NOV 22 — Right-wing defenders of the ethno-Islamist political position in Malaysia are now prone to dismissing objections to that position as “insulting” to the “sensitivities” of the Malay-Muslim community or its institutions, such as the Malay royalty.

Importantly, they assert that the inflammation of such sensitivities is unlawful as evidenced by the now regular practice of making police reports against anyone deemed to have insulted or inflamed such sensitivities.

So defenders of the ethno-Islamist position think that it is justified to apply state force against those who engage in such insulting behaviour and that it is therefore justified that state force be used to deprive a person of their personal liberties for insulting the sensitivities of the community.

If right-wing ethno Islamists want the state to punish those who insult such sensitivities, then they must make a case to show how this alleged wrong is compatible with the ideal of the rule of law or legality because that ideal governs the legitimate use of state power. If they cannot make such a case, then they are not entitled to invoke legal force against citizens.

I suspect that they cannot make such a case.

The rule of law is a contested concept. Some argue that there is an internal connection between the ideal of legality and the value of justice. Others argue that the rule of law only requires the rule of general rules. The former is known as the “thick” view of the rule of law and the latter is known as the “thin” view of the rule of law. There is a significant debate in legal philosophy about which view of the rule of law, the thick or the thin view, is the correct view.

Right-wing ethno-Islamists are likely to reject the thick view as a Western liberal construct. For the sake of the argument, let’s concede this point and ask how far ethno-Islamists can claim that the thin view is consistent with the use of force to regulate or prevent any purported insult to the sensitivities of the Malay-Muslim community as I think even on the thin view, they cannot make out an adequate case to show how the ideal of legality can sustain the desire to regulate any purported insult or inflammation of Malay-Muslim sensitivity.

The thin view of the rule of law requires that legal rules are general, public, clear, intelligible, non-contradictory, prospective, stable, and that are consistently enforced. The aim of this view of legality is to create a stable framework of expectations for the guidance of future conduct so that the legal subject or citizen always knows where they stand in relation to the law and legal authority.

The problem with the idea of inflaming or insulting sensitivities is that this idea is vague and admits of no clear legal rule capable of guiding conduct.

To see the problem consider that the meaning of the concept of “sensitivity.” Here, I think it means “quick to take offence.” When right-wing ethno-Islamists warn against inflaming Malay-Muslim sensitivity they mean that this group is quick to take offence against any challenge to the priority of Malay-Muslim identity and interests in Malaysian politics and society.

The challenge then is to figure out how it is possible to construct a legal rule or a set of rules to make sense of this notion of sensitivity. For if a person or group is sensitive and is quick to take offence, it is very difficult to know beforehand when that person or group will feel insulted, which makes it very difficult to create a workable legal rule to guide future conduct.

One might suggest that we could start by creating a provisional catalogue of likely triggers of insult. This doesn’t solve the problem. The catalogue is apt to be broad and ever expanding so that we cannot come up with a definitive list ahead of time. Since a workable legal rule for conduct must have a precise meaning, an ever-expanding list of triggers will mean that the meaning of the rule is forever shifting so that in the end it cannot guide conduct.

Maybe we should just enact a rule that says: “Don’t do anything to trigger ethno-Muslim sensitivity.” But this is no guide to conduct because we still do not know clearly what will or will not trigger such insult. It is not a proper rule.

Indeed, that legal rules are not doing any work as the basis to the complaint against the inflammation of Malay-Muslim sensitivity is evidenced by the fact that now anyone can make a police report if they claim they have been insulted or that the Malay-Muslim community has been insulted.

The reasons for these reports are often arbitrary and unpredictable. Nobody can be sure if what he or she thinks, says, or does right now may end up being something that could trigger a report that brings with it the potential use of state force against them tomorrow, next week, next year, or even in three years.

The practical effect is that anyone can deem into existence an alleged legal wrong rooted in the nebulous idea of an insult to sensitivity, without being able to show how there is a violation of an existing legal rule that complies with the demands of the minimalist view of legality.

And when people can arbitrarily summon state force in this way, there arises two very serious related rule-of-law problems. First, people will be made vulnerable to the mere whim or caprice of others. Second, this unpredictability produces a climate of insecurity among citizens, as they cannot now rely on the law to provide a stable framework of expectations with respect to each other and with respect to how the state will exercise power over them. These difficulties threaten the basis to long-term social cooperation and stability.

Surely right-wing ethno-Islamists do not desire this result as they also say that it is vital to protect the sensitivity of the Malay-Muslim community to ensure racial harmony and social stability in Malaysia. If there are real worries about social stability, then they should see that the desire to use law to regulate any insult or challenge to Malay-Muslim sensitivity is not likely compatible with even a thin view of legality, not even a thick view of legality.

Perhaps the big lesson from this analysis is that all political agendas are subject to a test of legality. So there is a real question as to whether or not the right-wing ethno-Islamist agenda can pass that test.

* This is the personal opinion of the columnist.