By Dr Kua Kia Soong, Director of SUARAM
(Paper presented at the Bar Council forum on 28 June 2008 )
“Social contract” and “Ketuanan Melayu” are terms introduced by communalist politicians in recent years and it is worth taking note of the origin and the illegitimacy of their coinage. “Ketuanan Melayu” or Malay Dominance can be traced to the infamous speech by Abdullah Ahmad, then UMNO Member of Parliament in Singapore in 1986. (1) The emergence of this concept of a “social contract” which presumes that there was a trade-off between granting citizenship for the Non-Malays and special privileges for the Malays by the representatives of the different communities at Independence is harder to trace. Its routinised usage today, however, does not mean that its legitimacy should not be challenged.
This paper sets out to put history in its proper perspective. Official Malaysian history is written from the ruling class’ point of view. It is the premise of this paper that the Independence agreement has to be understood in class terms – the ruling class in the making represented by UMNO, MCA and MIC on the one side and the truly anti-colonial forces in the PMCJA-PUTERA coalition representing the workers, peasantry and disenchanted middle class on the other. Thus the so-called “social contract” would have looked very different if the “Peoples’ Constitution” of the AMCJA-PUTERA coalition had won the day.
In contrast to the standard pluralist analysis of Malaysian society, this paper maintains that divisions along ethnic lines are not based on a difference of culture but on class oppression. Communalism based on “bumiputraism” is an ideology of the ruling class produced under concrete historical circumstances and by social classes. (2)
The pertinence of class analysis is often a bone of contention in academic circles but lawyers in Malaysia will have no problem in seeing the recent cunning Lingam act as class collaboration in flagrante delicto!
This paper emphasizes the fact that this so-called “social contract” was the product of colonial manipulation of the constitutional proposals, from the Malayan Union to the final Merdeka Agreement. Furthermore, it has in fact undergone three transformations since Independence : the post-Independence situation before May 13; post- 1969 Malaysian society, and the attempt to rationalize “Malay dominance” since the Eighties.
The Class Forces at Independence
The UMNO leadership after the Second World War represented the interests of the Malay aristocracy. They were by no means anti-colonial and were prepared to establish a neo-colonial Malaya with British interests intact. Malaya was still very much dependent on export commodities, largely rubber and tin. The industrial base was narrow and based on these two commodities while the problem of the peasantry since colonial times was still unresolved.
The mass-based anti-colonial movement, on the other hand, had very clear policies based on self-determination, civil liberties and equality. The workers’ movement (3) was the main threat to colonial interests and the Federation of Malaya proposals culminating in the Merdeka Agreement were intended to deflect the working class revolt by introducing racialism in the Independence package.
The Emergency (1948-60) was as much a crackdown of the workers’ movement as it was a war against the anti-colonial insurrection. The subsequent “Alliance Formula” comprising the Malay aristocratic class and Non-Malay capitalist class was designed to deal with the workers’ revolt and put in place a neo-colonial solution. (4)
The post-colonial Malayan economy saw a neglected peasantry while the crucial questions of neo-colonial exploitation, land ownership and size of landholdings of the Malay peasantry (for which the Malay aristocracy was responsible) were deflected into grievances against the Non-Malay middlemen.
The Malayan Union proposal by the British in 1946 was opposed by the political left and right in Malaya for different reasons. The peoples’ anti-colonial forces opposed it because it did not propose self-rule and no elections were contemplated. Singapore was also to be excluded from the federation. The Malay aristocracy opposed it because they wanted to transfer the sultans’ jurisdiction to the British and abolish the need for royal assent to legislation. The post-war Labour Government in Britain had to grant basic civil rights, including citizenship for the Non-Malays as in elsewhere in the post-war world, but the Malay elite were opposed to this.
In their demonstrations against the Malayan Union, UMNO carried banners calling for, among other things: “Malaya belongs to the Malays – We don’t want other races to be given the rights and privileges of Malays”; “Reinstate British Justice”; “Father protect us till we grow up…” (5) UMNO’s opposition to the Union had been mainly provoked by the brusque manner in which the British had forced the sultans to sign the treaties.
By contrast, the Malay Nationalist Party (MNP) called for, among other things: the right to self-determination of the Malayan people; equal rights for all races; freedom of speech, press, meeting, religion; improving standard of living of all the people; improving farming conditions and abolishing land tax; improving labour conditions; education reform on democratic lines; fostering friendly inter-racial relations. (6)
On 20 October 1947 , the AMCJA-PUTERA coalition launched a general strike and economic boycott or hartal to protest against the constitutional proposals. It brought the country to a complete standstill. It also called on all parties to boycott the Federal Legislative and State Councils.
