NOV 8 — Like it or not, we live in the human rights age. It is increasingly unacceptable for any mature society to reject the importance of fundamental human rights as constraints on the legitimate exercise of state power.

That there is pressure on the Malaysian government to recognise the importance of such rights is evident in Prime Minister Najib Razak’s recent remarks that human rights matter to Malaysia though they have to be appropriately “contextualised.”

They have to be interpreted and applied in a way that is attuned to the local setting and in a way that conforms to the Malaysian Constitution.

At a glance, it sounds like an ambiguous waffle. Indeed, followers of Malaysian politics will point out that that he is trying to straddle two competing agendas and is trying to reconcile the irreconcilable.

On the one hand, he wishes to construct an image of being a ruler of a “moderate” pluralistic nation to a global community within which scepticism of human rights is beyond the pale.

On the other hand, he must pander to an ethno-Islamist right wing base of support for Umno. This constituency views human rights talk as an expression of “ Western political liberalism” that threatens Malay-Muslim “sensitivities” and identity.

And it thinks fundamental human rights threaten Malay political sovereignty (including the status of Malay royalty as an expression of Malay political sovereignty) and is thus incompatible with the Malaysian Constitution.

The two agendas are completely at odds. The former requires paying attention to fundamental human rights like the rights to political equality, and religious freedom.

The latter involves a project of constructing an ethno-Muslim state that is hostile to such rights.

The prime minister’s position thus seems incoherent. Either he must accept the importance of human rights and reject the interests of right wing groups or he must embrace their interests and reject the idea of human rights completely. There is no “contextualization” that can work to fudge over the deep inconsistency between both agendas.

The prime minister is thus caught in a dilemma. Is there a way out? I believe that there is but it will take considerable courage on his part and the right set of intellectual resources to make it work.

The prime minister might take the view that the deeper interests that inform the Malay right-wing agenda have a basis in core values that inform fundamental human rights talk.

If the real basis to the right-wing agenda is a concern about socio-economic inequality and worries about the loss of social and therefore political identity of marginalised groups, then these concerns may be justified by reference to the same values that inform fundamental human rights, values like equality, dignity, tolerance, and non-domination.

Furthermore, it may be argued that for so long as any attempt at upholding fundamental human rights in Malaysia must depend on attention to what the Malaysian Constitution requires, then the Constitution already creates a legal duty on government to respect such rights.

Here, the basis to fundamental human rights goes beyond the fact that Part II of the Constitution explicitly protects important rights that overlap with fundamental human rights.

That basis is rooted in the fact that the Constitution aspires to discipline political power by reference to the ideal of the rule of law or legality.

The Constitution is “supreme” and thus imposes limits on political authority. Constitutional supremacy makes sense only if we assume that any claim to legitimate political rule must be attuned to the perspective of the citizen conceived as a human being possessed of dignity, autonomy, and freedom.

The Constitutional bill of rights is merely an elaboration of the relevant conception of the citizen. In the final analysis, the relevance of such values to Malaysian law and politics does not depend upon a written bill of rights. Rather, such rights are integral to any plausible commitment to the rule of law.

For right-wing ethno-Islamists, this line of reasoning appears to threaten their view. But it is only a threat if they are really talking about wanting to hold on to political power now and forever. If that is what they want, then the Constitution does not permit such an agenda.

The Constitution calls for constitutional democracy, a type of government where there will be transitions of power within society as different groups compete for popular support in service of the common good within a legal framework premised upon political equality.

But if right-wing ethno-Islamists are serious about the duty to respect the Malaysian Constitution as a whole and if such respect is married to deeper concerns about socio-economic inequality and the loss of social and political identity of marginalized groups, then they have a real argument. And this argument is fully compatible with the deeper values that inform the human rights agenda because it boils down to the argument that it is important to affirm the equality and dignity of marginalized ethnic Malays as human beings with rights who should be able to meaningfully compete for political power with others in a constitutional democracy.

Here, it is worth making a point about the supposed secularising effect of accepting human rights as a form of Western political liberalism. Liberalism is now a bad word in Malaysia because ethno-Islamist right-wing groups think that liberalism would prevent them from regulating membership by preventing these groups from blocking the right of exit from the group.

In fact, it is true that the values associated with the liberal perspective, the values of human dignity, autonomy, and freedom demand that individuals have a freedom of conscience; they should be free to enter into associations and to exit those associations, religious or otherwise. So liberalism does not justify any ban on the right of exit from this or that group.

While this may be true, right-wing groups need to embrace long-range thinking. They should see that an acceptance of human rights as constraints on government might actually work to benefit them. If, the real issues to inform their agenda have to do with the socio-economic inequality and marginalisation of identity of vulnerable groups, then they have good reason to support a constitutional democracy shaped by a deep commitment to fundamental human rights.

When citizens can engage in open inquiry and debate and freely choose which groups to join and support within such a democracy, groups are well placed to advance effective solutions to such issues.

Therefore, if ethno-religious groups were to explicitly articulate their concerns in a way that conjoins respect for human rights, then the long-term result is likely to favour their standing in society and to further increase their membership.

That this suggestion is not fanciful is evidenced by what John Rawls has to say about the rise of Christianity in America. Rawls is the most famous liberal political philosopher of the 20^th century.

In his 1993 book entitled Political Liberalism, he argues that contrary to the belief that liberalism and a separation between church and state threatens religion, America’s liberal political framework with its attendant commitment to the freedom of religion has worked to enhance the strength of religion in America.

When the state cannot intervene in the affairs of religious groups, then that group has greater ability to attract followers who voluntarily show allegiance to the group. There is therefore a vital difference between a secular government and a secular society.

When government does not either actively encourage or discourage this or that religious perspective, the social-political context can work out to benefit religion.

So there is an escape from the dilemma that now traps Najib: he can escape if he squarely recasts the ethno-Islamist perspective as a perspective about the need to affirm the equality, dignity, and identity of marginalised groups in a way that is compatible with a commitment to fundamental human rights already immanent in our Constitution.

To do this, he would need to exercise considerable moral, political, and intellectual leadership. But should he do so, then he will take a place in history as a progressive leader known for creating legal-political culture shaped by fundamental human rights as well as a leader who increased the influence of Islam in Malaysia as the model of a “moderate” Malay-Muslim state.

* This is the personal opinion of the columnist.