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.
In October 2013 the Court of Appeal determined that the use of the name of Allah by non-Muslims to refer to and address “God” (meaning the God of the Abrahamic faith traditions, notably Christianity) was likely to cause confusion among Muslims and, by so touching upon the common sensitivities of Malay Muslims, might imperil civil peace and social order in Malaysia.
On these grounds the Court of Appeal held that the use by the Herald newspaper, a publication of the Malaysian Catholic community, should be restrained and prohibited under the terms of Article 3 of the Federal Constitution, which allows and authorises the practice of faiths other than Islam in, or under conditions of, “peace and harmony”.
“In peace and harmony”: further analysis
The main issue, the key problem, here comes as the consequence of people interpreting the constitution not historically and contextually in order to discern its meaning, intent and purpose but simply with literal reference to “the words on the page” –– yet doing so in ways that show insufficient sensitivity to the language that is used there. To the plain and clear, even proper, meaning of commonly understood expressions and idiom.
The core of the matter here has to do with the wording of the primary and cardinal clause of article 3, namely clause 1:
“Islam is the religion of the federation; but other religions may be practised in peace and harmony in any part of the Federation.”
What do the words “may be practised in peace and harmony” mean here?
Do they mean, were they intended and long understood to mean, that other religions may be practised so long as the country is in a condition of peace and harmony? And so long, in effect, as others including, most importantly, the followers of the majority religion are prepared to provide and will provide the members of any faith community with the peace and harmony in which they might enjoy the practice of their faith?
That is what the Court of Appeals judgment that now stands, and has been recently affirmed by the Federal Court, as the most authoritative statement of “the law of the land” on this matter seems to hold.
Yet this reading of that wording, of that constitutional assurance, rests upon a complete misunderstanding and misprision of ordinary language and its meaning.
To say that “other religions may be practised in peace and harmony” means that members of other minority religions and faith communities are and shall categorically be entitled to practise their religions and to do so “in peace and harmony”.
Those words “peace and harmony” are intended there not as a condition or a limitation upon their enjoyment and practice of religious freedom but as an assurance and guarantee of those conditions of peace and harmony, of security and official protection, so long as they are themselves are peaceable.
The wording here that members of those other faiths are entitled to practice their religions “in peace and harmony” involves a phrase that is analogous to (and which is close to, though not quite identical in meaning with) another such phrase that might be used in such circumstances.
Namely: “without let or hindrance”, meaning without obstruction or constraint or arbitrary limitation.
That, in effect, was and is the intended meaning of the wording of article 3(1).
Alas, it is not the meaning that was discovered and affirmed in the Court of Appeal judgment that the Federal Court has now chosen, without any further action of its own, to let stand.
What, we may further ask, is then the difference between “in peace and harmony” and “without let or hindrance”?
The difference is that the former (“in peace and harmony”) is affirmative, it is the positive affirmation of a right and is therefore stronger than the latter (“without let or hindrance”), which puts the matter in a negative way, by simply saying that there shall not be any obstruction.
The Court of Appeal’s view, one can respectfully suggest, not only fails to appreciate and fully understand the intended and ordinary meaning of the words “in peace and harmony”; it also fails to acknowledge and recognise the powerful affirmative quality and force of those important words.
Discourse blending, or quiet subjugation?
All of this last year seemed, and now seems, perfectly clear to me.
But, if it was so clear to me, why, I wondered, was the same thing not clear to others? Last year I simply could not fathom how a major court might follow that, to me, fraught course of reasoning.
How, I wondered, could it reason in that way? Why? From where did its form of thinking come?
I was bewildered. I did not know and, at that time, simply could not understand.
Now however, some months later, and as I now revisit this question in the context of discussing the “clash of paradigmatic discourses” in Malaysia, it all becomes clearer.
It has become clear where this new form of thinking, or legal reasoning, comes from, and where, perhaps well below the level of full and clear consciousness, its deep source lies.
Where to begin? The issue might best be put as follows.
In its language and the form of thinking that is embedded within it, the Court of Appeal’s judgment is not a statement about, still less an affirmation of, the rights of modern democratic citizens, about the place of religious freedom and pluralism within a constitutionally guaranteed modern democratic order.
If not that, then what is it? And where does it come from?
Once one manages to clarify that, the mystery about the wording of that judgment and the standpoint on inter-religious accommodation that it announces become clear.
Here –– so the language that is employed tells us –– the job at hand is not that of ensuring the democratic rights of citizens, and in this matter specifically those of the members of a cultural and religious minority, under the law.
What is being said here is not illogical. It is simply the manifestation, the embodiment in action, of a different logic. The logic we see at work here is the logic of affirming the status of the various protected religious minority groups and communities, or dhimmi peoples, within classical medieval Islamic society, under the Sharia’h law codes of the so-called Middle Ages.
Their lives, their home and businesses were to be protected, and they were to be permitted quietly to follow their own religious traditions and inclinations, so long as they did so quietly and circumspectly –– without allowing their presence to pose any threat or challenge to the religious ascendancy of Islam or any disquiet, by virtue of their social and cultural difference, to any significant member or segment of the dominant majority community.
