Constitutional provisions on the Malays, the Malay rulers, Islam and the national language are not superior to those governing the rights of other citizens, several lawyers said in rebuttal to Umno’s Datuk Seri Ahmad Zahid Hamidi.
The legal experts reminded the home minister that while aspects of the “social contract” are embedded in the Federal Constitution, there exist other equally important elements in the country’s highest law guaranteeing the rights of non-Muslim, non-Malay Malaysians, such as fundamental liberties and the guarantee of citizenship.
“This is one of the common ‘misrepresentations’ of the Constitution by those with ulterior motives,” civil liberties lawyer Syahredzan Johan told Malay Mail Online.
“[They portray] that the most important provisions of the Constitution are those pertaining to Islam, the special position of the Malays, the rulers, and the national language, when in actual fact, nothing in these provisions place them over and above other provisions in the Federal Constitution,” he added.
The lawyer said Zahid’s emphasis on these provisions as the “four key thrusts” of the so-called “social contract” is a “gross misrepresentation” of the supreme law of the land. The so-called “social contract”, an unwritten accord said to be agreed upon before Independence in 1957, is purportedly a quid pro quo trade-off with the Bumiputera communities for granting citizenship to the immigrant Chinese and Indians.
It is repeatedly raised to defend what is categorised as the special “rights” of the Malays, despite many of these originating from the now-defunct New Economic Policy (NEP) implemented in the 70s. More progressive government leaders who have dared to speak out against this “social contract” have often found themselves on the receiving end of criticism in Malay-majority Malaysia.
The issue has also long been a sore point among minority ethnicities in the country, who regularly complain of being treated as second-class citizens despite being born and raised locally. More are also questioning the federal government’s retention of affirmative action policies, which they claim benefit only the Bumiputera majority — in particular the Malay community — long after these were supposed to have lapsed.
On Saturday, Zahid was quoted by national news agency Bernama as saying that action would be taken against those who violate the “four key thrusts” of the “social contract”, but the minister did not specify what would constitute an offence against such provisions.
Former Malaysian Bar president Datuk Ambiga Sreenevasan said the “social contract” went beyond the clauses related to the Malays and Islam, and extended to institutions such as the judiciary and Parliament, fundamental liberties, and citizenship rights.
“I see the Federal Constitution as a document of a shared destiny of the people of Malaysia,” Ambiga told Malay Mail Online.
“That the government is a government for all Malaysians, that the judiciary is a judiciary for all Malaysians, that the rulers are rulers for all Malaysians. That the Federal Constitution must be read in its full context and that all the articles are as important as each other,” the lawyer added.
She stressed that Article 153 of the Federal Constitution — which states the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and the natives of Sabah and Sarawak — must be read in full as the King’s responsibility also includes protecting the “legitimate interests of other communities”.
“You can’t cherry-pick articles. Each and every article is important, and the Constitution must be read as a whole,” said Ambiga.
Lawyers for Liberty (LFL) co-founder Eric Paulsen said the manner in which Zahid interpreted the Federal Constitution appeared to create an “apartheid system” in the country, where Malay rights are considered above those of non-Malays and non-Muslims.
“It just seems bizarre that he’s picking and choosing only these four parts,” Paulsen told Malay Mail Online.
“We should be defending the whole Federal Constitution, and that includes the rights of non-Malays and non-Muslims and fundamental freedoms. It’s quite unbecoming of the home minister to basically divide Malays against non-Malays, and Muslims against non-Muslims,” the lawyer added.
He expressed concern that Zahid’s warning would create a “climate of fear” among non-Malays and non-Muslims, as it was unclear when it would be an offence to touch on issues concerning Malays, Islam, the royalty and Bahasa Malaysia.
The ongoing government crackdown under the Sedition Act 1948 has mainly targeted those who criticised the royalty, Islam and the police. At least 20 people have been variously investigated and charged under the colonial era law over the past month, including opposition lawmakers, lawyers, activists, and an academic.