Social Contract and the subversive Sedition Act

Social contract is essentially our constitution. And constitution should be a living document, not cast in stone and not protected from changes by draconian laws.

One of the most abused concepts in Malaysian politics is social contract.

The original concept of Social Contract

English philosophers Thomas Hobbes and John Locke used the concept to characterise the contractual relationship between the individuals and the society they form, bound by rights and duties. 

This idea assumes that initially humans lived in the “state of nature”, where there was no government and individuals were free to do what they would. Such an anarchic state was a dog-eats-dog world, where not only the weak would be preyed by the strong, but even the strong might be susceptible to killings by their enemies. 

Hence, lives in such world would be “solitary, poor, nasty, brutal, and short”, as Hobbes put it. In exchange for security, individuals hence decided to enter a “state of society”, and surrender part of their freedom to government, which would lay down law and order. 

For Hobbes, the government is like a sea monster, called Leviathan, consisting of countless individuals. The image of Leviathan shows the exercise of a collective will, which is assumed to be unitary.

Hobbes who lived through the bloody English Civil War dreaded anarchy and believed in strong governments. For him, even bad government is better than no government.

John Locke who lived half a century later than Hobbes took a more critical attitude towards the government.

He believed that if the government does not carry out its duties, then the population can overthrow the government.

Needless to say, Locke inspired countless revolutionaries and his argument was used to justify innumerable uprisings.

Whether Hobbes or Locke, social contract is a vertical relationship between individuals and the collective they constitute, like the base and the peak of a cone.

The abused concept of Social Contract in Malaysia

In Malaysia, if you read the mainstream discourses, social contract becomes a horizontal relationship between three ethnic blocs – Malays, Chinese and Indians, like three cones side-by-side.  

(Yes, this notion of Social Contract is so Malayan-centric, that the East Malaysians are at best pigeon-holed into the modified tripartite categories of Bumiputera, Chinese and Indians, at worst, completely forgotten.

Somehow, time stopped at 1957 that those proponents of this abused concept never talk about the social contract between Malaya, Sabah, Sarawak and Singapore.)

What is wrong with a horizontal version of social contract?

It assumes that the Malays/Bumiputeras, Chinese and Indians are unitary actors who can be the contracting parties.

But where is the social contract between an individual Malay/Bumiputera/Chinese/Indian and their community? How are rights and duties between a community member and the community negotiated and regulated?

The abused concept is also problematic because this contractual relationship leaves out the “others” (“Dan lain-lain”) who have no ethnic community to even enter the contract. So, are the “dan lain-lain” bound by the so-called “social contract” when they are not even represented by any party?

Individual rights v collective interests

The notion of social contract is inherently grounded in individual rights. Even if one takes the more authoritarian version advocated by Hobbes, the power of government is still derived from the surrendered rights of individuals.

The abused idea of Malaysia’s social contract is that it fundamentally sees the nation-state as union of ethno-nations, not union of citizens.

While there are conflicts of collective interests between the ethno-nations, these ethno-nations then are then assumed to be unitary actors, with no contradiction between the individuals and the collective.

Individual rights are then vanished and replaced by collective interests.

By extension, individuals disappear. Any wonder why we read so frequently people claiming to speak for all of their co-ethnic, co-religious or worse, all Malaysians?

Where is the social contract?

The application of the real social contract is straightforward. The social contract is the constitution of the nation-state, which governs the relationship between the government and the citizens, and provides for the rights and duties of the citizens.

Many countries put some super-majority thresholds, such as a two-third in the lower house of national legislatures, or a two-third amongst all constituent states, to amendment of constitution so that any changes to this social contract would be more consensual than based on a simple majority or even plurality.

By no means, these super-majority thresholds are to make constitutions cast in stone and unamendable.

Constitutions in all democratic countries must be living documents, as citizens must be able to decide how their public life is to be conducted and how much power their governments have. They do so by periodically electing lawmakers who are mandated with power to change the Constitution.   

Coming back to Malaysia’s abused notion of “social contract”, where is the functional equivalent of a constitution for each of the three ethno-nations?

No, we don’t have such instrument and mechanism to decide our ethnic representatives.

In elections, we vote for parties vying to run Malaysia, not parties vying to run the nations of Malays, Chinese, Indians and “Dan lain-lain”.  Our ancestors did not do in the 1955 pre-Merdeka election, neither do we today.

So, if there were never ethno-nations as contracting parties, then there is no such thing as the “social contract” between the imaginary ethno-nations.

We have only one “social contract”, that is, our Federal Constitution. As citizens of a full sovereign nation, we must be able to scrutinize, defend and modify our constitution as we see fit.

Sedition Act is subversive, anti-Constitutional and anti-national

Since the last amendment to the Sedition Act in 1970, four matters in the Federal Constitution have been placed beyond questioning – not even for parliamentarians who enjoy greater freedom of speech under the parliamentary privileges.

The four matters are Part III (Citizenship), Article 152 (National Language), Article 153 (Special position of Malays and natives of Sabah and Sarawak) and Article 181 (the Monarchy).

To this list, Prime Minister Datuk Seri Najib Razak now wants to add the status of Islam and the territorial inclusion of Sabah and Sarawak.

I uphold our real social contract – the Federal Constitution – and believe nothing in it should be changed unless there is a clear consensus to do so.

I strongly think any unilateral and majoritarian changes to the social contract would bear disastrous consequences. I believe we have much to do in national reconciliation to deal with the lingering 1946 Question: Can citizens be different yet equal?

But what is the logic that we are barred from discussing certain parts of the contract? Are we implying that these parts cannot withstand scrutiny of reason and deliberation?

Some may think that opening up everything for debates is seditious and subversive. I beg to differ. What is seditious and subversive are the use, threat and impunity of violence as means to change or maintain our political, economic and social order.

Using reason to change or defend anything cannot be seditious or subversive unless we are a nation of slaves.

In that sense, the Sedition Act is more than a colonial legacy left behind by colonial rulers who held that thinking was too dangerous for their colonised subjects.

The Sedition Act is a living reminder that we are still colonised. The British left but the colonisation has continued, albeit in a more subtle form.

The Sedition Act is therefore subversive to the very notion that Malaysia is an independent nation since September 16, 1963.

The Sedition Act is not just unconstitutional, but simply anti-constitutional and anti-national. – December 14, 2014.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.