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The validity of values within a society is dependent on the cultural and social imprints of a particular society. In the context of Malaysia, the ideas of rights and human rights as elements of social justice are not given specific emphasis. Some regard the idea of rights with scepticism especially among local politicians and religious leaders mainly in the past 20 years. Arguments focus on the national identity issue and the need to have strong government for the country’s development as people’s rights means restraint to the state. The approach to development that does not give sufficient recognition of the natural rights of people is criticised by Sen as failing to acknowledge and recognize the values

130 _{James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (University}

of Chicago Press, 1990), 264.

131 _{Homi K Bhabha, 'The Commitment to Theory' (Summer 1988) New Formations 5, 22 cited in}

Karen Knop, 'Here and There: International Law in Domestic Courts' (2000) 32 International Law in Politics 501, 507.

132 _{Knop, above n 131, 507.}

133 _{Annelise Riles, 'Wigmore’s Treasure Box: Comparative Law in the Era of Information' (1999)}

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and institutions of each community in the society, specifically the minority indigenous peoples.

Sen also pointed out that the approach attaches no intrinsic value (ethics) to claims of rights and freedom which people have reason to value. It ignores the extent of inequalities in what is needed to obtain happiness on the individual level. Whilst it may take much less to bring about happiness than approaches designed by the utilitarians, Sen emphasized that subjecting people to lesser opportunity for resources and benefits is by no means fair or just.

Those in authority in Malaysia frequently use the public interest reason to justify aggression on individual rights.134 _{Malaysian society is said to place emphasis on} community interests and well-being as a whole rather than on those of individuals. The culture inhibits assertive and confrontational behaviour and gives priority to maintaining harmony for collective well-being and ‘display[s] a strong humane orientation within a society that respects hierarchical differences’.135 _{Some reinforce rejection stating that the} idea, although unsubstantiated, is ‘Western’ and even ‘Christian’. Martinez, looking into Malay culture and the plurality of voices which is paramount in democracy, pointed out that much of Malay cultural tradition is legitimising ‘feudal absolutism’ through promoting the culture of absolute leadership and blind loyalty to the ruler. This has been further sanctified and justified by Islamic authorities who are part of the state establishment.136 Among some religious scholars, calls for the equality of rights among citizens and women, greater political freedom and freedom in religion are often rejected as a threat against Islam by misleading Muslims.137 _{They have alleged that these activists rely on}

134 _{There is considerable literature on this view which also relates to the scepticism against}

international human rights law. See eg, Kent, Ann, Discussion Paper, No. 3. (1989) n.p; R Zamani Idris and M Shauki M Radzi, 'Controversies behind the Idea of Universal Human Rights: A Malaysian Perspective' (2009) 2(1) Sosiohumanika 67; Mohd Azizuddin Mohd Sani, 'Mahathir Mohamad as a Cultural Relativist: Mahathirism on Human Rights' (Paper presented at the 17th Biennial Conference of the Asian Studies Association of Australia, Melbourne, 1-3 July 2008) <http://arts.monash.edu.au/mai/asaa/mohdazizuddinmohdsani.pdf>. See also recent argument by the former Prime Minister, Mahathir Mohamad, that rejects liberty and equality ideas saying that they amount to allowing greater freedom in sex, his blog post at

http://chedet.cc/blog/?p=689#more-689. The report of it in English could be found in

http://www.theborneopost.com/2012/02/10/anwar-trying-to-change-laws-in-malaysia-says-dr- mahathir-update/.

135 _{Jeffrey C Kennedy, 'Leadership in Malaysia: Traditional Values, International Outlook' (2002)}

16(3) Academy of Management Executive 15.

136 _{Patricia A Martinez, 'Is it Always Islam versus Civil Society?' in K S Nathan and M Hashim}

Kamali (eds), Islam in Southeast Asia: Political, Social and Strategic Challenges for the 21st Century (Institute of Southeast Asian Studies, 2005) 135.

137 _{See, eg, Jaffary Awang et al, 'Islamic Studies in Malaysia in Confronting Liberal Islam' (2011)}

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ideas which are not Islamic and have accused them of promulgating secularism which is regarded as an attempt to separate religion from the state and its administration.138 Nevertheless, a political shift towards more universal and democratic politics, equality and social justice is apparent. Political science studies examining political change within the civil society indicate growing public sentiments in favour of participatory politics rejecting prevalent ethnicized political insensitivities to social justice.139 _{Weiss wrote in} 1999 that the political culture of Malays is also changing. They are responding politically far more openly than previously and demanding a higher level of accountability and transparency than before.140 _{In 2004, she later wrote that}

While Malaysian civil society remains segmented along racial and religious lines, its demonstrated ability to cut across these lines to collaborate on certain issues presents uniquely valuable, if not yet fully realised, contributions to the possibilities for political change

.

Lopez also suggested that the society has evolved with the rise of a new generation with different perspectives on key issues, including democracy and human rights. This, however, she noted, is a growing mismatch with the values within the main political parties that dominate the Malaysian political landscape and is being resisted.142 _Berger, examining the result of the 2008 election and public sentiment heading to the next election, predicted fundamental qualitative change within the society towards better democratic practice.143

But those within the legal community are not that optimistic.144 _{Harding and Whiting, for} instance, continued to lament the increasing authoritarian practice by the government in

138 _Ibid.

139 _{See eg, Johan Saravanamuttu, 'Twin Coalition Politics in Malaysia since 2008: A Path}

Dependent Framing and Analysis' (2012) 34(1) Contemporary Southeast Asia.

140 _{Meredith L Weiss, 'What Will Become of Reformasi? Ethnicity and Changing Political Norms}

in Malaysia' (1999) 21(3) Contemporary Southeast Asia.

