Portal de Periódicos da CAPES

The Rise of Constitutional Patriotism in Malaysian Civil Society

2013; Routledge; Volume: 38; Issue: 3 Linguagem: Inglês

10.1080/10357823.2013.767309

1467-8403

Gaik Cheng Khoo,

Gender and Women's Rights

AbstractThis paper aims to account for the resurgent interest in the protections provided in the Malaysian Federal Constitution and to understand the rights-based language used by Malaysian civil society actors over the past few years. Observers of Malaysian politics have concluded that since the 1980s the country has been “taking the long march to desecularisation” (Kessler, 2008). I argue, however, that Habermas’ notion of “constitutional patriotism” is alive and well in Malaysia and that it stands as a counterpoint to the trend of desecularisation. Constitutional patriotism is in fact growing, partly as a response to the concatenation of Islamisation and the discourse of Malay ethnic hegemony (ketuanan Melayu) which perpetuates identity boundaries between Malays and non-Malays and between Muslims and non-Muslims.Using discourse analysis to examine blogs and media reports, this paper illustrates that conscientious individuals and civil society invoke the discourse of citizenship and constitutional rights to counter the dominant politics of race perpetuated by the National Front (Barisan Nasional).They actively assume or perform “acts of citizenship” (Isin and Nielsen, 2008) that invoke patriotism towards the Constitution. I posit that constitutional patriotism in the Malaysian case is a call to return to the Constitution’s liberal democratic ideals that recognise religious and ethnic diversity.Keywords: Constitutional patriotismcosmopolitanismMalaysian politicsMalaysian civil societyinternet and politicsthe MyConstitution campaignBersih 2.0 AcknowledgmentsMy thanks to the Asia Research Institute (NUS, Singapore) for a visiting senior research fellowship during my sabbatical in 2010 and to the ANU for conference funding to present this paper at the Hong Kong ‘Crossroads in Cultural Studies’ conference in 2010. I would also like to thank the two anonymous referees for their productive comments and suggestions.Notes1. There is ongoing and extensive debate and discussion about constitutional patriotism, including points of disagreement with Habermas, complexity and varying applications which are too extensive to delve into in this paper. See Habermas (Citation2001) and Müller (Citation2007). For applications to the Canadian experience, see Fossum (Citation2001); to the Lebanese experience, see Reinkowski (Citation1997). For a complex account see Markell (Citation2000). Some critics of Habermas’ cosmopolitan patriotism include Baumeister (Citation2007), Gaudreault-DesBiens (Citation2008) and Turner (Citation1997).2. The Constitution offers little protection for the Orang Asli, mentioning them only in four areas (Chong, Citation2007).3. In November 2011, Seksualiti Merdeka, an annual sexuality rights festival was banned. See the group’s press statement here: http://www.seksualitimerdeka.org/, accessed 21 March 2012.4. Though the NEP ended in 1990, it was replaced by a similar affirmative action-style policy for Malays: the National Development Policy (1991–2000) and is largely still in place despite Prime Minister Najib Razak’s attempt to introduce a merit-based system under the New Economic Model (2010–20).5. “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”6. Article 8 stipulates that all persons are equal before the law and entitled to its equal protection without discrimination on the basis of religion, race, descent, gender or place of birth.7. Article 11 guarantees the freedom of religion.8. Moorthy’s case reflects a common scenario where there is conflict between Islamic religious bureaucrats who demand custody for burial of the body of a recently deceased Muslim, and surviving family members who deny the reality or legality of the deceased’s status as a Muslim convert (Whiting, Citation2010, p. 10). Shamala’s case offers another context of “a civil law marriage breakdown, when one spouse converts to Islam and unilaterally converts the children of the marriage, and then files for divorce and custody in the syariah courts, leaving the non-Muslim spouse to seek redress in the secular courts” (Whiting, Citation2010, p. 10).9. K. Das compiled and contributed letters, interviews and articles from newspapers and responses to Abdullah’s speech (Das, Citation1987).10. Examples include the 1981 Lake Club march by lawyers and others to protest the enactment of amendments to the Societies Act 1966 which were designed to curtail freedom of expression, assembly and association (Whiting, Citation2011); or even further back to The People’s Constitutional Proposal of 1947.11. Cases such as Hindu temple demolitions, Revathi Moososai and the body-snatching case of Moorthy by the Islamic authorities galvanised Indians to participate in the Hindraf (Hindu Rights Action Force) mass demonstration in October 2007 (Bunnell, Nagarajah and Willford, Citation2010; Whiting, Citation2010).12. Suaram, a Malaysian human rights organisation, cites growing religious intolerance on the part of state and non-state actors in its 2006 annual report: “...the denial of the right for non-Muslim [sic] to seek redress in a civil court in cases