Part two “Deep Canyon and Loose Soil"

As the nation witness the March 8th political tsunami in merriment or otherwise, I was far removed from either. While the maturation of Malaysian political climate manages to carve a gratifying smile on my face, it cannot wipe the frown of deep anxiety from my eyebrow; for I take no side in this mêlée.

The maturing of our political climate brings about good tidings, as the period following the tsunami exposes rot and decay that has long plague our country deep into its very foundation. But two years on in the Hulu Selangor by-election 2010, it is evident that our politics is still as ‘pariah’ as ever. Alcohol inclination, fake degrees and money politics couched in legal terminologies eclipsing real and productive policy debate, as if candidates are contesting to win ‘Malaysia parliamentary idol’ and moral worthiness determines the kudos. But as every scholar of law knows all too well, that the moral worthiness of our leaders is nothing but hollow moot, because absolute power corrupts absolutely, therefore a system that places no faith in the personalities of the wielders of power, be they honourable or otherwise is the only system that can endure. Maybe the time is ripe for us to depersonalise politics. But this is besides the point, I have other pressing concerns.

The reason for my anxiety however, even as my peers cheered to the day they never thought they would live to see, is because despite the tsunami, we have come no closer to solidifying the grounds in which our nation building project must rests on. We have made great strides in building our civilisation, but survey the landscape, the chasm remains, deep and irreconcilable as ever. We have built civilisations on loose soil.

The problems that plagued our governance will continue to haunt the very essence of this land as the answer to our problem is to incorporate the separate civilisations built on isolated plateaus into a vast network where separate cultures could intermingle and assimilate into a greater, more diverse whole. We need to build bridges instead.

And as stated in the preceding chapter, the two pillars for our bridge had already been ascertained:- A new collective national consciousness built on infusing diversity; and a legal structure founded upon the tenets of preserving it. But building bridges perched high above the chasms on loose soil spells disaster. First, the soil must be solidified. To achieve this end, we need to descent into the forbidden catacombs and bring to light legacy of our civilisation deemed too delicate for public dialogue. We must muster the courage to self reflect and self critique to come to terms with our flaws.

But a nationwide self evaluation effort is not only intellectually demanding, but the obstacles are aplenty, as the “we” today is a fragmented concept, and self reflection done in sectarian approach drawn along racial and religious lines will further the chasm between the many “us” in existence. It cannot be denied that this chasm has its root as a by product of western imperialist’s effort at asserting colonial ambitions, but it doesn’t change the fact that this chasm is now a reality, in fact more exaggerated and more destructive than ever; and I am a product of this chasm. Born, bred and fully adapted to its vicious ecology.

But subconsciously, ‘we’ do not want this bridge to be built because its construction signals the breaking down of the bubble of our existence, our comfort zone, our bastion of identity. Our yearning for the safety of our herd will further tear us apart, keeping our heads low in grazing for survival, ignoring the signs of storm brewing in the horizon. In an asymmetrically divided society, the choices left for minorities will be emancipation or forceful assimilation.

On the flip side, safety in numbers does provide a sense of security, albeit a false one, because the winds of change is imminent, and it brings with it the seeds of diversity that has taken root in continents far away, seeds that had weathered the vicissitudes of competition and survived. They will overwhelm our sheltered ecosystem that had rejected the competition of diversity. In our quest for purity of the isolate herds, we have essentially removed our edge of competitiveness.

But why have we become so blind, so complacent, so arrogant? We have our leaders to thank for this – the alpha males of the various packs. These creatures are not in want of intelligence, in fact, they are the first to sniff the breeze of change before we even rear our heads from grazing for survival. But they are determined to keep the plateau separated by the chasms because they have built an intricate social hierarchy based on the current ecology, and change threatens this balance in which their entire existence relies upon.

They have resorted to exaggerating our differences in maintaining the status quo. They have conveniently borrowed the overly simplistic social stratum of the Victorian colonial powers, to neatly divide us into the Malays, the Chinese, the Indians, and the ‘lain-lains’. They nourish this division by polluting our airscape with ‘pariah’ slogans arousing primordial sentiments of fear and anger; corrupting our consciousness with primeval concepts like racial superiority/ownership, religious pre-eminence and absolute moral authority. Even fundamental concepts of a modern democratic state like the Social Contract Theory had been hijacked and vulgarised to suit these primitive models.

This overplayed tune has worked well for most part of our modern history as the sense of belonging to a macro socio-religious groupings provided an easy way out for our soul searching endeavours and provided a ready template of answers for differences innate in us that we find so difficult, or unwilling to comprehend. But such sentiments are doing us harm, and it has to stop.

It is of course not too late, but the construction must start now. Individuals in various herds are beginning to sense the impending danger, and have raised their heads above the comfortable mundane. They have understood that embracing diversity breeds competitiveness and only a healthy ecology can weather the coming storm.

