By Clive Kessler

NOV 8 — Their royal highnesses, the Rulers of the Malay states, following their recent October meeting as the Conference of Rulers, have urged all Malaysians to heed the nation’s history. Citizens, they remind us, must recognise the obligation upon all Malaysians to share the land and its benefits equitably. Their highnesses accordingly call upon all Malaysians to respect and uphold “the social contract”.

More recently, in his regular “Reflecting on the Law” column in The Star (“Unifying Role of the Rulers”, November 3), the nation’s leading constitutional scholar Prof Shad Saleem Faruqi voiced a similar plea. Again, he insists, history must be acknowledged, it cannot be denied. There is no skirting around its legacy. The land and its bounty are to be shared in a fashion that is mindful of and faithful to the nation’s historical foundations. All the nation’s citizens, both Malay and non-Malay in their various historically distinctive ways born of how they became incorporated into the one shared nation, are stakeholders in the nation, its present benefits and future destiny.

The same message of historical awareness and responsibility, according to a recent column by Dr Mohd Ridhuan Tee Abdullah in Utusan Malaysia (“Sifat Toleransi Kerana Islam”, October 31), has been voiced by two leading Malaysian scholars of Chinese origins, the eminent historian Prof Khoo Kay Kim and the linguist (and lively Berita Harian columnist) Prof Teo Kok Seong.

There is nothing particularly controversial in what all these various guardians of the national conscience and heritage declare. No responsible political actor or commentator seriously questions these basic ideas. They are widely held.

And yet … The nation is nonetheless still caught up in lively debate, and marked by serious political differences, over these issues.

Why? Because while there is little dissent over the essentials that the Rulers and national scholars have in common affirmed, there still remain some significant differences concerning what those commonly agreed essentials, what we might call the “national fundamentals”, mean and imply.

Eager to uphold national sovereignty and harmony, the Malay Rulers, in their recent statement following their October meeting, expressed the hope that “the people will not allow outside involvement and interference in the country’s affairs”. So I perhaps comment on these matters now, as in the past, at my peril. Not a Malaysian citizen, I may be one of those whom the leading journalist Datuk Kadir Jasin, in the volatile time leading to the 1999 national elections, branded in the New Straits Times as “clueless outsiders”. But one can only speak of the truth as one sees it. And a person of character not only can but must do so.

Shad urges everybody to heed the Malay Rulers’ call to honour the “social contract” that is the basis of the Constitution and through it the nation — a constitution in which their royal highnesses have a pivotal role, an acknowledged standing and in-built position.

What kind of a role, standing, and position these are — to what degree they are symbolic and in what measure politically instrumental, and, where instrumental or “effective”, to what extent their royal highnesses are to be seen as capable of autonomous political action on their own behalf and in what measure they are there more to “be” than to “do”, or simply to serve as the personified embodiments of constitutional principle and the Constitution itself — are significant questions. Matters of heated contestation in Malaysia over the last three decades, these are questions that will not be addressed here.

Setting those questions aside, let us return to the now central idea of the “social contract”. This is what their royal highnesses’ recent statement invokes. This is an idea or phrase that is also used by Shad and Ridhuan Tee as well as by many contemporary political actors especially from Umno and Perkasa.

They all use it to “telescope” together or summarise other things: namely and notably, their view of the nation’s foundations and the manner whereby those negotiated foundations of nationhood, patiently worked through in the “Merdeka process” of the years 1955-1957, were expressed in, and made effective by the promulgation of, the Merdeka Constitution.

The term “social contract” is now used as, and has become for some, a standard “portmanteau term” or summary label for that Merdeka process, for its terms and what the process of agreeing to them as the basis of modern national sovereignty involved.

But, it should be clear, it is a term not of that time but of this, of ours now.

The idea of a “social contract”, in those words or terms, is nowhere to be found in and is no part of the Constitution’s language. Nor was that expression at the time any part of the deliberations and negotiations (“the Merdeka process and agreements”) that made the adoption and promulgation of the Constitution, and hence the creation of nation upon which it stands, possible.

The term “social contract” is a later construction. It is not part of the Constitution but retrospectively offers a certain subsequent — a very partisan and contested — political interpretation of its meaning (namely, that which was famously articulated by Tan Sri Abdullah Ahmad in his “Ketuanan Melayu” speech in Singapore in 1986).

Now inseparably associated with that much more recently created notion of “Ketuanan Melayu” which Abdullah promoted in that same address, the idea of “the Malaysian social contract” is a retrospective, partisan and revisionist notion (or “reading”) of the essence of national constitutional principle that some have wished to “read back into” the Constitution.

