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
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