Use and abuse of the human rights discourse
by Dr. Mazeni Alwi

If a columnist of a mainstream paper can be said to represent the general mood of the malaysian middle class, it is gratifying to note that we have suddenly woken up to the realization that we must defend our civil liberties as enshrined in articles 5 and 10 of our constitutions. It is uplifting to see that we can put aside our usual worries of how to make the most money in the shortest possible time and that life’s greatest dilemma is deciding which shopping mall to go to this Sunday. Is this for real? This has not been seen before in our sycophantic mainstream media with its fawning herd of columnists and commentators. They used to be very sensitive and touchy over the subject of fundamental civil liberties, always amplifying the stance of the authorities to the point of refusal to even look at the human rights discourse objectively, for it is not without deficiencies. I guess our aversion has much to do with the fact that we don’t like what we see in the mirror as far our human rights practices and record are concerned. We had a good argument at that time. We are asians, we are successful beyond our wildest dreams, and we have our “asian values”. With a sneer, we said that the human rights discourse is a western concept and its claims of universality is just a cover for the west’s hegemonic designs. They are just “jealous of our success”.

As a simple primer, the idea that human rights are universal and that human dignity is inviolable crystallized after the Nuremberg trials of Nazi war criminals into the Universal Declaration of Human Rights (UDHR), an ambitious combination of civil, political, economic, social and cultural rights adopted by the General Assembly of the nascent United Nations on 10th December 1948. Stretching back into history, such notions had their beginnings in the Habeas Corpus act and Bill of Rights of 17th century England, the American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen.

But the cold war politics that followed not long after stifled the human rights discourse and stalled its evolution into an effective international mechanism that protects the dignity of man as both power blocs vied for the support of dictatorship that comprehensively violated them in Africa, South America, Asia and the Middle East. Although the twin Covenants on Civil and Political Rights signed during the cold war decades were supposed to have carried contractual weight, this became mere pious declaration with no real intention of abiding by them. Proxies of both blocs understood that their continued human rights abuses were expediently condoned if not encouraged by their respective masters.

With the collapse of communism, as millions of eastern europeans basked in the euphoria of their newfound liberty, there was a genuine determination to make human rights work, give or take the “end-of-history” triumphalism of the US. For a few years in the early 90’s the human rights discourse seemed free of ideological constraints and there was real optimism that the world could be on its way towards that vision of the Universal Declaration at its adoption in 1948. Nobody would dispute that the dignity man, the basic freedoms of thought, conscience and expression, and the right to life and liberty should be enshrined as “universal”. Also, as the euphoria was beginning to fade in the 1990’s and as the spectre of another ethnic cleansing was fast taking shape in europe’s backyard in the aftermath of communism’s demise, the determination to make the concept of universal human rights truly work took on a sense of seriousness and urgency – only for us to throw the spanner of “asian values” into the works. Universal human rights is a concept that the west is imposing on us in their quest for global domination, went our standard line (that is of course not an entirely hollow accusation as western governments are not averse to hypocritically use the human rights discourse as leverage whenever the occasion suits them).

Why not, we were at that time riding high as the tiger economies with near double digit growth for years in succession. I suppose hard work, loyalty and unquestioning obedience, though not exclusively asian traits, they are something that we east asians exhibit more that other third world peoples. But our runaway success was not because of that alone. It was a combination of those traits with hot money, unsavoury corporate practices, and also a political stability bought at the expense of some degree of suppression of civil liberties, thanks to novel new uses of draconian laws bequeathed by our former western colonial masters. We would not allow these embarrassing human rights issues to spoil our party. Our leadership and that of Singapore, China and Indonesia cleverly devised that “Asian values” argument to discredit human rights discourse as the liberal west’s agenda. Before the UN World Conference in Vienna in 1993, asian countries caucused and went to the conference with our declaration that universal human rights must evolve to accommodate the significance of national and regional peculiarities and various historical, cultural and religious backgrounds. The conference’s final declaration at the insistence of the asian bloc made no reference at all to the Civil Covenant or to individual rights such as freedom of speech and freedom of assembly (Crimes against humanity – the struggle for global justice” by Geoffrey Robertson, Penguin Books 2000). For the good part of the 1990’s and more so after the upheavals of 1998 our media commentators and columnists have been very creative at propagandizing this line – we have do away with some of these fundamental freedoms for the sake of development. We are Asians anyway, we have our own religions and cultural traditions, and those freedoms that we clamour for will only lead us to the path of western moral decadence.

