Hindraf queries Umno’s ‘missing social contract’

“Those who keep harping on it are insulting the intelligence of the people.”

KUALA LUMPUR: The Umno general assembly this week finds Hindraf Makkal Sakthi once again delving into history to query the ruling political party’s raising of a so-called social contract between Malays and non-Malays in the peninsula.

The only social contract in law, points out the NGO, is the Federal Constitution. There could be no other social contract, stressed Hindraf chief P Waythamoorthy, a lawyer in private practice. “The Federal Constitution is a social contract between the state and the people.”

“When I was in England not so long ago, I pored over thousands of declassified colonial documents,” added Waytha. “I never came across the social contract that Umno leaders keep talking about. It does not exist. It crops up as rhetoric and polemics every time there’s an Umno meet. Those who keep harping on it are insulting the intelligence of the people.”

Waytha concedes that there are “issues in conflict” like citizenship, the Malay language, Islam and Article 153 of the constitution, but “these should not be lumped together as a social contract between Malays and non-Malays.”

“It’s not true, as Umno leaders claim, that Malays agreed to grant citizenship status to Indians and Chinese in return for their agreeing on certain issues like the Malay language, Islam, the sultans and Article 153,” said Waytha.

“Citizenship and the other issues are governed by the Federal Constitution.”

The Malay language, Waytha agrees, brings the people together as a medium of communication but it falls apart elsewhere, unlike English during pre-independence days, because “it’s seen as ethnic, associated with a certain group in the country.”

“If the British had not codified the Malay term to cover Muslims in the peninsula communicating with each other in the language, it would have remained non-ethnic as a lingua franca like elsewhere in the archipelago,” he said. “To reverse history and win back the Malay language’s non-ethnic status, the Muslims in the peninsula would have to consider going back to being Bugis, Javanese, Minang, Acehnese, Indian Muslims and others.”

Creeping Islamisation

The issue with Islam, he added, was creeping Islamisation and creeping desecularisation. “There are attempts to rewrite the Federal Constitution through the courts to ensure the emergence of an Islamic state in the country,” he claimed.

“All this is against the secular nature of the Constitution. One needs to read various articles in the Federal Constitution together, not in isolation.

“There’s also case law on the secular nature of the Federal Constitution.”

Civil high court judges seemed to have abdicated their duties and had conveniently delegated contentious matters to the syariah court despite parties to civil suits being non-Muslims, he said.

“Despite calls on the government to amend the law to make clear the jurisdiction of the syariah court, there’s no political will on either side of the political divide as all the Muslim based parties either fear losing the Malay Muslim support or have the Islamic agenda in the background.”

He said Article 153 was not just about the Orang Asal and Malays, but also about the others. “Article 153, for a start, has completely disregarded the inherent rights of the Orang Asli to Malaya and their rights are conveniently ignored. Instead, recent Muslim migrants to Malaysia, including Bangladeshis, enjoy the benefits. The 2nd Prong of Article 153 refers to the legitimate interests of non-Malays.”

The 1st Prong of Article 153, he points out, refers to the Orang Asal (but does not mention the Orang Asli in the peninsula) and the Malays having a special position by way of having a reasonable proportion of the opportunities reserved for them in four areas, viz. intake into the civil service, intake into institutions of higher learning owned by the government and training opportunities, government scholarships and opportunities to do business with the government.

“There’s no such thing as special privileges as the politicians like to claim,” said Waytha. “All are equal under the law as per Article 8 of the Federal Constitution.”

The issue with Article 153, he contends, is that it was supposed to have a shelf life of 15 years, the 2nd Prong was ignored, the 1st Prong has gone beyond the four areas for the Malays in the peninsula through deviations and distortions to emerge as a “sapu bersih” (clean sweep) clause; and the Orang Asal from the Borneo states and Orang Asli from Peninsula have been denied the benefits.

He said it was telling that the Dayaks in Sarawak said this week that they and the Orang Asal in Sabah prefered to be known as Dayaks, not Bumiputera, if the latter term also includes the Malays in the peninsula.