

operation of law in exchange for special privileges for the Malays. MCA’s suggestion for a 15-year limit to special privileges was not expressly stated in the memorandum but was orally57 conveyed to the Reid Commission during their private hearing, which subsequently resulted in controversy. 44.

It was clear that the Alliance intended to project national unity as a

central theme in its presentation to the Reid Commission in order to enhance its credibility as a party fit to govern an independent country.

Another clear Alliance

commitment was the democratic style of government, modeled on the Westminister type of parliamentary democracy under a Constitutional Monarch.

Democracy also

meant giving a hallowed place for fundamental liberties, which explains why 16 points on human rights, inspired by the United Nations Declaration of Human Rights of 1948 and the Indian Constitution of 1950, are found in the Alliance Memorandum 58. Among them were “ freedom from want”  and “freedom from fear”, which were rejected by the Reid Commission because they were incapable of legal enforcement 59. Another feature of the Memorandum was the clear dominance of UMNO as the senior partner: thus, from the outset of the social contract, there was a recognition by Alliance that Malay interests must pre-dominate while simultaneously meeting the principal concerns of  non-Malays. It would be useful to recall the breakdown of the various communities in Malaya.

20

TABLE A POPULATION OF MALAYA60

 Year

Malays

Chinese

Indians

Others

Total

1931

2,000,000 45.5%

1,700,000 38.6%

625,000 14.2%

75,000 1.7%

4,400,000 100%

1947

2,428,000 49.8%

1,885,000 38.4%

531,000 10.8%

65,000 1.8%

4,908,000 100%

1957

3,125,000 49.8%

2,334,000 37.2%

707,000 11.3%

112,000 1.8%

6,279,000 100%

1964

3,963,000 50.1%

2,918,000 36.8%

884,000 11.2%

153,000 1.9%

7,919,000 100%

(ii).

45.

THE REID COMMISSION

It would be historically inaccurate to dismiss the Reid Commission as a

group of foreigners who had no knowledge of Malaya and who imposed a constitution on a country which was not free to modify or reject its recommendations. During their 8-month commitment, first in Malaya and then in Rome to write their report, the Commission made an indelible impression on those who appeared before them and those who studied their report.

Although they hailed from 4 countries, they were

steeped in common law and British Constitutionalism. Lord Reid was a Conservative Member of Parliament and a leading member of the Scottish Bar when he was appointed by a Labour Government direct to the House of Lords in 1948 — a rare distinction. Until his retirement in 1975, Lord Reid was an outstanding Law Lord — one of the greatest in the 20 th Century. Sir William McKell had been a Governor-General of   Australia, and a Cabinet member. Justice Malik had substantial experience interpreting the Indian Constitution in the Allahabah High Court. Justice Hamid had assisted in the drafting of Pakistan’s Constitution and was an experienced High Court judge. Professor Ivor Jennings of the University of Cambridge was perhaps the leading constitutional scholar in the common law world, and had drafted numerous constitutions for

21

Commonwealth countries. He had an empathy for the colonies. He was also Tunku’s contemporary at St Catherine’s, Cambridge. 46.

In their Report, the Reid Commission placed much weight on Alliance’s

Memorandum and statements made at the hearing attended by its delegation.

The

Reid Report was neither revolutionary nor novel. On the contrary, it was moderate and balanced.

The greatest contribution of the Reid Commission was to accept the

proposals and recommendations of the Alliance party, particularly with regard to the social contract, and thereafter to draft in elegant, clear and fluent language a model constitution for consideration by the British Government, the Malay Rulers and the  Alliance Government. Posterity owes a debt to the 5 members of the Reid Commission.

(iii)

47.

THE TRIPARTITE NEGOTIATIONS ( February – July 1957)

The Reid Commission’s Report was simultaneously released on 20 th

February 1957 in London, and in Kuala Lumpur to a mixed Malayan reception. Predictably, the focus was on communal issues, and reactions were split on the usual Malay and non-Malay divide. The leading Malay daily, Utusan Melayu, criticized the 15year review for Malay privileges, while the Chinese press criticised the 2-tier citizenship by recognizing such Malay privileges. For the first time Alliance’s concession on a 15year review of Malay privileges entered the public domain: see the following exchange when the 7-member Alliance delegation led by Tunku appeared before the Reid Commission on 27th September 1956 61:“ Chairman :  Now we come to the special position of the Malays…. (Lord Reid)  Razak: 

On the question of the special position of the Malays, there  is added a provision for review, and we suggested 15  years after the declaration of independence.

Tunku :

The suggestion is that there should be a review every 15  years.

22

Chairman: 

That would not mean, I suppose, that it was wrong to do  anything before that? 

Tunku :

No……the main thing is that we say here under general  terms of the special position of the Malays that it should be  reviewed every 15 years, but that does not prevent the  government of the day relaxing the rule from time to time; 

Chairman: 

I suppose 15 years’ review would include both the states  and the Federation – both Malay reservation of land and  the matters for which the Federation is responsible.

Tunku: 

Yes “.

In response to public outcry on the 15 year review, Tunku stated that in dealing with such high constitutional matters a broader national perspective must be adopted, which seemed to calm political temperature. He assured critics that the Reid Report would only become legally binding after the British and Alliance Governments and the Malay Rulers had given their approval. 48.

Within 2 days of its publication, a newly established Working Party,

chaired by the High Commissioner, MacGillivray had its first meeting. It met altogether 23 times, sometimes in 2 sessions day, between 22 nd February and 27th April 1957. The  Alliance was represented by Tunku, Razak, Ong Yoke Lin and Sambanthan. The Rulers had 3 local representatives and Neil Lawson Q.C.

At the same time, the Alliance

appointed a sub-committee which produced a report setting out Alliance’s position in the Working Party.

The Sub-Committee was chaired by Razak, and comprised 21

members including 3 of the Alliance’s representatives on the Working Committee. The main stumbling block was the 15-year review for the special privileges, which the MCA contended, correctly stated the Alliance position given to the Reid Commission during the private hearing. According to Tan Siew Sin, MCA’s spokesman, unless a review was included: “ There would be nothing to stop a party in power from saying in future half  of any trade or industry should be given to Malays, and this could go on ad infinitum” 62 .

The sub-committee adopted a suggestion by a MIC representative, Kaher Singh that a more general phrase “ from time to time”  be used rather than a fixed period, thus placating UMNO. 23

49.

It is important to note that the Reid recommendations were not accepted

in toto. The changes made by the Working Party to communal issues in fact somewhat altered the inter-communal balances recommended by the Reid Report in its draft constitution; particularly, with respect to the special privileges of the Malays, and the reduced use of Chinese, Tamil and English.

Ultimately, this represented the social

contract on the eve of Merdeka. The Malay Rulers were also unhappy with the reduced role of the Conference of Rulers contemplated by the Reid Report. Accommodation was reached, with the Conference given additional powers, akin to those provided in the 1948 Federation of Malaya Agreement, including being consulted on key constitutional appointments, and being able to discuss matters of national policy. That independence could still not be taken for granted was demonstrated when the Rulers’ representatives boycotted a Working Party meeting on 9 th April 1957. They returned to the negotiating table only after the Alliance had mollified them.

(iv) 50.

The Dawn of Merdeka

 As Merdeka loomed, Tunku made repeated references to the social

contract. Thus, in a Statement to the Straits Times Annual 1957, published at the dawn of 1957, Chief Minister Tunku stated: “Malay nationalism has merged with Malayan Nationalism. This  began when Chinese and Indians who were domiciled in Malaya  were developing a Malayan consciousness.

They too demanded 

independence, with the result that the UMNO, which led the  struggle for nationhood, changed its slogan from ‘Hidup Melayu” 

to “Merdeka. I can best define Malayan nationalism by saying that the   people who have made their homes here, and who give  this country their loyalty, want to see Malaya on an equal  footing with the free, independent countries of the world  No one can say that the Alliance Government is a Malay  Government. It is an all-community government, a microcosm of  the people of Malaya.

24

The suggestion that after Merdeka the Federation will pass from  one master to another — from the British to the Malays is  nonsense. I repeat, the Alliance is not a Malay body but Malayan. No single Alliance partner will try to dominate it.  All aliens who have been resident for 10 years can become  citizens, if they sincerely desire it . All they have to do is to   pass a single language test — a test in Malay, the national  language of the Federation.” 63 

51.

In moving the White Paper in the Federal Legislative Council in Kuala

Lumpur on 10th July 1957, Chief Minister Tunku declared:  “We spent many long hours in the Working Party discussing every  aspect of the future constitutional arrangements for our country.  A formula was agreed upon by which it was decided that  in considering the rights of the various people no attempt  must be made to reduce such rights which they have  enjoyed in the past…….This was possible because each  member of the Working Party was determined to reach agreement  and was prepared to compromise.

It will thus be seen that the Constitutions now before this  Council

are

the

results

of

prolonged

and

detailed 

discussions and product of many minds. Each clause has  been most thoroughly examined, and when it is remembered that  the recommendations of the Reid Commission on which the new  Constitutions

are

based

were

in

their

turn

based

on 

representations received from hundreds of organizations and  individuals, on the personal views and experience of the members  of the Commission, there can, I consider, be no doubt whatever  that these Constitutions will provide the independent Federation  of Malaya with a firm foundation on which the people of this  country can build a great and prosperous nation…I do not believe  that a better Constitution could have been devised in the  circumstances of our country today.

