normanfernandez

The Social Contract In Context

MARCH 31 – The in thing nowadays seems to be the phrase “social contract”. Every Tom Dick, hairy or otherwise, seems to be so well versed with this subject.

You make a bit of noise about the Federal Constitution and you would be referred to the “social contract”. You question a teeny wee bit about equality and you would surely be referred to the “social contract”.

I think the next time somebody cuts you off in a traffic jam, you should shout “social contract!” at that socially inept moron.

The latest outburst on the social contract had to of course come from Hishamuddin Hussein, the newly-minted Umno vice president. In his last speech as the Umno Youth Chief – of course, it was also a speech designed to garner votes for his VP-ship – Hishamuddin branded those who question the social contract as “arrogant”.

In his words: “Mereka begitu angkuh, sombong dan bongkak mempersoalkan kontrak social dan mempertikai hak kedudukan orang Melayu dan kaum Bumiputera. Kontrak sosial telah sengaja disalah tafsir dan dijadikan tajuk untuk menyemarakkan api perkauman.”

Before we talk of something important and of far reaching consequence, we should know what we are talking about. We should not just blabber aimlessly and throw about allegations and accusations as if it is our God given right to belittle other people.

What is this creature called the “social contract”? Is there such a thing? Is it like any other contract? Must it be signed? And stamped? If so, who signed it? Before that, who drafted it? What are the terms and conditions? Can they be changed? What if it is breached? What are the consequences of such breach? Does anybody know? Allow me to explain this concept.

Human Beings and Their Natural Rights

Early philosophers, such as Plato and Aristotle postulated the existence of natural justice or natural rights. These concepts were premised on the theory that human beings were born with and naturally follow a set of “natural” morality and behavioural patterns which are independent of human made regulations.

The concepts of “good” and “evil” for example, are inherent in every human being. This being the case, the people’s grasp of and adherence to such “natural rules” are independent of human made regulations and their enforcement.

If we accept the postulations that human beings are born with a set of natural behavioural patterns, than we must also accept the fact that human beings are also entitled to several basic rights.

These are rights so fundamental to the existence of a human being that the denial or transgression of such rights would render his or her existence as a human being almost meaningless. The most basic of these rights are rights which are universal to every human being, regardless of creed and breed, of cultures and upbringing, of religion and school.

The advent of civilisations had seen humans transformed from being individualistic and stateless animals into socio-politico creatures. Cities were built and societies developed. Governments and states were born.

The rise of the states and the ensuing assumption of power by the states and their governments would see the surrender of certain individual rights to the states and governments for the greater good of the society in general.

The Social Contract as a Concept

If it was human nature to be able to roam free anywhere and at any time, and to take whatever was thought to be necessary to survive, why would humans then surrender these basic rights to the states or governments for such rights to be regulated or even curtailed?

Why must a human being respect a property which belongs to another and who, in that instance, defines and decides on the ownership of such property in the first place? Why would the people agree to follow and obey executive orders when the people, by nature, are born to be free of constraints?

Here lies the premise of social contracts. The earliest known articulations on social contracts were by Plato who postulated that members of any given society implicitly agree to be bound by the social contract by their continued presence within that society.

Implicit in most forms of social contracts is “freedom of movement”, which later was termed as one of the “natural rights”.

The postulations of a social contract existing between a society, a state or a government and the people centre on the needs of the people to build nations and to maintain social orders within their nations.

Thus, for the benefit of the nation, the people implicitly agree to surrender some of their rights to the state or government in exchange for social order and greater benefits to all.

Thomas Hobbes explained it clearly. In a state of nature, human beings have unlimited natural freedoms. However, these unlimited natural freedoms would impinge on each other’s rights as each person would feel free to do anything against each other (also described as “the rights to all things”).

Men then created civil societies where these rights were governed in order to establish a social order. In exchange for subjecting themselves to the state or government, the people gained “civil rights”, which were sacrosanct and unalienable, even to the state or government.

Social Contract as a Living Document and the Consequence of its Breach

John Locke argues that the social contract and the civil rights are living documents in that their terms could be renegotiated to suit the needs of changing times. These contracts and rights are only legitimate to the extent that they benefit the general interest. Locke even posits the rights of rebellion in the event the social contracts lead to tyranny.