141 _{Meredith L Weiss, 'Malaysia: Construction of Counterhegemonic Narratives and Agendas' in}

Muthiah Alagappa (ed), Civil Society and Political Change in Asia: Expanding and Contracting Democratic Space (Stanford University Press, 2004) 269.

142 _{Carolina C Lopez, 'Globalisation, State and Local Human Rights Actors: Contestations}

between Institutions and Civil Society' in Edmund Terence Gomez (ed), Politics in Malaysia: The Malay Dimension (Routledge, 2007); Laws such as the Internal Security Act 1960 (ISA), the

Societies Act 1966, the Sedition Act 1948, the Universities and University Colleges Act 1971 allow the government to control both civil and political activities. The ISA was abolished in April 2012. However, the Prevention of Crime Act 1959 was amended in 2013 to allow for detention without trial and restriction on judicial review.

143 _{Dominic Berger, 'The 2008 Malaysian General Election: Killing the Ghost of 1969?' (2010) Asia}

Online (Flinders Asia Centre Occasional Paper. See, also, Andreas Ufen, 'The Transformation of Political Party Opposition in Malaysia and Its Implications for the Electoral Authoritarian Regime' (2009) 16(3) Democratization.

144 _{See, eg, Harding and Whiting, above n; Ratna Rueban Balasubramaniam, 'Judicial Politics in}

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tackling dissent.145 _{Although civil and political rights are itemized and guaranteed in the} Constitution, the effective protection given to these rights is weak because they are subject to statutory qualifications and inconsistent legislation. As already mentioned in Chapter 2, access to court is restricted by limiting standing rules, public interest and rights advocacy litigation is discouraged, ouster clauses are abundant and are often upheld by court.

Furthermore, the philosophical ideas of justice and equality are the elaboration of democratic principles. These are the Malaysian aspiration in both its foundational legal documents such as the Constitution and repeated self-claims as a democratic regime although, in practice, it lacks some attributes of a full-fledged democratic regime. Some have labelled the style of government as soft authoritarian,146 _{quasi-democracy,}147 pseudo-democracy148 _{and an electoral one-party state.}149 _{But the aspiration for the} country as expressed in the government’s Vision 2020 is for a society that is ‘democratic, liberal and tolerant, caring, economically just and equitable, progressive and prosperous.’ It calls the citizens to face up to the challenge of ‘establishing a matured, liberal and tolerant society in which Malaysians of all colours and creeds are free to practice and profess their customs, cultures and religious beliefs and yet feeling that they belong to one nation’.150 _{It is furthermore a part of a national ideology seeking that} Malaysia will ensure ‘a liberal approach to her rich and diverse cultural traditions.’151 _This inevitably shapes the legitimate expectation of the citizens and others that the nation will practise a democracy with the country’s leadership not in conflict with this.

Besides, Malaysia is a pluralist society of different races and religion and it is possible that only political principles which are free of racial and religious bias will satisfy each section of society and will achieve justice and equality in both social and economic

145 _{Harding and Whiting, above n 144, 254.}

146 _{Gordon P Means, 'Soft Authoritarianism in Malaysia and Singapore' (1996) 7(4) Journal of} Democracy 103.

147 _{Zakaria Ahmad, 'Malaysia: Quasi Democracy in a Divided Society' in Larry Diamond, Juan J}

Linz and Seymour Martin Lipset (eds), Democracy in Developing Countries (Lynne Rienner, 1989).

148 _{William F Case, 'Semi-Democracy in Malaysia: Withstanding the Pressures of Regime}

Change' (1993) 66(2) Pacific Affairs 183.

149 _{See, eg, Wong Chin Huat and Noraini Othman, 'Malaysia at 50 – An "Electoral One-Party}

State"?' in Abdul Razak Baginda (ed), Governing Malaysia (Malaysian Strategic Research Centre, 2009) 1.

150 _{Vision 2020 is the vision put forward in 1991 by the government with the mission of achieving}

a developed country by year 2020. Ironically it was designed by strong opponents of liberal ideas.

151 _{The National Principles or ‘Rukunegara’ is the declaration of national philosophy instituted by}

royal proclamation on Independence Day in 1970 in reaction to a serious race riot in the history of the country which occurred on 13 May 1969.

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aspects. The political conception agreed by the citizens to govern the political society is referred to by Rawls as a reasonable overlapping consensus. It means a political conception ‘supported by the reasonable though opposing religious, philosophical and moral doctrines that gain a significant body of adherents and endure over time from one generation to the next’.152 _{Citizens of a country with different conflicting ideas, moral} doctrines and religions may be agreeable to a political conception which is ‘the most reasonable basis of political and social unity available to citizens of a democratic society’.153 _{They need a conception that ‘enables them to understand themselves as} members having a certain political status – in a democracy, that of equal citizenship – and how this status affects their relation to their social world’. It is the role of political philosophy to contribute to how ‘a people think of their political and social institutions as a whole, and their basic aims and purposes as a society with a history – a nation’.154 The difference between the concepts of ‘society’ and ‘community’ may counter some of the Islamists’ argument mentioned above. Rawls stated that these concepts cannot be understood as the same entity. A community refers to a body of persons unified in affirming the same comprehensive moral doctrine or religious ideas and the values to be sought in the life of the community.155 _{Muslims and indigenous peoples are both} examples. Members within each of these communities are governed by the values and belief upheld by the members of the community which are applicable only to them. These values are to be respected by the democratic society to which the communities also belong. The philosophical ideas aim to explain how a ‘democratic society’ as a political unit will work to achieve justice for its members.156 _{The political history of Malaysia has} shown that it is almost impossible for the society to be united in accepting one single political doctrine from a particular religion or community.