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ILKAP National Law Conference 2014: "Law and Social Order: Current Challenges In Malaysia" Part I

Bismillahir Rahmanir Rahim, Assalamualaikum,

Salam Sejahtera and Salam 1Malaysia.

YB Dato' Senator Paul Low,



PEGUAM Negara, Tan Sri Abdul Gani Patail menyampaikan ucaptama pada Persidangan Undang-undang Kebangsaan yang bertemakan "Law and Social Order: Current Challenges in Malaysia" anjuran Institut Latihan Kehakiman dan Perundangan (ILKAP) di Pusat Konvensyen Antarabangsa Putrajaya (PICC) di Putrajaya. - Foto Ahmad Irham Mohd Noor

Minister in the Prime Minister's Department,

YBhg. Datuk Solicitor General of Malaysia and

Datuk-Datuk Deputy Solicitors General,

Chief Registrar of the Federal Court,

Deans of Universities,

Director of the Legal Affairs Division, Prime Minister's Department,

Madam Lee Lay Choo,

Director of the Judicial and Legal Training Institute (ILKAP),

Distinguished guests,

Ladies and gentlemen.

INTRODUCTION

Allow me to begin by congratulating the Judicial and Legal Training Institute (ILKAP) on the organization of the 2014 edition of the ILKAP National Law Conference. The hard work put in by the ILKAP officers and staff to organize this annual event is indeed greatly appreciated.

The selected theme, "Law and Social Order: Current Challenges in Malaysia", seems particularly appropriate for this year. This forum and its theme are also in line with my Chambers mission of community outreach to promote better understanding of current legal issues. Given that law and social order affects each and every one of us, it is hoped that the broad-based sessions designed for this forum will be optimized by the participants for intellectual discourse and to explore possible solutions to the challenges we face today.

OVERVIEW

I should like to begin with a word on the topic assigned to me today,

"Current Challenges in Preserving Social Order and National Harmony - A Critical Note". The Concise Oxford Dictionary defines the verb

"preserve" to mean either "maintain in its original or existing state" or "to keep safe from harm or injury". As both "social order" and "national harmony" are living, evolving concepts, it would be difficult to advocate "freezing" their development. But we can strive to "safeguard" them for current and future generations, if we think they are worth keeping.

Ladies and gentlemen.

It should be recognized from the outset that it is not for any government or body to strive to "preserve" social order or national harmony. These are matters which must evolve with the citizenry. But supposing the people do choose to undertake this task. The first question that arises would be which timeline should we use as the baseline? Should we

"preserve" social order and national harmony as we have it today or as they existed on Malaysia Day or when the Rukun Negara was crystalized in 1970?

The second question would be what are we supposed to be preserving.

What do we mean by "social order" and "national harmony"? Do each of us understand these terms in the same way? Or do we each interpret them for our own convenience and purposes and to our own individual liking?

As Ludwig Wittgenstein recognized in his "Philosophical Investigations

(1953)", "We see the world the way we do, not because that is the way it is, but because we have these ways of seeing." The fact is that determining what the terms "social order" is and "national harmony" means is like viewing a picture through a kaleidoscope. They will appear as constantly changing patterns.

In terms of "social order", it is generally accepted from legal studies that societies construct a sense of social order that is specific to them. As a part of this broad process, they develop a collective legal consciousness.

However in the context of Malaysia and the topic this morning, "social order" will be confined to the social order created by the social contract enshrined in the Federal Constitution and recorded in the related constitutional documents. These include the "Report of the Federation of Malaya Constitutional Commission, 1956-1957" (also known as the Reid Commission Report), the "Constitutional Proposals for the Federation of Malaya" (White Paper, June 1957), the "Report of the Commission of Enquiry, North Borneo and Sarawak" (also known as the Cobbold Commission Report, 21 June 1962), and the "Malaysia Report of the Inter-Governmental Committee 1962" (also known as the Lansdowne Committee Report).