The breach of these social contracts by the people would result in some form of punishment on the defaulting party, which could entail the loss of any or some of their civil rights.

Thus, a thief may lose his rights to freedom when he is sentenced to imprisonment for stealing.

A government which breaches the social contract by abusing its powers may consequently, argues Locke, be overthrown.

We have seen many instances where Locke’s position has been taken to its natural conclusion. In Thailand and the Philippines for example, the people rose to overthrow governments which were perceived to have breached the social contract by various abuses of their powers and transgressions of human rights.

However, in modern states, especially in a democracy, it is submitted that the natural consequence to a government for its failure to uphold the social contract through abuse of its powers would rest with the people’s vote in an election.

The real power therefore rests with the members of the state, namely, the people and the voters to elect a new government at an opportune time.

The Rights of the State vs the Rights of the People

The concept of social contracts also appeals to later day philosophers, such as John Rawls (1921-2002). He branded states which violate human rights as “outlaw states” and “benevolent absolutism” and argued that these states should not command mutual respect and toleration from “liberal and decent people”.

Rawls, of course, premised his postulations on the assumptions that human beings are both “reasonable and rational” and that we are reasonable only to the extent that we are able to achieve an end together within a set of specific regulatory principles.

In going about achieving this end, we, as the people, would affirm some fundamentally basic liberties or freedoms, such as “freedom of conscience, expression and association”.

Analysing all the concepts of the states or government versus the rights of the people, as well as the concept of the social contract between the two elements, the question is of course one of the quantity and quality of rights which the people are ready and willing to surrender to the state or government in exchange for the greater societal benefits which may be yielded from the state.

Are there in existence, for example, rights which are so basic and fundamental, which ought not to be surrendered at any cost? Or is the greater good of the state or society a justification for the transgression by the state of the people’s fundamental rights?

Are there rights which are so fundamental to the existence of the people that these rights are universal in nature? Or are there values, cultural, religious or otherwise, which make these rights vary from one society to another?

Mahathir Mohammad and Lee Kuan Yew are perfect examples of the propagator and practitioners of “benevolent absolutism”.

Both share a common perspective towards democracy. Under the guise of “Asian values”, they argued that democracy in Asia, particularly in Malaysia and Singapore, cannot and should not entail the concept of absolute “freedom” as practised in the West. Freedom, according to Mahathir, should be curtailed for the greater good of the country. What Mahathir and his ilk failed to address is the fact that no reasonable citizen of this country would question the curtailment of freedom for the greater good of the nation.

But what is being demanded is that such curtailment must be done in accordance with the law. Such curtailment should not, at any rate, be done without the due process of the law. That basic right is cast, almost in stone, in the Federal Constitution and that is a part of the social contract, if we want to harp on the same.

In truth, the Asian values which were being brandished about by Mahathir and LKY are but a lame excuse for benevolent absolutism. Pure and simple.

Underlying the “agreement” of the people to surrender some of their rights to the State for the greater good of the society as a whole is a system of “check and balance” which is ingrained in our justice and administration system.

Now, what is left to the people if such check and balance mechanism is obliterated by the government? Isn’t that a blatant breach of the social contract?

The point is this. Nobody in their right mind, and that includes me, is questioning the need for a controlled curtailment of some individual rights in favour of an orderly society. I hope I have made that clear.

What is being questioned is the mechanism of such curtailment. It must be done with due process of the law. That is the social contract. It stems from the realisation that the primacy of the individual has to be balanced with the paramountcy of society (to borrow the words of Shashi Tharoor in his excellent dissertation, “Are Human Rights Universal?” appearing in the World Policy Journal).

And, in my opinion, the element which provides the leverage between the two seemingly opposing rights is nothing but the law and justice system.

The Malay Annals (”Sejarah Melayu”) and the Social Contract

Just as the Magna Carta and the Bill of Rights 1689 defined early social contracts between the subjects and the English King or States, the Malays have their own version of a social contract.

This is contained in the Malay Annals, an excellent satirical work by Tun Sri Lanang which consists of and is believed to have been based on facts which were romanticised with folklores.

In it was narrated the story of Sang Utama Sri Tri Buana (the Palembang ruler from whom all Malay royalty claims descent) who, in his quest to rule the people, made a pact with Demang Lebar Daun, who represented the people.