After a posture of disdain and contempt towards the human rights discourse today some of our pundits have, out of the blue, become its staunch defenders – for the simple reason that it is a very useful and effective tool to undermine the place of the Sharia in muslim society. The Sharia enactments trample on our civil liberties, they violate articles 5 and 10 of our Constitution, wrote one columnist recently. But those who have never had any genuine concern for human rights and civil liberties are bound to reveal their ignorance or perhaps dishonesty when they misuse the discourse for a dubious end. Let us be reminded that article 5 is about the rule of law, the unlawfulness of detention without trial and the right to a legal counsel, whereas article 10 protects the freedom of speech, assembly and association. These are the fundamental civil liberties which the Islamic religious authorities actually have no jurisdiction through the Sharia enactments. Malaysia is unique in that it has 2 legal systems with the Sharia having a very limited jurisdiction and applying only to muslims, covering family law and specific areas of public morality. Therefore the accusation that the Sharia infringes on civil liberties guaranteed by articles 5 and 10 is laughable. It is precisely in these 2 areas of human rights that we as a nation have habitually been the target of criticisms which we cleverly deflected with the “asian values” rhetoric.

The strong men of asia, all of whom have now retreated from the seats of power, may have used “asian values” to silence critique and curb civil liberties in the name of development. The concept of universal human rights has evolved sufficiently such that no one today would disagree that freedom of thought and expression, the right to a fair tribunal, the unlawfulness of arbitrary arrests and torture are non-negotiable (except in extenuating circumstances, which even then safeguards against abuse of executive power must be in place). That our leaders could appeal to our values and traditions for a wholly different end and we all bought it was ingenuous. But is there absolutely no place for cultural relativism in this discourse?

There are some of us who treat the human rights discourse as contained in the Universal Declaration as a sacred religious dogma. But we must differentiate between fundamental civil liberties that allow no room for cultural relativism, which at any rate are compatible with the moral teachings of all authentic spiritual traditions, and those parts of the Universal Declaration (UDHR) which constitute no more than ideals or aspirations, and therefore allow for consideration of nuances of customs, traditions and level of economic development. For a traditional agrarian society, article 24 makes no sense, “everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay”. Homosexuals would take unkindly to section (3) of article 16 which says “the family is the natural and fundamental group unit of society and is entitled to protection by society and state”.

For muslims, beyond the scope fundamental civil liberties as per articles 19 and 20 (the basis of our articles 5 and 10), which are in concordance with Islamic principles, are we not entitled to be governed by laws some of which are derived from the religion’s teachings – the Sharia, if we were interpret article 18 correctly, “…freedom, either alone or in community with others, and in public or private, to manifest his religion or belief in teaching, practice, worship and observance?” (the part about the freedom to change his religion may not sit well with some muslims but that is another matter)

It is interesting that the campaign to repeal the Sharia and deny muslims their right of this public aspect of their religion as guaranteed by the constitution in the context of Malaysia’s multi-religious society is initiated and spearheaded by muslims. Perhaps knowing that they are unlikely to get much support from mainstream muslims, they turn to non-muslim NGOs and social activists who may be well-intentioned in the cause of advancing civil liberties and democracy. The use, or more accurately abuse of the human rights rhetoric is very persuasive to the unsuspecting. In this highly mediatized age, the simple minded – no matter how well-meaning, are quick to label people, in this context, muslims, as either “liberal progressive” or “conservative”, “morally uptight” or “enlightened”, “modernist” or “obscurantist”. But in real life things are much more nuanced than that. Wether the Sharia should be repealed or not is actually an internal muslim issue as its jurisdiction is limited to muslims. This should be resolved internally by honest discussion and dialogue between those having opposing views. Of course there will be entanglements between muslim and non-muslim parties at individual level which may complicate the Sharia administration, but this is something that is not impossible to resolve amicably. To drum up support from non muslims using the human rights bait is mischievous.

In truth, we are a people with no genuine commitment to values, and that is how we have excelled at double-speaking. When people accuse us of undermining fundamental civil liberties, we say the human rights discourse has no universality, a purely western agenda that seeks to corrupt our society with decadent western culture. We sought refuge in cultural relativism and appealed to our “asian values”. But we also want to be feted as “progressive and liberal muslims” by our friends and the Sharia which happens to encompass some of those “asian values” is such a sore and embarrassing anachronism that we don’t want to be associated with. That human rights thing has its uses after all.

