Parts 1 and 2 of this analysis discussed 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.
Parts 3 and 4 highlight the vulnerability to which “the discourse of the law and constitutional legality” is also, at the same time, exposed by this same lack of intellectual diversity: by the absence of other forms of persuasive, prestigious and empowering discourse that might both undergird the strength of “the discourse of the law” yet also challenge, provoke and at times rival it. As a consequence, in other words, of the “discourse impoverishment” of public culture in contemporary Malaysia.
A second discursive challenge
The already beleaguered “discourse of the law”, with its commitment to grounded legality and constitutionalism, faces a second powerful challenge at this time: from the discourse of Malay culture, history and identity and its now adamant champions. From the powerfully promoted agenda of Ketuanan Melayu.
There is no need for me to dwell at length here upon this challenge. I have often written already about the origins, purpose and political career of the concept Ketuanan Melayu. I have analysed the challenge to democratic constitutionalism that the ideas of the Ketuanan Melayu movement, and its grounding in “the discourse of Malay culture, identity and history”, pose.
Without going into any details, the “bottom line” here is this: that the ideology of Ketuanan Melayu seeks to set aside the liberal democratic understanding of the Federal Constitution and to replace it with one that is grounded in an exclusionary “blood and soil” version of Malay nationalism.
It is basically concerned to rewrite the Federal Constitution, to “retrofit” its own preferred ideas and vision of Malay political primacy and ascendancy to a founding national constitution, a solemnly negotiated “social contract”, whose ideas and presuppositions were very different. It pursues this objective not so much by formal action in the courts, through the formal judicial determination, or through parliament, through deliberative interpretation by the people’s assembled representatives, but simply by populist fiat.
With powerful official and quasi-official backing, their radically revisionist position is simply announced, but repeatedly, without any serious possibilities of being thoughtfully considered and then contested. Authoritative media management makes sure of that.
In the end heresy becomes received truth, the “operative national doctrine” with which nobody may disagree. In other words, this heretical new doctrine of the Malaysian state as an essentially Malay project, possession and birthright is ultimately sustained and upheld by the implicit threat of popular Malay displeasure, anger and outrage, that is to say, powerfully supported and carefully managed populist intimidation.
The bottom line here is that, as they promote their cause, the partisans of Ketuanan Melayu loudly proclaim their loyalty to the Constitution, even as they totally violate its foundational understandings. The partisans of Ketuanan Melayu hold to very different basic principles than does the Constitution itself.
The Constitution is, by self-declaration, the supreme law of the land, the basis of all legality and of the state as a sovereign entity. The nation’s constitution is the people’s constitution, the common possession of all of its citizens alike.
The Ketuanan Melayu ideologues, in contrast, insist that the basis of the Malaysian state, and of national sovereignty, lies not with the Constitution –– even though they try to “retrofit” their own exclusionary preconceptions to it and write them into it –– but in Malay history: in the unbroken continuity (as they see it) of Malay political life since the time of the Melaka Sultanate, and ultimately, if one is looking for the precise lineaments and “connective tissue” of that historic continuity –– from pre-colonial and through colonial times until the present –– in the daulat and then kedaulatan (the traditional sacred aura of royalty, now “glossed” and re-read as “sovereignty” in the modern jurisprudential sense) of the Malay rulers of the various peninsular Malay states.
Working in tandem
No more detailed analysis of the Ketuanan Melayu challenge, of the now very assertive “discourse of Malay history and culture and identity”, is needed here.
For the purposes of this present analysis, one needs only to note that these two rival discourses to the “discourse of the law and of constitutional legalism”, work together, in tandem.
How they together operate may vary from context to context, issue to issue.
But their overall relationship, as a basis of concerted political action, is clear.
While it is sincerely upheld and supported in its own terms, for its own sacred sake, by many of its loyalists, the “discourse of Islam and of Shari’ah-based Islamic legalism” is made to serve, more often than not, the purpose of promoting, and shoring up with added moral “clout”, the Ketuanan Melayu insurgency and its own main discourse of Malay cultural and political primacy.
