Parts 1 and 2 of this analysis discuss the great prominence and peculiar prestige and authority that “the law” and expertise in it have acquired in modern Malaysia as a result of the paucity other powerful forms of social and professional “discourse” that usually accompany it, and may at times “steal a little of its limelight”, in other cognate and comparable societies.
Law: the only discourse?
Law is, of course, a very powerful and central discourse in contemporary Malaysia.
But it is not alone, not the only one.
People encounter daily other very powerful forms of discourse.
The discourse of governance, for example.
Embedded in everyday language and from it injected into routine popular understanding (or “everyday consciousness”) a powerful view is to be found concerning the nature and proper making of public policy, of carrying out the central task of national development.
Briefly summarised (or encapsulated in a caricature), that deeply entrenched view and its presuppositions go something like this:
Questions of public policy and national development are not to be shaped and explored through open, wide-ranging public debate. Rather, the devising of such policies and the determination of the national direction that they are to serve are the exclusive province and work of a special group, of the national political elite. It is they, alone, who ponder and decide these things, and then, when they have decided, they will tell people about them. They will tell people about what the government has resolved, what it will do, how it intends to proceed, what objectives it has set for itself and how it intends to pursue them.
And as the national elite does so, there is no real question even among them, no uncertainty and no “back-to-basics” debate (so far as one can tell!), about the overall direction of what is to be done, what national development is and might mean, and what kinds of varying approaches might best accord with differing development strategies.
They, the politicians together with their technocratic experts, especially economists and economics-trained policy analysts, do not continually raise, or return to, fundamental questions of where the nation should be headed and by what central developmental logic.
They simply carry on as before, “getting on with each day’s work”, continuing to do what they have been and are used to doing.
A key indicator to, or clue about, this attitude or “mind-set” is to be found in the frequent, and at times even obsessively recurrent, use during Malaysia’s moments of high technocratic enthusiasm of the word “mengenal pasti”. Politicians and development planners are constantly to be heard happily declaring that something has been “dikenal pasti (meaning “has been identified”) as the right thing to do in some situation.
What does the word mean? More, what further sense does it implicitly convey?
The word, and habitual recourse to it, do not suggest that, when approaching some new area or zone of activity, one’s routine habit is to ask about and consider all its possible uses and all the various ways in which those purposes might be achieved.
It assumes, instead, that the world “out there” upon which politicians and technocrats cast their gaze and then act is provided, by its own inner nature, with some definite, given, natural purpose. So, in any instance, the proper purpose of something is there, out there in the thing itself that is of current policy-political interest; so you don’t have to probe and ponder things more broadly or deeply. The only policy challenge is to find and “identify” what its predetermined proper use is.
It is a huge step –– but one that, behind the semantic fa├зade of the word mengenal pasti, is almost imperceptible –– to move from a mind-set in which one probes and considers the available possibilities and then, based upon one’s own priorities, determines which one of them is to be preferred and adopted to a different mind-set: one which assumes that everything by its own nature has single, proper, pre-designed purpose which must be discovered and which, thankfully, the government through its experts can be relied upon to determine and select.
Once one adopts the latter mind-set, political leaders and technocrats (as they address the citizens whose compliance they seek) need not anguish too long working out what best they should do from among all the broad range of different things that might be done. Their task is simply to “kenal pasti”, or identify, the purpose and use that some area of land, for example (or a virtual space for some policy initiative) is by its own nature distinctively “pre-adapted” and predetermined to serve.
This is a powerful discourse of non-consultative elite “decisionism”. The elite and their experts decide, that is their job and nobody else’s. In due course, when they have decided, people will be told, as and when they need to know: but not anything more, and not a moment sooner, than the decision-makers and experts deem fit.
This is a powerful discourse, one that is frequently, even constantly, encountered in daily life. But it is hardly an edifying one. It is not one that “meshes” readily with notions of democratic citizenship and citizen participation in the exploration of common, public issues.
