Communalism, law and state power: the limits of political change in Malaysia

Abstract

Communalism has been a central feature of Malaysian politics. Communal identity and competing communal interests formed the basis of Malaysia's "constitutional contract" agreed upon by leaders of major communal groups - Malays, Chinese and Indians - on the eve of independence in 1957. Contrary to the liberal notion of social contract, the communally-based constitutional contract had been tilted toward serving competing communal interests rather than promoting individual liberties. Continuing articulation of competing communal interests in post-independent Malaya, coupled with a communist threat, prompted the government to enact and enforce illiberal laws, aiming at maintaining national security and racial harmony in a communally-divided society. The courts too, recognizing the importance of state policies on ethnic relations, economic development and national security, legitimated illiberal statist legal meanings, which prioritized state power over individual freedoms. However, by the 1990s, the easing of ethnic tension and the end of the communist threat led to the questioning of the use of illiberal laws against political opponents and government critics. The trend in subjecting them to criminal and civil proceedings also raised concerns that the courts had been turned into one-sided political arenas to disgrace and humiliate political opponents and make oppositional political activities illegitimate. The criminal trials of former Deputy Prime Minister Datuk Seri Anwar Ibrahim vividly illustrated the conduct of political trials in Malaysia. However, the politics of Reformasi, which began soon after Anwar's ouster from the government in September 1998, had promoted a non-communal vision of Malaysian politics and proliferated liberal legal meanings based on the liberal conception of rule of law, contesting the illiberal statist legal meanings. The government responded to this development by making "superficial" legal changes in politically less sensitive areas like women's rights and normal crime, while continued to maintain an illiberal legal structure in the politically highly sensitive areas like national security and ethnic relations. Progress toward greater government responsiveness in these areas however had been slow and halting. By the mid 2000s, tussles between the Islamic mainstream, which promoted the more conservative view of Islam and religious freedom, and the liberals, who promoted the more liberal understanding of the same, reinforced communalism and raised a specter of divisive communal politics. This in turn provided the government with justifications to maintain the illiberal legal structure on the grounds of maintaining religious and racial harmony. Despite the recent push for democracy and non-communalism, the politics of race, religion and repression continued to be a dominant feature of Malaysian politics.