by R. Rueban Balasubramaniam*
When
Malaysia gained independence from British rule in 1957, it embraced a
‘supreme’ written Constitution that included an extensive bill of rights
that protects the right to life and liberty, the right to due process,
the principle of equal protection before law, as well as civil and
political rights.1 This constitutional framework seemed
conducive to a culture of constitutionalism where organs of government
are under a legal duty to uphold constitutional norms that might be
enforceable by judges through judicial review, which would
systematically orient political power to serve the rights and interests
of legal subjects. As such, the constitutional framework seemed aptly
designed for the aspiration to realize the ideals of democracy and the
rule of law.
Unfortunately,
this aspiration has gone unrealized. A major source of this problem is
political. Malaysia has a Westminster system of government where the
executive is derived from the majority party in Parliament.2
But unlike Great Britain, where the Westminster system has led to a
robust democracy, Malaysian politics is ethnocratic and authoritarian.
The same political party, the United Malay National Organization
(‘UMNO’) has held power since 1957. UMNO is committed to an ethnocratic
political paradigm that favours the Malay ethnic majority.3
Over time, the UMNO-led government has been able to control Parliament
so that it has been able to limit civil and political rights and to
curtail constitutional checks on its power.4 This has allowed
the government to pursue ethnocratic and authoritarian rule and to
subvert the ideals of democracy and the rule of law.5
The
political factors that contribute to the problem of authoritarian rule
in Malaysia raise vexing questions about whether democratic politics can
flourish in a society afflicted by deep ethnic cleavages. Likewise,
they raise difficult questions about institutional design, especially in
relation to an attempt to create a Constitution that might be a focal
point for a way to encourage either integration or accommodation to
overcome such cleavages.6 These are important questions to address in the Malaysian context.
These
questions are crucial but I think there is a more fundamental problem
that underlies Malaysia’s seemingly stalled constitutional project.
There is reason to think that officials have been working under the grip
of an inherently authoritarian conception of legal authority that has
led them to derail Malaysia’s constitutional project. Until this problem
is appreciated, there is a danger that even the best effort to
construct an institutional framework that might better produce a
meaningful democracy that operates within a commitment to the rule of
law will not succeed. Put another way, this problem is a legal one as
much, if not more, than it is a political one.
In
this paper, I argue that Malaysia’s problem of authoritarian rule is in
part due to the influence of Hobbism upon official thinking about legal
authority. As I explain below, Hobbism is a conception of legal
authority that captures the major ideas in Thomas Hobbes’s legal and
political philosophy.7 Hobbes is widely thought to provide an
authoritarian conception of law as an answer to the problem of
destabilizing social disagreement. However, I should clarify that I do
not intend Hobbism to be an interpretation of Hobbes’s philosophy; the
aim here is not an exegesis on Hobbes work. Rather I use Hobbism, as a
heuristic that captures a pervasive pattern of thought amongst officials
that has led them to make practical judgments about the law that have
been damaging to democracy and the rule of law while proving congenial
to the rise of authoritarian rule.8 It is worth
understanding the nature of Hobbism because it sheds light on how
Malaysian officials have been drawn into a way of thinking about the
role of law as an antidote to the problem of political instability and
how this way of thinking has led to authoritarian consequences.
[continued]
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Dr Rueban holds the rank of Associate Professor in the Department of Law and Legal Studies at Carleton University, Ottawa, Canada.
He
earned his LLB (Second Upper Honours) from the University of London,
his Masters in Philosophy (specialising in law) from the Australian
National University, and his Doctorate in Juridical Science from the
University of Toronto. He completed his post-doctoral fellowship at the
Centre for Ethics at Trinity College, University of Toronto.
Dr
Rueban specialises on the rule of law, focusing on the Malaysian
legal-political system. At present, he is developing a theory of the
Malaysian Constitution that advocates social compromise as the way to
achieve social stability in Malaysia (and similar regimes). His
project: (1) sets out the core values that animate the Malaysian
constitutional project, (2) describes how the Constitution should be
interpreted, and (3) includes concrete proposals for meaningful
constitutional reform.
*This
article was originally published in the Hague Journal on the Rule of
Law. If citing from this article, please use full citation information:
Ratna
Rueban Balasubramaniam, “Hobbism and the Problem of Authoritarian Rule
in Malaysia” (2012) Volume 4, Number 2 Hague Journal on the Rule of Law,
pp. 211-234.