“It is not the strongest of the species that survives, nor the most intelligent, but rather the one most adaptable to change”

If not by law, then What?

This is an article written during the height of the “Allah” controversy, and the subsequent burning of churches in its aftermath.
As the country was frantically torn with diverging opinions, I was in Tawau, far removed from any hype of religious tension, observing Muslims, Christians and practitioners of a myriad of other faiths going about their daily business seemingly unscathed from the fervour in West Malaysia. As a scholar in law, I cannot deny the urge to vent my disagreement with the wanton demeaning of the role of the judiciary by both our ex PM and current DPM.
See Dr. M’s “Allah controversy cannot be resolved through law” in the Star on the 6th of January
http://thestar.com.my/news/story.asp?file=/2010/1/6/nation/5419866&sec=nation
And then Muhyiddin Yassin joined in the bandwagon all the way from Oxford on the 15th of January in the The Borneo Post http://www.theborneopost.com/?p=4715

Below is a short excerpt from The Borneo Post:

OXFORD: Deputy Prime Minister Tan Sri Muhyiddin Yassin said he would not allow the issue of using the word ‘Allah’ by non-Muslims in Malaysia to recur in the future.

He said (former prime minister) Tun Dr Mahathir Mohamad once mentioned that the legal process was not the best solution to a problem, and there could be other avenues.
“I agree to a certain extent. What is important is to handle the situation wisely,” he said when answering a question from the floor after delivering a lecture entitled ‘Islam and Critical Challenges in multi-religious Malaysia’ at the Oxford Centre for Islamic Studies (OCFIS) here.
“Things (religious tension and church attacks) have of course happened but we hope they will not recur in the future,” he said.
Muhyiddin said he had been receiving quite a number of messages from non-Muslim friends in Sabah and Sarawak who said there were Christians who felt that things would not have happened in the first place “if we, the Christians, would just not use the word ‘Allah’”.
“This is because in Malaysia and in many parts of the world and in all Muslim countries, Allah is the only God for Muslims. We cannot equate Allah to god in the other religions and even in Christianity, which believes in the concept of the Trinity.
“There are differences, I don’t want to go deep into that issue. I think we have to manage issues at home our own way because we have our own way of life, culture, traditions and respect for one another which are our strengths...

If not by law, then what?


Deputy Prime Minister Muhyiddin Yassin, in his speech at OCFIS in Oxford, mentioned that he agreed, to a certain extent with the former Prime Minister Dr Mahathir Mohamad that legal process was not the best solution to a problem, and there could be other avenues. Adding that what is important is to handle the situation wisely.

This statement seemed to imply that resorting to legal process in disputes involving sensitive matter is “unwise” and that there must be better alternatives to resolving interfaith conflicts. Statements like these are often dangerously overlooked as words of wisdom, and if not, at the very least – harmless. And in a nod to clichés, Muhyiddin reasoned that: “there are differences... I think we have to manage issues at home our own way because we have our own way of life, culture, traditions...”

The danger referred above lies in the absence of an ‘alternative’ to legal processes in his statement. Culture and traditions are not dispute resolution mechanisms. In essence, culture and traditions are built around and supplemented by believe systems; hence, culture and traditions are no more than a set of social practice, bolstered by a network of belief system and norms, made exclusive by the very fact that it can be distinguished from other sets of social practices. Looking inward for dispute resolutions through culture and traditions are bound to polarise the differences inherent in the different sets of social practice which is the cause of the conflict in the first place.

Similarly, tolerance itself is not a dispute resolution mechanism; it is more of a “dispute avoidance mechanism” and it is a point to note here that we often confuse submission for tolerance. Simon Weil, a French Philosopher stated that:

“Oppression that cannot be overcome does not give rise to revolt, but to submission”

Tolerance as defined by the Collins dictionary as: “the quality of allowing other people to say and do as they like, even if you do not agree or approve of it.” While submission or the root word- to ‘submit’ is defined as: “to accept [something] or to undergo it reluctantly, for example because you are not powerful enough to resist it.” With this in mind, resorting to tolerance as a dispute resolution mechanism (while often hailed as a cornerstone of which the foundation of the country is built upon) is unreliable and unpredictable as factors such as demographics, level of sensitivity of the issue at hand, volatility of the political climate, etc... Makes it difficult to ascertain whether Malaysians are truly tolerant (in all issues or particular issues only), indifferent, or worst still were we merely prone to submission?

For those who attended Kamarul Hisham’s lecture at HELP University College on the 14th January 2010 would find familiarity in the following quote by Jackson J in the US Supreme Court in West Virginia State Board of Education v. Barnette (1943):

“... Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing orders.”