25

With regard to citizenship, I must emphasize that the basic   principle which it is proposed to accept is that all persons who  regard the Federation as their home and wish to take advantage  of what this country has to offer must owe ……….loyalty to the  Federation and must be prepared to participate in the duties of  citizenship…….It is vital that we should be able to offer our  absolute loyalty to Malaya” 64 .

52.

In one of his final press conference before Merdeka, Tunku stated on

28th August 1957:“The people of Malaya are used to a form of Government which  gives them freedom of speech, freedom of movement, freedom of  assembly, freedom from want and freedom from fear…

I believe in allowing the people to have their ways so long as they  observe the laws and orders of the country. I believe in allowing  them to run their own life and to enjoy the fruits of their labours;  let them wear what they want to wear; let them do what they  want to do; let them go where they want to go. I do not think it  is right to order their way of life and it follows therefore that if  they want to have their own clubs for their own particular  community, let them….” 65 .

E. 53.

ESSENCE OF THE SOCIAL CONTRACT

It is thus abundantly clear that the Social Contract was at the root of the

 Alliance’s struggle for independence: the British would not have relinquished empire and occupation on 31 st August 1957 if the 3 major races had not reached an accommodation on power sharing. What then is the “ social contract ?”  54.

Even the most chauvinistic or jingoistic Malay leader did not between

1945 and 1957 publicly ask for the wholesale repatriation of Chinese and Indian immigrants from Malaya. Neither was there any call for partition of Malaya into areas for Malays and non-Malays: even Penang and Malacca, that is, the Straits Settlement, 26

had mixed populations. Likewise, secession was not an issue. Thus, the only issue was how the Chinese and Indians were to be accommodated in the new nation. Domicile and citizenship were the solutions. From the Malay perspective, Malayan citizenship required undivided loyalty to the new state, and dual citizenship was vigorously opposed. Having regard to the MCP, the Kou Min Tang and Mao Tse Tung’s take-over of  Communist China in 1949, and Subra Chandra Bose, Gandhi and Nehru’s struggle for Indian independence, Malay concern that the true loyalty of Chinese and Indians were to their “mother countries” and not to Malaya was understandable. From the non-Malay perspective, citizenship had to be on the most liberal terms, and the doctrine of “ jus  soli” was the rallying cry.

55.

Once it is appreciated that the bargaining between the races revolved

round the special privileges of the Malays, the terms of citizenship, use of languages and freedom of worship, one can understand the reasonableness of the social contract. Special privileges to the Malays, including preferential employment in the public sector and Malay reservation land, were not difficult to accept, particularly having regard to their endorsement by the British, and protection by law under the 1948 Federation of  Malaya Agreement. 56.

Thus, the Social Contract, social compact or bargain reached by the 3

communities under the watchful eye of the British imperial power prior to Merdeka was in essence that in exchange for a place under the Malayan sun with full citizenship, a right to use their language and observe their religion, the non-Malays had to concede special privileges to the Malays to assist the latter to ascend the economic ladder. It was a quid pro quo. In this equilibrium, the non-Malays were not to be relegated to second class citizens: citizenship was not on a 2-tier basis and there was going to be no apartheid, partition or repatriation. What was required from the non-Malays at the time of Merdeka was undivided loyalty to the new nation. Racial differences were recognized. Diversity was encouraged. There was no pressure to integrate into one Malaysian race.  Assimilation was out of the question. Thus, a united Malayan nation did not involve the sacrifice by any community of its culture or customs. Malaya was always to remain a plural society.

27

57.

Professor Michael Leifer described Alliance’s social contract in political

terms:“UMNO has been not only the senior partner in the Alliance  Government but also the prime determinant of the bounds of  inter-communal compromise. In effect, it showed itself willing for   practical reasons, associated with the prospect of independence  and the numbers and economic contribution of the non-Malays, to  tolerate a measure of inter-communal accommodation on the  understanding that the underlying ethic of British colonial rule —  that Malaya was a Malay country — was carried over in symbolic  and substantive form into the post-colonial situation. This ethnic  was expressed at the time of independence in constitutional   provisions for the special rights of the Malays which were  entrenched, it was argued, in order to modify the disparate  economic roles of Malays and non-Malays. In addition, Malay was  established as the national land and eventually as the official  language. Islam was made the state religion, while the rotating  monarch-chosen among the Malay Sultans - was empowered with  responsibility and discretion under the constitution for the ‘special   position’ of his co-religionists.

In return, the non-Malays were 

 provided with access of citizenship and an unwritten promise that  they were to be secure in their economic stake and not cast for a   parish role.

Non-Malay interests were represented within the 

 Alliance Scheme through MCA and MIC : domesticated and  subordinate components of a political triad, with a rigid pecking  order. The Alliance in concert postulated the formula for political-  communal co-habitation.66 ” 

Power sharing did not mean that it was a partnership of equals. Rather, UMNO was the dominant partner, but MCA and MIC were junior partners enjoying a large measure of  freedom in the governing coalition, but on condition that Malay supremacy was not challenged.

28

F.

SOCIAL CONTRACT :

BASIC STRUCTURE UNDER THE CONSTITUTION

58.

The Federal Constitution is the supreme law of Malaysia. By its very

nature, in such a system, the Constitution limits the power of the Executive, and is intended not to be susceptible to easy modification or abrogation by temporary holders of political office. Constitutionalism represents the idea of a government subject to limitations that has the capacity to withstand momentary or transient currents of public opinion or political will. Hence, the cardinal feature of constitutional government is that such a government has limited power because its political rulers are subordinated to enduring supreme law which the rulers themselves cannot repeal or abrogate. After all, the Malaysian Parliament is itself a creature of the Federal Parliament: it therefore does not have the power to destroy its parent. Because the social contract provisions enjoy constitutional status they must be viewed in that light.

They are sacrosanct and

entrenched. 59.

The key social contract provisions in the Constitution include:(i)

Article 3

-

religion of the Federation

(ii)

Article 4

-

supreme law of the Federation

(iii)

Article 8(1)

-

equality

(iv)

Article 8(2)

-

anti-discrimination

(v)

Article 11

-

freedom of religion

(vi)

Article 12

-

education rights

(vii)

Articles 14-31 -

citizenship

(viii)

Article 152

National Language and other

-

languages (ix)

Article 153

-

Reservation of quotas for permits, etc for Malays and natives.

(x)

Articles 161-161H

Additional Protection for Sabah &  Sarawak.

29

60.

In their role as guardians of fundamental liberties, the Supreme Court of 

India, particularly in the aftermath of Indira Gandhi’s Emergency Rule of 1975-7, took a conscious “ policy” decision to read implied limitations on the power to amend the Indian Constitution in order to preserve what the judges perceive to be the basic and central core of the Constitution against the onslaught of a transient parliamentary majority. Ideals and values underlying the Constitution are thus preserved, and not destroyed in the guise of parliamentary amendment. The “basic structure”  concept was developed by the Supreme Court of India in Kesavananda v. State of Kerala 67 , when it held that  Article 368 of the Indian Constitution permitting amendments to be made to the Constitution, empowers Parliament to amend fundamental rights just as any other part of the Constitution but subject to the limitation that the “ basic”  or “fundamental”  features of the Constitution cannot be amended. The Court ruled that the amendment power of Parliament is not absolute and unlimited, and that the Supreme Court has power to determine whether an amendment has the effect of destroying a basic or fundamental feature of the Constitution: an amendment which purports to do so will be held unconstitutional. According to the Court, Article 368 uses the expression “ amend”  , which has a restrictive connotation, and cannot result in a fundamental change to the Constitution. The doctrine of “basic structure” is now well settled in India having been accepted in a trilogy of cases 68, and has earned the tacit acceptance of the Executive which has not attempted to curtail or abrogate any fundamental right which may attract an unconstitutional ruling 61.

69

.

The Federal Court of Malaya in Loh Kooi Choon v. Government of 

Malaysia 70   , Phang Chin Hock v. PP  71   , and Mark Koding v. P.P.72  declined to follow Kesavananda . The Federal Court did not, however, in any of these cases reject the

doctrine as being inapplicable to Malaysia. In my opinion, there is no alternative to the acceptance by our Courts in the years to come of the basic structure concept so that they can effectively discharge their Constitutional duties. The provisions relating to the social contract certainly form part of the basic structure or framework of the Malaysian Constitution. In consequence, they cannot be repealed by Parliament. 62.

From a constitutional perspective, Articles 3, 8, 152, and 153 establish

conclusively that Malaysia does not have a 2-tier citizenship. Islam is the religion of the nation, but other religions may be practiced. All persons are equal before the law and entitled to equal protection of the law. There shall be no discrimination against any citizen by reason of religion, race or descent. The national language shall be Malay but 30

other languages may be used, taught or learnt, and the Federal and State Governments can preserve and sustain the use and study of the languages of other communities. Finally, it shall be the responsibility of the Yang diPertuan Agong to safeguard the special position of the Malays and natives of East Malaysia, and the legitimate interests of other communities.

