A profound and dangerous mistake

Rueban Balasubramaniam, The Malay Mail

Malaysian politics is in a bad way. The right-wing ethno-Islamist camp now seemingly runs Umno and the government. While the prime minister preaches that Malaysia is a moderate-Muslim/democratic state, recent actions by the state suggest otherwise.

The Allah debacle has led to the seizing of bibles, the investigation of a priest for sedition for defending the Constitutional right to the freedom of religion, the tacit and explicit threat to reintroduce the ISA to defend Malay “rights,” among others. When one gets within sniffing distance of the witches’ cauldron, there is the clear whiff of hard authoritarian rule in the works.

Right-wing ethno-Islamists insist that they are merely defending the Malaysian Constitution. Of course, this is a well-worn claim and is at least traceable to Abdullah Ahmad’s 1986 speech in reaction to the Singaporean press’s critique of Umno.

Abdullah, then a leading bureaucrat in Dr Mahathir’s government, asserts that the Constitution protects a “sacrosanct social contract” that establishes the priority of “Malay dominance.” Abdullah sought to distinguish between “Malay dominance” and “Malay domination.”

Reading that speech, it is apparent that this is a waffle, a distinction without a difference. I cannot tell the difference between “Malay dominance” and “Malay domination.” Either way, any notion of political domination, as I shall want to explain, is a problem for the prospects for democracy.

Suffice it to say that the Mahathir administration’s track record clearly reflects that there is an irreconcilable tension between political domination and democratic rule.

But what is important to note about Abdullah’s speech is that he explicitly rejects any equation between the principle of Malay dominance and Islam. Indeed, he went out of his way to say that Malay dominance is about the rule of the “moderate Malay” and not the religious rule of the sort witnessed in the Middle East.

Whatever the incoherence and ambiguity in Abdullah’s position, it is clear that Malay dominance did not mean the sort of thing we see now. If contemporary ethno-Islamists want to rely on a notion of Ketuanan Melayu, then they are patently doing something quite different than what Abdullah had in mind.

Still, we should not place too much store in this shift. What concerns me is that Abdullah and contemporary ethno-Islamists are implicated in a very serious and dangerous mistake. They conflate the role and function of the Malaysian Constitution as a legal methodology for mediating deep disagreements of value, especially disagreements about the ethical identity of the state with their substantive defence of ethnocratic rule as one position within that debate.

The social situation we face now is not that different than the social situation that faced this country in 1956, when the Malaysian Constitution was created. To use Immanuel Kant, it was and is a situation where disagreeing peoples find that they must live “ineluctably side by side.” These are people who may disagree about morality, ethics, religion, and so they also disagree about what should count as the ethical or collective identity of the state. In the present context, such a disagreement manifests as the disagreement between right-wing ethno-Islamists and liberals who have competing views about the ethical identity of the state.

At any rate, the general social situation that shaped the creation of the Malaysian Constitution was one where people who deeply disagree may have no plausible way to exit society and no way to secede. People in this situation must decide whether or not they wish to engage in social conflict and risk the danger of chaos and instability or whether to engage in social co-operation despite their disagreement.

If they make the latter choice, then they must devise an adequate methodology for mediating disagreement and for making collective decisions as a society. That methodology will be reflected in a particular view of legal order as laying down a basis for social co-operation and collective decision-making. If that legal methodology is effective, then it will work to incentivise social co-operation without necessarily determining the disputes about the ethical identity of the state. The framework may work to channel such disputes so that they are not destructive of social co-operation but the law itself will not tell you what conception of the ethical identity of the state is most attractive or even correct.

A society might opt for an authoritarian or dictatorial legal methodology. They could agree to a legally unlimited government empowered to determine all major disagreements of value including disputes about the ethical identity of the state. The role of the government would be to use law as an instrument for dominating citizens and for conditioning their beliefs about values so that citizens will either accept or acquiesce to official views about such values.

Dictatorship is neutral to questions about the ethical identity of the state since it does not tell us whether it is better to embrace this or that vision of social order. Everything depends on the preferences of those in power, not the preferences of citizens subject to that power. Nevertheless, dictatorship can claim to be a legitimate legal methodology for so long as it is capable of delivering social stability for social stability is always better than chaos, regardless of what values constitute the order that allows for that stability.

However reasonable people would reject dictatorial rule. The price of dictatorship is high. To be dominated is to suffer a loss of freedom, dignity, and autonomy. It is to have to toady to officials and to keep them sweet so that they do not (hopefully) interfere with your vital interests. But there are no guarantees.