Indeed, the general sentiment of suspicion towards legal dispute settlement is symptomatic of the traditional Asian society ‘world view’, as Hilaire Barnett aptly stated:

“In traditional Oriental society, Western preference for law is an alien notion”

The key word however, in the above quote is traditional. Administration of justice in a modern administrative state needs to achieve consistency, predictability and most importantly, impartiality. While tolerance and mutual respect are moral benchmark for all to aspire to, it cannot be expected to dispense with justice consistently and impartially. The rule of law (Kedaulatan Undang-undang, the 4th principle in the Rukun Negara) in all its complexity essentially boils down to a very simple concept: a country governed by due process of law, and not by discretion, personal believes or personal conviction.

A final point to note here is that, legal process as a dispute resolution mechanism is not restricted to court room litigation only. There are a myriad of dispute resolution mechanisms that are ‘legal’ in nature without having to resort to the court room: inquiry, mediation, conciliation and arbitration are but some examples of legal dispute resolution mechanisms that does not involve the court room. Utilizing legal process to resolve dispute is best seen as a mindset, an approach that respects the objectivity of law and utilizes it, in whatever form, to resolve conflicts, whether between individuals, between individuals and the state, or even between the various institutions of the state. Be it sensitive or not.
But a constitutional issue, if not resolved by legal process, then by what?

Lua Bo Feng
January 2010

Part 1 "The Chasm"

Understanding politics in Malaysia is an arduous affair. The ‘multi-racial’ and ‘multi-cultural’ version of Malaysia portrayed in various popular media literature belies the intricacies, complexities and sensitivities of our shared historical or contemporary socio-political narratives. This is as yet to take into account the wilful distortion, misrepresentation and outright perversion of these narratives through systemic indoctrination by institutions of power, simplifying and reducing our very complexities into neatly organised socio-racial categories - ripe for exploitation in a society where alienating the ‘others’ produces profitable political outcome. This oversimplified versions of ourselves not only belittle our shared history and identity, it robs us of our boundaries for tolerance; Reducing our collective imagination to a pale shadow of but a few colours, destroying the diversity of culture, religion, language and gene pool that interweave this landscape since the beginning of its history.

We nitpick on our differences, finding ever smaller taxonomy to squeeze into, simultaneously amplifying its significance. From heavily entrenched categories like race and religion, to smaller subdivisions like linguistic group, tribe/clan faction, peninsular/Borneo dichotomy and countless more just to name a few. While the necessity or implications of such arrangement leaves significant room for disagreements, it cannot be denied that this national obsession has completely consumed our collective psyche. Hogging up much needed grounds for constructive nation building enterprise, forcing us into fruitless impasse every corner we turn.

The landscape of Malaysia is one scarred with veins of chasm, an island separated by plateaus of largely exclusive ecosystem. Each evolving its own micro ecology; minor apex predators carving out their little dominion, oblivious to the shifting macro continents inching ever closer and the winds of change that beckons. The culture in this land is that of insecurities, finding solace in building walls instead of bridges, each community seeking to define itself by what it is not, instead of what it is. Emphasising the differences and exaggerating the weaknesses of the ‘others’, we amplify the exclusive elements in our identity and devalue those that are inclusive.

Malay-Muslim first, Malaysian second

Chinese first, Malaysian second

Indian first, Malaysian second

Why is it so difficult to be Malaysian without throwing in extra identification markers? Would we lose sight of who we are without those markers? Is the common denominator so meaningless as to be rendered void without those markers? Or are we asking too many questions before we even embark on our quest. “The journey of a thousand miles begins with a single step” – Confucius. In our case, let us start with two:

Firstly, a thorough re-reading of our historical documents, both ancient and recent, is required to reconstruct a collective national consciousness. The numerous effort injected into rediscovering our shared past by historians, social/political/legal activist and commentators most cherished would hopefully unearth charms buried in our past to shine a way at our future for the current generation to build their aspirations upon. But digging into our past would certainly unearth skeletons of resentments that we must confront with courage and solidarity, because these are the shadows of our deeds, and they will continue to haunt us and keep us from true deliverance. We must come to terms with our demons; liberate ourselves from the shackles of distrust and ignorance in order to advance as a whole, complete nation.

Secondly, a thorough review of our legal documents, both fundamental and derived, is necessary to restructure our civil society based on values of inclusivity. This must be done to reflect the country as a focal point of divergent versions of truths, and when these realities collide; tolerance is the only tenet capable of cushioning the impact. But tolerance must not be confused with submission, as the latter involve a certain degree of reluctance and surrender – the first step towards resentment. True tolerance is not an exercise of concession or compromise, but liberation of the mind from assumption of popular truth and of universal morality. This must be reflected in our legal documents.

In an asymmetrically divided society, tolerance for minority sentiments comes as easily as submission to majority repression.