Of Faust And The Doctrine Of Proportionality

Of all the criticisms leveled by civil society against the Government’s unity programmes, and in particular ‘1Malaysia’, it is the complaint that these appear to be aimed at achieving nothing more than superficial change that rings truest. Over the two-plus years of the latest round of rhetoric, it has become painfully obvious that the Government seems more fixated on the appearance of togetherness, a ‘face-lift’ as it were, than entrenching the core values that will engender unity organically.

Were it otherwise, not only would Malaysians have been given that much more to chew on than the current round of slogans and media campaigns, they would also have been shown in a more concrete fashion how it is the Government proposes to tackle those divisive issues in society that are the direct cause of disunity.

The recent controversy surrounding the seizure of Malay language bibles in Kuching is illustrative. To most of us, the issue of Malay language bibles is not an issue at all. The English translation of the Al-Quran is after all freely available in this country as are other religious texts and this has caused no difficulties. I do not think the wider community of Muslims even has a difficulty with the free circulation of these Bibles. And for those who have advanced views in opposition, I wonder whether they would hold to their views if the issue was put across squarely, and fairly, to them.

Yet, for reasons that are not readily discernible, Malay language versions of the Bible are considered to be so great a threat to public order and tranquility that they warrant intervention by the Government. I say not readily discernible because thus far no coherent explanation has been offered for the seizure of the Bibles. Even if, as one view put forward suggests, the translated bibles contain the word ‘Allah’, it is not apparent how this in itself would transform the bibles from what they are into the seemingly toxic missives that the proponents of seizure, confiscation and banning suggest that they are. The idea that they would offend an order of court preserving status quo pending the appeal by the Government against the decision of the High Court allowing the use of the word “Allah” by the Herald is laughable.

It is telling that the Government did not readily and unequivocally side with the free circulation of the bibles. The belated declaration that the bibles would be released for circulation, though welcome, is as solid an indication as any that the Government continues to place its own political interests above its duty to serve the interests of the nation as an impartial honours-broker. That many ask whether the same outcome would have been arrived at if elections were not imminent in Sarawak is indication enough much more has to be done for there to be widespread confidence in this Government.

I am glad that Minister Idris Jala recognized that the release of the bibles was “a reasonable compromise in managing the polarities of views between Christians and Muslims in the country“. In underscoring the equal significance of the views of stakeholders other than Muslims, it is a step in direction this nation should be taking. Having said that, more has to be done to recognize that no matter the intention, the posturing of the Government over this issue and others like it, including the way in which the controversy over the use of the word “Allah” was managed, have deeply insulted the Christian community.

They are not alone. Other religious communities have had their own share of experiences that have left them uncertain as to whether they can rely on the Government to secure their own interests. This was the primary reason that representative organizations of the various faith groups cooperated to propose the establishment of a statutory Interfaith Commission in 2005. It goes without saying that the summary dismissal by the Government of the idea, and the subsequent demonization of the proposal by some government related agencies only entrenched the fears of these communities that majoritarianism would define the state of things to come.

The way forward, as indicated by Minister Idris Jala, is to balance competing interests equally and on a level playing field. That is the primary function of Government, to secure the public space for the benefit of all citizens. It is a role set by the distribution of power under the Federal Constitution, a key feature of which are the fundamental liberties of citizens. Ironically, it is to avoid the controversies that have plagued us this past decade that these freedoms were embedded by the founders. That they have become the reason for controversy only goes to show how far our system of governance has been skewed.

Every citizen has the guaranteed right to express him or herself as well as to form associations amongst themselves, whether religious or otherwise. Parliament can encroach into these freedoms only where Parliament believes it necessary to safeguard public order or the security of the nation. The threat contemplated must be real and one borne out by our context, and not one of a hypothetical nature. It is not enough for Parliament or the Executive to say that we think it may be a problem if such and such a publication were permitted to be circulated. There must be a basis for Parliament or the Executive to form a conclusion that unless circulation is prohibited, there will be a disturbance to public order. Further, even if such a threat were real, then the manner in which the Executive is permitted to intervene must be proportional to the threat. A bazooka need not be used to kill a mosquito.

The doctrine of proportionality is a cornerstone of our constitutional arrangement where governance is concerned. It is aimed at ensuring that all of us feel equally welcomed in this nation. Unfortunately, for a long while, the doctrine was all but forgotten. In recent times, it has begun to make a reappearance in our courts through the efforts of civil society in its unflagging campaign for a more inclusive and just society.

It cannot however be left only to civil society and the courts. This is a matter that affects us all in one way or the other, and the Government must take the lead. This is however where the impasse is. It is a painful truth that the Government of the day continues to rely on race and religion for political ends. It is the Faustian bargain the Barisan Nasional has struck; race and religion in return for power. In as much as the Barisan Nasional Government, or some within it, may wish to shift to other political pastures, it is being held back by the voter bank it has encouraged to think divisively.

A Malaysia for all Malaysians can only be a reality when the Barisan Nasional accepts that dividing us for votes is progressively making things worse.

Malik Imtiaz Sarwar is a practicing lawyer and the President of HAKAM, the National Human Rights Society. He was the first candidate for Parliament named by the Malaysian Civil Liberties Movement. Follow his tweets @malikimtiaz.