Wednesday, 31 March 2010

What ‘social contract’ entails

Brave New World (The Star)
1 April 2010

The term has been hijacked by those who choose to invent their own meaning of the expression.


AH ... the social contract — a theory propounded by the philosopher Hobbes where the citizens of a country agrees to give power to a government in exchange for the guarantee of their own civil liberties and rights.
It is a term meant to dictate a type of governance where the needs of a powerful authority are balanced by the protection of citizens from abuse of that power. In this Hobbesian philosophy we find a weapon against tyranny.
But this is not so in Malaysia. The term “social contract” has been hijacked by those who choose to invent their own meaning of the expression. When “social contract” is used on these shores, it means that Malay political power must always hold sway and a state of perpetual pro-Malay economic policies must remain in place and everyone else must keep quiet as their forefathers had agreed to it.
The founders of this country did not have such racialist aspirations when we obtained our independence in 1957. The provisions in the Constitution which provides for the “special position” of the Malays and the natives of Sabah and Sarawak (note there is no such thing as “Malay rights” in our Constitution), were meant as a stop gap measure but not a permanent crutch.
Tun Dr Ismail likened it to a golf handicap where you give the weaker party a boost until he reaches a point where he can play on equal terms. Indeed the time limit initially set was for the affirmative action to last 20 years.
But hey, don’t take my word for it. Allow me to regale you with some quotes that can be found in the Report of the Federation of Malaya Constitutional Commission “… in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed …”
And the people who said this were not the British and their pompous hats. It was the Alliance which in case you have forgotten who they were, consisted of the Malayan In-dian Congress, the Malayan Chinese Association and the United Malay National Organisation. That’s right our great leaders of Umno hoped and dreamt of a Malaya based on equality. And you can see this aspiration reflected in the Constitution. Article 8 guarantees equality except in situations specifically provided for in the Constitution. In other words, if an affirmative action is not specifically allowed for in the Constitution, it is unlawful.
And there are other provisions as well; like Article 136 which states that all government servants must not be discriminated against based on race and creed. So our non-Malay public servants have a Constitutional protection against poor treatment for example in promotions. I don’t see all these “warriors for the social contract” waving placards demanding impartial treatment to all civil servants. Of course not, it would not do to defend the non-Malays, will it?
By the way, it is not only the politicians who wanted a country where there is racial equality, the rulers, our Sultans themselves said that they “... look forward to a time not too remote when it will become possible to eliminate communalism as a force in the political and economic life of the country”.
But in case you think I am making this up, it’s in the report mentioned above on page 71. Check it out yourself.
So the next time some ex-premier, or multi-millionaire Malay, or racist rhetoric politician, go on and on about the “social contract”, please be informed that this kind of self- serving bigoted behaviour was not part of the dream that is independent Malaya. Our founders did not have such base ideals they wanted better, and so should we.

Thursday, 18 March 2010

We need to move with the times

Brave New World (The Star)
18 March, 2010

When Man was lucky to live past 30, starting a family young might have made sense, but with lifespans having expanded many-fold, surely children should not be pressed into the rigours of adulthood