Their places of worship should not be taller or grander than the mosques of the Muslim majority or more centrally or favourably situated; their religious activities were to be essentially private or cloistered within their own areas; their voices in prayer should be hushed, not raised out loud, and their gaze, when dealing with powerful members of the majority community was to be lowered, to avoid any suggestion of challenge or provocation, any action that might suggest a claim to a standing higher than that of a tolerated presence.
They might be active in trade and even pursue an honourable livelihood through business. But beyond the realm of economic life, in their social and cultural standing as protected minorities, they were always to be “price-takers”, not “price–setters”. The majority would set the terms. That is what, in the pre-modern world, majorities do and consider themselves entitled to do. As they please, and without negotiation.
Does this sound familiar in any way?
The echoes are not hard to hear.
This is precisely the attitude that is proclaimed (in an article read just now, in a break from writing these words) by the man under whom, as Home Affairs Minister, much of the earlier work of devising a “protected” or “reserved” list of terms “for Muslim use only” was conducted.
“Don’t create trouble, ‘Allah’ exclusive to Muslims” is the headline of an article in The Malaysian Insider (10 July 2014) that reports on the views, and stern admonition, of Tan Sri Hamid Albar.
“Don’t create trouble!” Revealing words, a diagnostically telling locution. That is how the dhimmi, the so-called protected religious minorities, of medieval Islamic society were addressed. That is how they were spoken to and reminded of their place, a subordinated one, and their rights, which were limited and conditional.
It is that same logic and mind-set that that also seem to inform the Court of Appeal’s judgment in this name of Allah matter.
If that is so, then the Common Law tradition, “the discourse of constitutional legality”, is in a beleaguered and precarious situation.
And doubly so.
Because if that is what is happening here in this instance, then the Common Law tradition and its courts are not only being employed to impose quasi-dhimmi status upon the Christians (and other minority religious communities with them) in Malaysia; to redefine and reconfigure the social standing and rights of non-Muslim Malaysians in accordance with the logic and social values of classical Shari’ah law.
More, the Common Law tradition itself, “the discourse of constitutional legality”, is thereby, in that same process, being perhaps imperceptibly injected with, and made to conform to, the logic and ideas of the Shari’ah law paradigm, the discourse of Islamist legality. To serve its purposes.
The established “discourse of constitutional legality” is not only under assault from without from the tandem forces of heroic Malay political assertion and Islamist legal challenge. It is being made subject, and vulnerable, to a process of discursive penetration, infiltration and internal rearrangement and capture by the combined forces of its two great current adversaries.
To some this may sound shocking. But it should come as no surprise.
For a generation now, for three decades and more, we have heard people of no mean consequence –– politicians, including ministers, and senior lawyers –– declare that there is no need to waste time in fruitless argument about creating an Islamic state in Malaysia, formally and explicitly legislating it into existence.
Instead, they have explained, a far simpler –– more effective and less contentious –– path to the same destination is available.
One may use, they have pointed out, the very “Western” and secular institutions of the Common Law courts and the hardly “Islamist” processes for the parliamentary enactment of specific statute law to insert and implant the ideas, and inject the thinking and provisions, of the Shari’ah into the framework and fabric of the existing state and its legal system.
To some, this was to be understood at the initiative of developing a new, Islamically-based, “Malaysian common law tradition”.
We have all been “on notice” for some time.
Legal dominance and discourse impoverishment
To many people, the legal profession and its artful forms of thinking and action appear all too pervasive and powerful in Malaysia. Almost without rival. And they are not, or until recent times have not been, far wrong.
Some people criticise this legal ascendancy –– and the often all too hasty rush to “the juridification of everything”, as if there might be no other avenues of prudent action worth considering and pursuing –– as if this situation were simply the product of legal wilfulness and arrogance. Former Prime Minister Dr. Mahathir did exactly that. With him, criticism of judges and lawyers became not simply a habit but virtually a personal cottage industry.
Yet, as I suggest, this pre-eminence of the legal profession and their specialist expertise as the nation’s seemingly dominant form of social discourse is less the result of legal assertiveness –– though there has been no shortage of that –– than of the fact that in Malaysia there has been a dire and notable paucity of the many other forms of social “discourse” that, in many cognate and comparable societies, often serve both to buttress and support but, in significant ways too, also to offer a challenge, or at least an alternative, to legalistic thinking and its habitual ways –– including its impetus toward the total “colonisation” of the entire social world and deliberation upon its central questions.
Other kindred form of discourse, supporting yet also at times challenging the operation of legal thinking? I mean here especially such fields and forms of knowledge as political theory and philosophy; social theory and social philosophy; the broad social, cultural and intellectual history of the modern world; constitutional history and comparative jurisprudence. And so many more. What is notable about the Malaysian academic and intellectual scene is the virtual absence of these forms of knowledge and expertise: as important, nationally recognised and supported key fields of higher education, knowledge generation and transmission, and research.