In consequence, there is no constitutional reason why the

majority Malays should have a superiority complex, and the minority non-Malays an inferiority complex. All Malaysians are entitled to be treated as Malaysians under the Constitution. That sums up the social contract.

G.

STRENGTHENING THE SOCIAL CONTRACT: THE FORMATION OF MALAYSIA

63.

 A popular myth concerning the formation of Malaysia is that the idea originated

when Prime Minister Tunku Abdul Rahman suggested it on 27 th May 1961 in Singapore during a gathering of “ The Foreign Correspondents Association of S.E. Asia”.

The

historical reality is that it was always British imperialist policy that its territories in Malaya, Singapore and Borneo should be merged or amalgamated in one Federation.  As early as August 1942, the Foreign and Colonial offices in London agreed on the desirability of a union of the Malay States, Straits Settlement and Borneo territories 73. In March 1943, a memorandum74 was prepared for inter-departmental meetings in London for constitutional reconstruction in the Far East which envisaged linking them in a “larger Malayan Federation” , upon British reoccupation after 2 nd World War. In 1955, the Commissioner General of British Territories in South East Asia, Sir Malcolm MacDonald pompously described the “ Grand Design” as : “Our alternative objective is a confederation between the five   present territories of the Federation of Malaya, Singapore, Sarawak, North Borneo and Brunei. We have already agreed that  this should be achieved in two stages: first by the combination of  (a) Singapore and the Federation and (b) the three Borneo  Territories as separate entities, and second, by bringing together  these

two

groups

under

government.75  31

one

appropriate

constitutional 

64.

In December 1958 Tunku had talks 76 with Sir Malcolm MacDonald, who

was then British High Commissioner to India, and the subject of a closer association of  the 5 territories was brought upon by MacDonald, which seemed acceptable to Tunku. In June 1960, Tunku had a meeting 77` with Lord Perth, the British colonial Minister, whereat Tunku stated that he was prepared to accept a Federation. On 23 rd April 196178, Federation was discussed by Tunku, Razak, Ismail, Lee Kuan Yew and Dr. Goh Keng Swee. Hence, when Tunku made his historical announcement on 27 th May 1961, the ground had been well prepared in Malaya and Singapore for Malaysia’s formation, all in response to London’s needs. 65.

In January 1962, the British and Malayan Governments announced the

appointment of a 5-member Commission of Enquiry under the chairmanship of Lord Cobbold to ascertain the wishes of the people of North Borneo and Sarawak as to their proposed inclusion into Malaysia, and to make recommendations.

The Commission

(which included 2 members from Malaya) spent time in both states and received representations, both oral and written, from a large cross-section of the population. The Commission published its Report 79 on 21st June 1962, including these observations:“Although there are no ideological overtones here, we have found  that the prospect of Malaysia as viewed by non-Malay natives in  certain parts of Sarawak within the framework of their unhappy  recollection of Brunei domination in the past, which is regarded as  Malay domination, and of their fear of its return with the new  federation.

The suggested name of Malaysia for the new 

Federation, and of Malay as the national language and Islam as  the

national

religion,

have

tended

to

emphasize

these 

misgivings”.80 

“Opposition

to

Malaysia

springs

from

a

genuine

fear

of 

discrimination after Malaysia, a feeling among the Chinese that  their status would be reduced to that of ‘second-class citizens’ and  among the natives that their customary laws and practice would  be affected. Similarly, there is concern that Malaysia would entail  migration from the other territories of the Federation, and also 

32

that such safeguards as may be given could be removed at a later  stage by the Central Government” 81 .

66.

The Cobbold Commission unanimously agreed that the Federation of 

Malaysia is in the best interests of Sarawak and North Borneo and that an early decision should be reached. The Commission also unanimously recommended that: “In view of the special circumstances which apply to the Borneo  territories, autonomy and safeguards should be given in certain  matters which are not enjoyed by the other states.

We are 

anxious in this connection that some form of guarantee should be   provided whereby no amendment, modification or withdrawal of  whatever special powers or safeguard may be given can be made  by the Central Government without the positive concurrence of  the Government of the State concerned.

We feel strongly that 

appropriate provisions should be made in the Constitution to  ensure that the special safeguards for the interests of Sarawak  and

North

Borneo,

as

territories

in

the

Federation,

are 

maintained ” 82 .

67.

In the light of the Cobbold Report, the Governments of Malaya and the

United Kingdom established an Inter-Governmental Committee, on which the British, Malayan, North Borneo and Sarawak Governments were represented.

The task of the

Inter-Governmental Committee was to formulate the future constitutional arrangements, including safeguards for the special interests of North Borneo and Sarawak to cover such matters as religious freedom, the position of the indigenous races, control of  immigration and citizenship.. The Minister of State for Colonial Affairs of Britain, Lord Lansdowne was appointed Chairman, and the Deputy Prime Minister of Malaya, Tun  Abdul Razak, the Deputy Chairman of this high-powered Committee.

The Inter-

Governmental Committee issued its Report in February 1963, which has been popularly referred to as the “ 20 points”. 68.

This was followed by an Agreement relating to Malaysia signed by the

Heads of Government in London on 9 th July 1963.

Among those who signed this

 Agreement were Prime Minister Harold MacMillan, Prime Minister Tunku Abdul Rahman, Chief Ministers Lee Kuan Yew, Dato’ Mustapha bin Harun and Temenggong Jugah. 33

Under international law, this Agreement between independent sovereign nations is a Treaty.

Article I of this Agreement provides that the colonies of North Borneo and

Sarawak and the State of Singapore shall be federated with the existing States of the Federation of Malaya in accordance with the constitutional instruments annexed to the  Agreement, and the Federation shall thereafter be called “ Malaysia”.  Article VIII of the  Agreement reads:“The Governments of the Federation of Malaya, North Borneo, and  Sarawak will take such legislative, executive or other action as  may be required to implement the assurances, undertakings and  recommendations contained in Chapter 3 of, and Annexes A and B  to the Report of the Inter-Governmental Committee signed on 27 th  February 1963, in so far as they are not implemented by express   provision of the Constitution of Malaysia.” 

The population of Malaysia is set out below in Table B:TABLE B POPULATION OF MALAYSIA 1964 83

Malays

Chinese

Indians

Others

Total

Malaya

3,963,549 50.05%

2,918,340 36.85%

884,025 11.16%

153,141 1.94%

7,919,055 100%

Sarawak

547,923 66.83%

262,615 32.03%

2,712 0.33%

6,558 0.81%

819,808 100%

Sabah

341,974 67.5%

116,525 23.00%

3,546 0.7%

44,583 8.8%

506,628 100%

Total

4,853,446 52.49%

3,297,480 35.67%

890,283 9.63%

204,282 2.21%

9,245,491 100%

69.

The 20-points is of such fundamental importance that they find a place in

a Treaty commitment between the British Government and the Governments of the then Malaya, the State of Singapore and the colonies of Sarawak and North Borneo, that is, the Agreement signed on 9 th July 1963. Part XII A of the Federal Constitution, which deals with Additional Protections for States of Sabah and Sarawak, was enacted in September 1963 to cover the 20 points in the Inter-Governmental Report. Thus, in addition to enjoying constitutional status, the 20 points also have international law 34

status as being part of treaty obligations between sovereign nations. In consequence, if  any provision of the 20 points is breached, the United Kingdom can, in law, take up the matter; whether, as a political fact, its government does so is an altogether different matter.

Further, such a breach may be justiciable in the Courts of England and

Malaysia. 70.

If the bargain between the 3 communities in Malaya resulted in the social

contract at the time of Merdeka, the concern of the people of Sarawak and North Borneo prior to joining Malaysia was not limited to ethnic, racial and religious matters; it extended to genuine fear that they were replacing British colonial rule with Malay dominance. Because the formation of Malaysia was vigorously opposed by Indonesia, leading to Confrontation, and by Philippines, 84 which resulted in the rupture of  diplomatic relations, the United Nations intervened by sending an observer team to ascertain the wishes of the peoples of Sarawak and North Borneo which led to the postponement of the original date of Merdeka, 31 st August 1963. On 12th September 1963, Laurence Michaelmore, the leader of the United Nations team, announced that the majority of people in the Borneo territory supported the creation of Malaysia, which was accepted by U Thant, the United Nations Secretary General. estabilshed on 16th September 2007.

Malaysia was

Sabah and Sarawak’s entry into the new

Federation immeasurably strengthened the importance of the Merdeka social contract, and elevated it to international law status, with treaty ramifications and endorsement by the United Nations. 71.

The State Attorney-General of Sabah expressed his opinion on the

constitutional status of his state as follows :“When Britain granted self-government to the Colony of North  Borneo it took due account of the political aspirations of the   people and they were given the right in the progressive  development of their political institutions.

Through these 

institutions the ‘Twenty Points’ were demanded and the  conditions for entry into Malaysia were formulated and  entrenched in the Federal Constitution .” 85 

35

while his Sarawak counter-part stated:“Along with Sabah, Sarawak can legitimately claim, because of all  those special provisions accorded to it in the Constitution, that it is   placed constitutionally in a special position viz-a-viz other  component States in the Peninsular.

