[COLUMNIST] MADANI Malaysia and the social contract

AS part of our nation’s (tanahair, watan) ritual and ceremonial life (or even “extra-liturgical”, i.e., bordering or resembling a pan-community religious procession except that it’s an expression of the faithful observance of the sacrosanct calendar in the national life-cycle undergirded by constitutional devotion), we celebrate Independence Day every August 31 of which this year was the 66th anniversary. Independence Day is encapsulated by the quintessential Malaysian term/word of “Merdeka” (freedom) which conjures up images of the founding father and first Prime Minister (Bapa Kemerdekaan) – the late Tunku Abdul Rahman Putra Al-Haj – raising his hand in the air and shouting “Merdeka” seven times. The momentous and historic gesture embodies the very spirit of Merdeka and metaphorically stands as the “genesis” of (the then) Malaya and later Malaysia whose formation is celebrated every 16 September.

Needless to say, the spirit of Merdeka, therefore, represents the foundations and roots of our nation. The seeds that were sown have germinated in the following years and decades.

One of the fundamental and definitive offsprings or “species” or branches of the spirit of Merdeka (as the mother, “genus”, tree) is the “social contract”.

Whilst the term itself isn’t found in the Federal Constitution or the Rukunegara (like the term, “Merdeka”), its concept has surely underlined and shaped the character and nature of our Malaysian society (again like the concept of Merdeka).

The “social contract” is simply the grand or the Great Malaysian Understanding (see EMIR Research article, “Building a Middle Malaysia and the Great Malaysian Understanding”, March 22, 2023) whereby the majority and minority communities come to a shared and collective and unified agreement/consensus to compromise and accept certain fundamental and non-negotiable realities as part and parcel of the quest for national unity and, therefore, which has also come to define our national identity.

As such, the “social contract” is explicitly and implicitly grounded in the Federal Constitution and Rukunegara, i.e., as the founding document and highest law of the land together with the national preamble, respectively.

Whilst some have denied the existence of such a “social contract” on understandable and reasonable grounds, e.g., that it represents majoritarianism or ethno-religious supremacy (ketuanan Melayu) at the expense of the minorities, the term and concept as such has been thereby misconstrued or distorted.

The “social contract” expresses pre-existing realities of the national life – as can be demonstrated by the unreserved, unchallenged and unconditional acceptance/ reception of the Malay character (acuan, unsur-unsur kemelayuan), Malay centrality (keindukan Melayu) and Malay leadership (kepimpinan Melayu) in the constitutional framework and political system without necessarily entailing and enabling/empowering any form of supremacy in any way, shape or form.

Indeed, the “social contract” isn’t about Malay supremacy at all as it not only contradicts the Federal Constitution but the very experience of the dynamics of national life itself.

The Malay character, centrality and leadership of the nation is expressed by the Federal Constitution’s basic and fundamental provisions in articulating and defining the context-specificity of national life in the form of the following (even if these bear repeating over and over again):

• Islam as the religion of the Federation (i.e., the established and official religious institution of the land);

• the preservation of the local sultanate which gives rise to the position of head of state as embodied by the Yang Di-Pertuan Agong;

• Bahasa Melayu as the sole and exclusive national cum official language; and

• The special position (kedudukan istimewa) of the Malays together with that of the other Bumiputera (indigenous) communities, i.e., the Orang Asal/Asli of Peninsular Malaysia and the Natives of Sabah and Sarawak.

None of these entails and implies supremacy of any sort but rather the recognition that our nation is built upon the pre-existing historical legacy (warisan sejarah) and hence the vital/essential continuity (kesinambungan, keterlanjuran) with and from the past as well as shaped by the experience of colonialism and finally given contemporary expression by the spirit and letter of the Federal Constitution.

At the same time and in symmetrical measure, the other provisions of basic law – which can’t be ripped out of the Federal Constitution without destroying the substance or essence thereof – are such as constitutional supremacy (as per Article 4), equality before the law (which at the same time, by default and necessary consequence, entailing political equality, as per Article 8), the rule of law (as per Article 5, 10, etc.), freedom of religion (faith and practice, as per Article 11), among others.

This means that the non-Malay communities enjoy equal constitutional and political rights – on par with the Malay community – set within the context-specific framework of the “social contract”.

Hence, the “social contract” isn’t framed as or analogous with the landlord and tenant relationship (or master and servant) but precisely a familial concept whereby constitutional and political relationships are understood in terms of seniority. In other words, Keluarga Malaysia is the epitome and embodiment of the “social contract”.

With the MADANI unity government successfully completing its first year in power and, by extension, celebrating the corresponding anniversary, it continues to be subject to strident and trenchant criticisms by detractors from both sides of the political spectrum.