Realizing the different class forces opposing the Malayan Union, the British did a volte face and began to consult only with the Malay elite to the exclusion of all the other interest groups. The colonial power again used its divide and rule strategy to put the anti-colonial forces on the defensive by tightening up citizenship rules from five to fifteen years’ residence under the Federation of Malaya proposals of 1948; Singapore was to be excluded from the federation and no representative democracy was considered.
The constitutional crisis and labour unrest led to the Emergency being declared on 17 June 1948 . During the period from 1948 to 1960, thousands were deported to China while some 500,000 were displaced into “New Villages”. (7)
In looking at the citizenship issue, it is worth noting that by 1947, three-fifths of Chinese and one-half of Indians in Malaya were local born but in 1950, only 500,000 Chinese (one-fifth of the total) and 230,000 Indians had Malayan citizenship. (8)
The 1952 Kuala Lumpur Municipal Council elections which saw the successful application of the Alliance formula gave the British colonial power an indication of the political forces to back for the neo-colonial solution. The 1955 federal elections confirmed their choice of the Alliance and when the Alliance reneged on its amnesty proposals for the guerrillas at the Baling talks in 1955, the British were assured of the Alliance’ reliability as the custodians of British interests.
When the Constitutional (Reid) Commission was considering the provision for Malay special privileges, it made the following comments:
“Our recommendations are made on the footing that the Malays should be assured that the present position will continue for a substantial period, but that in due course the present preferences should be reduced and should ultimately cease so that there should be no discrimination between races or communities.” (9)
The proposal to review Malay special privileges after fifteen years by the legislature was opposed by UMNO and they got their way. The jus soli principle was applied for all born after 1957; citizenship was granted to all over 18 years of age, who were born in the country and had lived five out of seven years in the country and knew elementary Malay. For those born outside the country, there was a condition of eight out of twelve years’ residence in the country. (10)
The Alliance formula of three racially-based parties made up of the Malay ruling class and the Non-Malay capitalist class was plainly the neo-colonialist alternative to the truly Malayan nationalist movement grounded in the workers’ movement. The Alliance won the upper hand mainly through the help of British colonial repression of the mass-based nationalist movement and the failure of the latter to mobilize the Malay peasantry.
Three Transformations of the So-called “Social Contract”
This so-called “social contract” has in fact undergone three transformations since Independence :
(i) After Independence in 1957, the affirmative action policy was sparingly used according to Article 153;
(ii) After May 13 in 1971, while the country was still under Emergency decree, Article 153 was amended to introduce the so-called “quota system” allowing wider affirmative action policies but still within stipulated conditions;
(iii) Then in 1986, Abdullah Ahmad’s infamous “Ketuanan Melayu” speech was actually a declaration of the new status quo, routinizing the racial discrimination through the abuse of Article 153 since 1971.
In the 1957 Constitution, Article 153 was framed simply as follows:
“It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and the legitimate interests of other communities in accordance with the provisions of this Article…and to ensure the reservation for Malays of such proportion as he may deem reasonable of positions in the public service…and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law…Nothing in this Article shall operate to deprive or authorize the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him…” (11)
Sheridan & Groves commentary on Article 153 is as follows:
“This article had its inspiration in the protective discrimination provisions of the Indian constitution; but it is fundamentally different from those provisions because the largest class in whose favour the discrimination operates in Malaysia is the class which possesses political control, the Malays…” (12)
After Independence in 1957, the Malayan economy was largely unchanged from its colonial pattern showing a great regional disparity – an urbanized largely non-Malay west coast and a neglected Malay peasant economy along the east coast. Agriculture took up almost 50 per cent of the GDP and 60 per cent of the labour force, predominantly Malay were concentrated in the agricultural sector. Poverty was blamed on the Chinese middlemen rather than the structure of neo-colonial exploitation and the exploitation by large landowners and the feudal aristocracy.
The Tunku’s government did implement import-substitution industries which included production of food, beverages, tobacco, rubber and chemical products, cosmetics, toiletries and paints to cater for the growing middle-class home market. Most of these industries were foreign owned which came to take advantage of the comparatively lower local wages. Thus, post-colonial developments were leading to discontent among not only farmers but also workers and the middle class.