Demang Lebar Daun promised that “the descendants of your humble servants shall be the subjects of your majesty’s throne, but they must be well treated by your descendants. If they offend, they shall not, however grave their offence, be disgraced or reviled with evil words: if their offence is grave, let them be out to death, if that is in accordance with Muslim law”.

To which Sang Utama replied: “I agree to give the undertaking for which you ask, but I in turn require an undertaking from you … that your descendants shall never for the rest of time be disloyal to my descendants, oppress them and behave in an evil way to them.” To which Demang Lebar Daun agreed, “ … but if your descendants depart from the terms of the pact, then so will mine.. subjects shall never be disloyal or treacherous to their rulers, even if their rulers behave cruelly and immorally … and if any ruler puts a single one of his subjects to shame, that shall be a sign that his kingdom shall be destroyed by Almighty God.” (as taken from the Tuah Legend website)

Thus was born the oft-quoted Malay saying, “Raja adil Raja disembah, Raja zalim, Raja disanggah”, which forms the basis of the loyalty of the Malay subjects to their King.

The Hang Jebat rebellion against Sultan Mansur Shah was an illustration of how this social contract was practised.

The Social Contract is Not Cast in Stone

As pointed out above, Locke argues that the social contract is a living document and its terms may be renegotiated as and when the needs arise.

Rawl on the other hand posits that we, as human beings, are reasonable only to the extent that we are able to achieve an end together within a set of specific regulatory principles. Thus, by no means is a social contract an unmovable object. As society evolves, generations and consequently values and cultures change, internal and external dynamics would redefine the society’s priorities and needs.

It follows that the social contract would change and vary in order to achieve newer objectives and ends. Thus in India, we would now see the practice of suttee, where a surviving widow would be burned alongside her husband’s body, being outlawed.

Slavery in the United States and other parts of the world become a practice which is frowned upon. Gay marriages are now permitted, even in Singapore. Such is the power of time and progress.

The Federal Constitution for example, had never contained provisions for the New Economic Policy or a new education policy.

In the aftermath of May 13th 1969 however, the NEP was introduced out of societal necessities as well as, probably, political necessity. Thus a new social contract was born. What about the new education policy, where the English took a back seat, as opposed to the pre-Merdeka policy where a certain degree of emphasis was given to the English language? Wasn’t that a change to the social contract?

The Federal Constitution is, to my mind, the social contract between the people of Malaysia and the State or Government. But it has been amended countless time to suit the needs of the society (although one could present a really substantive argument that it was amended for political expediency on countless occasions).

The Judiciary, for example, in whom was imbued judicial power in the original Federal Constitution (and thus the original social contract), was later deprived of judicial powers save and except provided for by the Parliament through yet another amendment of the Federal Constitution. Wasn’t that a change to our social contract?

Hishamuddin talked about the actions of some parties who dare to belittle our Royal institution. With respect, that is almost hypocrisy. Under the original social contract, the Malay Rulers cannot be sued in any Court. No legal action may be brought against any of the Rulers.

Mahathir Mohammad’s regime amended the Federal Constitution to allow the Rulers to be sued in a special Court.

Many of us would have read the recent suit by a bank against one of the Malay Rulers. Wasn’t that a change to our social contract? How about the necessity for Royal assent to a bill of law before that bill could legally become law? Originally that was the position. But again, the Federal Constitution was amended to do away with such requirement. Wasn’t that yet another change to the social contract?

Hishamuddin and his ilk should realise that nobody is questioning the rights of the Malays and the status of Islam as enshrined in the Federal Constitution. What is being questioned is the implementation of the government’s affirmative policy. There are obvious differences between the two.

In any event, the social contract, as proven above, has been varied and changed on countless occasions, by none other than the BN government itself. Of course, the BN government would argue that those changes were necessary for the betterment of the society as a whole.

Why then, when anybody other than the BN leaders stands up to raise a question on the social contract, or when he or she would even dare to suggest a discussion on, let alone a change to the social contract, he or she would be deemed arrogant, or in Hishamuddin’s own words, “sombong, angkuh dan bongkak”? – Loyarburok

Article by Art Harun.