|Hobbism and the Problem of Authoritarian Rule in Malaysia|
|Monday, 25 February 2013 02:15pm|
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.
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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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