In the sixties, the increasing public development spending began to whet the appetite of the Malay state capitalist class: The First Five-Year Plan (1956-60) spending of RM 1 billion rose to RM 2.6 billion under the Second Five-Year Plan (1961-65) and to RM 3.6 billion under the First Malaysia Plan (1966-70). There were two Malay economic congresses in 1965 and 1968 which called for greater state intervention to assist the development of Malay capital. RIDA, MARA and Bank Bumiputra all grew during the sixties. (13)
My latest publication (14) maintains that the race riots of May 13, 1969 actually camouflaged a coup detat by the then emergent Malay state capitalist class against the traditional Malay aristocratic class headed by the Tunku and that the riots were orchestrated by elements within UMNO. The police and the army were not impartial – Razak met with the Chiefs of the Army and Police soon after the riots broke out. Tunku has been quoted a saying:
“You know Harun was one of those – Harun, Mahathir, Ghazali Shafie – who were all working with Razak to oust me…” (15)
The ideology of the new Malay ruling class is based on “bumiputraism” and this has been imprinted into the New Economic Policy, the New Education Policy and the National Cultural Policy which were raised barely a week after May 13, 1969. Through the NEP, the interests of the Malay state capitalist class have expanded immensely. From 1971 to 2000, public development spending has exceeded RM 300 billion. The NEP has largely been funded by the discovery and exploitation of offshore oil, which in 1985 contributed 26 per cent to all government revenue. (16)
The So-Called “Quota System”
Article 153 was amended in 1971 (while the country was still under Emergency decree) to introduce the so-called “quota system” which has become a carte blanche for gross racial discrimination in education policy. The implementation of the quota system has evoked this comment from Visu Sinnadurai, Professor of Comparative Law and Dean of the Faculty of Law, University of Malaya in the Eighties:
“Article (8A) makes it clear that the Yang di-Pertuan Agong can only order a reservation of a proportion of such places for the Malays. It would therefore mean that the quota system is applicable only on a faculty basis and more importantly every faculty or institution should reserve places for students of every race. No faculty or institution under this provision could cater for the Malays alone to the exclusion of the other races…
“It should be pointed out that though these changes were made purportedly under the direction of the Yang di Pertuan Agong, the writer is unable to trace any such Order being made by His Majesty nor does there seem to be evidence of any such order being gazetted. It appears that such a directive has been made by the officials of the Ministry of Education. This lack of notification has caused some uncertainty especially in the validity of the implementation of some of the policies. It is not clear whether the quota system is made applicable on an institutional basis or on the basis of the total number of places available in a particular course of study of all the universities in the country…To apply the quota system on the total number of places available in any particular university will again be a wrong interpretation of the provisions of the Constitution. (17)
“Article 153 (8A) does not authorise the administrators of any university to refuse admission to any student of a particular race. It only allows a proportion of the places to be reserved for Malay students. On such a reasoning, the constitutionality of institutions like the Asasi Sains in the University of Malaya or Kursus Sains matriculasi Sidang Akademik of the Universiti Sains Malaysia which cater only for Bumiputra students is doubtful…Furthermore, the Constitution of the University of Malaya expressly prohibits discrimination on grounds of race for the admission of any student to any faculty or institution of the university. In this context too, the constitutionality of other institutions which admit students of a particular race only to the exclusion of other races is also doubtful as it may violate the equality provision of Article 8.”(18)
From the above, it is clear that the question of the constitutionality of the quota system as it has been practised since 1971 especially in totally Bumiputera institutions has never been tested. We know what the original intentions of the “Malay Special Privileges” provision in the Merdeka Constitution were, but to maintain that it is a carte blanche for all manner of discrimination based on the Bumiputra/ Non-Bumiputra divide is certainly straining credibility:
“By 1990, the realities of the racially discriminatory quota system in education were as follows: An average of 90 per cent of loans for polytechnic certificate courses, 90 per cent of scholarships for Diploma of Education courses, 90 per cent of scholarships/loans for degree courses taken in the country, almost all scholarships/loans for degree courses taken overseas were given to Bumiputeras. Regarding the enrolment of students in residential schools throughout the Eighties, 95 per cent of these were Bumiputera. The enrolment in MARA’s Lower Science College, Maktab Sains MARA was almost 100 per cent Bumiputera throughout the Eighties.” (19)
Under Mahathir, we have seen the transfer from State to private Malay capital under his privatization programme and the proletarianisation of the Malay peasantry. Corporate wealth has spread among Malays through release of shares from profitable state enterprises into unit trusts for bumiputras. The Umnoputras have been the best placed to take advantage of these opportunities. In 1986, for example, 4 per cent of ASN holders owned more than 70 per cent of the ASN, while 80 per cent owned less than 500 shares each. (20) Cronies were chosen to head UMNO-linked corporations and to benefit from controversial privatization projects.
In recent years and especially since Abdullah Ahmad’s infamous speech in 1986, there have been vain attempts by the ruling party to rationalise this racist notion of “Malay dominance” (Ketuanan Melayu) with the so-called “social contract” at Independence .