Dr. Mazeni Alwi

The wellspring of law and morality
by Dr. Mazeni Alwi

“The long arm of the law” is no longer such a proverbial phrase today. Ask those British and German men whose idea if a holiday in a tropical paradise is paying for sex with young girls and boys in exotic Thailand or Cambodia. They face prosecution at home for a crime committed thousand of miles away and the prospect of spending a good part of their lives in prison. “f*?%* their daughters and pay them in dollars”, says one character in that silly DiCaprio movie The Beach. This has to be the worst form of humiliation and contempt for the “other”. It is no wonder that these westerners who act out their sexual fantasies on innocent young children of the third world are despised even by their own society, that the only other instance where such prosecutorial resolve is applied is to those who commit crimes against humanity. In one respect, perhaps paedophilia when linked to racist contempt is almost as much a crime against humanity.

In today’s highly secularized world as God is banished from the public domain and before long, expunged from modern man’s consciousness, religion, along with morality has come to a stage where it is hopelessly old fashioned, deserving only of scorn and ridicule. Especially so in the case of Islam such that no one who prides him or herself in having acquired the sophistication of modernity wants to have anything to do with it, unless one wants to be feted as the “moderate” and “progressive” sub-species of the genus. This has become evidently clear in recent orchestrated campaigns to roll back religion as the basis of legislation on aspects that concern morality and decency. Why, we have finally completed the trajectory of man’s positivist evolution – no longer do we need the moral crutches that religion used to afford previous generations. Morality, as it relates to sexuality and fulfillment of man’s sexual needs, is an entirely private matter that the state must not interfere.

I suppose from the point of view of lay persons like us, our modern conception of what constitutes a punishable offence is premised on the existence of a victim consequent to an act (or potential victim as in under the influence). We can therefore understand why there is no disagreement that murder, robbery and fraud are criminal offences deserving severe punishments. To secular sensibilities however, adulterous sexual relations is perfectly alright because it is pleasurable and does no harm to anybody. In fact it is often celebrated in fiction as the ultimate expression of genuine love that has conquered all obstacles thrown its way, which quite often is depicted as sclerotic traditions and restrictive conventions linked to religion that society is still unable to shake off. Modern individualism and often a particular conception of liberty always try to reassure us that we should feel at ease with our bodies and desires, and free ourselves from the shackles of tradition, such that “recreational sex” has come into the vocabulary of today’s lifestyle. It is fun and creates no victims, the law should stay out of it (it is not always “victimless” though, as children suffer when marriages break up and it eats into our social welfare budget, not to mention crimes of passion from well known cases that have whet our media appetites).

If adulterous sex is victimless fun, it is blindingly obvious that sex tourists with a penchant for young boys and girls are a scourge. They exploit the most vulnerable of all sexual preys – poorly educated third world children for whom some nice cloths, sweets and a bit of money are a welcome respite from the only thing they know – poverty. Everyone agrees that paedophile sex tourists deserve the shame and long prison sentences upon conviction. In fact, we can proudly claim that this is a triumph of secular ethics. So who needs religion if we can have morality without its intrusiveness? Isn’t it time that we retire this moral crutch now that history has ended?

But between the extremes of harmless adulterous liaisons by consenting adults and paedophile sex-tourism is a veritable moral slippery slope. This is where modern man’s overweening moral self-sufficiency shows some cracks, exposing an underlying confusion. Beneath this façade of self-sufficient secular ethics, we seem unsure whether we should cut ourselves completely off our religious moorings. Take for example the case of director Roman Polanski who had to jump bail and exile himself in Paris after a conviction for statutory rape for having sex with an underaged girl.

Many people are sympathetic to Polanski because he’s such a brilliant director who gave us Rosemary’s baby, Chinatown and the Pianist. As a jewish boy growing up in the Krakow ghetto, his pregnant mother was taken away by the Nazis to the gas chambers of Auschwitz. As if that was not enough share of tragedy, his actress wife and friends were brutally murdered by the Manson gang. What his sympathizers are not saying though is what’s the big deal about having sex with an underaged girl in today’s world when many teenaged girls are already sexually active from the age of 13 – 14. They’re biologically mature, and most of them know exactly what they’re doing and doing it the safe way. Was it not uncommon that 1 or 2 generations ago girls were married at 15 or 16? Is it not absurdly hypocritical that on the one hand we encourage teenage girls to be comfortable with their bodies and sexual urges, and safe-sex is all they need, but on the other people like Mr. Polanski face rape charges for partaking mutual pleasure with them?