So far as Sarawak is 

concerned, with the background of its entry into Malaysia  and the safeguards of its special interests entrenched in  the Constitution and protected by the special procedure  for the amendments to those provisions under Article  161E, erosion or whittling down of its legislative and  executive powers could not take place without a resulting  serious constitutional crisis. So long as the Federal and State  Governments act within their own sphere of action there is no  reason why the Federation should not endure.” 86

H.

72.

MAY 1969 RIOTS AND ITS IMPACT ON THE SOCIAL CONTRACT

Despite Lee Kuan Yew’s attempt to break the Merdeka social contract by

his abrasive advocacy of “ Malaysian Malaysia”  from 1963 to 1965, the greatest challenge to the social contract was the 1969 riots, and its aftermath. It is beyond the scope of this paper to discuss the causes

87

of the 13th May 1969 riots, which followed

the results of the General Elections held on 10 th May 1969 in Peninsular Malaysia, with  Alliance suffering a significant reduction in popular support and Parliamentary seats compared to the previous election in April 1964: 49% as opposed to 58% and 66 seats as opposed to 89 seats (out of 104 seats). Although UMNO suffered reverses in the hands of PMIP, MCA felt the brunt of unpopularity losing 14 of its 26 seats to urban based opposition parties. A direct consequence was the withdrawal of MCA on 13 th May from the Alliance Cabinet thereby bringing to an end the Alliance pattern of politics initiated in 1955. 73.

The Malaysian Government was for all practical purposes in the hands of 

Tun Razak from May 1969 to his untimely death in January 1976, first as Director of  Operations and then as Prime Minister from September 1970. Tun Razak had an able 36

and trusted lieutenant in Tun Ismail until his untimely death in August 1973.

The

National Operations Council (“NOC”) under Tun Razak appointed to govern the country on 16th May issued a report in 1969. Thus, the NOC Report states:  “The entrenched provisions in the Constitution are the  result of agreement between all communities in this  country.

They are the product of consultation and 

compromises .

They represent binding arrangements between 

the various races in this country, and are the underpinnings on  which the constitutional structure such as fundamental liberties, the machinery of government and a score of other detailed   provisions are built. If these entrenched provisions are in  any way eroded or weakened, the entire constitutional  structure is endangered, and with it, the existence of the  nation itself.

It was the failure to understand, and the 

irresponsible and cavalier treatment of the extended provisions, that constituted one of the primary cause of the disturbance on  May 13, 1969 88 ” 

 According to Leifer while the NOC report “ defends the suspension of the constitution  because of exigency, it invests that self-same constitution with a hallowed sanctity as a  basis for future political activity. In other words, the constitution did not fail the people. The people failed the constitution and, in order to restore a viable policy, it becomes  necessary to return to its spirit.” 89 

74.

Tun Razak  90 and Tun Ismail,91 after restoring law and order, set about

finding a solution to the underlying problems that caused the disturbance. Tun Razak  established the Department of National Unity, and the National Consultative Committee which drafted the Rukunegara, which was proclaimed by the Yang diPertuan Agong on 31st August 1970. Parliament was recalled in February 1971. The New Economic Policy (“NEP”) was instituted to redress economic imbalances, and redistribute wealth with the objective of reaching 30% bumiputra ownership of the economy. In July 1974, Tun Razak re-moulded the Alliance coalition into the Barisan Nasional by adding 6 political parties (including PAS) on a pan-Malaysian basis.

Tun Razak and Tun Ismail also

moved Parliament to enact in 1971 a series of far-reaching constitutional amendments (the most radical since Merdeka), which had the effect of widening and broadening the 37

special privileges of Malays and natives of Sabah and Sarawak and make the public discussion of “sensitive issues”  seditious, thereby severely eroding the fundamental freedom of expression under Article 10. The new constitutional provisions are also entrenched in that they require the consent of the Conference of Rulers before they can be amended or repealed, thereby granting veto-power to the Conference. These added powers for the Conference of Rulers made the case stronger that constitutionally they are the fourth branch of Government under the doctrine of separation of powers. The Sedition Act , 1948 was substantially amended to make it a criminal offence to publicly

discuss sensitive matters like special privileges, citizenship, the national language and the monarchy. 75.

The scale and magnitude of the 1971 Constitutional amendments is

demonstrated by the removal of parliamentary privilege (which always enjoyed constitutional protection in the common law world, and was recognized as such under  Article 63(2) of the Federal Constitution) with respect to “ sensitive issues”. The Federal Court in P.P. v. Mark Koding [1983]92 upheld the conviction of a Member of Parliament, Mark Koding who had advocated during Parliamentary debate the closure of Chinese and Tamil schools. Suffian L.P. observed: “We can take judicial notice of the fact that language is a sensitive  issue about which feelings can be and were sometimes whipped  up by politicians wishing to be voted into the legislature and   power….” 

“….Malaysians with short memories and people living in mature  and homogenous democracies may wonder why in a democracy  discussion of any issue and in Parliament of all places, should be  suppressed.

Surely it might be said that it is better that 

grievances and problems about language etc. should be openly  debated, rather than they be swept under the carpet and allowed  to fester. But Malaysians who remember what happened  during 13 th  May 1969, and subsequent days are sadly  aware that racial feelings are only too easily stirred up by  constant harping on sensive issues like language; and it is  to minimize racial explosions that the amendments were  made 93 .”  38

76.

 According to one constitutional scholar 94, the constitutional amendments

enacted in 1971 to resolve communal problems “ were a constitutional landmark  because they created and entrenched a new social contract which, at the price of a  large slice of freedom of expression, gave the Government power to prevent anything  remotely like 13 th  May from happening again. In this sense they were an unfortunate  necessity but clearly in the eyes of the overwhelming majority of Malaysians a price  worth paying.”  Even the greatest advocate of free speech accepts that it is never

absolute: Oliver Wendall Holmes’ quip that “ one cannot shout fire in a crowded cinema  hall”  recognizes limits to free speech as a value. The Founding Fathers, after 12 years

of statehood, recognized that in plural Malaysia the line had to be drawn somewhat restrictively to protect communal sensitivity.

I. 77.

THE NEP

The most radical change to the Merdeka social contract brought about in

the wake of 1969 was the establishment of the NEP in 1991 which had 7 prongs 95. Of  the 7 elements, economic restructuring to reduce economic imbalances and interventionists’ government policies were intended to establish a substantive Malay economic underpinning to the already established Malay political dominance. It was predicated in theory on a rate of economic growth which would permit a redistribution of wealth without depriving the non-Malays of the fruits of their labour. According to Tun Dr Ismail 96, who along with Tun Razak, was the architect of NEP:  “I regard the Special Position of the Malays as a handicap given  to the Malays with the consent of all the other races who have  become citizens of this country so as to enable the Malays to  compete on equal footing for equal opportunity in this country. That and that alone is the only aim of the Special Position of the  Malays”. “…….this handicap will enable them to be good players, as in golf, and in time the handicap will be removed. The Malays must not  think of these privileges as permanent: for then, they will not put  their efforts to the tasks. In fact, it is an insult for Malays to be  getting these privileges”.

39

Hence, Tun Ismail suggested that a 20-year limit be imposed on the NEP which would be slightly longer than the original 15-year review period suggested by Tunku and Tun Razak to the Reid Commission in 1956. Because it was envisaged that growth would enlarge the economic cake, non-Malays would not suffer prejudice, that is, the expanding pie theory. Importantly, the NEP did no contemplate the expropriation of  existing property or contractual rights of the non-Malays. 78.

The 20-year limit suggested by Tun Ismail would have expired in 1991.

 Yet in one form, or other, the NEP is still in existence, and is still controversial. As Malaysia has just celebrated its 50th year of independence, and 36 years of NEP, what would Tun Razak and Tun Ismail, its architects, have found in today’s Malaysia? As a result of the interventionist affirmative policies of the Government at all levels of society, there has perhaps been the greatest creation of wealth in the shortest span of time by peaceful means in the history of the world. Thus, the major element of the NEP, that is, economic restructuring by wealth creation has succeeded beyond expectations, and the late Tun Razak and Tun Ismail would have been very proud of the achievements of  their successors. Petronas, Khazanah, GLC’s like Tenaga, Telekom, Synergy Drive (Sime Darby) and Malayan Banking are not just Malaysian icons; they are regional powerhouses. PNB and Amanah Saham hold in trust for the Bumiputras billions of  ringgit worth of wealth. FELDA is the largest plantation entity in the world. When one takes into account annual GDP growth of about 5% over the 36-year period, and the critical fact that management, not only over these corporations but also over many companies and institutions is in Malay hands, the NEP has a remarkable and impressive record which warrants the highest accolade.

Hence, criticism leveled against the

study97 made in September 2006 by the Centre for the Public Policy Structures of ASLI headed by its Director, Dr Lim Teck Ghee who stated that the corporate equity ownership by Bumiputras was as high as 45% (from 1.5% in 1969) was misplaced and unjustified.

The ASLI report praised the government for playing an effective role in

redistributing wealth more equitably among the Malaysians.

Their study further

unearthed evidence of an important development, that is, the emergence of business partnerships forged by market forces (and without any governmental intervention) along inter-ethnic lines, particularly in small and medium scale enterprises (SME’s). 79.