IN THE 19th century, slavery was still legal in many parts of the world. Societies which allowed for this practice often found justification for slavery in the scripture. Neither the Bible nor the Quran specifically disallows slavery.
To be fair, there are verses in both books which might be interpreted to discourage it, but if you are looking for any lines that say “slavery is bad, don’t do it, at all, ever,” well, you are in for a long search.
However, the cruelty of slavery soon became too much for people to endure. Values were changing and what was once deemed normal, became repulsive. This being the case, both Christian and Muslim scholars had to rethink the way they looked at the issue.
Many of the abolitionists at this time were Christians who chose to look at the “spirit” of the Bible, rather than specific verses, to oppose slavery from a religious perspective. Muslim scholars, while accepting that slavery was allowed in principle, concluded that it led to such cruel practices that it was no longer acceptable.
By the beginning of the 20th century, slavery was a thing of the past. Sure, it still happens, it happens today, but it is no longer legal, and stories of its existence are met with outrage.
In other words, values change and societies change with them regardless of earlier practices.
Another example from the 19th century is the age of consent for girls. Up till 1874, the age of consent for girls in England was 12. This was then raised to 13 in 1875. About a decade later, it was raised to 16 where it remains today.
The main proponents for the raising of the age of consent were concerned by the large amount of child prostitution that was occurring. With such a low age of consent, it was easier for young girls to be made prostitutes and harder to prosecute the men who preyed on them.
Today, of course, the concern for the protection of young girls (and boys) has become linked more to their mental and physical well-being.
Child prostitution still occurs, and to see images of broken little children being pawed by lecherous paedophiles is disgusting and disturbing to the extreme. But even without such vile practices, it is still generally accepted that children need to be protected.
If we look at the Islamic idea of what constitutes adulthood and sexual maturity, it is based on two very simple things. For girls, it is when they get their first period and for boys it is when they wake up in the morning feeling confused and with their pyjamas in a mess.
This may have been well and good in the 6th century but, really, times have changed. For one thing, the transition from childhood to adulthood has become much more extended.
Schooling, for example, is no longer a luxury for the wealthy but open to almost every child. The preparation time needed to become a grown-up has become more complex, and therefore children are not expected to jump immediately from childhood to the responsibilities of adulthood.
The need for the human race to procreate has also changed in the sense that there is far less urgency considering that lifespans have been extended significantly. Perhaps in a harsh world where one was lucky to live past 30, it made sense for people to start families as early as physically possible. But surely that is no longer the case.
This brings us to the story of the 11-year-old girl who was married off in Kelantan to a man in his 40s. The fact that it happened is not particularly shocking. This sort of thing occurs. Paedophiles exist. What should be shocking is the apparent “justification” used by the man (and I use the term here loosely), that the girl was “old enough” and their “marriage” was lawful.
The law as it stands does allow for Muslim girls younger than 16 to be married off with special dispensation. I think that it should be changed so that it is not allowed at all for girls under 16 to be married.
I realise that maturity is different from person to person. There are very mature 15-year-old girls who may well be able to handle marriage and child rearing. Just as there are very immature 18-year-old women who can’t. So, the age of 16 may seem arbitrary. However, a line must be drawn somewhere and short of further studies, it may as well remain at 16.
The importance of changing the law is two-fold. The first is to protect all our children in general. The second is to lay down the idea that as a society, we care that our children are given that protection so that they can grow safely and securely into adulthood.
Surely that should be the values we are projecting in this day and age, not some outdated concept from a bygone age.

Friday, 5 March 2010

Understanding three layers of a phenomenon

Brave New World (The Star)
4 March, 2010

To keep changing in a positive manner, we need to view social behaviour from the perspectives of the individual, national institutions and culture.


CHAIWAT Satha-Anand of Mahidol University in Thailand theorises that a societal phenomenon such as violence can be conceptualised in three layers: agent, structure and culture.
Agent is the individual perpetrator; structure is the institutional situation within which the act occurs, and culture is the societal norms that either condemn or condone such acts.
Only by studying all three layers does one come to a complete picture of the phenomenon in question. His study was focused on violence against children in Thailand, and how it appears to be in stark contrast to the perceived idea that the Thais are a peaceful society.
He states that of all the layers, the easiest variable to change is the agent. One can capture the perpetrator and punish him, thus removing him from the equation.
What is harder to change is structure; the laws and institutions that could have an encouraging effect on violent acts, for example, lenient punishments or corrupt judges. Still, it can be done with the requisite political will.
However, the most complex and difficult variable to consider is culture. It is an instinctive and ingrained feature of society which does not have a formalised shape (therefore making any change very hard), yet permeates thinking and attitude.
In his studies, Satha-Anand examines how, in some Thai myths, children are deemed to be property upon which great violence can be carried out for the greater good. Such myths, he suggests, are norm setting and create an attitude which may result in society not taking seriously enough the problem of violence against children.
For real change to occur, one must understand all three layers of a particular phenomenon. He does not suggest that only by fixing all three layers can society fix its problems; it is, after all, possible for a change in structure to have profound effects on agents and culture. But without understanding all three, the process will be flawed due to a lack of depth in understanding.
What I like about his theory is that it is applicable to all sorts of phenomenon, not just violence. Take, for example, corruption and racism.
As a lawyer, my tendency is, of course, to think more along the lines of structure. If there is a problem, lawyers tend to think along the lines of “can we improve the law, can we strengthen the institutions that enforce the law”. This has value but there is also a need to understand the mind-set behind the problem.
For example, I have said before that ultimately the Constitution is a document which has equality, liberty and liberal democracy as its aspiration and ideals. Yet, the way it has been interpreted by the courts appear to fly in the face of such aspirations.
Now, structurally, there appears nothing wrong with the Constitution itself. Neither is there, on the face of it, anything structurally wrong with the judiciary.
I realise the appointment of judges is a contentious issue, but it was not contentious before 1988; and the power of choice given to the executive exists in countries such as the United States without anyone questioning the independence of its Supreme Court.
The answer, therefore, must lie within the cultural milieu of the judges themselves. Ideals such as those I mentioned above do not seem to be part of their ethos any more.
Finding out why would be necessary to effect real change for, otherwise, even if there were a structural adjustment, it would do no good if the agents involved still have the cultural baggage of those from before.
This is, of course, a very narrow illustration. Broader issues can also be examined in the same way, and it is fascinating to look at these phenomenons through the prism of culture as a norm setting variable.
The legend of Hang Tuah is an interesting myth to study. The most renowned aspects of the legend revolve around machismo, fighting, and the concept of loyalty taken to the nth degree. And it is these elements of the legend that are most often alluded to in the behaviour of many in the country, politicians in particular.
But, as social commentator Farish Noor points out, that is only part of the story. The second half of the Hikayat Hang Tuah paints a very different picture of the man.
He is a diplomat, a pluralist, a linguist, and he is multicultural. How different would our situation be if these were the parts of the legend emphasised and these values, not the warlike blindly loyal narrative, had become our norms.
In conclusion, when studying the Malaysian condition, one has to bear in mind all three layers of analysis. And to keep changing in a positive manner, an understanding of all three is needed. All three can be changed.
As pointed out earlier, grappling with agents and structure is relatively simple. Culture, on the other hand, would require space for us to re-examine our norms and to discuss them openly.
In this way new norm setting can take place, either by the re-evaluation of old ones, or even the creation of new, more progressive ones.