1Article 4 (1) reads
as follows: ‘This Constitution is the supreme law of the Federation and
any law passed after Merdeka Day which is inconsistent with this
Constitution shall, to the extent of the inconsistency, be void’. Part
II of the Constitution sets out a bill of rights protecting the right to
life, liberty, and due process, the principle of equality before law, a
ban on slavery, a ban on retrospective legislation, as well as a list
of civil and political liberties. Part IX lays out provisions relating
to the judiciary, including provisions safeguarding the “judicial power”
of the courts to determine matters of law as well as provisions giving
the highest court, now known as the Federal Court, an advisory
jurisdiction on constitutional matters. As we shall see, some of these
provisions have been amended to reduce the power of the courts to decide
constitutional issues.
2 I use the term ‘government’ to refer to the executive.
3
For an explanation of the rise of ethnocratic rule in Malaysia, see
Geoffrey Wade, ‘The Origins and Evolution of Ethnocracy in Malaysia’
(2009) Asia Research Institute Working Paper Series No. 112.
4
The Constitution has been amended over 50 times since the creation of
the Constitution. In attacking this trend, it has been argued that “the
Constitution is treated in a somewhat cavalier fashion” because these
amendments have often been geared toward short-term political gain, see
H. P. Lee, Constitutional Conflicts in Contemporary Malaysia, 1995, p. 119.
5 Malaysian
politics has been variously described as “semi-authoritarian,”
“semi-democratic,””soft-authoritarian” or “pseudo-democracy” to capture
the fact that the Malaysian government, while not predatory of its
citizens, practices selective accountability. For a recent analysis of
the state of Malaysian politics, see Thomas B. Pepinsky, ‘Turnover
Without Change’ 18 Journal of Democracy (2007), p. 113.
6
For a leading examination of the link between what political science
says about institutional design for divided societies and constitutional
theory, see Sujit Choudhry ed., Constitutional Design for Divided Societies: Integration or Accommodation?, 2008, especially pp. 5-40.
7 Hobbism
is a term coined by David Dyzenhaus to capture the authoritarian
reading of Hobbes’ work so my account of Hobbism draws heavily from his
work, see David Dyzenhaus, Hard Cases and Wicked Legal Systems: Pathologies of Legality,
2nd edn., 2010, pp.205-09. In Dyzenhaus’ view, Hobbes is not a Hobbist
and in fact creates the basis for a democratic conception of legal and
political authority, see David Dyzenhaus, ‘Hobbes and the Legitimacy of
Law’, 20 Law and Philosophy (2001), p. 1. Though some object that
the term “Hobbist” is perhaps awkward and jarring (sometimes because it
makes them think of Hobbits), I will stick with it. The term is useful
precisely because it is jarring and allows me to distance myself from
Hobbes’s specific views about law and politics (as I am not convinced
that Hobbes is Hobbist) and because the term now has a place in legal
philosophy as a conception of legal authority associated with a
particular mode of legal reasoning and a broader conception of truth in
law and politics as matters of “plain-fact.” This “plain-fact”
conception of truth holds that truth in law and politics turns on
publicly accessible facts, especially historical facts. Elsewhere, I
develop this idea by drawing on a mix of Dyzenhaus’s account of
plain-fact legal reasoning discussed in the book cited above and Ronald
Dworkin’s account of the “plain-fact” view of law, outlined in Ronald
Dworkin, Law’s Empire, 1986, pp. 6-11. There, I argue that the
influence of plain-fact truth in law and politics has stalled debate
between ethnocrats and liberals about the fundamental principles of
political morality that inform the Malaysian legal-political order.
Under the influence of plain-fact thinking, they do not explicitly
engage each other at the level of normative considerations of value and
are distracted by the tendency to look to historical fact. Each supposes
that history somehow provides an objective basis by which to adjudicate
their debate. However, the result is that each side makes circular
arguments about history that presuppose the truth of their particular
political commitments thus leading to a stalemate. see R. Rueban
Balasubramaniam, “Malaysia’s Blocked Social Contract Debate” in Andrew
Harding & Amanda Whiting eds., Law and Society in Malaysia: Pluralism, Islam, and Development (under review).
8
For an argument as to why Hobbism carries an inherently authoritarian
pragmatic tendency, see David Dyzenhaus, ‘Why Positivism is
Authoritarian’ American Journal of Jurisprudence (1992), pp. 83-112, p. 86.
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