Freedom to offend

(First published in theSun on 13 October 2016 here).

THERE are many ways to think about freedom. If you live with your parents and your parents impose a curfew on you to come home by midnight, you might say that you are not free to do as you wish. That may be true. But that is not the same thing as defining the freedom of a country or a particular system.

Let me put it another way. The state or the government plays an important role of facilitating things like healthcare, education, defence and foreign affairs. But the question is when the government takes on the role of making decisions on behalf of us as individual citizens that the state of our personal freedom comes into question. To quote from Hayek, “The more the state plans, the more difficult it becomes for individuals to plan”.

Of course there are many indicators that show where we stand as a nation internationally. Freedom House’s Freedom in the World 2016 report shows that Malaysia is “partly free”. Our press freedom status is considered “not free”, and net freedom is “partly free”. We perform particularly poorly in the areas of political rights (18/40), civil liberties (27/60), and Freedom on the Internet (43/100). The Economist’s EIU Democracy Index classifies Malaysia as a flawed democracy, ranked 68th place amongst 167 countries. Finally, Amnesty International’s report stated that in 2015 alone, 91 instances of the Sedition Act was used to arrest, investigate or charge individuals. That is nearly five times as many as the first 50 years of the Act’s existence.

So by international standards, we know we’re not quite hitting the mark. But critics will turn around and tell you that Malaysia is unique in its multi-ethnic, multi-religious, multi-cultural society. That we have our own way of doing things and cannot be compared with the rest of the world. “Itu bukan budaya kita” is what you hear a lot of the time especially when advocates of human rights and liberty confront conservative views.

The real question we are confronted with when living in Malaysia is balancing freedoms with communitarian values.

Malaysia has the highest scores in the world in the Power Distance Index, according to a study cited by the Iclif Leadership and Governance Centre’s Asian Leadership Index 2014. The power distance measures the extent to which the less powerful members of organisations and institutions such as the family accept and expect power to be distributed unequally. Countries’ high power distance may observe traits such as those in authority openly demonstrating their rank, politics being prone to totalitarianism and class divisions within society being accepted. Based on the study, society’s power inequality in Malaysia is endorsed by followers as much as its leaders.

Malaysians are highly intolerant when this delicate balance is tipped over, preferring not to rock the boat. A recent example is when nine Australian men were charged for public nuisance when they stripped down to reveal underwear with the Malaysian flag design. Or the four tourists who stripped naked on Mount Kinabalu. Malaysians responded harshly by saying they are disrespectful to local morals and customs. Public morality is held in high regard here.

Contrast this to how Malaysians responded when our foreign diplomat was charged with burglary and assault with intent to rape after following a 21-year-old woman to her home, or when a Malaysian student was sentenced to jail in the UK for possessing over 30,000 images and videos of child pornography. These were actual serious crimes, and yet there were Malaysians who felt sorry for them, saying we should bring them back and pardon them. The Malaysian High Commission originally sought diplomatic immunity for Rizal – and Mara initially supported their scholar to give him a chance because he was a “smart student”. Where was our public morality then?

In fact, someone who believes in liberty and freedom is not necessarily someone who calls for public nudity, free sex or public immorality. This is the wrong definition of the term liberty. In fact, our very Rukunegara has the term liberal in it: “Our nation, Malaysia, being dedicated to ensuring a liberal approach to her rich and diverse cultural traditions”.

What does “a liberal approach” in this context actually mean? It involves several key concepts, chief of which is individual liberty, which can be loosely defined as the belief that each human being is endowed with the faculties of the mind and capacity to reason. The concept of liberty presupposes a living, purposive, choosing human being. Second, the rule of law must also apply, where the government as well as individuals and private entities are equally accountable under the law. These laws should be applied evenly, ethically and justly in a fair, accessible and efficient manner.

In examining public morality while applying the principles of individual liberty and the rule of law, one might argue that an individual has the liberty of free speech to the extent that it does no harm on another individual. John Stuart Mill in his book On Liberty argued that “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” – this is known as the harm principle. The only actions that can and should be prevented are those that create harm.

This is distinct from the offence principle. Harm is something that would injure the rights of someone else or set back important interests that benefit others. An offence, on the other hand, is something that we would say “hurts our feelings”. An offence causes discomfort but causes no harm. Offences are not universal, as what hurts someone’s feelings may not hurt another person’s feelings. And at the same time, there is the principle of ethical conduct and personal responsibility too – the golden rule of not imposing on others what we don’t want imposed on us. We should not be afraid of having differences of opinion. This is to be expected in any democracy of diverse people.

What is therefore important is that the state, or government, applies the rule of law to its citizens so that people are able to freely exercise their individual liberty without causing harm to other persons or communities. The problem comes about when the state becomes so strong that it restricts individual liberty under the guise of protecting communitarian interests and values, which is the third concept of a limited government.

The Pew Research Centre’s Forum on Religion and Public Life conducted a study in 2012 titled “The Rising Tide of Restrictions on Religion” and found that countries with government restrictions on religion exhibit higher social hostilities. Examples of government restrictions on religion were “very high government favouritism of religion”, “more than 200 cases of government force towards religious groups” and “no national government intervention in religious discrimination cases” and “government limits on religious conversion”. Malaysia falls into the category of having “very high” levels of government restrictions on religion. The more the government imposes laws and restrictions, the more social tension and hostilities emerge.

Leaders in Malaysia are often faced with a dilemma of balancing freedom with communitarian values. Conventional wisdom holds that there is a conflict between freedom and harmony. “If you give people too much freedom, there will be conflict in society”, some may say. But research shows that for religious restrictions, greater freedom and greater harmony go together. I would extend this to include restrictions in other fields pertaining to ethnicity and the economy.

The promotion of openness – policies that encourage deregulation when it comes to race and religion in our highly diverse society to the extent that no citizen harms another fellow Malaysian – is in fact the best way to promote social harmony, political stability and economic prosperity.

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