Islam is called up to “sacralize” –– meaning to lend a special or added transcendental authority and an unchallengeable legitimacy –– to the claims of Malay political ascendancy: to place the agenda of Malay primacy and domination beyond acceptable criticism and permissible doubt and questioning.
As Julien Benda recognised long ago, the political passions that are mobilised by zealously committed intellectuals display a realism of a distinctive kind, which is a key part of their power and strength: these ideas that they promote become a kind of “divinized” realism. These doctrinaire and doctrine-driven intellectuals are the expert technicians and practitioners of the “divinization” of politics, of making the political agenda that they promote seem, and become accepted as, sacred. Sacred, if not in the eyes of the divine power then in the service of the nation’s destiny under God. They usually become sacred in both senses, mundane and divine. The mundane, mundane purpose, is in that was made, or made to seem, divine.
The idea of a sacred purpose is used, and played, as the trump card in this high-stakes political game.
Yet it is clear, in most cases, that it is the Malay agenda and the defence of what are seen as precarious Malay realities that are the primary concern.
The name of Allah may not be used by non-Muslims, regardless of the term’s long history of permissible use in Arabic, because that, so it is argued, is not how the Malay language works. And this is here a Malay-world issue. Practice and custom in the Middle East, even non-Muslim usages to which Arab Muslims voice no objection, are irrelevant. Here it cannot be allowed since Malays, as Muslims, may become confused, or so it is suggested. If the use of the word is allowed, then here again, as in so many other similarly fraught matters, it is the boundaries and integrity of Malay society in Malaysia that stand to be compromised, weakened, imperilled.
When Malay villagers in former times felt themselves threatened –– by human enemies, by wild animals, by plague and illness, by the supernatural terrors of the surrounding jungle –– they would huddle together for strength and recite do’a, Islamic pleas and prayers, and would together chant specially potent verses and sura from the Quran for protection from encroaching evil.
In a similar way, overall, the Malay political world in peninsular Malaysia these days huddles together for reassurance, in kampung-like strength and solidarity, behind a barrier and fortification that is afforded by Islam. It is the old strategy of kampung defence, now writ large.
Through recourse to Islam, threats to the integrity of the Malay world’s important symbolic boundaries can be contained. Islam is used to insulate the boundaries of Malay society against non-Malay intrusion, penetration and subversion –– to separate Malay society symbolically and morally from, and elevate it beyond the reach of, its threatening, even contaminating, wider social environment.
We are all familiar with the concept and historical creation of Malay Reservation Land. More recently the same process of space-management has been extended to other areas, to virtual space. Specifically, to linguistic space. We now have, and people are asked to recognise and accept, an entire new privileged zone that has been set aside, that of “Bahasa dan Istilah Rizab Melayu”, of a quarantined Malay Reservation in language and terminology. A Malay semantic protectorate. One with Islamically patrolled and fortified boundaries.
Discourse infiltration and capture: an example
These days Malaysia is the scene of profound contestation, a Kulturkampf or deep cultural struggle, one might say, between those three main discourses: of a protracted siege conducted against the discourse of constitutional legality and legalism by the combined forces, working “in tandem”, of the discourses of heroic Malay political affirmation and Shari’ah-minded legalistic Islamisation.
Often, usually, the struggle is an outward, direct antagonism.
But at other times the process and dynamics of political, and doctrinal, siege are more complex, subtle and hidden.
Let us take for example, once again, the question of the contested use of the name of Allah by non-Muslims.
One hesitates to comment further on this contentious matter. But since the Federal Court recently chose not to intervene by opening up to further consideration last year’s judgment by the Court of Appeal and, in the last few days, the members of the Federal Court have made public the grounds of their decision, some brief, more general comment may now be apposite and instructive.
The effect of the Federal Court’s judgment is to let the Court of Appeal finding stand. That is and will remain the law unless and until a later decision is made to the contrary. Substantively, that is the core of the matter, as a matter of law.
For that reason, rather than looking at the views of the seven-member Federal Court bench (and especially that of the Chief Justice on behalf of the four members of the majority who decided not to hear further argument), it is important to return to the main judgment of the Court of Appeal, as set out by Justice Apandi Ali.