More often than not, in cases like Mr. Polanski’s, the “victims” are sexually experienced and mature that to secular logic such a law seems absurdly unjust. This penal code statute that having sexual relations with a girl below 18 is rape and therefore carries a heavy punishment is obviously a baggage that we have carried over from the age of faith, when religion had coloured much of our conception of morality, of what is right and what is wrong.

Yes, okay, we do encourage teenage girls to be comfortable with sex, but surely there is something exploitative about older man having sexual relations with teenage girls. How can she not be a “victim”, never mind how experienced she is – says our irrational inner voice defying our liberal logic. But increasingly we read in the papers of female school teachers going to prison for having sex with their teenage (boys) students. Here the slope becomes even more slippery. If our conception of a crime is that an act must have a victim, there is none in this sort of relationship (corrupting the morals of youth is such an ambiguous charge). Are we being just to these women teachers in search of some solace or adventure? Is this a baggage from the age of faith that we should all jettison today?

That these statutes criminalizing sexual relations between older men and teenage girls or the other way around in the modern era of safe sex and early sexuality still exist in our law looks betrays our moral confusion and hypocrisy. At another level, it is perhaps testimony that beneath that surface of modernity and our scorn towards religion, religious ethics still informs much of our law-making today. Only that we refuse to acknowledge that debt. Why this refusal to break free from the influence of religion? No matter how illogical these statutes are to the secular mind and how unjust they may seem to Mr. Polanski and the school teacher who seduced her students, perhaps deep down we acknowledge that without them human civilization as we know it cannot be sustained for very long.

If secular ethics is confused in this grey moral zone and needs to fall back on sensibilities carried over from the age of faith, it also owes a debt to religion in the more clear-cut matters of the penal code. In today’s language, murder and robbery are major crimes because of what the victims suffer, and “sin” has nothing to do with it. But the way the public reacted to the outcome of the OJ Simpson trial suggested that it is more than just about justice for the victims. Either we have not sufficiently evolved such that we still carry that primitive religious idea of “sin” or such an idea of moral right and wrong is a quintessential part of our constitution, or “human nature”.

It is not only in the area of law-making that provides citizens personal security, recourse to justice and maintain public order that we owe a great debt to religion. Extending the discussion on the conception of ethics and justice, let us look at the modern discourse on human rights which is premised on the idea of the inviolability of the dignity of man. Secular humanism might claim that it had thought out such a concept de novo, but it would be easier to admit that a good deal of it is borrowed or appropriated from religion. The “dignity of man” is a difficult concept to chew if we exclude God from the discussion. As secular humanism is the fruit european enlightenment, the religion here in question is of course Christianity, but it can be safely said that all authentic spiritual traditions share a common clear conception of what constitutes moral rights and wrongs, and enjoin the same praise-worthy values of kindness, compassion, generosity and forgiveness. The west’s (and the rest of the world that has modernized ourselves in its image) conception of virtue is a Christian ghost. Modern man in the manner of Heidegger may choose to exclude Christian (or religious) paradigms but internalize them implicitly to provide meaning and direction for our existence. But Jurgen Habermas, a later proponent of the Frankfurt School is more honest in recognizing modernity’s debt to religion. He attributes to christianity as the ultimate foundation of liberty, conscience, human rights and democracy, and we continue to nourish ourselves from this source. Everything else is post modern chatter.

What we mean to say in all this is that despite our modernity and sense of moral self sufficiency, religion in its most generic sense is never far beneath the surface. True, religion as played out in history by men has its dark and shameful episodes, and it may be convenient to shift blame for all that is wrong with humanity onto it, but it remains the inspiration for much of our laws and civic conventions. It is the weak glue that is just barely holding modern civilization together. And beyond law and ethics, religion informs much of what we take for granted in our civilized existence – architecture, philosophy and learning, the university system, the welfare system etc.

In our relentless march to secularity, many of us may not want to recognize that debt we owe to religion but a significant section of humanity actually still does, however strange and unfashionable that may be. The most recalcitrant are, not surprisingly, the muslims whose religion spells out the moral issues, for good or bad, in more clear terms i.e. the shariah. Being the youngest of the Abrahamic monotheisms, it still has its sources fairly intact. Is it too much to ask that the muslims’ desire to recognize this debt and live their lives according to it be respected?

Dr. Mazeni Alwi