Free­dom to of­fend

The Sun (Malaysia) - - SPEAK UP -

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

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