— Clive Kessler
The Malay Mail Online
October 16, 2013

OCT 16 — The more I think about the Court of Appeal’s recent judgment in the case of the government’s appeal against the lower court’s determination in favour of The Herald, the crazier, and more infuriatingly wrong-headed, it seems.

The legal reasoning of Justice Mohamad Apandi Ali seems not just “innovative” but arguably bizarre and, to the historically minded, even absurd. It seems hardly sustainable.

It rests upon and promotes the radical idea that the enjoyment by minorities of their religious freedom “in peace and harmony” was, as a form of words, not intended as a constitutional guarantee or assurance to them but as a way of making that freedom of theirs subject to the pleasure, discretion and the inflationary whims of the majority.

With that “contrarian” spin, these words are now made to serve as the practically enabling condition or mechanism of the minority’s subordinate and infinitely ever more constrainable situation.

That is to say, of a situation where the exercise of any of the potential freedoms of religious conscience that the minority might claim is now to be made conditional upon continuing, and always revocable, majority consent — upon the majority’s increasingly reluctant and unlikely forbearance.

What this means practically, when things are stated bluntly, is that the enjoyment of minority rights is conditional upon the continuing readiness of the most extreme members of the majority not to create conditions of general social “un-peace” and “disharmony”. Not in the face of anything that may be uncongenial to any of the majority’s most implacable members. Not even at the imagined prospect of any affront, genuine of contrived, to their sectional sensibilities.

This is a foundation not for underwriting minority rights and religious freedom but for ensuring their uncertain and constrained nature, of placing them in question.

This kind of reasoning is deceptive and insidious. It provides for the narrowing and negation of minority rights and ultimately of human rights generally, even for members of the majority.

It does so by means of a denial that is voiced in the name and couched in the terms of an affirmation, an affirmation of religious liberty and human and political freedom.

Its plain implication is this. So long as nobody, no crazy extremist, objects, the minority may quietly enjoy their entitlements and “do their thing”.

But, by this new affirmation of the supposedly conditional nature of minority rights, the radically and irremediably discontented among the majority are now given every incentive to object. And to do so, precisely, in ways that raise the spectre of unrest, disharmony, conflict and social violence.

More, the restless malcontents with their ever more exorbitant demands are now provided with an unstoppable instrument, a constitutionally affirmed and protected means, to do so.

Once they wield it, once there is an objection — any possible objection — then it is the minority who have disturbed the peace, or threatened to do so, and who must therefore be denied and stopped.

So, in sum, it amounts to a denial of rights couched in the form of an affirmation of freedom. An old saying holds that “justice delayed is justice denied”. Here we might say “freedom affirmed, yet freedom is thereby denied”.

But no surprise! The logic here is not new.

It is the same logic that was employed by the Islam-invoking “ethno-supremacist” hard-liners when Pak Lah was PM, when it was used to undermine his leadership. Notably, for example, in the opposition to the creation of an Interfaith Council and to the coalition of supporters of Article 11.

It’s the same logic here, now, as then — except now it is voiced by and applied via the courts, rather than asserted by rowdies in the street.

To make the “peace and freedom” wording of Article 3 serve this purpose, to make those words serve as a widely available means of legal intimidation rather than as the basis of the constitutional assurance of minority protection, seems nothing short of wrong-headed, perhaps even perverse.

It goes against the “plain sense” of those words as they were generally understood when the Constitution was promulgated and against the entire history of constitutional interpretation and reasoning.

* Clive Kessler is Emeritus Professor of Sociology & Anthropology at the University of New South Wales, Sydney.