It’s critical, therefore, for there to be an understanding of the meaning of the “social contract” which avoids the wrong interpretations on both ends (i.e., it exists as ethno-religious supremacy or that it doesn’t exists at all).

As such, all parties in the MADANI unity government need to play their respective roles in articulating the “social contract” as being the basic and fundamental presupposition of the national life in the promotion and regulation and moderation of inter-ethnic relations and discourse.

An eminent example where the Prime Minister has come under unfair scrutiny has been his supposedly undue focus and preoccupation with the Gaza issue. As it is, the issue is an intensely humanitarian one – which requires and necessitates the nation as a leading and vocal advocate of the Palestinian cause to rise to the occasion and take on the mantle, accordingly.

According to Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, it’s sufficient for the aggressor-party to have the “intent” to commit genocide so that any killing would have fulfilled the condition thereof. Article II also provides that the following constitutes genocide in and of its own right – which can be applied directly and straightforwardly onto the Zionist aggressor:

• causing serious bodily or mental harm to members of the group (the regular mental and physical denigration, humiliation and abuse of Palestinians);

• deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part (e.g.., the bombardment of Gaza);

• imposing measures intended to prevent births within the group (e.g., forced sterilisations of women in the West Bank, abortions in Israeli hospitals); and

• forcibly transferring children of the group to another group (i.e., the kidnapping or separation of Palestinian children from their parents for the purpose of imprisonment).

And with the Zionist entity bent on playing up the confessional divide between the Sunnis and Shias as also can be seen in the Abraham Accords (notwithstanding the Saudi-Iran rapprochement under China’s auspices), geopolitical and geo-economic considerations can’t be removed from the equation. As the Middle East serves as the epicentre of global oil production and trade alongside playing the role as an essential shipping route (via the Suez Canal in the Red Sea), Malaysia will be affected too along with much of the rest of the world should there be a regional conflagration.

Needless to say, the Gaza issue (and the broader/wider Palestinian cause) has widespread ramifications and implications beyond the immediate region (i.e., with regards to the State of Palestine and the Zionist entity of the State of Israel). Due to the historical, on-going and complex nature of the issue, any flare-ups caused and rooted in what the Prime Minister has rightfully pointed out as the politics of dispossession (in the form of settler colonialism) and (crypto-)genocide entails multiple layers and radii of repercussions – some of which may be too late to stop or prevent.

Understanding and appreciating (penghayatan) the “social contract” would have enable detractors to better treat the Prime Minister’s focus on the Gaza – and the wider Palestinian – issue with care and empathy and respect.

The Prime Minister as the top leader of a leading Muslim-majority country has an unwavering religious and political duty to continuously speak up against the historic and contemporary injustices perpetrated against the Palestinians which at the same time also represents an on-going and unending humanitarian concern. Then again, Malaysia has always been a doughty and avowed champion of the Palestinian cause.

In short, to relegate this issue to one which merits only passing or irregular attention because it doesn’t fit into “conventional” thinking (i.e., as framed from the other side of the spectrum) would constitute an “aberration” from what should be our overall Malaysian political culture.

Understanding the concept of the “social contract” can provide the perspectival lens and paradigm that allows non-Muslims (at the risk of over-simplification and over-generalisation) to better appreciate the Prime Minister’s situation.

By extension, understanding the “social contract” also eases and facilitates one’s understanding and appreciation of the ramifications and impact of the issue on the wider region and globally, i.e., enabling one to “connect the dots” on a bigger scale.

This is so since understanding and appreciating the sense of importance of the Palestinian issue allows the integration of empathy for the sentiments of the Muslim community in general with the geopolitical and geoeconomic considerations in a way that’s non-polarising/non-divisive vis-à-vis the context of our multi-ethnic and multi-religious Malaysian society.

Of course, this applies to other situation as well, not least of which is the timing and tempo and momentum of the Prime Minister’s reform agenda.

This particular issue has been a huge concern and worry for the liberal and the non-Muslim intelligentsia, by and large, ever since the MADANI unity government took on the reins of power.

In other words, we’ve come full circle.

Understanding and appreciating the social contract allows and enables the majority and minorities communities, the conservatives and liberals, etc. – as reflecting the multi-chrome and variegated character of our beloved nation that’s rooted in another equally context-specific nature embodied by the Malay-ness of the constitutional and political make-up of the national system (as a given and pre-existing reality) – to check and balance (or counter-balance) each other in a constructive and dynamic manner without falling into the polar extremes on both sides of the spectrum.

With the inclusion of hitherto politically sworn foes and archnemeses into the unity government as embodied by the past conflicts and “mortal combat” between DAP and Umno, Malaysia MADANI should be truly well-poised to definitively reflect and give adequate expression to such a balanced approach in relation to the dual nature inherent in our society as underpinned by the “social contract”.

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Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research.

** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.