Law, a contested discourse
Now that we have brought government and “governance discourse” into the picture, we may take the next step. We can return to consider further “the law”.
Law in Malaysia is a dominant but deeply contested discourse.
It is, perhaps centrally, the zone and instrument of commercial activity, of business contestation, accommodation and reconciliation.
But “the discourse of the law” is also the zone and space of other key public actors such as the Bar Council, human rights and public interest activists, public constitutionalists and all manner of civil society groups.
More, the law also, and at its core, is the province of government. It not just that it is government that makes the law, through the legislature, and then enforces the law as it sees fit.
Government is also centrally concerned to project and consolidate itself through the law: through the courts, which it provides and co-ordinates; through major appeals to those courts for authoritative determination of contested issues, often between it and its political and other adversaries; through the Attorney-General’s Department, especially in its powerful role as the central agency of public prosecution. And so much more.
So, as a form of social discourse –– as a discourse about society and social issues, especially contested or novel social issues –– the law looms large, without much competition from any alternative or rival forms of social discourse.
It is what, almost instinctively and certainly by deeply-ingrained habits of thought, people turn to first when a problem presents itself.
Yet, despite or perhaps because of its central and dominant discursive and political position, it is an inherently and deeply contested form of discourse.
It is contested both internally –– among all the key players and interests noted above, from Bar Council to government, to public interest and human rights activists, and many more –– and also externally.
It is subject to challenge from, and through recourse including official and also less formal government recourse to, two other powerful forms of public discourse.
These, of course, are the discourse of Islam and the discourse of Malay culture, identity, received history and nationalism.
Discursive challenge and competition
There is much to be said about these two other discursive forms and the challenges that are mounted through them. There is much to be said, and it often is. On a continuing daily basis, and by so many people.
The concern of the remaining discussion here is not to provide any comprehensive or definitive overview of that nationally fateful “discursive clash” and of the interest-based politics that drive it.
Here my purpose is only to highlight certain aspects of that confrontation, in the context of my main argument about the attenuation, limitation, narrowing and even poverty of discursive life in contemporary Malaysia.
The “discourse of the law”, meaning the derivatively English Common Law tradition, in Malaysia is, as noted above, very largely a technology, an array of pragmatically useful techniques, a repertoire of instrumentalist applications of useful legal concepts.
This, as further noted, is also to a large extent the case elsewhere, but not to the same extent.
In Malaysia the attenuation or lack of any discernible philosophical, jurisprudential or intellectual aspect to law and legal research –– a presence that might provide some counterbalance to, or even slight or token mitigation of, that overwhelmingly pragmatic orientation to national legal life and culture –– is noteworthy.
(One obvious aspect or tell-tale sign of this is the absence of any broadly-based, prominently visible and publicly accessible Law Reform Commission as a continuing statutory body, which is typically the case in other “jurisdictions” where the practical lawyers and retired judges of the government system are brought into serious, often fruitful, dialogue and intellectual conversation with a broad range of more detached legal thinkers and jurisprudential scholars. Instead, in Malaysia, the already overburdened Attorney-General’s Department seems to do much of this work “in-house”, with some selected input from a narrowly-defined source of academic legal scholarship, namely from the International Islamic University’s Law Faculty, under a sort of exclusive contract.)
Now consider this situation in relation to the rival discourse of the Shari’ah law tradition and the challenge that it poses, and is posed through it, in Malaysia to the established “discourse of the law”.
What is notable, and obvious from the outset, is that here the situation is largely reversed. The Shari’ah tradition, its exponents and champions do not lack any stockpile of meta-legal, jurisprudential, or philosophically elaborated thinking about their law and its purposes. With all that they are amply provided, in profusion.
Their shortfall and struggle is a different one.
It is the struggle to make that repertoire of ideas, and that legal tradition and its idea of a legal system, practically applicable and operational. To make it real.