If the perspective of the citizen is irrelevant to legal and political decisions, then there is no meaningful “rule of law” because the law is not an instrument that the citizen can invoke to bring officials to account. And even if the dictator seems benevolent, there is no guarantee that they will remain so. For people who worry about being dominated by government or powerful groups, dictatorship is a very unappealing legal methodology.

I believe that despite deep disagreements between ethnocrats and liberals, Malaysia’s political history reveals that all sides have an interest in “non-domination.” The root word to Malaysia is “Malaya”, which in Tagalog means “freedom.” One cannot make sense of the political behaviour of ruling elites representing major ethnic groups in the 1950s, which engaged in social co-operation despite disagreement about matters of citizenship, unless it is supposed that they had a joint rational interest in escaping colonial domination.

And today, in contemporary Malaysian politics, it is apparent that both right-wing ethno-Islamists and the liberals who disagree with them both fear the prospect of domination. Neither camp wants to be dominated by the other. A broad view of Malaysian political history suggests that despite deep political disagreements, there is a shared interest in securing a legal-political framework where citizens are free of the evils of dictatorship and domination.

For this reason, it makes the most sense to interpret the Malaysian Constitution as laying down a democratic methodology for mediating disputes about the ethical identity of the state. On this view, the Constitution incentivises social co-operation by ensuring that public power is justified by reference to law, where the law is informed by a commitment to the protection of fundamental rights, the duty to ensure certain group interests (all within a rubric of legal equality), and that the government is subject to firm limits on power (as expressed through the principles of federalism and the separation of powers). Most importantly, the framework anticipates that all citizens have a right to participate in the determination of legal content so that they are ultimately the authors of the laws to which they are subject.

If this is the right way to interpret the Constitution, as I think it is, then it is important to note that the Constitution is itself “pure” and neutral to debates between ethnocrats and liberals about the ethical identity of the state. The legal framework aims to create conditions congenial to social cooperation but it does not by itself tell us which view of social order is more attractive. That is a moral and political question to be determined by debate by citizens. The Constitution does not by itself indicate what kind of social order is better or worse.

My concern therefore is that ethnocrats have now long tried to make it seem as if the Constitution already enshrines a particular view of the ethical identity of the state. That was the aim of Abdullah Ahmad’s argument but that is to my mind mere Constitutional bootstrapping that cannot be justified on any plausible interpretation of the Constitution.

Ethno-Islamists are now taking this mistaken position to a new level (one that goes beyond even what Umno anticipates) in claiming that the Constitution defends a specific Malay-Muslim conception of the ethical identity of the state. Perhaps that view of social order is appealing and attractive for a host of reasons but they need to make that case. They cannot rely on the Constitution to justify their position.

Ethnocrats in general have confused the role and status of the Constitution as a legal methodology for mediating their debate with the substance of that debate. A dangerous consequence of this conflation is not only the distortion of political debate (as I think liberals are prone to the same error) but also the total failure to come to grips with the fact that the democratic legal methodology is at risk and that it is on the verge of being replaced with a dictatorial legal methodology.

Now, it seems trite to note that some right-wing ethno-Islamists and their defenders seem to openly advocate dictatorship. But it is also worth noting that they do not explicitly say so and continue to employ democratic language in claiming to defend their position as merely the position of a “majority.” This language is instructive for it shows that this camp still adheres to a democratic ideal as the basis to their chosen political position. Even they are not rushing to say that it is best to just have an authoritarian ruler.

The reason for this is that even this group knows that people have a deep interest in non-domination. It is this fact that makes even the most ardent critics of democracy stop short of openly advocating authoritarian rule. Even Dr Mahathir Mohammad who is a known critic of democracy and a believer in the need for government to display a “strong hand” to ensure social stability will not go so far as to say that dictatorial rule is preferable. It is worth recalling that when the Abdullah Ahmad Badawi administration was not keen to uphold his right to free speech, he lamented this fact as undemocratic and chose to register his views through an on-line blog.

To sum up, whatever one may think about the appropriate vision of social order and about its collective identity, it is wise not to lose sight of the real stakes that now confront Malaysian society. At stake is the loss of democracy and the shift to hard authoritarian rule and the evils that go with such rule.

Here, even those who feel confident that they would stand to benefit under a dictatorial system should have reason for pause. In such a system, nobody is secure. Political allegiances easily shift and change as those in power try to stay in power. And other powerful groups wait in the wings to dislodge those at the top. It is wise to note that the general context is insecurity, not security and stability. The way out of this predicament is to maintain respect for the Malaysian Constitution as affirming a commitment to Constitutional democracy as the appropriate basis to government and social co-operation.

* This is the personal opinion of the columnist.