Even more modest and mundane fields as sociology and anthropology fall short here on this count. Rather than considering global cultural diversity and its human and moral implications as a whole, for example, social and cultural anthropology in this country is concerned almost entirely with the sociocultural identity and dynamics of the Malay world, seen from a Malay-world perspective or standpoint –– often an official and centrally endorsed Malay perspective. But anthropology’s task here, as a field of human enquiry and knowledge, is not to see the Malay world through a Malay lens or even to view and contemplate the world from a Malay standpoint; it is to consider the Malay world, its character and dynamics from the standpoint of the world, of evolving global humanity. This it does not do and has not even begun to attempt. It does not and cannot do so, since it does not even begin to understand that this is its raison d’├кtre, its defining task and challenge.
One central thing must be clearly understood here. The lack and virtual absence of these other important forms of “liberal” knowledge in Malaysia has come about not simply by accident, inattention, casual neglect or oversight. It is the specific and intended result of national policies that were expressly designed and explicitly intended to produce that outcome, to create that bleak scene of intellectual impoverishment and devastation.
These important fields of humane knowledge were not just forgotten, even overrun, in the rush to promote new forms of technological expertise that were deemed to be of more immediate and practical use in a developing, and avowedly “developmentalist”, nation.
They were also cut away –– suppressed and eradicated –– on the grounds that they were unhelpful and unnecessary in the national interest.
For two reasons, in two ways: first, because they were seen to contribute only to critical enquiry and opposition, and hence political disaffection and obstructionism, not to the cultivation of dutiful government support among loyal citizens; and second because, under the aegis of the narrowing doctrine of “the Islamisation of knowledge”, it was held that none of these indispensable fields was really necessary.
A nation like Malaysia, it was now held, did not need to study comparative jurisprudence; support for academic enquiry into and university courses and departments in Usul ul-Fiqh were what was now needed. Not world history but Islamic history. Not political theory and political philosophy but Islamic political thought. You want to learn about modern cultural analysis? Try studying Islamic culture and the Islamic worldview instead. And so on .. ..
The problem that “the discourse of the law as constitutional legality”, its defenders and the upholders of liberal democracy and citizenship generally face today in Malaysia results not so much from the prominence of the law but from its vulnerability. The basis of its former ascendancy, namely its supreme and lonely eminence as a form of professional and social discourse, has become the source of its new precariousness.
It lacks friends, it is deprived of what are elsewhere its most usual and reliable allies –– its habitually associated disciplines and related forms of social discourse. In Malaysia it stands bereft of the support, at times critical and even challenging, of those kindred field of knowledge, or forms of social discourse, that elsewhere surround and accompany it. As a form of professional and social discourse, the “discourse of the law” as it has been long understood is now “on its own”, friendless.
It may still be a formidable form of discourse, but it is hardly a secure and confident one. More, lacking the sustaining presence of those other forms of knowledge and discourse that usually accompany and undergird it –– of what, to revert for a moment to a pre-Foucault form of words, used to be known as the key components and full range of modern liberal public culture –– the discourse and profession of the law itself start to grow in unhealthy ways and disabling directions. They become narrow, unbalanced and illiberal, a technicist and pragmatic calling: one largely driven by the purely calculating and strategic logic of “instrumental reason”, and generally unrestrained by any counterbalancing tendencies or intellectual and impetus towards professional “reflexivity”: toward cultural reflection upon the operation of its own distinctive form of consciousness.
Once magisterial in all that it surveyed and did, the law as a well-known form of professional knowledge and action is now under assault: externally, from the dual challenge of Malay national-political assertion –– of Malay “blood and soil” supremacism” –– and of Islamic legalism –– the “discourse of Islamic governmentalism” –– and also from within, as those ever more powerful rivals also prosecute their cause internally, within the field of the law and its familiar institutions, its former bastions.
It is no new insight to conclude that the foundations of the rule of law, of the ascendancy of a principled constitutional legality are precarious. The only solid foundations that they can ever have is in “the habits of the heart”, a secure grounding within the souls and minds of hopes of a nation’s citizens. But in Malaysia at this time, while the law and its practitioners may still “lord” it over other professions and their less empowering forms of expertise, those foundations are notably precarious.
If a principled legalism has no strong roots in the sentiments of the nation’s people, on what basis can it be secure? Beleaguered from without and beset from within, the discourse and practice of the law and its professional exponents these days have no widespread public support. They have forfeited a good deal of their credibility, and the politicians for their own reasons have been happy to encourage that decline in confidence. They have not only raised their carping, corrosive doubts. More fatefully, for much more far-reaching ideological reasons, they have unleashed, and continue to back and drive, the tandem forces of Malay supremacist assertion and Islamist legalism that are placing what has long been understood as the practice and discourse of the law under siege.
If, as the term is properly understood, a “discourse” is a form of knowledge, a way of understanding certain things, that is embedded in and sustained by a certain “authoritative” way of talking about them –– and which, in so doing, both responds to and also generates fields and forms of power –– then the discourse of the law in Malaysia is now in the throes of falling victim to its former success, its former but now beleaguered social domination. It is becoming the victim of the “discursively impoverished society” that its own former social dominance once expressed and symbolised.