involving both Muslim and non-Muslim [sic] such as the case of Moorthy and Subashini, the denial of the right to choose a person’s own religion such as in the case of Lina Joy, the violent protests staged by certain groups in stopping a peaceful forum in Penang, and the most serious intolerance being the death threats issued against Malik Imtiaz Sarwar, a lawyer that acted in some of these cases defending the right to freedom of religion” (‘Human rights regress and protective systems collapse under Abdullah Badawi’s administration in 2006’, Suaram media press release, 29 May 2007).13. The groups opposed to recognising Lina Joy’s right to leave Islam included the opposition Islamic party PAS, FORKAD (Action Front Against Apostasy), Badai (Anti-Inter Faith Commission group) and Teras (Malay empowerment movement). Many Islamic NGOs in Malaysia tend to be linked to political parties and/or the government (Lemière, Citation2007, p. 47).14. Similar points can be found in Hoffstaedter’s book Modern Muslim Identities (2011). Also see Yeoh (Citation2011). A consideration of these lines of analysis is beyond the scope of this article.15. Though Islam is the religion of the Federation, Article 3(4) states that nothing in Article 3 derogates from any other provision of this Constitution. This means that the right to religion guaranteed by Article 11(1) is not extinguished as a result of Article 3(10).16. See Perkasa President Ibrahim Ali’s speech ‘Sekuritisasikan Perlembagaan Negara’ (Securitising the Federal Constitution) given in Malay at the first Perkasa general meeting, 27 March 2010, at the PWTC, Kuala Lumpur. Available at http://wargamarhaen.blogspot.com/2010/04/sekuritisasikan-perlembagaan-negara.html, accessed 23 August 2011.17. Bumiputera (Sanskrit lit. sons of the soil) refers to the Malays and indigenous peoples of Sabah and Sarawak. Although not a term found in the Constitution, it has come to represent Malay Muslim special rights in the Peninsula and is used to exclude Malaysians of Chinese and Indian descent as well as the genuine indigenous peoples of the Peninsula, the Orang Asli. See ‘Speaker shoots down motion on Orang Asli’s Bumiputera status’. Harakah Daily, 19 October 2010. Available at http://malaysia-today.net/mtcolumns/newscommentaries/35337-speaker-shoots-down-motion-on-orang-aslis-bumiputera-status, accessed 24 August 2011.18. One of Perkasa’s major demands is that all private sector companies, especially those owned by non-bumiputera, be required to sign an official pledge (akujanji) that they will neither hinder nor discriminate against the Malays in getting employment, participation in business and gaining access to markets. 126 NGOs were represented at Perkasa’s launch, including the Malaysian Coalition of Malay Writers (Gapena), Perkasa, Prowaris Malaysia, Pekida and the Malaysian 4B Youth Movement. These Malay NGOs are against Najib’s New Economic Model (NEM) as they fear the end of the quota system would affect “Malay special rights”.19. Article 153 privileges cover a number of specified areas such as positions in the public service; scholarships, educational or training privileges or special facilities; permits or licences for the operation of any trade or business required by Federal law; and places in institutions of higher learning providing education after the MCE (Malaysian Certificate of Education). See Article 153 clauses (4), (5), (7) and (8); also 89(2).20. While there may be other influential English-language blogs with a larger following such as Art Harun’s ARTiculation, I selected The People’s Parliament for its determinedly activist agenda of civic empowerment. Both are lawyers by profession but Haris is more activist. ‘Saya Anak Bangsa Malaysia’. Ipoh Echo, 7 February 2007. Available at http://ipohecho.com.my/v2/2010/02/07/saya-anak-bangsa-malaysia/, accessed 21 March 2012.21. Haris Ibrahim, for example, was the President of the Malaysian Civil Liberties Movement, legalised in London on 30 October 2010. He resigned after differences with its chairman, Raja Petra Kamaruddin, in January 2012.22. ‘Bar Council launches its MyConstitution campaign’. The Malay Mail, 13 November 2009. Available at http://www.mmail.com.my/content/18846-bar-council-launches-its-myconstitution-campaign, accessed 20 August 2011.23. Available at http://www.perlembagaanku.com/2010/01/myconstitutionperlembagaankus-2nd-rakyat-service-advertisement-constitutional-institutions-separation-of-powers/, accessed 20 August 2011.24. Available at http://harismibrahim.wordpress.com/about/, accessed 25 August 2011.25. Available at http://harismibrahim.wordpress.com/2009/08/31/ban-warrior-231-you-decide/#comments, accessed 25 August 2011.26. “dpp” responds here: http://harismibrahim.wordpress.com/2011/07/28/press-release-by-tian-chua-on-the-brutal-teargas-attack-at-the-kl-sentral-tunnel/#comments, and the slogan ‘“Imagine Power To The People” John Lennon’ is found here: http://harismibrahim.wordpress.com/2010/02/27/the-sabm-message-goes-to-ground; both accessed 25 August 2011.27. Available at http://harismibrahim.wordpress.com/the-peoples-voice-the-peoples-declaration/, accessed 24 August 2011.28. Habermas argues that the people who abide by the Constitution must think of the common good and that individual rights (private autonomy) and democracy/collective rights (political autonomy) are connected to one another: “The demand to orient oneself to the common good, which is connected with political autonomy, is also a rational expectation insofar as only the democratic process guarantees that private individuals will achieve an equal enjoyment of their equal individual liberties. Conversely, only when the private autonomy of individuals is secure are citizens in a position to make correct use of their political autonomy. The interdependence of constitutionalism and democracy comes to light in this complementary relationship between private and civic autonomy: each side is fed by resources it has from the other” (Habermas, Citation2001, p. 780).29. See Jayanath Appudurai, ‘Break the shackles of “tribal think”’. The People’s Parliament, 26 July 2007. Available at http://harismibrahim.wordpress.com/2007/07/26/break-the-shackles-of-%E2%80%9Ctribal-think%E2%80%9D/, accessed 25 August 2011.30. From the Saya Anak Bangsa Malaysia Charter: Available at http://sayaanakbangsamalaysia.net/index.php?option=com_contentandview=articleandid=64andItemid=85, accessed 5 October 2011.31. From ‘What is Saya Anak Bangsa Malaysia?’ Available at http://sayaanakbangsamalaysia.net/index.php?option=com_content&view=article&id=68&Itemid=84, accessed 5 October 2011.32. The Saya Anak Bangsa Malaysia Charter can be accessed here: http://sayaanakbangsamalaysia.net/index.php?option=com_contentview=articleid=64Itemid=85, accessed 17 December 2012.33. ‘Bangsa Malaysia Merdeka get-together: The real thing’. The People’s Parliament, 26 August 2007. Available at http://harismibrahim.wordpress.com/2007/08/26/bangsa-malaysia-merdeka-get-together-the-real-thing/, accessed 25 August 2011. 67 people attended the forum and 150 attended the get-together, including many bloggers.34. http://harismibrahim.wordpress.com/2008/08/18/dear-anwar/, accessed 25 August 2011.35. The MAFU music video and the fifteen short films 15Malaysia were non-profit projects made to be distributed for free on the internet. Amir Muhammad’s documentary Malaysian Gods was inspired by the Reformasi events in 1997 and the Hindraf street demonstrations in 2007. See http://www.youtube.com/watch?v=gNbAnX9SJrw&feature=related and http://15malaysia.com/, accessed 25 August 2011.36. ‘Four BERSIH petitioners arrested within parliament compound’, 11 December 2007. Available at http://www.youtube.com/watch?v=VD6d8OIyy6I&feature=player_embedded, accessed 25 August 2011.37. ‘Sanctity of parliament violated – Chin Huat sings Negaraku on arrest (YouTube)’. Available at http://blog.limkitsiang.com/2007/12/12/sanctity-of-parliament-violated-chin-huat-sings-negaraku-on-arrest-youtube/, accessed 25 August 2011.38. A series of flashmobs, a new cultural urban phenomenon in Malaysia, was organised by the 528 Media Action group together with the Centre for Independent Journalism and Writers’ Alliance for Media Independence (WAMI). Groups would appear in masks outside malls, on the light rail transit reading the mainstream newspapers upside down (Hazlan Zakaria, Citation2010). See also ‘Another TV producer claims political meddling’. Malaysiakini.com, 28 April 2010. Available at http://www.malaysiakini.com/letters/130435, accessed 20 August 2011.39. Extraordinary People Impacting Community (EPIC). Available at http://dosomethingepic.net/?page_id=18, accessed 20 August 2011.40. Closer to Arendt’s idea of citizenship would be Occupy Dataran, “a new independent and autonomous grassroots initiative to reclaim Dataran Merdeka as an open and democratic space for people to gather, discuss and explore the true meaning of democracy beyond the representative system, to redefine democratic participation beyond the ballot box, to imagine a new political culture beyond race, ideology and political affiliation”. Available at http://www.facebook.com/occupydataran?sk=info, accessed 16 February 2012.41. Haris Ibrahim, 27 February 2010, after a SABM meeting. ‘The SABM message goes to ground’. Available at http://harismibrahim.wordpress.com/2010/02/27/the-sabm-message-goes-to-ground/, accessed 25 August 2011.42. Available at http://www.youtube.com/watch?v=0BAxeFy2NA4. See ‘Justice for Beng Hock: Protesters arrested 17/07/2009 (Part 1)’.YouTube, accessed 25 August 2011.43. Under Part II of the Federal Constitution – Fundamental Liberties (Arts. 5, 6, 7, 8, 11, 12(2), 12(3) and 13) where the words “any person” are mentioned, these constitutional rights apply to migrants as well as citizens. However, Article 10, which delineates freedom of speech and expression, of peaceful assembly and association, is subject to clauses (2), (3) and (4) and therefore is not in line with international law – i.e. Article 19 of the UN Universal Declaration of Human Rights. This is problematic as such fundamental freedoms should be enjoyed by all regardless of immigration status or citizenship. The author thanks lawyer Angeline Shannan for this point.44. Perkasa’s vocal boasts are not followed through with actions, as demonstrated on the day of the Bersih 2.0 rally when it failed to show up (Aw, Citation2011). In another controversial incident, the Shah Alam cow head protestors only succeeded in alienating other residents from both neighbourhood associations who deemed the protestors’ actions extremist (Mahavera and Siti Nurbaiyah, Citation2010).