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Friday, August 10, 2007

Not Just A Matter Of Labels

Secular State, Islamic State, Muslim Country. I have been asked why be concerned over what we call ourselves. After all, does political rhetoric really have an impact on our lives?

I think there are two primary reasons why what we call ourselves is important and does have an impact.

The Undermining Of The Rule Of Law

Firstly, our democratic institutions are weak. In theory, the primary organs of state - the Executive, the Legislature, the Judiciary, the Attorney General, the Auditor General - are meant to operate independently and in constant supervision of the other organs. This process is what we refer to as the process of 'check and balance'. The independence which underpins is the 'separation of powers'.

The reality is that the separation of powers in Malaysia is illusory. The Government controls more than 90% of Parliament. In this way, the Executive controls Parliament. An attempt to suborn the Judiciary to Parliament was made in 1988 when the Constitution was amended to remove the entrenched power of the Judiciary to review executive action by limiting the jurisdiction of the High Court to matters vested in it by Federal Law. Leaving aside the constitutionality of the amendment and its effect, the popular notion, even within the Judiciary, is that there is Parliamentary Supremacy (as opposed to Constitutional Supremacy) in Malaysia.

Additionally, as I have previously written, the Prime Minister ultimately decides the appointment of judges (respect of the decisions of the Conference of Rulers could be argued as being a convention rather than a legal obligation). In this way, it could be said that the Executive controls the Judiciary and those who are appointed or promoted may, for one reason or the other, not necessarily be the most qualified or most capable. Seen from this perspective, there is in effect no check and balance. It could be said that the nation is in effect ruled by dictate or decree. Perhaps this is why the mainstream media is fixated on the views of the Prime Minister on almost everything and also why the wishes of the leadership elite is often seen as having force of law.

The foregoing is further complicated by a 'ketuanan melayu' policy articulated through an aggressive policy of affirmative action in favour of the majority Malay community and a close linkage between the Malay ethnicity and Islam. It is a truth that the civil service and the Judiciary is predominantly Malay who are, in turn, Muslim.

As more recent history has shown, this has allowed for a translation of the ambiguous statements of the leadership, particularly where Islam is concerned, into a belief on the part of administrators and bureaucrats that Islam, and as such its administrators, has a role to play in the governance of this country and has a more 'superior' role than other religions or faiths. This belief is given further foundation by the policy dictates that are seen to be conveyed by declarations that Malaysia is an Islamic State.

This has several implications. For one, it results in attempts to reinterpret law to make it more Islamic compliant. This is wrong in light of the understanding underlying the Fedeal Constitution. As has been judicially recognised, the founding fathers put in place a constitutional democracy in which public law was not meant to be predicated on any one religion.

Additionally, though it is often argued that Islam espouses universal values, in practice this is not necessarily the case. The practical Islam that we have been exposed to in Malaysia is one which is unforgiving and premised on punishment. The Islamic administration in this country seems more focused on form than substance.

Further, for administrative convenience and the ease of enforcement only selective versions of Islamic precepts determined to be acceptable are apermitted to become the basis of Muslim practice. In this way, we have seen a codification of a narrower swathe of Islam than the diversity of the religion itself contemplates. The Islamic law in this country is premised on the shafii madzhab or school (within the Sunni grouping) even though there is nothing objectionable about the other madzhabs. The Imams that founded these madzhabs were careful to ensure that their teachings did not become definitive. This appears to have been forgotten in our rush towards building, albeit on the quiet, an Islamic State.

In this context, a crucial question is who defines Islam for the purpose of reinterpretation of law and the development of an 'Islamic' policy. The monopoly over Islam potentially hurts Muslims as much as it does non-Muslims. The freedom of Muslims themselves to delve into God given diversity is in this way compromised.

The net effect is one where the Rule of Law is undermined resulting in the kind of controversies we have seen these last few years. No matter how you analyse and characterise these controversies, the painful truth is that injustices have been occasioned, more usually in the name of Islam.

Whither Unity

Secondly, labels are divisive. They exclude in as much as they include. One would have thought that as this nation turned 50 we would no longer be struggling with forging a national identity and that we would be striving as one nation.

Sadly, this is not the case and it is not difficult to see why. Continued emphasis on race and religion have led to alienation. They have also, riding on the back of the aggressive affirmative action campaign launched in 1969, created a context in which discrimination has become the norm in a way not countenanced by the Constitution. As I have said elsewhere, as long as article 153 of the Constitution remains in force I will recognise it as the law and for that reason accept the special status of Malaysa and the natives of Sabah and Sarawak. But the NEP and its successor policies has gone far beyond the contemplation of those who drafted article 153.

The extended campaign has also created a privilege rather than special right attitude amongst the Malay community (I am generalising). This attitude is fueled for political reason to an extent that many cannot see an inconsistency between the affirmative action policy and the universality required by Islam. The truth is that many non-Malay Muslims do not qualify for special privileges simply because they are not Malay.

In this murkiness, labels do have an impact. They fuel resentments, they entrench further the belief amongst that while all are equal, some are more equal than others. So, even if there is value in labels such as Islamic State, does this value outweigh the more pressing need to ensure that all of us feel like we have our rightful and equal place in this country? I think not.



Anonymous said...

Well spoken. These are certainly words of a great leader in the making.

Tracy Tan said...

thank you for your clear, precise and grounded opinions on Al Jazeera. I truly appreciated it.