By recourse to this means, this conceptual manoeuvre, they seek to “read back” into the Constitution itself not only the idea of the “social contract” but also its associated companion notion of “Ketuanan Melayu”. In this way, with this stratagem, they are able “read out” these contested notions from the Constitution as if they were there. They pursue this recourse of contriving to find these notions already implicitly embedded there precisely because they are not, and never were, there in the first place.

The “social contract” and “Ketuanan Melayu” are “read back into” the Constitution and not, as this argumentative stratagem and those who employ it seek to suggest, “read off from it”. They must be “read back” into the Constitution, by means of a kind of after-the-event conceptual “smuggling” operation, by creative anachronism designed to serve the ends of a disguised revisionism.

All Malaysians need to be clear — fastidiously clear and precise — about this point. There is no comfort, no support, no entrenched precedental foundation in any of this for the creatively anachronistic, the retrospectively revisionist, the doctrinally expansionist notions that the “new Malaysian social contract theorists” and champions of the notion of “Ketuanan Melayu” seek to find — and happily imagine that they can see — in the foundational constitutional guarantees of modern Malaysian nationhood.

Ironically, the key protagonists on both sides of this centrally important question are agreed that both the spirit and the letter of the agreements reached as the basis for the nation’s founding moment in 1957 must be upheld and honoured.

There is no difference over that point. Both sides insist upon it. But the two sides disagree fundamentally about what those agreements and their implications, what their letter and animating spirit, were.

On the one side are those who for long spoke of, and affirmed their allegiance to, the “Merdeka agreements” that emerged from the “Merdeka process” and the “Merdeka negotiations”. They see those agreements as laying down, with clear and conscious intent, the foundations for an emerging democratic, progressive and secular multiethnic society and nation.

That was for long not only the “orthodox” or conventional view of the matter but the only one that could be given any credence — that had any support, any claim to be taken seriously. It was not just the “default” position but the only one on offer, the only one to be considered.

But from 1986, a different view began to be developed, voiced and promoted, one based upon Abdullah Ahmad’s radical reconceptualisation of the foundations and character of Malaysian nationhood. This view saw the national Constitution that emerged from the Merdeka process as having been advisedly designed and pre-adapted, from the outset, to serve certain subsequently advanced claims of Malay ascendancy in national life.

The Merdeka negotiations and process, in the view of these later thinkers, had solemnised — within what they retrospectively saw and named as a “Malaysian social contract” — their own more recently crafted ideas of “Ketuanan Melayu”.

For them, both the originating legitimation for the broad agenda of “Malay political ascendancy in perpetuity”, and also the crucial enabling mechanisms for asserting and implementing it institutionally, were somehow deeply embedded or powerfully “hard-wired” within the Constitution itself.

As part of a foundational “Malaysian social contract”, the new doctrine asserted, they had been implanted there, by common agreement of all parties including all member organisations of the Alliance Party, from the time of post-imperial national birth by those pre-independence negotiations. For them it was the joint legacy of Malaya’s “Midnight’s Children”.

“Ketuanan Melayu”, Malay social ascendancy and political domination, were accordingly, on this reading, part of the darah-daging, the very flesh and sinew, of the nation. Both explicit and implicit, stated and implied, spirit and letter, tersurat and tersirat, they were intertwined and integral parts of the Constitution itself.

Both sides see as politically “sacred” the nation’s founding moment, the Constitution promulgated at its founding moment, and the processes that made agreement to the adoption of that constitution possible. Both insist that the nation’s founding dispensation be upheld and honoured. They simply disagree — and disagree vehemently — over what that founding national covenant stated and now means, what its essential terms are.

The Constitution and the nationally focal “Merdeka moment” from which it emerged are what philosophers refer to as “essentially contested ideas”. They have become so as a result of the promotion, three decades after Merdeka itself, of a radical reinterpretation of modern nationhood. By its “rebranding” of the Merdeka agreements as the “social contract”, this new view reads the notion of Malay ascendancy, through its association with those new ideas of an originating “social contract”, into the fabric of the nation and the terms of the Constitution itself.

This latter process is circular, not unlike the children’s party game of a treasure hunt. You only end up finding what you have yourself placed there to be later found. Without your efforts to implant it there and make it conveniently available, it would not be there to find. But the illusion — the appearance that it has been there, waiting all the time and available to be found by those who seek it in sincere and truthful determination — is beguilingly created.

The country, notably its major political elements, are these days divided not between those who uphold the social contract and those who would prefer to repudiate it. All sides, all the main political actors and commentators want what they see the nation’s foundational covenant as they see it — labelled by some as the “social contract” and by others, for much longer, as the “Merdeka agreements” — honoured. The problem, theirs and the nation’s, is that they disagree fundamentally what those agreements are, what that “contract” is, what the nation’s foundational covenant says and means.

* Clive S. Kessler is Emeritus Professor, Sociology and Anthropology at the University of New South Wales, Sydney, Australia.