This is the social contract entered into by the people of Malaysia upon Independence and Malaysia Day. This social order and social contract is the vehicle by which our constitutional forefathers sought to ensure the inculcation and preservation of economic prosperity and national unity and harmony for the peoples of Malaysia. It is therefore in this limited context that this Keynote Address will seek to address the challenges to the preservation of social order and national harmony.

Ladies and gentlemen,

WHAT WAS

Confucious said, "Study the past, if you would divine the future".

Edmund Burke also tells us that, "Those who don't know history are destined to repeat it."

The fact is that the seeds of the challenges to social order and national harmony faced today and for the foreseeable future were planted a long time ago. To understand these challenges and our options to overcome them, we must first appreciate the evolution of social order and national harmony in Malaysia.

From British rule to Independence

Open any history book on Malaysia and it will recount that Malaysia's communal approach to politics and social and economic structure today is the legacy of the British system of governance in Malaya. It has its genesis in the segregation of ethnic migrant workers according to sectors of work. When the general Malay population refused to work with the British in the tin mines and rubber plantations, the two most important and profitable exports of the country in the late 19th century, the British encouraged the immigration of labourers from China and India to work in these sectors as well as in public infrastructure works, rails and roads. This then concentrated the Chinese population in the main cities and towns while the Indians lived in rubber estates. The Malays stayed mainly in the rural areas and concentrated on the agricultural and fishing sectors.

The British were not interested in integration and instead encouraged the Chinese and Indian immigrants continued loyalty to their respective homeland. As a collorary to the foreign workers Malaysia depends on today, Malaya was only to be considered "tanah tumpahnya peluhku" - the land where I toil for wealth without more. But when China fell to the communists and India was wrecked with poverty, the Chinese and Indian immigrant workers decided they should stay permanently for a better future.

Then the Japanese attacked Malaya and World War II broke out. As they say, war is the great equalizer. Under British stewardship, the inhabitants fought as one to save Malaya, fighting guerilla wars in the jungles until the Japanese were finally defeated at Hiroshima and Nagasaki.

But polarization would resurface in an even more detrimental form after the Second World War. From its early beginnings in the 1920's, the Malayan Communist Party (MCP) worked through Chinese schools and youth organizations. In fighting its guerrilla war and war of attrition against the British and later Malayan governments from 1948 to 1960, the MCP would recruit and exploit its Chinese connections while the security forces were predominantly Malay and Indian.

The preventive actions taken to fight the communists such as the establishment of New Villages under the Briggs' Plan would contribute to further communalist fervor and racial polarization. The authorities missed the opportunity of bringing the various ethnic groups together during the major resettlement exercises.

More than 400 resettlement villages were created and in the process some half-million persons were removed from isolated rural locations to compact and guarded settlements. New villagers were predominantly Chinese and agriculture was their primary employment. The Malay elements consisted of the families of polis constables who were posted for security purposes.

Throughout the insurgency, Malays remained mostly in the kampongs while the Indians were mostly in the various rubber plantations.3 The British tried to win the hearts and minds of the internees by providing them with land, education and health services, hoping to convert "reservoirs of resentment into bastions of loyal Malayan citizenry".

However when the new villages were established as electoral constituencies, it further delineated politics along racial lines.

1957 - 1969

With the heritage of such British policies, it comes as no surprise that at Independence on 31 August 1957, there was marked disparity among the races in the economic, education and other sectors. From an economic perspective, Malays had no capital wealth and their participation in the modern economy was almost non-existent, even among the Malay aristocratic class. The Chinese had become the main participant in the economic and commercial sectors while the majority of Malays remained in the rural areas. The lucrative modern industries and services sectors remained Euro-centric. Poverty, especially among the Malays, was widespread and the income inequalities between the races a matter of serious concern for the new, young government.