Since the racial violence of 1969, there has been a trend toward fascist methods to intimidate any challenge to this status quo. We saw this in 1987 during the build-up to Operation Lalang when the rally organized by UMNO displayed racist and blatantly seditious banners; in 1996 when a mob from the ruling party violently disrupted the Second Asia-Pacific Conference on East Timor; in 1999, they threatened staff of the Selangor Assembly Hall; in 2001, when six people were killed and over a hundred mainly ethnic Indians were injured in Kampong Medan; in 2004, 2005 and 2006, when the UMNO Youth Chief waved the keris at the UMNO general assembly to flaunt “Malay dominance”.
Conclusion: Non-Racial Alternatives to National Development
Despite the compromises made to civil liberties by the British colonial power under the 1957 Federal Constitution, we should still abide by that Independence Agreement rather than its subsequent amendments. Our fundamental liberties are inscribed in that Federal Constitution which confers upon every citizen basic rights we all enjoy as citizens.
The Malaysian Judiciary is the interpreter of the Malaysian Constitution and as far as we know, extraneous concepts such as “social contract” and “bumiputera” cannot be found in the Constitution. The very idea of “Malay dominance” is repugnant to a civilized world united against racism and racial discrimination. The abuse of the quota system ever since the 1971 constitutional amendment remains to be challenged in court.
Racism and racial discrimination have dominated Malaysian society for far too long. Now that the Malay ruling class already controls the commanding heights of the Malaysian economy, it is high time for a new consensus based on non-racial factors such as class or sector in need to justify affirmative action. Any ethnic community that has undergone class differentiation can hardly qualify for positive discrimination. This applies to the Malay, Chinese, Indian and even the Iban and Kadazan communities. Affirmative action may be justified for communities such as the Orang Asli and the Penans which are still fairly homogeneous.
It is time for all Malaysians who hunger for peace and freedom to outlaw racism and racial discrimination from Malaysian society once and for all and to build real unity based on adherence to human rights, equality and the interests of all the Malaysian masses. We require non-racial institutions, including: (21)
1. A Race Relations Act and an Equal Opportunities Commission to combat racism, racialism, and racial discrimination in all Malaysian institutions;
2. Elected local government so that problems of housing, schools, etc. can be solved in non-racial ways;
3. An Independent Broadcasting Authority which is fair to all ethnic communities in Malaysia
4. Government policies aimed at reducing income disparity between the rich and poor regardless of race, religion, gender, disability or political affiliation;
5. Special assistance based on need and NOT on race;
6. A means-tested sliding scale of education grants and loans for all who qualify to enter tertiary institutions regardless of race, religion or gender…
(1) See K.Das: Malay Dominance? The Abdullah Rubric”, K.Das Ink, 1987)
(2) The central thesis of my PhD thesis. See “Class and Communalism in Malaysia” aka Hua Wu Yin, Zed Press, London 1983
(3) See Stenson, MR, Industrial Conflict in Malaya, London 1970
(4) Hua Wu Yin, 1983: 94-98
(5) Utusan Melayu, 22 December 1945 quoted in Khong Kim Hoong, “Merdeka!”, Insan 1984:83
(6) Ibid, pp 87-88
(7) Anthony Short, “The Communist Insurrection in Malaya”, 1975 London
(8) M.V. de Tufo, “A Report of the 1947 Census of Population” quoted in Hua Wu Yin 1983:101
(9) Report of the Federation of Malaya Constitutional Commission 1957, Government Press, para 165, p.72
(10)Khong Kim Hoong, 1984:200
(11) Sheridan , L.A. & Groves , H.E. “The Constitution of Malaysia ”, Malayan Law Journal , Singapore 1979: 382
(12) ibid, p.385
(13) Hua Wu Yin 1983: 144-47
(14) Kua Kia Soong, “May 13: Declassified Documents on the Malaysian Riots of 1969”, Suaram 2007)
(15) Kua Kia Soong ed: K.Das & The Tunku Tapes, SIRD 2002
(16) Hua Wu Yin 1983:183
(17)“Rights in Respect of Education under the Malaysian Constitution” in F.A. Trindade & H.P. Lee, ‘The Constitution of Malaysia, Further Perspectives and Developments’, Fajar Bakti, Petaling Jaya 1986: 49)
(18) ibid, p.50
(19) Reply to parliamentary questions in Kua Kia Soong, “Reforming Malaysia”, 1993 Oriengroup, Tables 1-9
(20) Kua Kia Soong, “Polarisation in Malaysia : The Root Causes”, K.Das Ink 1987:61
(21)See Kua Kia Soong, ‘Racism & Racial Discrimination in Malaysia’, Paper submitted to the World Conference against Racism & Racial Discrimination at Durban, 3 September 2001, in “Malaysian Critical Issues”, SIRD 2002