If independence means freedom, why can we not enjoy our freedom as individuals, like the bird freely flying in the sky? What binds us together as a nation? The term social contract naturally comes into mind, a word becoming as sacred as Independence itself, and any non-conformist interpretation seems to invite witch-hunting of blasphemy.

The contractarian view of societial affairs can perhaps be traced back to Plato's Republic but the modern articulations of 'social contract' are commonly associated with three philosophers: Thomas Hobbes (1588-1679), John Locke (1634-1704 and Jean-Jacques Rousseau, (1712-1778).
Hobbes who witnessed the England's Civil War believed that the state of nature in the absence of government is 'the war of all against war' where life is inevitably 'solitary, poor, nasty, brutish, and short."

Therefore, individuals form society and cede the rights to a powerful sovereign (Leviathan) and a good government may solve the problems due to the negative nature of human beings.

Locke who wrote his treatise on civil government around the time of England's Glorious Revolution has a much more critical view of government. To him, a government enjoys unlimited power is bound to abuse the power. Hence, individuals enter a social contract for the formation of a government only to advance their common interest. The government should not violate the natural rights of people and could be modified or abolished by the people when necessary.

About seven decades later in France, Rousseau proposed the concept of 'general will' in "the social contract", where the rights are not fixed or 'natural' but rather corresponding with the responsibilities. More responsibilities come with more rights, and vice versa. The rights and responsibilities of individuals hence form the terms of the social contract, and the state the instrument created for its enforcement.

Hobbes, Locke and Rousseau respectively represented or influenced the conservative, liberal and socialist political views. But the concepts of social contract they talked about are all about the vertical relations between individuals and the state, or by extension, any groups. The major difference between Hobbes and the other two is he did not stress the consent of the ruled.

Nevertheless, the contract is still not one on horizontal relations between equal or similar-standing parties. To give a commercial comparison, the social contract resembles the contract between the shareholders and the companies they collectively form, rather than that between partners in partnership.

It is important to note that the relationship between the ruler and the ruled is not one concern exclusively Western. Any society that fails to address the issue is condemned to tyranny, corruption and decline.

In the Malay world itself, there were the legendary pledges between Demang Lebar Daun and his king Sang Sapurba long before the Western philosophers, detailed in the Sejarah Melayu (1612). One may argue that Hang Jebat who cried "raja zalim raja disanggah" in Malacca was but a pioneering Lockean in action two centuries before the philosopher himself.

Contracting parties in 1955

The popularly understood Malaysian version of 'social contract' significantly differs from the original notions in two aspects: the contracting parties and the terms of contract.
The contracting parties were horizontally situated ethnic groups, no longer vertically positioned individuals and the collective.

Unless someone can offer us a horizontal theorisation of social contract, then any application of the concept would eventually need to move down to, eventually, one level where the relationship is vertical. In other words, if there is one contract between ethnic groups, then following the Lockean or Rousseauan logic, there must be one contract within the ethnic groups, between the group members and the group leadership.

The question is therefore: can Malays, Chinese and Indians as groups enter into contracts? They certainly could do so up to the 19th century when Malays were represented by the chiefs and the Chinese and Indians by capitans. The ethnic communities exist as a political community with clear authority. Even on the eve of Independence, the Malays could arguably still be represented by the Sultans as they are their royal highnesses' subjects.

However, when we talked about the inter-communal social contract, are we not referring to the compromise between Umno, MCA and MIC, who were arguably mandated by the 51-out-of-52-seats landslide in the 1955 home rule election?

Were Umno, MCA and MIC equal to Malays, Chinese and Indians respectively that these parties entering the contracts means the communities they claimed to represent did so?
What happened to the 20 percent voters who had chosen PAS (then PMIP), Parti Negara, Labour Party, PPP, National Association of Perak and Perak Malay Leagues or to cast a spoiled vote? Were these 21,000 voters a fourth ethnic group excluded from the social contract?

There would be no much problem for Umno, MCA and MIC's ethnic claim if there were then communal electoral rolls as in Fiji or Bosnia-Herzegovina today. Such arrangements would mean an explicit recognition of Malayans as members of three groups but there was, rightly, not.

