Confronting our demons

Interpreting a provision on the freedom of religion will set a precedent on how other guarantees of freedoms are to be understood.

Malik Imtiaz, fz.com

I READ with interest the call by some shariah practitioners to tighten the rules of conversion to prevent abuse of the system in view of a number of controversies that have erupted on the subject (“Need for more stringent rules of conversion to prevent abuse, say shariah lawyers”, The Malaysian Insider, May 29).

I think they are right, and should be commended for having the temerity to state their views plainly. In a climate where almost everything to do with race or religion will, as a matter of certainty, be exploited for advantage by a range of political actors, these individuals have had the conviction to address the subject with the directness that it, and other matters pertaining to the administration of Islam, requires.

Although one would imagine that nothing is more evident than our entitlement to discuss all matters that impact our lives as Malaysians, without exception, the reality has however been regrettably at odds with this most basic of requirements of any democratic society.

We have sadly over the years evolved into a society in which we are no longer able to say with certainty whether our thoughts, no matter how carefully or sensitively they may be couched, will lead us into trouble of one form or another.

This concern is not born out of paranoia. Perhaps for lack of more constructive things to do, more of us seem open to embracing a reactionary mindset and, as reactionaries, be ever ready to take umbrage at the slightest perceived insult to the Malay race and the Islamic faith.

It is interesting that going by what they say and do, these reactionaries do not appear to have any difficulty with insults in general. Perhaps in modern Malaysia, this is what it takes to have a personality or, more fundamentally, an identity. The state clearly does not appear to be unduly troubled; it continues to look on benignly, almost lovingly.

This perception is fuelled by the antics of the authorities; what they say and do strongly suggests a firm belief on their part that only a Malaysia where absolutely no one speaks critically of any aspects of the administration, and those interests it sees itself as representing, is safe enough for the rest of us. That they send out crossed signals by their apparent tolerance of the reactionaries does not appear in their view to legitimately be a source of confusion for the rest of us.

As they look on indifferently on the threats and intimidation that seem to have become a staple part of our lives, all going in one direction, it has come to seem that our inability to understand the what and why of it all must be attributable to our own lesser abilities; otherwise we would surely understand the grand scheme of things.

If any of this is confusing or troubling, I would be encouraged. It means that you have a mind of your own, and the conscience of a patriot. You should also be worried enough to be asking what it is you should be doing to help address what is manifestly a state of affairs that is of grave concern.

I believe the way forward lies in our embracing the fact that we are all stakeholders of this country, and that entitles us, no matter what our ethnicity or faith, to speak out on all matters that affect this nation.

There are two main arguments. The first concerns participatory democracy. We form our governments by elections, and through that we shape the system that governs us. Though the system may be directed at different subject matters, it is ultimately one system that is anchored in the executive (at the federal and state levels).

The perfecting of the system, and it being adapted to our needs, is an evolving process, dependent on our being informed of the actions of government, and expressing our views on the same.

This is why the freedom of expression, and the freedom of information that it houses, is considered one of the cornerstones of democratic government. It follows, therefore, that we must be able to speak out on the system, in its various forms, as and when we feel it is required. This is a necessary step to ensure the improvement of governance, a continuous process.

Seen in this light, there is no basis for any assertion that a particular community or interest group has a monopoly over any of the subject matters that the system is meant to be applied to.

Take the subject these brave individuals spoke out on, the way in which conversions into the Islamic faith are being exploited. There are those who believe that if you are not a Muslim, you have no right to speak about this. They are clearly wrong; the abuse of the conversion process, if it occurs, is as impactful as the abuse of, for instance, the misapplication of taxation procedures. Though the specific instance may involve individuals that we do not even personally know, the fact that the system, whatever it may be directed to, can be exploited is something that affects us all.

More fundamentally, wrongs are being perpetrated under the cover of law. Surely, this is something that we are not only entitled to speak out on, but are duty bound to do so. Where such things occur, the system has failed us.

In the same vein, though subjects like the implementation of hudud law, the encroachment of the state (be it at the federal or state level) on our freedom of expression (for instance, where the word Allah is proscribed), and the imposition of law created extra-legislatively by fatwa committees may seem to pertain only to the administration of Islamic law, they nonetheless impact the wider Malaysian society for the way in which they set precedents on how the constitutional arrangement is to be understood. This is the second argument.

The constitution is a living document that is directed at us all; it is interpreted as a whole, each provision being understood by reference to its context. Interpreting a provision on the freedom of religion, for instance, will set a precedent on how other guarantees of freedoms are to be understood.

In Lina Joy, the Federal Court (by majority) implied language into the Federal Constitution that the founders in their wisdom did not see it fit to. This created a ripple effect; where before it was a legally difficult process to imply a provision into the instrument and rightly so, post-Lina Joy that door was open. The judicial artifice of limiting the implications of a particular decision to that case itself is not effective in the face of the doctrine of binding precedent.

In the same way, the apex court had in its decision on Sulaiman Takrib upheld the legality of the fatwa committee making binding fatwa on Muslims that are enforceable in the shariah courts without the involvement of the state legislature.

The case involved a litigant, a so-called deviationist, who was being prosecuted for circulating material that the authorities deemed contrary to Islamic teachings. The Federal Court characterised the fatwa process as an instance of permissible delegation of legislative authority. In doing so, it opened the door to other committees or bodies making law in a way that bypasses the scrutiny of elected representatives. That this has been held to be constitutionally impermissible in other mature democracies like Australia and India is telling.

These are matters that fundamentally relate to the Rule of Law, and affect us at all levels of life. As tempting as it is to believe that only civil and political rights are affected by the suppression of free expression, it is time for us to confront the truth that even economic and social matters fall victim.

It is not a passing coincidence that matters of race and religion are impeding this nation from regaining its competitiveness. Our inability to speak openly about what travails us is making it impossible for us to deal with what needs to be dealt with.

Confronting our demons is a necessary first step.