The Shari’ah law tradition and its courts have a certain, long-standing status in Malaysia, in relation to the personal status and related matters of Muslims. This seemingly simple statement begs, of course, the question of who are Muslims, and who the Shari’ah courts may accordingly deem to be, and place, under their jurisdiction.
But beyond that, its scope is uncertain, increasingly uncertain. Uncertain because of some determined and powerfully backed attempts that are being made to extend the reach of the Shari’ah law, its courts and other instrumentalities beyond simply the personal family status of Muslims and the like.
There are more far-reaching ambitions, but can they be realised? Can state enactments affirming the status of Islam seek to bind, control and regulate, as is now being attempted in Selangor, the religious life of non-Muslims, on the grounds that certain non-Muslim practices may cause disquiet to Muslims and to how they understand their own faith?
That is the kind of issue that, not only in Selangor but more widely and with growing frequency, is these days being explored and tested.
Questions about the standing of the Shari’ah legal system, its courts and prosecutorial authorities are being tested in ways, and by measures, that many consider unwarranted, an unjustifiable and unconscionable overreach.
There is no scarcity of “Shari’ah-minded” initiatives to consider here: the seizure of Christian bibles in the Malay language; the at times defiant reluctance of those involved in these seizures to heed duly issued orders or advice to return those books to the church groups that own them; attempts to prosecute booksellers for selling internationally well-known titles whose authors’ views the religious authorities consider unacceptable or a threat to the foundations of correct Islamic doctrine; attempts to justify the non–consensual conversion of minors from other faiths to Islam, meaning without the consent of both parents, non-Muslim and Muslim alike, and the ensuing refusal of the head of the national police force to implement a civil court order requiring the absconding Muslim father to return a converted child to that court’s care, on the grounds that he and his force were caught in a conflict of laws, between two legal systems, and that they should not be required to uphold the orders of the civil courts against the opposition of the Shari’ah authorities and their supporters; attempts, in apparent contravention of demarcation lines of state and federal jurisdiction, and even in ways that are arguably ultra vires of the Federal Constitution itself, to take action in Kedah towards the prosecution of a well-known author and controversialist for views that he had expressed (under powerful patronage and protection) in the national capital, Putrajaya. And much more.
One notable feature of some of these confrontations has been that, when presented with a clear order from the Common Law or civil courts, leading officials and significant personnel of the Shari’ah legal establishment have chosen (again, with some powerful backing, one must assume) simply to ignore such orders.
“They just do not understand!” some of their critics –– all too naively, I suggest –– complain.
They understand very well exactly what they are doing, I fear, and what their action signals and communicates. Their defiance is stark but of a quietly understated eloquence. By simply refusing to heed such legal orders, they are not just saying that they do not like the Common Law tradition and its courts, that they do not accept or respect the basis of their formal orders. They are saying that they simply do not consider themselves bound by the law, by that part or aspect of the nation’s legal system.
The implications of their taking this stance –– like those of the Inspector-General of Police in opting not to enforce duly issued civil court orders –– are ominous.
This is a challenge. It is not one that will be easily resolved. Things do not seem to be progressing in any way towards resolution, towards any clarification of jurisdictions and lines of authority.
And further: once again (now driven by the federal government, not as in the past by the Islamist opposition) the issue has been raised, debate is being initiated, and serious expert commissions are being established to consider and promote the implementation of some parts of the Shari’ah law’s criminal provisions, namely the so-called hudud punishments including amputation of the limbs of thieves and the stoning of adulterers and fornicators, in Malaysia –– or certain parts of it.
Overall this, some would say, is not just a political clash, a clash of rival wills and palpable interests. It is a clash, a stark antagonism and confrontation, of contending legal traditions or “discourses”. Of opposed discourses as ways or forms in which power may be generated, fashioned and projected in the mundane, everyday world.
(To be continued in Part 3. Part 1 is avilable HERE.)