THE Barisan Nasional (BN) government should thank High Court Justice Mohamad Ariff Md Yusof for quashing the Home Ministry’s ban on Muslim Women and the Challenges of Islamic Extremism. The academic book is edited by Prof Norani Othman and published by Muslim women’s non-governmental organisation Sisters in Islam (SIS).
Too often we read about why judicial independence is good for the citizenry. It is, however, equally important for the government, because wise judges can prevent the government from doing stupid things to embarrass or trap itself.
For laws to work, they require either legitimacy or intimidation, which can be mutually substituted to varying degrees. If the law is highly legitimate, the government does not need to rely so much on intimidation — by threatening heavy penalties, for instance. On the other hand, if the law is highly illegitimate, then in order to enforce the law, the government would need to resort to heavy punishments. These could range from heavy fines and imprisonment to even death, plus additional threats of bloody crackdowns in the face of resistance.
Put another way, a government may legislate on anything, but a smart government would not legislate on everything. To quote the words of wisdom from the American Revolution: “That government is best which governs least.”
Therefore, where social pressure is applicable and adequate, legal punishment should be spared. This explains why the use of vulgarities may be punishable in parliaments and courts of law, and yet most societies would not put someone behind bars simply for swearing in public. And if vulgarities, an offensive form of expression, can be left to society for censure, shouldn’t more civilised expressions of opinion also be left to the public’s judgement?
So, why do authoritarian governments like to censor opinions and thoughts? This is not a question of normative preference, but one of strategic consideration. What makes authoritarian governments think that their censorship would work?
Essentially, they believe their laws are legitimate in the eyes of the public since the public does not seem to object to these laws. They could also be convinced that the public would not want to pay the price of objecting to the enforcement of such laws.
But it does not require the whole of society to resist an illegitimate law. It just takes a few individuals to create an impact.
Consider the example of resistance to war. In the 1840s, Henry David Thoreau, author of Resistance to Civil Government, was imprisoned for a day because he refused to pay taxes to support the Mexican-American war. He was released against his will the next day when his aunt paid the taxes for him. Thoreau was only imprisoned for a day, and yet today, countries like Switzerland, Germany, Austria and Norway allow “conscientious objectors” to serve in civilian service as a substitute for military service.
What happens if the government insists on drafting pacifists to combat in the battlefield? It creates prisoners of conscience. When someone is willing to pay the legal price, like Thoreau, for opposing a law that he or she sees as unjust, intimidation fails. And the legitimacy of the government will be hanging in the air, depending on whether the conscientious objector’s action can swing public opinion.
Back to SIS’s book: what would have happened if the High Court upheld the Home Ministry’s ban? What would happen if the government decided to appeal, and the Court of Appeal — and potentially the Federal Court, if it came to that — overturned the High Court decision?
It could pose a call for Malaysians to be conscientious objectors. Imagine this: 30 persons reading a copy of the banned book — this could be easily done if someone scanned it into PDF format and others downloaded and printed it — in front of a bookshop in one of Klang Valley’s major shopping malls. Under the Printing Presses and Publications Act, mere possession of banned books may lead to a fine of RM5,000.
What would the Malaysian police do? Arrest them before the eyes of thousands of foreign tourists and reporters? If they did that, the subsequent trials for these 30 “conscientious readers” would have the entire world watching Malaysia.
Does Malaysia need more bad press in eyes of the world? After all, on a global scale, we have probably contributed a disproportionate per capita share of politicians saying stupid things.
A parallel example can be drawn with the “Allah” row. Many worry that the government will win its appeal in the Court of Appeal and potentially the Federal Court. But those potential victories would just be a curse in disguise for the government.
Why? Because such judgements would indirectly uphold the ban on the word “Allah” and other Arabic words by the various states’ Islamic enactments. Imagine this scenario: 30 Christian Orang Asli, Sarawakians, Sabahans and Indonesians using “Allah” and “nabi” and “Injil” during their church service. If the arson on churches has failed to instill fear among Malaysian Christians, it is very likely some might gladly defy the court order to show its absurdity.
So, for this hypothetical group of Christians, would the government then execute the Islamic enactments? If the government withheld execution, the laws would be as good as old newspapers. But if the government did impose Islamic legislation, it would have 30 indigenous persons and foreign citizens jailed for praying to Allah. Imagine what international headlines would scream about Malaysia.
If the government now cannot even decide whether to cane Kartika Sari Dewi Shukarno for drinking alcohol, would it dare send 30 people to jail for worshipping Allah?
If I were Prime Minister Datuk Seri Najib Razak, I would instruct the Home Ministry not to appeal against the High Court’s decision on SIS’s banned book, and also to withdraw its appeal on “Allah”. It is better to eat a small serving of humble pie now than to have to swallow a much bigger portion later.
Wong Chin Huat is a political scientist by training and journalism lecturer by trade. He believes an independent judiciary can arrest declining intelligence among politicians.
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