 Another magnificent achievement of world class proportion is full

employment. Since Merdeka, 7.25 million jobs have been created in Malaysia, that is, an increase of 261%, which according to Nobel Laureate, Joseph Stiglitz 98 would be 40

equivalent to the creation of 105 million jobs in the USA.

How much of this is

attributable to the NEP is of course debatable. Additionally, about 3 million legal and illegal immigrants form the back-bone of Malaysia’s construction, plantation and tourism industries. Indeed, if immigration restrictions are altogether removed, Malaysia would be flooded with immigrants from the rest of South East Asia, and beyond: the best testament perhaps to the success of its macro-economic policies since Merdeka. 80.

Two other areas of spectacular NEP success are the growth of Malay

graduates and Malay professionals. Malay domination of public universities which have mushroomed since 1969 and funded by tax paid by all Malaysians have resulted in a surplus of graduates in every area of study. The non-Malays have had to resort to private universities which are not similarly funded and therefore charge substantial tuition fees. The Third Outline Perspective Plan 2001-2010 99 prepared by government recognizes the great strides made by Malay professionals as a result of the NEP: as at 1999, 37% of doctors; 35% of dentists; 42% of veterinary surgeons; 48% of surveyors and 32% of lawyers are Malays. These numbers have increased since 1999. The NEP has without doubt created a very large pool of educated middle Malay class. As such, the founders of the NEP, Tun Razak and Tun Ismail would have declared in 2007 that the NEP has well exceeded their hopes, and therefore should be discontinued. They would have stated: “ Enough is enough”. 81.

It is evident that in the implementation of the NEP, excesses and

deviations have occurred. The greatest abuse is Approved Permits for motor vehicles.  A policy that mandates a 5% discount for Malay purchasers in a private housing scheme is discriminating and outside the scope of Article 153. A policy that requires a 51% equity stake by Malay partners in a law firm before it is eligible to be placed on a Bank’s panel of solicitors is outrageous in both business and legal terms.

As Datuk Zaid

Ibrahim stated:  “Blatant discrimination is where companies must have 51% of  their shares held by Bumiputra or Malays before they are eligible  to bid for government contracts; it does not fall within Article  153 100 .” 

82.

The NEP has also not succeeded in reducing poverty. The coming years

should focus on reducing absolute and relative poverty, in particular that affecting the 41

small ethnic minorities: Tamils, Orang Asli and native communities from East Malaysia. There are also pockets of Malay and Chinese poor. Poverty reduction measures should be race-blind, and should attract the concentrated attention of government applying  “ positive discrimination” methods in line with NEP philosophy. 83.

The constitutional basis of the NEP is apparently Article 153, which is

however limited in scope.

Article 153 only permits the reservation of quotas for

 “ positions in public service and of scholarship….and other similar educational or training   privileges or special facilities given by the Federal Government and as Yang diPertuan   Agong …….deems reasonable.” 

Reservation of permits and licences for Malays,

 Aborigines and Natives are covered under Article 153. Likewise, employment in the public sector. In sum, Article 153 continues the legal pattern which started with the 1948 Federation of Malaya Agreement whereby the Executive is charged with the responsibility of protecting the special privileges of the Malays, which have always been limited to Malay reserve land, educational support and employment in the public service, that is, support of a public sector nature. Indeed, Article 153 (9) expressly provides that nothing in Article 153 “ shall empower Parliament to restrict business or trade solely  or the purpose of reservations for Malays”.

All citizens of Malaysia are guaranteed

equality of treatment under Article 8 (1); and the right of a citizen not to be discriminated by reason of religion, race or descent is a fundamental freedom under Part II because it comes within Article 8(2). Thus, but for Article 153, it would be unconstitutional and illegal to discriminate a citizen by virtue of his race or religion. 84.

What is significant when considering the social contract measures that

the Razak administration put in place to solve the underlying causes of the 1969 riots is that only some of them had a legal footing. Thus, the NEP and the Rukunegara have neither constitutional nor statutory basis. It is an irony that since 1969 those parts of  the social contract that enjoy constitutional support like citizenship rights, freedom of  religion and anti-discrimination have not been the subject of controversy, while the implementation of the NEP has always provoked debate, invariably along Malay and non-Malay lines. Rukunegara has regrettably been altogether been forgotten. 85.

That the NEP has created polarization, disunity and worsened race

relations is acknowledged by all. PAS, the political party which traditionally appeals to the Malay electorate, is ideologically opposed to the NEP. The 21 st Century with its internet, borderless, globalized economy, and China and India reclaiming its historical 42

status as Great Powers, and the emergence of Malaysia’s immediate neighbours, Thailand, Indonesia and Vietnam as serious competitors for foreign investment have meant that the economic and financial landscape in 2007 has changed beyond all recognition from that in 1971. In sum, it is critical that a united Malaysia faces foreign challenge, rather than being diverted by internal divisions. Tengku Razaleigh Hamzah, who had served Tun Razak and was instrumental in the establishment of Petronas and Bank Bumiputra, stated in a speech 101 in July 2007 that the NEP was only a temporary  “safety net” . Tun Hanif Omar, former Inspector-General of Police, was Head of Special Branch when Tun Ismail directed in 1970 that they conduct research and submit a paper on affirmative action.

Special Branch, learning from the successful battle for

hearts and minds in the Emergency recommended 102 affirmative action based on needs rather than on race. Finally, on 4th September 2007, the Deputy Prime Minister, Datuk  Najib, the son of the NEP founder, declared that Bumiputras would in the future be ready to compete without the NEP privileges. In a thoughtful speech, Datul Najib also recognized that unlike in 1971, affirmative action must assist deserving non-Bumiputra, especially the poor and the low-income households, and declared:-

“If we are wrong in the way we have implemented them, please  let us know. If there are shortcomings, let us put it right. Let us  make changes in the way it is being executed.” 103 

J.

FIFTY YEARS ON: THREATS TO THE SOCIAL CONTRACT (i)

86.

Islamisation

 As the 50th anniversary of Merdeka loomed, the Social Contract came

under serious attack from many fronts.

Perhaps the greatest threat is posed by

Islamisation, a process that began with external influences like Ayatollah Khomeni’s revolution in Iran in 1979, and internally the policy decision by the 4 th Prime Minister, Dr Mahathir to escalate the Islamisation race between UMNO and PAS . Dr Mahathir’s first act was to coax Anwar Ibrahim to move from ABIM to UMNO in 1982, which resulted in PAS accusing Anwar of treason against Islam. Islamic banking and insurance schemes were established by the Mahathir administration. Islamic values were introduced into 43

the government machinery and public universities. As a result of the establishment of  the International Islamic University and several Islamic think tanks, and the rapid expansion of Islamic students in the public universities, thousands of Islamic graduates from local and foreign universities were produced, who then joined the employment market. 87.

The 1980’s witnessed the implementation of measures which were

designed by Dr Mahathir and Anwar to promote and project UMNO’s vision of Islam as a modernist religion.

Thus, UMNO played its traditional role as “ protector”  with a

difference, this time on behalf of not only the Malays, but also for Islam. Fighting Islam with Islam meant that UMNO’s version of Islam was framed “ positively”  against a “negative ” brand of PAS’s Islam with the latter’s obscurantism, extremism, fanaticism

and backwardness. As Farish Noor, a perceptive observer of Malaysian politics noted: “The aim of UMNO’s Islamisation policy was to normalize and  institutionalise the ‘right version’ of Islam against the ‘wrong  version’ promoted by PAS.” 104 

88.

PAS, not to be outdone, upped the stakes in the Islamisation race. The

intense and often hostile competition between UMNO and PAS predicably resulted in violent incidents like the death of Ibrahim Libya and 14 of his followers in Memali in 1985. According to Farish Noor :“Caught in the middle were the hapless non-Malays and non-  Muslims, deemed kafirs in a Muslim land and often portrayed as  the ‘enemy in the blanket’. The resulting marginalization of the  non-Malay and non-Muslims sections of Malaysian society remains  one

of

the

greatest

injustices

in

post-colonial

Malaysian 

history.” 105 

89.

The politicization of religion in the 1980’s meant that UMNO and PAS

competed for support of the Malays on religion, rather than ethnic grounds, again a shift from the Merdeka days. The urge to show off their Islamic credentials has gravely damaged nation-building efforts. Because the debate is on the “ correct”  version of  Islam, the non-Malays are at once placed on the back-foot, which means silence on

44

their part. The result is as Farish Noor has pointed out:  “For so long, right-wing Malay-Muslim groups, parties and  organizations have cowed the non-Malay — Muslim section of  society by telling them that they have no right to comment on  matters Islamic, and that they have no right to protest against the  increasingly repressive laws and regulations that have been   passed in the name of Islam.

Needless to say, this has 

engendered a climate of fear and apprehension among  many otherwise decent Malaysians who might want to  comment on such matters, but have been reduced to  silence.” 106 

(ii) 90.

Islamic State

The logical conclusion to the Islamisation programme was the call for an

Islamic State which took place in September 2001. The immediate backdrop was again Dr Mahathir and Anwar Ibrahim.