This was therefore the reason for the creation of the "social contract". It is the principle of achieving balance that underpins the relevant provisions in the Federal Constitution. This noble intention of the drafters and founding fathers is clearly recorded in the General Introduction to the Reid Commission Report. The relevant extracts of paragraphs 14, 15 and 18 read as follows:

"14. In making our recommendations we have had constantly in mind two objectives; first that there must be the fullest opportunity for the growth of a united, free and democratic nation, and secondly that there must be every facility for the development of the resources of the country and the maintenance and improvement of the standard of living of the people. These objectives can only be achieved by the action of the people themselves: our task is to provide the framework most appropriate for their achievement. We must start from the present position as we find it, taking account not only of the history and tradition of Malaya but also of existing social and economic conditions. Much that is good has already been achieved and we would not seek to undo what has been done. But many existing arrangements are inappropriate for a self-governing and independent country, and, in recommending the form which the necessary political and administrative changes should take, we have borne in mind that the new provisions must be both practicable in existing circumstances and fair to all sections of the community.

15. Approaching our task in this way we think it essential that there should be a strong central Government with a common nationality for the whole Federation. Moreover we think it also essential that the States and Settlements should enjoy a measure of autonomy and that Their Highnesses the Rulers should be constitutional Rulers of their respective States with appropriate provisions safeguarding their position and prestige.

We have made provision for a new constitutional Head of State for the Federation and for the Settlements becoming States in the new Federation. We have adopted without substantial change proposals for the acquisition of citizenship of the Federation which have been agreed by the main parties representing all races. We recognize the need for safeguarding the special position of the Malays in a manner consistent with the legitimate interests of other communities, and we have given particular consideration to this need. We have framed our recommendations on the basis that Malaya will remain within the Commonwealth and we have found general agreement on this matter.

16. ....

17. ....

18. In drafting the Constitution we have had to consider a very large number of questions. Many of these questions have been the subject of representations formal and informal from various organizations and individuals. In reaching our decisions on them we have tried to give full weight to the various views expressed to us and we shall give our reasons for making these decisions. ...".

[Emphasis added]

Almarhum Sultan Azlan Shah succinctly narrated this historical background to the social contract in his opening speech at the 12th Malaysian Law Conference in 2003 as follows:

"We embarked on a journey as a constitutional democracy with the full realization that we were a multi-racial people with different languages, cultures and religion. Our inherent differences had to be accommodated into a constitutional framework that recognised the traditional features of Malay society with the Sultanate system at the apex as a distinct feature of the Malaysian Constitution.

Thus there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminster model and built it into the traditional features of Malay society.

This Constitution reflected a social contract between the multi-racial peoples of our country. Thus matters of citizenship for the non-Malays, the Malay language, and special privileges for the Malays and the indigenous peoples of Malaysia were safeguarded and given the added protection of requiring the consent of the Conference of Rulers before change could be effected to them."

"It is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm to which all the other laws are subject. This essential feature of the Federal Constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever enures to the Malaysian people as a whole, for their benefit."

In this regard, the value of the "social contract" elements we have inherited should never be underestimated or undermined. It must be appreciated that these elements in the Federal Constitution were engineered by the Alliance in consultation with the Malay Rulers as the best solution to protect the interest of the groups concerned. This in particular includes the trade-off between the granting of citizenship for the Chinese and Indian migrants for recognition of the special Malay rights. Similarly the protections for the customary aboriginal rights of the indigenous peoples consciously entrenched in the Federal Constitution.

For the States, the sacrifice of their sovereignty was set-off by retention of certain economic rights. Thus the relevant provisions of the Federal Constitution reflect the difficult compromises and sacrifices made by the component States as well as the various peoples of Malaysia.

As in the Australian constitutional approach, it should also be recognized that there are two sides to the coin - the guarantees afforded to one group would be seen from the other groups' perspective as a restriction or prohibition on their rights, even though there may be no actual detriment or loss; merely the perception of deprivation. In other words, affirmative action is recognized and is being implemented in other countries as well. It also acknowledges that what is given to one group is often seen as deprivation to another side even if it may not be so. In most cases it is actually more a matter of imagination.

Tags: law, undang-undang
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