Abdullah Ahmad Badawi hit the nail on the head when he said at the Asia Media Summit that the conflicts afflicting nation states stem from the failure to put in place viable social contracts. He also said that "societies that are multi-religious, multi-ethnic and multi-cultural are particularly vulnerable".

He further said, "The country's experience was that a strategy of inclusion, participation, respect for legitimate rights of all ethnic, religious and cultural groups, and just recognition of the special position due to the indigenous peoples, is the best formula to manage its diversity."

I thought that was a bit of a spin on 'indigenous peoples' when usually reference is made to Malays less the orang asal and orang asli .

He also included a comment that the nation which "originally belongs to the indigenous people" has, through the social contract agreement, transformed the nation "to one that the Chinese and Indian citizens could also call their own".

The address has not captured the imagination of political commentators, except perhaps for the government-controlled mainstream press. It appears much of the same of the old. Many would rather have the buat (action) following the cakap (talk).

The special position of the Malays aside, there is a growing exasperation in multi-cultural Malaysia that perhaps the religion of Islam has been accorded prominence or privilege in politics and in lawmaking. This is seen to done at the cost of multi-culturalism and religious freedom. The Federal Constitution has defined Islam as an identity of the Malays.

For a long time, anything to do with the Malays such as the religion of Islam has been considered a sensitive matter. Much of this perception was born of the May 13 incident of 1969. But we have come so far and it is political paralysis to continue to use the special position of the Malays as a bogeyman in the discussion of equal rights to citizenship and the place of Islam in multicultural Malaysia.

'Needlessly suffering'

The Islamisation agenda of the government in power has an oversight. It has failed to engage the voting and tax-paying public in conceiving and implementing it. The matter was left entirely to selected Muslim and Malay academics (including lawyers and economists), politicians and capitalists.

The Islamisation project is no longer a matter affecting the special position of the Malays. It has wider implications to citizenship rights affirmed under the social contract.

The most recent exasperation of religion in lawmaking, is reflected in statements from two faith-based bodies, the Malaysia Hindu Sangam (MHS) and the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS) over the case of the conversion of two minors to Islam.

The minors aged two and four were converted in 2003 by their natural father, who himself became a Muslim in 2002. The conversion was without the knowledge and consent of the natural mother, who is Hindu. The children were born out of a civil marriage solemnised under Hindu rites in 1998.

The High Court ruled on April 13 that the matter has to come before the state Syariah court. However the court conceded that the Syariah court has no power to hear applications by non-Muslims.

MHS considered the decision of the High Court not to hear the case as a decision "which tramples over the rights of non-Muslim parents." MCCBHS president Sardar H Singh said that, "Protection must be given to those from minority religions in Malaysia on an urgent and immediate basis. Far too many non-Muslims are needlessly suffering."

It would not be useful at this point to do a case comment. It suffices to say that lawyers and judges are trying their level best to resolve conflicts like these. They may try to resolve the matter as an issue of rights and constitutional law with the civil courts being the competent forum.

There are also lawyers and judges construing the matter as one relating to Islam and state syariah courts having sole jurisdiction.

Politically supported

The unsatisfactory results where they may fall have invited continued public criticisms to the point of almost bringing disrepute to the legal system. It did not help that there is absence of political will by the other two arms of government, the legislature and the executive.

After many election years, the matter has not been adequately addressed at the political level except in text-pretty keynote addresses.

It would be foolish for any minister to view these problems as the 'unintended consequences' of the Islamisation programme carried out by the Barisan Nasional (BN) government under Umno's leadership. That would not say much about the Islamic governance touted by the administration as protecting and respecting the rights of non-Muslims.

For the courts to safeguard equal citizenship rights and freedom of religion, it has to be supported politically. We have not evolved a truly participatory-civil society discussion on the proper place of religion in law and politics. Perhaps we need to go back to the drawing board as well instead of trying to piecemeal patch loopholes in legislation.

This is surely one of the more vital discussions this age and there should not be party-political mileage to curb discussion and criticisms in the interest of national security or ketuanan Melayu (Malay hegemony) or whatever else. Not if we are truly serious about nation-building and strengthening commitment to equal citizenship under the social contract.