Anwar’s sacking as Deputy Prime Minister in

September 1998, followed by his prosecution and conviction in circumstances which called into question the very fairness of the judicial process caused political upheaval in Malaysia with the formation of the “ reformasi”  movement, and resulted in a deep split among the Malays, on a scale unprecedented since Merdeka. Although the Barisan Nasional government again secured the 2/3 majority at the November 1999 General Elections, UMNO lost substantial support to PAS which secured 27 seats in the Federal Parliament, easily retained the Kelantan State Government and secured power in Terengganu. The vote in the Malay hinterland was approximately 55% UMNO and 45% PAS. The trend was indeed worrying for Dr Mahathir 91.

It was against this political background that on 29 th September 2001,

during his Opening Address to the Gerakan Party, Prime Minister Datuk Seri Dr Mahathir Mohamed announced: “UMNO wishes to state loudly that Malaysia is an Islamic  country .

This is based on the opinion of ulamaks who had 

clarified what constituted as Islamic country. If Malaysia is not an  Islamic country because it does not implement the hudud, then  there are no Islamic countries in the world. 45

If UMNO says that Malaysia is an Islamic country, it is because in  an Islamic country non-Muslims have specific rights. This is in line  with the teachings of Islam. There is no compulsion in Islam. And  Islam does not like chaos that may come about if Islamic laws are  enforced on non-Muslims.” 107

92.

The reaction was immediate and furious. The spiritual leader of PAS and

the Menteri Besar of Kelantan, Dato Nik Aziz replied: “You can talk all you want. You can declare a piece of wood to be  gold, or a wheelbarrow as a Mercedez, but in reality, nothing has  changed. For us, an Islamic country is one which is governed according to  the tenets of the Quran and Hadith (sayings of Prophet  Muhammed).

Malaysia is a secular State .

If the present 

Malaysia is already an Islamic state, then what do you call the state  ruled by Prophet Muhammed and his friends? ”108  

The

other

major

opposition

party,

DAP,

also

criticized

the

announcement in trenchant terms and sought an urgent debate in Parliament on the whole subject. 109 Paradoxically, Dr Mahathir’s unilateral announcement was attacked with equal vigour from both sides of the political divide in Malaysia: PAS, as protector of the Islamic cause, and DAP, as articulating the non-Muslim voice. 93.

It is critical to consider the legal issue 110: is Malaysia an Islamic State

from a historical perspective.

The Alliance Memorandum submitted to the Reid

Commission referred to religion in these terms:  “The religion of Malaysia shall be Islam. The observance of this   principle shall not impose any disability on non-Muslim nationals   professing and practising their own religion, and shall not imply  that the State is not a secular State.” 111 

94.

When the Reid Report was published, Abdul Hamid, the nominee from

Pakistan, dissented on a few matters, including on the subject of Islam. Paragraph 11 of his minority report reads:-

46

“………the recommendation of the Alliance was unanimous which  should be accepted, and a provision to the following effect should be  inserted in the Constitution either after Article 2 in Part I or at the  beginning of Part XIII. ‘Islam shall be the religion of the State of Malaya, but nothing in this   Article shall prevent any citizen professing any religion other than  Islam to profess, practice and propagate that religion, nor shall any  citizen be under any disability by reason of his being not a Muslim’. 12.

 A provision like one suggested above is innocuous .

Not less than fifteen countries of the world have a provision of this  type entrenched in their Constitutions. If in these countries a religion  has been declared to be the religion of the State and that declaration  has not been found to have caused hardship to anybody, no harm  will ensue if such a declaration is included in the Constitution of  Malaya. In fact in all the Constitutions of Malayan States a provision  of this type already exists.

All that is required to be done is to 

transplant it from the State Constitutions and to embed it in the  Federal.” 

95.

Paragraph 57 of the June 1957 White Paper 112 dealt with the Religion of 

the Federation as follows:“There has been included in the Federal Constitution a declaration  that Islam is the religion of the Federation. This will in no way  affect the present position of the Federation as a secular  State,  and every person will have the right to profess and   practice his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by  State law relating to the propagation of any religious doctrine or  belief among persons professing the Muslim religion.” 

Hence, there was no doubt that at the time of Merdeka, Malaya was not an Islamic State. This position was strengthened when Malaysia was formed in 1963.

47

96.

When opening the Aliran Conference to celebrate the 30 th Anniversary of 

Merdeka, on 15th August 1987, Tunku gave his views:“The fear now is that some religious organizations and  fundamentalists are talking of making Islam the State  religion   , but this does not appear possible or carry much weight  as it is very unlikely that the government will agree to it because of  our declared policy to make Malaysia a democratic parliamentary  state with everybody free to follow his own religion while Islam is  the official religion. They will not get a two-thirds majority required  to make the amendment.

The fear should not present any 

 problem or be a source of worry to the non-Muslims in this  country, and it should not unduly worry those present at  this conference .” 113 

(Tunku’s emphasis)

97.

In the landmark case of  Che Omar bin Che Soh v. P.P.114  the Supreme

Court accepted the supremacy of secular law under Article 162 of the Federal Constitution and refused to hold that the death penalty for drug trafficking was unconstitutional because it offended the principles of Islam. 98.

If the legal position is so clearly settled, unambiguous and never

challenged by any constitutional lawyer of note, why did Dr Mahathir make that Islamic State declaration in September 2001. It was done purely for political reasons. It was to stem the PAS tide at the next General Elections – scheduled to be held in 2004/5. Even by the controversial style that Dr Mahathir brought to the office of Prime Minister for 2 decades, this was extreme political brinkmanship. It caused great unease among all non-Muslims. It was thus an irresponsible statement by Dr Mahathir, particularly as he was leading a Barisan Nasional government previously led by Tunku Abdul Rahman, Tun Abdul Razak and Tun Hussein Onn, all of whom were always absolutely supportive of the social contract agreed to during Merdeka.

Dr Mahathir retired from office in

October 2003, and was succeeded by Datuk Abdullah Badawi, who immediately projected a softer and gentler image, particularly on religious issues. Prime Minister  Abdullah Badawi also introduced the concept of Islam Hadhari, loosely translated as

48

 “civilizational Islam” . The Prime Minister’s concept consists of 10 principles; what is striking is that there is no reference to an Islamic state under Islam Hadhari. (iii) 99.

The Syariah Jurisdiction

If these political machinations, which were contrary to the social contract,

had already frayed the nerves of non-Muslims, then the abdication of the higher  judiciary to hear and determine disputes which were clearly within their jurisdiction resulted in increasing non-Muslim anxiety and the erosion of confidence in national institutions to resolve national problems.

Simply stated, the issue is whether in a

dispute involving conflict of laws — between common law, which is open to all regardless of race, religion or other limiting condition, and syariah law, which is limited only to members of the Muslim faith — and the forum for dispute resolution — whether it is in the High Court which is open to all regardless of race, religion or other limiting condition and the Syariah Court, which is confined only to members of the Muslim faith  — which should prevail.

The High Court, Court of Appeal and Federal Court have

consistently declined in the recent years to accept jurisdiction for such disputes, ruling that the Syariah Court is the proper forum.

Apart from a poverty in reasoning in

reaching clearly wrong conclusions of law, the problem is compounded by the fact that the decisions of the judges are distinguished by their religion, with the result that lawyers (and no doubt informed laymen) are now able to predict the result of any litigation the moment the religion of the judge assigned to hear the case becomes known. In consequence, the following remarks by Tun Suffian, a distinguished Lord President, made in 1977 115 are regrettably no longer applicable at least in “ religious”  cases: “In a multi-racial and multi-religious society like ours, while we   judges cannot help being Malay, Chinese or Indian: or being  Muslim, Buddhist, Hindu or whether, we strive not to be too  identified with any particular race or religion, so that nobody  reading our judgment with our name deleted would with  confidence identify our race or religion, and so that the various  communities, specially minority communities, are assured that we  will not allow their rights to be trumpled underfoot.” 

49

(iv) 100.

Racial Insensitivities

Not all attacks on the Social Contract have sprung from religious bigotry.

Race has also reared its ugly head. Every time a general election is in the offing, the sceptre of Maly 1969 is waved, and a climate of fear instilled, always to the advantage of the “ protector”  Barisan Nasional Government. In no other modern state (perhaps, with the exception of Singapore) is there an obsession by a ruling party to measure electoral success by a 2/3 majority victory, rather than a simple majority. Indeed, Tun Dr Ismail admitted that the immediate cause of the May 1969 riots was the insecurity of  UMNO and its supporters of the unknown in attempting to govern without a 2/3 majority, although they had a comfortable majority in Parliament, and no other party had asserted a right to form a national government. UMNO must accept that its power and influence in any government that does not enjoy 2/3 majority status is the same as one that has 2/3 majority, save for the right to amend the Constitution; the Merdeka Constitution, which was already balanced in favour of the Malay majority, has been amended on countless occasions that it has become so lop-sided in favour of the Executive, that any UMNO Prime Minister governing on a simple majority of seats in the Lower House is still all powerful. In consequence, UMNO must set the example of  eschewing resort to the May 1969 riots everytime general elections loom. 101.

The annual UMNO General Assembly is another occasion when non-

Malay unease increases. Extreme language and symbolic gestures like kissing the keris may rouse the UMNO faithful, but at what cost. Defending Malay rights presupposes attack against the Malays : so who is attacking them? External challenges can be totally discounted. How can internal challenges against Malays take place when the Army, Police, civil service, the commanding heights of the economy, the mass media, the public universities and nearly all major national and public institutions are in the hands of the majority Malays.