The Court of Appeal’s judgment
His was, or so it struck me at the time (“Strange reasoning”, The Malay Mail Online, 16 October 2013) a puzzling finding. It seemed to me to be based upon what I could only describe as “strange reasoning”. (My comment at the time was, and is again now, focused on the nature of the reasoning on which the judgment rests; it is not a comment on the judge who authored it, nor on the Court of Appeal, nor about the Malaysian courts and legal system more generally.)
Justice Mohamad Apandi Ali’s “innovative” legal reasoning seemed most odd to me.
The Federal Constitution had assured the members of all minority faith communities of their right to practice their religion “in peace and harmony”.
These words had been originally intended with a positive effect, as an assurance and guarantee.
It was to ensure that minorities might follow the practice of their religion, and to enshrine their right to do so, without any fear of threat or intimidation.
But, in Justice Apandi Ali’s judgment these words, it was held, were to be understood in a very different way and were now to be taken in an entirely different direction.
The new understanding now offered seemed to rest upon and promote the radical idea that the enjoyment by minorities of their religious freedom “in peace and harmony” was, as a form of words, not intended as a constitutional guarantee or assurance to them but as a way of making that freedom of theirs subject to the requirements of civil peace and public order: meaning, in potential effect at least, subject to the pleasure, discretion and even escalating whims of the majority.
By means this new “contrarian” spin, these words can now be made to serve as the practically enabling condition or mechanism of the minority’s subordinate, and infinitely ever more constrainable, situation.
That is to say, under this new understanding this words “in peace and harmony” can all too readily lend themselves to, and conduce towards, a situation where the exercise of any of the potential freedoms of religious conscience that the minority might claim shall now be made conditional upon continuing, and always revocable, majority consent –– upon, in these ever more overheated and contentious times, the majority’s increasingly reluctant and unlikely forbearance.
What this means –– practically, when things are stated bluntly –– is that the enjoyment of minority rights is to be conditional upon the continuing readiness of the most extreme members of the majority not to create conditions of general social unrest, of “un-peace” and “disharmony”.
In their worship and more widely, religious minorities are now exposed by this new understanding of those important words of constitutional assurance to the risk being refused the right to do anything that may be uncongenial to any of the majority’s most implacable members. That may even, in perhaps imagined and then soon actualised prospect, offer some affront, genuine or contrived, to the sectional sensibilities of the majority’s most adamant and unyielding champions.
The plain implication of such an understanding is this. So long as nobody, no crazy extremist, objects, the minority may quietly enjoy their entitlements and “do their thing”. But, by this new affirmation of the conditional nature of minority rights, the radically and irremediably discontented among the majority are now given every incentive to object. And to do so, precisely, in ways that raise the spectre of unrest, disharmony, conflict and social violence.
The more restless malcontents with their ever more exorbitant demands are now provided with an unstoppable instrument, a constitutionally affirmed and protected means, to do exactly that. And once they wield it, once there is an objection –– any possible objection –– then it is the minority who have disturbed the peace, or threatened to do so, and who must therefore be denied and stopped.
This seems a foundation not for underwriting minority rights and religious freedom but for making them more uncertain, even constrained, and of placing them in question.
This kind of reasoning, I worried, provides for the narrowing and negation of minority rights and ultimately of human rights generally, even for members of the majority. It does so by means of a denial that is voiced in the name and couched in the terms of an affirmation: an affirmation of religious liberty and human and political freedom.
And once they wield it, once there is an objection –– any possible objection –– then it is the minority who have disturbed the peace, or threatened to do so, and who must therefore be denied and stopped.
In sum, I suggested, the new doctrine, or interpretation, amounts to a denial of rights couched in the form of an affirmation of freedom.
This new approach to the understanding and judicial construction of those important words of constitutional guarantee “in peace and harmony” seems wrong to me –– all the legal issues aside –– because it rests upon a failure to appreciate and accept the plain sense and meaning of well-understood language, of what a quite standard, formulaic expression that, from common and widespread use, is well embedded in public consciousness.