Religious lawmaking may for our purposes refer to the process of enacting, administering, executing or enforcing laws on the basis of, in reliance on, or as a result of religion or religious beliefs. Lawmakers include legislators, judges, town council members and other executive-branch officials.

One of the major problems seen by scholars on the use or role of religion in lawmaking is the tendency of religious beliefs, which are inaccessible to the general public understanding, to be also exclusionary, alienating, coercive and politically divisive.

Thus adherence to the teachings of their faith may take precedence over a commitment to democratic values, over a respect for religious pluralism or the constitutional rights of others. There is also the absence of reference points by which outsiders can assess the validity of those beliefs.

Moral dialogue

These points among many others have led scholars to believe that religious beliefs will violate the constitutional rights of others. This risk is enhanced when religious beliefs are incorporated into public laws backed by the threat of official sanctions. Such laws are unfair in a democracy based on notions of citizenship participation in government. Non-believers become political as well as religious outsiders.

However, there is a line of thinking among religion and human rights scholars that it is simply unfeasible and untenable to rout religion entirely from lawmaking and politics. Many people are adherents to some sort of religious belief. There must be another way of framing the discussion.

Michael Perry for example, recognises that citizens and government representatives belong to at least two different communities: their own moral (religious) community and the "morally pluralistic political community." Perry teaches law in Emory. Emory has a centre for the inter-disciplinary study of religion and law in its law school. He confesses to be a Catholic Christian "thoroughly imbued with the spirit of the Second Vatican Council (1962-65)."

For Perry, self-identity is partly constituted by one's fundamental beliefs and commitments. Because the identity of individuals is shaped by their communal contexts, including their religious community, a person's moral identity is partly constituted by her or his religious convictions.

Perry envisions politics as an ongoing moral dialogue with others based on religious conceptions of the good. Rather than separate religion and politics, he argues that religion should be put in dialogue with politics in the context of constitutional aspirations. He frames the question as "not whether to mix religion and politics" but "how to mix them".

Perry is wary that we may be able to resolve all or even the basic political controversies on the basis of shared moral beliefs. He thinks that the liberal principle of government neutrality is an impossible fiction.

Perry proposes the following principles for including religion in politics:

(1) religious discourse in public should play more of a role in "public culture" than in "public argument specifically about political issues,"

(2) some religious claims should be rejected as bad theology,

(3) "our politics and culture should be tolerant of moral and religious differences rather than moralistic,"

(4) some kinds of religious participation in politics are bad citizenship.

The last time we e-mailed, he may be rewriting another volume of his thoughts on the matter.

Critical distance

Perry is not without his critics in the US. However as a human rights activist with working experience of these concerns for sometime, I personally think Perry's principles do reflect what is happening on the ground.

We may not be able to come up with an enumerated list of what constitutes for example, 'bad theology' or kinds of religious participation which amounts to bad citizenship, but I think we can come up with examples as we go along. The work is evolving.

Perry is predisposed to maintaining the distinction between relying on religious arguments in public discussion and debate and justifying decisions on the basis of religious grounds. Thus the lawmaker "should vote to support a political choice about the morality of human conduct only if, in her/his view, a persuasive secular rationale exists".

The persuasiveness or soundness of any religious argument about human well-being depends, or should depend, partly on there being at least one persuasive secular argument that reaches the same conclusion.

Perry offers another insight which I particularly agree with. A deliberative transformative debate requires persons to maintain a critical distance on their religious beliefs. He says this is possible in the US, a "morally and religiously pluralistic" nation. He believes this is also possible in other liberal democracies. We may have to work on this where we are.

I am not saying here that Perry has all the answers. I have however, found his deliberations useful in working a framework for where perhaps the law might fall or how the constitution might be interpreted.

Note:

Michael J. Perry is quite notorious for revisions of his own ideas. If one wishes to work backwards, his latest book is (2003) Under God? Religious Faith and Liberal Democracy , Cambridge University Press.

See also (1997), Religion in Politics: Constitutional and Moral Perspectives , New York, Oxford University Press. His other titles can be viewed on amazon.com.

See also Lucinda Peach (2002) Legislating Morality: Pluralism and Religious Identity in Lawmaking, New York, Oxford University Press.