Malay political dominance which underpinned the original

Merdeka Social Contract has never been challenged or questioned by non-Malays. The only subject of public discussion has been the efficacy of the NEP 36 years after its establishment, and whether it ought to be continued or modified. Objectively, that cannot threaten Malay supremacy. Accordingly, UMNO should not display insecurities and vulnerabilities unbefitting a party representing a majority race. 102.

If UMNO leaders jockeying for positions in their self-interest have pushed

the Malay and Muslim agenda in breach of the Social Contract, MCA, MIC and the other 50

parties in the Barisan Nasional stand accused of allowing “ big brother”  UMNO to totally dominate their coalition.

The Alliance from its establishment in 1952 was never

intended to a coalition of equals: UMNO was always the senior partner. But MCA and MIC were partners and not employees or slaves. Certainly Tunku, Razak and Ismail endeavoured to accommodate the views of Tan Cheng Lock and Sambanthan prior to 1957, and Razak and Ismail with Tan Siew Sin and Sambanthan between 1969 to 1971. The political reality is that in recent years MCA and MIC have not behaved as junior parties. It is not UMNO’s fault, even if it is UMNO’s good fortune, that MCA, MIC, Gerakan and the other numerous Barisan parties seem to be in awe of its pre-dominant status to such an extent that the non-UMNO parties have been relegated to silent pushovers or “yes-men”.

It is therefore imperative if the Social Contract is to remain

relevant that the non-UMNO parties in the Barisan play their true role as junior partners, with a duty to speak up publicly whenever the interests of the communities they represent are threatened by the majority, that is, to check any tyranny of the majority. 103.

Likewise, there is a duty on politicians of the opposition parties after 50

years of nationhood to move away from racial and religious issues. There must be a bipartisan acceptance of the Social Contract: hence, every issue debated in Parliament for instance should not be reduced into an ethnic/religious issue, with UMNO Members of  Parliament taking the Malay line and questioning DAP’s loyalty to the nation. Surely, the august legislative house after 50 years of nationhood can deliberate, debate and discuss issues of national importance by “ race/religion”  free methods. If Members of  Parliament and leaders of all political parties do not think, speak and act as Malaysians how can they expect the citizens to do so. Indeed, a case can still be made in 2007 that on a comparative basis, all the communities in Malaysia (the record is even more impressive in Sabah and Sarawak) co-habit in a peaceful manner. It is the politicians for their selfish purposes who ignite the racial flames from time to time.

If a

moratorium can be agreed on the public airing of racial and religious issues by politicians, there is little doubt that day to day relations between the communities would drastically improve, and nationhood strengthened. As a patriot hoped in 1860 when the new nation of Italy was established:  “We have created Italy.

Now all we need to do is to create 

Italians.” 116 

51

Can the aspiration of every Malaysian in 2007: be “When do each of us become a Malaysian?”  K. 104.

THE REAFFIRMATION OF THE SOCIAL CONTRACT  As Malaysia has just celebrated 50 years of Merdeka, it is fitting to ask 

what would Founding Fathers Tunku, Razak, Ismail, Tan Siew Sin and Sambanthan have to say in 2007 of the nation they had established.

There are numerous

accomplishments they would be proud of, starting with the fact that we are still one Federation of 13 States and the Federal Constitution, although amended on countless occasions, has stood the test of time.

Malaysia has had 11 General Elections, and

civilian supremacy over the military has never been challenged. Economically, Malaysia has developed beyond imagination, and compared to Third World countries securing independence in the 1950’s, Malaysia has flourished.

Nonetheless, Tunku and his

 Alliance partners would be distressed with the deterioration of race and religious relations between the communities, and the damage done to the social contract which they brokered, defended and modified in the early years of nationhood. They would also be concerned with disturbing trends which, if not resolved speedily and fairly, may threaten the nation. Their audit of the state of the nation in 2007 would, at best, be mixed. 105.

Recent incidents demonstrate that all races have to peacefully live and

work together in a give and take atmosphere consistent with the social contract. What is urgently required is the reaffirmation of the Rukunegara, which recognizes and accepts the multi-racial and liberal — democratic nature of Malaysian society. Because of its inaccessibility, the Rukunegara, its Explanatory Statement and Commentary is annexed hereto as Appendix A. In the words of one commentator, the Rukunegara should :“….be used as a guideline to establish limits on the actions of   politicians and the public alike and is a statement that some   principles of the political system are inviolable and outside the  realm of political disputation…….its acceptance is to be a   prerequisite for participation in the political life of the country ” 117 .

106.

From an international relations perspective, the world was a much more

dangerous place in the mid-1950’s when Malaya was born, and in the early 1960’s when Malaysia was established. Yet Tunku navigated the ship of state in choppy waters with 52

prudence, care and skill. Despite the militarist policies of the sole world power, the United States under hawkish President Bush, the political world in 2007 is much safer. Thus, Malaysia faces far less external political challenges today than in its earlier days. Economic challenges nonetheless have to be confronted.

The challenges facing

Malaysia are in the main internal: problems are invariably self-inflicted, and due to weak political governance they are allowed to simmer without being resolved in the spirit of the social contract. It is Prime Minister Abdullah Badawi’s responsibility to navigate the ship of state in calm inland waters.

If the present and future Prime

Ministers of the land are inspired by the words and deeds of Tunku and his Alliance partners on social contract issues, Malaysia’s destiny in the coming decades will be exciting and remarkable. The alternatives are just too dangerous to contemplate.

Tommy Thomas 24th October 2007

* * * * * * * *

53

END-NOTES

1.

“Politics & Constitutional Stability in Malaysia”  Parliamentary Affairs (1968) Pages 202-209, and published in “Michael Leifer : Selected Works on South East Asia” 

ISEAS [2005] Page 435, 437. 2.

“Evolving a Malaysian Nation”  10th December 2003.

3.

Infoline, December 2003. Page 10

4.

For a brief but accurate history of Malaya, see Professor K S Tregonning’s Commentary in Encyclopaedia Britannica (15th Ed. 1975) Vol. 11. Pages 365-368, and for a longer version “ A History of Malaya”  by Barbara and Leonard Andaya (2nd Ed. 2001) can be consulted.

5.

The identification of an ethnic group with religion is explored in “ The Origins of  Malay Nationalism” by William Roff (2nd Ed. 1994) Page 67 et. seq.

6. 7. 8.

Published in Constitutional Monarchy, Rule of Law and Good Governance [ 2004 ] Page 330-331. Unless otherwise stated, all emphasis in quotations in this paper are mine.

 Andaya. op.cit. Page 184. Ibid. Page 184.  “The End of British Imperialism”  Collected Essays by Wm. Roger Louis [2006] Page 44.

9.

Ibid. Page 38.

10.

David Holden “Farewell to Arabia” [1966] Page 20 cited in Louis op.cit. Page 1.

11.

 “Expansion of England”  [1883] and cited in Louis op. cit. Page 964.

12.

Cited in Andaya op.cit Page 177.

13.

Quoted in the Sun, 10th August 2007, Page 22.

14.

Lord Mayor’s Luncheon, London, 10th November 1942 and published in “Winston  Churchill : His Complete Speeches, 1897-1963” Ed. Robert Rhodes James [1974] Vol. 6. Page 6695.

15.

 “British Documents on the End of Empire”  (BDEEP) — Malaya Part III, The Alliance  Route to Independence”  edited by A.J. Stockwell (HMSO) 1995. Page 53-4.

16.

Ibid Page 83.

54

17.

Ibid. Page 127.

18.

Ibid. Page 163.

19.

Ibid. Page 226

20.

 “From Malayan Union to Singapore Separation”  by Noordin Sopiee [1976] Page 186.

21.

 “Looking Back” by Tunku Abdul Rahman [1977]. Page 33.

22.

For an illuminating analysis of the financial dimensions of British empire – building, see the brilliant book “British Imperialism 1688-2000”  by P.T. Cain and A.G. Hopkins (2nd Ed., 2002).

23.

Ibid. Page 627.

24.

P T Cain and A G Hopkins. op.cit.

25.

Ibid. Page 628

26.

BDEEP Malaya. Part II. The Communist Insurrection. Page 127.

27.

 “The End of Empire and the Making of Malaya”  by T.N. Harper [1999] Page 58.

28.

BDEEP. Malaya. Part II Page 37

28a.

Rupert Emerson, cited in “The British in Malaya. 1880-1941”  by John Butcher [1979] Page 223, which contains a readable account of the social manners of the European community in British Malaya. Another interesting narrative in this genre is “Out in  the Midday Sun: The British in Malaya, 1880-1960”  by Margaret Shennan [2000].

29.

BDEEP. Malaya. Part III. Page 263.

30.

They include “Chin Peng : My Side of History” [2003]; “Dialogues with Chin Peng”  [2004] and “The Finest Hour : The Malaysian – MCP Peace Accord in Perspective” by Collin Abraham [2006].

31.

“Chin Peng : My Side of History” —  op.cit Page 60.

32.

Ibid. Page 142.

33.

Ibid. Page 159.

34.

Ibid. Page 161.

35.

Ibid. Page 162. 55

36. 37.