Monday, 1 March 2010



As you may know, this blog was kindly set up by Elanor to compile the stuff I write (mainly for the Star). I have recently learnt how to use this new fangled thing called "blog" and now I post the articles myself, saving Elanor the tedium of doing so.

However, this is not really what you would call a real blog in that I don't interact on it. All this time, I just thought it was a handy archive type thing and a convenient place to direct imsomniacs to help them sleep.

But, recently I noticed that people actually read the damned thing and also take the time to comment. I would just like to say here that I am grateful, very grateful, to all of you and I would like to thank you. I may not reply to the comments but rest assured they are all read, considered and enjoyed. Yes, even the "direct selling" ones!



Road to political change

Brave New World (The Star)
February 18, 2010

"Our country needs a two-party system. Not as a panacea to all the nation’s ills, but as an important first step towards a vibrant democracy where there will be greater hope for things to improve."


I READ an interesting article criticising the Penang Government for being too business-friendly. In other words, the Pakatan government is behaving in the same capitalist fashion as the former Barisan Nasional government.
Examples that were used included the continued development of hillside land.
A similar complaint has been made against the Selangor Government which has apparently softened its outright ban on hillside development.
The writer of the article claims that this is because of the powerful business lobby, namely the developers lobby.
He may very well have a point, but one line struck me.
He said that this kind of behaviour by Pakatan suggests that a two party-system makes little or no difference.
After all, what is the point of having one bunch of capitalist to replace another? Shouldn’t we have a real choice with truly different parties and different ideologies?
To be fair to Pakatan, even if they are closet capitalists, they do have a different stance than Barisan and that is their non-race-based policy. To me, that is a pretty big and important difference.
However, that is still besides the point. A proper two-party system, where one group can actually lose and be replaced by another is, like I stated earlier, merely a first step.
Only with the real fear of being booted out of office can any change occur. And by change, I do not mean necessarily that suddenly we change from a capitalist state to a socialist one.
I mean the little changes which are needed to give people a real choice.
We desperately need a free press, for example. Newspapers that are free to provide an alternative view.
Therefore, the Printing Presses and Publications Act needs to go.
I realise that even without this law, a newspaper would still be bound by the wishes of its owner. But at least without this law anyone can start a newspaper and the people will have a choice.
And it is only with free and open discussion can there be other developments, for example the dissemination of different economic ideologies.
So, if you want the people to have a less capitalistic viewpoint, they have first to be exposed to that viewpoint.
Another law that has to be amended or done away with is the Societies Act.
If this was done, anyone can establish a political party. There will be many useless little ones, of course, but a few may survive and even if they are small they could still be influential.
In most democracies, the harsh realities of politics usually mean that two parties tend to be dominant.
But if we look at some of these countries we also see the possibility of a third party, perhaps with little chance of actually taking power but with enough clout to be influential, for example the Green Party of Germany with their eco-message.
Furthermore, with the necessary changes in place, a most vital third force in politics will be able to come into play — civil society.
Politicians are politicians and as such they will always be bound by several things.
Their party line is one but also their unquenchable thirst to hang on to power.
It is up to civil society, therefore, to keep them honest and in order to do this, they need the freedom to associate and the freedom to express — things which can’t be done properly with the two laws mentioned above.
These changes I mention are relatively small, but they will not occur if there is no change of government, because the laws I mention maintain the status quo.
Why would the wielders of power want to change the status quo?
It is for this reason that we need to have a viable two-party system. It won’t be a magic bullet, just to change one government with another, but it would be the start for real change to occur.