Under the geographical constituency electoral system, Umno certainly had enjoyed Chinese and Indian support, and similar were true for MCA and MIC. This very fact of vote-pooling, which Alliance and BN has rightly boasted since then, is the exact testimony to non-existence of a formally defined Malay, Chinese or Indian blocs, no matter how communal they might have voted.

In other words, if the 1955 landslide of Alliance which led to the Independence negotiation was the basis for the so-called inter-communal social contract, then the contracting parties were not three ethnic groups, but 1.24 million registered voters or the one million who had voted.

While they might be Malay, Chinese, Indian, Siam, Portuguese, Eurasian, Orang Asli or others in heritage, they all entered the social contract collectively as one party: the citizens of the Federation of Malaya (Perseketuan Tanah Melayu). The other party is the state of the Federation of Malaya.

Terms of contract

That the social contract is between the citizens and the state, the terms are clearly about the citizens' duties and rights, as Rousseau would have reminded us. In such cases, the social contract must not be narrowed down to Articles 3 (the religion of the federation), 14-31 (citizenship), 152 (national language), 153 (the special positions of the Malays and bumiputeras).

The whole constitution is our social contract, including the essential provisions on basic liberties such as Articles 5 (personal liberty), 8 (equality), 9 (prohibition of banishments and freedom of movement), 10 (freedom of speech, assembly and association), 11 (freedom of religion), 12 (rights in respect of education), 13 (rights to property), as well as Part VIII (election) and Part IX (judiciary).

We must also bear in mind, that this contract has not been frozen since 1955. Since the contracting parties are the citizenry (represented by the electorate) and the state, it has been renewed as many as 12 times. Its terms have gone through an amazing number of amendments, large and small, about 700 times. Suggesting any changes to the social contract is not a sin. In fact, it is a right. All it matters is whether the amendment has gone through due process. And the freedom to discuss about necessary and possible amendments is indeed part of the social contract itself, as enshrined in Article 10 for freedom of expression.

The discourse of a group-based social contract, rather than one between the citizens and the state, is partisan to say the least. It builds on the pseudo fact that Umno = Malays, MCA = Chinese and MIC = Indians, and by extension surrender any revision power to these three parties (read: Umno). It is therefore ironical to read occasionally opposition supporters shouting unwittingly in defence of these party-community equations.

Detrimental effects

Its most detrimental effects are much severe. On one hand, by falsely making the ethnic groups as contracting parties, it posits the inevitability and inherence of inter-ethnic conflicts. In fact, it implies three quasi-nations in the beginning. Is it any wonder that after 48 years of Independence, the Malaysian identity is still missing?

On the other hand, it downplays the natural threat of state power to citizen's liberty, sometimes even selling the malicious idea of controlling the state to suppress other fellow citizens. Can there be greater damage to national unity or patriotism?

In the wake of the nation's 48th anniversary of Independence and 42nd anniversary of formation, we must reclaim a correct understanding and complete reference to the social contract. Firstly, there is no such thing as inter-ethnic contracts, the first contracting parties were the 1955 electorate and the Federation of Malaya. Secondly, the social contract must be read holistically, next time when we oppose ISA, OSA, PPPA, UUCA, or when we call for clean election and independent judiciary, we must not leave out in our slogans: "Uphold the social contract!"

Lastly, we need to enhance our appreciation of liberalism and constitutionalism. Who has the inherent interest conflict with all Malaysian citizens? The answer is the Malaysian state, whoever in power. Efforts in promoting national integration all these while have routinely stressed harmony and usually avoid the conflict between the state and the citizens. Perhaps, the true path to build the nation is to struggle for more freedoms from the state, and construct a pluralist order that none should be oppressed by anyone.

England has only been stronger after the Glorious Revolution. Whereas in the North American colonies, Thomas Paine (1737-1809) has long stated his insight before the independence, "Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one." Would we be that independent one day?

WONG CHIN HUAT reads comparative democratisation in Essex, United Kingdom. He co-authored the declaration "People are the Boss" in 1999. In 2001, he joined the Writers' Alliance for Media Independence (Wami) after the MCA takeover of Nanyang Press.