Ibid. Page 163.  According to Malcolm Caldwell the struggle ought to be known as the Anti-British National Liberation War: see “Malaya : The Making of a Neo-Colony”  by Mohamed  Amin and Malcolm Caldwell [1977]. Page 216. John Gullick states : “It was a war —  though out of regard for the London insurance market, on which the Malayan  economy relied for cover, no one even used the word.: ”. This misnomer continued

for 12 years, for the simple reason that insurance rates covered losses of stocks and equipment through riot and commotion in an emergency, but not losses in a civil war”  —  Noel Barber “The War of the Running Dogs” [1961]  and cited in Caldwell, Page 261. In a dispatch dated 30th May 1949, Sir Henry Gurney confirmed the danger of insurance cover being withdrawn by the London market if “war” was used: see BDEEP. Malaya. Part II. Pages 133 and 141. 38.

Chin Peng. op.cit. Pages 390-395.

39.

In his Memoirs “Looking Back” op.cit Page 14.

40.

Chin Peng. op.sit. Page 490.

41.

“Dialogues with Chin Peng”  [2004].

42.

Ibid. Pages 234-235.

43.

Cited in “British Relations with the Malay Rulers from Decentralisation to Malayan  Independence : 1930 – 1952” by Simon Smith [1995]. Page 185.

44.

For example, in a minute dated 22nd September 1955 by ML Cahill, a civil servant to the Secretary of State for Colonies, and referred to by Smith. op. cit. Page 187.

45.

Sopiee op. cit. Pages 80-1.

46.

 “Tunku : His Life and Times” by Mubin Sheppard [2007] Page 74.

47.

Ibid. Page 80.

48.

For an account of the fortuitous circumstances under which the Alliance coalition was formed, see “Politics In a Plural Society”  by R.K. Vasil [1971] Page 10 et.seq

49.

Mubin Sheppard. op.cit. Page 83.

50.

Ibid. Page 93.

51.

“Looking Back” op.cit. Pages 178-179.

52.

In their personal Recollections and Reflections, published in “Tunku : Prince among  Men” by the National Archives of Malaysia [2007] pages 63 and 2001.

56

52a

See the note dated 6th April 1953 by Sir Donald McGillivray to the Colonial office. BDEEP. Malaya. Part II. Page 451-3.

53.

“The Road to Independence” by Tunku [2007] Page 112.

54.

Ibid. Pages 144-145.

55.

I have derived much assistance from “The Making of the Malayan Constitution”  by Joseph Fernando, MBRAS [2002] Page 73 et.seq. for this part of my paper.

56.

“Communalism and the Political Process in Malaya” by K.J. Ratnam [1965] Page 92.

57.

Fernando op.cit Page 86.

58.

The Alliance Memorandum dated 25th September 1956 is reproduced in BDEEP, Malaya, Part III. Pages 307-317.

59.

The exchange between Tunku and Ramanathan (representing the Alliance) and Lord Reid on these 2 fundamental freedoms is captured in the extracts published in BDEEP Part III at Page 317 from the transcripts of the hearing held on 27th September 1956.

60.

“Malaysian Politics”  by Gordon P. Means [1970] Page 12.

61.

Extracts from the transcripts of the hearing are reproduced in BDEEP, Malaya, Part III Pages 317-323. A summary record of the hearing appears at Pages 325-332 therein.

62.

 Alliance ad hoc sub-committee meting held on 2nd August 1957 and cited in Fernando, op.cit. Page 155.

63.

 “Road to Nationhood — Malaysia, the Formative Years, 1941-1966”  NSTP [2007] Pages 122-123.

64.

“The Road to Independence” by Tunku op.cit. Pages 151, 153-154 and 175.

65.

Ibid. Pages 183-184.

66.

Leifer. op.cit. Page 446.

67.

 A.I.R [1973] S.C. 1461.

68.

Indira Gandhi v. Raj. Narain  A.I.R. [1975] S.C. 2299; Minerva Mills v. Unioin of India   A.I.R. [1980] S.C. 1789 and Wanan Rao v. Union of India A.I.R. [1981] S.C. 271.

69.

“Fifty Years of the Supreme Court of India”  edited by Vermat and Kayma [2000]

Page 12.

57

70.

[1977] 2 MLJ 187

71.

[1980] 1 MLJ 70.

72.

[1982] 2 MLJ 120.

73.

BDEEP. Part I : Malaysia. Page 18. Although Nordin Sopiee in “ From Malayan Union  to Singapore Separation”  op.cit gives examples of references made by Malaysians and Singaporeans in the 1950’s to a larger Federation. Pages 123-129.

74.

Prepared by W.B.L. Monson of the Colonial Office, and published in BDEEP. Malaya Part I. Page 40.

75.

BDEEP. Malaya Part III. Page 111

76.

BDEEP — Malaysia. Page 19 contains a note taken by MacDonald.

77.

Ibid. Page 61.

78.

Ibid. Page 108.

79.

Report of the Commission of Enquiry North Borneo and Sarawak, 21 st June 1962. [the Cobbold Commission].

80.

Ibid: Paragraph 23 — Significantly, Nordin Sopiee makes the same point in his work. op. cit. Page 150.

81.

Ibid. Paragraph 32.

82.

Ibid. Paragraph 148

83.

 “Malaysian Politics”  by Gordon P. Means [1970] Page 12f-n.

84.

For a riveting account of the establishment of Malaysia from an international relations perspective: see “Britain and the Confrontation with Indonesia”  by David Easter [2004].

85.

Nicholas Fung, “The Constitutional Position of Sabah”  published in “The Constitution  of Malaysia : Further Perspectives and Developments” edited by F.A. Trindade and H P Lee [1986] Pages 92, 110.

86.

Mohamed Jemuri bin Serjan “The Constitutional Position of Sarawak”  published in Trindade & Lee – op.cit. Pages 114, 132.

87.

The authoritative work on the 1969 riots is still awaiting publication, and with the approaching 40 th anniversary one hopes that Government, Special Branch and other classified records will be opened to enable proper scholarship to be conducted. 58

88.

The National Operations Council “ The May 13 Tragedy; A Report”  [1969]. Page 85, and cited in Leifer – op.cit. Page 456.

89.

Leifer op. cit. Page 455.

90.

Fulsome tributes have been made to Tun Razak in countless publications. For this paper, I have consulted “ Malaysia after Tun Razak”  Leifer [1976] op. cit. Page 457-466; and “The Rukunegara Amendments of 1971”  by Andrew Harding published in ”The Constitutional Landmarks in Malaysia: The First Fifity Years  1957-2007” [2007]. Page 115-133.

91.

Tun Ismail has regrettably received much less attention. Ooi Kee Beng’s biography “The Reluctant Politician: Tun Dr Ismail” [2006] attempts to repair the omission.

92.

[1982] 2 MLJ 120 [FC] and [1983] 1 MLJ 111.

93.

[1982] 2 MLJ 120, 123.

94.

 Andrew Harding op.cit. Page 127.

95.

See the letter written by Rais Saniman, who was involved in NEP’s formation, published in the New Straits Times on 28 th June 2007.

96.

See Ooi Keng Beng op. cit. Pages 225 and 217.

97.

See the Statement issued by Dr Lim Teck Ghee on 28 th September 2006  “Corporate Equity Distribution Study” on behalf of ASLI’s Centre for Public Policy Studies, and posted on www.opinionasia.org/Muchadoaboutnumbers.

98.

 “The Malaysian Miracle”  by Joseph Stiglitz, published in the Edge, 17 th September 2007.

99.

See the article “ Significant bumi gains”  by Koon Yew Yin published in Aliran Monthly vol. 27 (6) (2007) Page 13.

100.

In an article “ Department of Bumiputra Affairs”  published in a collection of  essays by Datuk Zaid Ibrahim. “In Good Faith” (2007) Page 248.

101.

Published in the Sun on 27 th July 2007.

102.

See Tun Haniff’s sensible speech on “ Issues of National Interest”  delivered at a Khazanah Seminar and published in the Sun on 7 th September 2007.

103.

Published in the Sun on 5 th September 2007.

59

104.

In an article “1986 Revisited (Part I) PAS’s second nadir”  first published in Malaysiakini on 25th March 2004, and printed in “ From Majapahit to Putrajaya”  [2005] Page 222.

105.

Ibid. Page 213.

106.

Ibid. Page 125

107.

Malaysiakini.com; 29th September 2001.

108.

Ibid. 30th September 2001

109.

Ibid; 1st October 2001. In June 2002 Lim Kit Siang published a pamphlet “No to  929”  on the subject.

110.

My paper “Is Malaysia an Islamic State”  presented at the 13 th Malaysian Law Conference on 17 th November 2005, and published in [2006] 4 MLJ xv attempts to answer the query from a constitutional standpoint.

111.

BDEEP. Malaya. Part III. Pages 307 and 316.

112.

Cmnd. 210 June 1957 (HMSO).

113.  “Reflections on the Malaysian Constitution: 1957-1987”  Aliran [1987] Pages 1819. 114.

[1988] 2 MLJ 55 [SC].

115.

Trindade & Lee. op.cit. Page 216.

116.

Massimo d’Azeglio, 1860 

117.

“Malaysian Politics: The Second Generation” by Gordon Means [1991] Page 13.

60