It was reported that the two publicly caned women initially pleaded not guilty to the charges. However, due to lack of access to legal representation, they succumbed to religious uproar and pleaded guilty as charged.

“It is hard to get legal counsel, there is also no pro bono lawyers under the Syariah criminal offence.”

Thilaga Sulathireh, Justice for Sisters

The truth is, it was (and perhaps is) impossible to get legal counsel for the two Muslim women. Can we take a second to imagine how would the legal counsel representing them would end up? The lawyer who represented Lina Joy in her suit to convert out of Islam received death threat for purportedly condoning apostasy. The reason for this state of affairs stretched as long as back as the 1980s during the Mahathir-Anwar era. I shall refrain from dwelling in the past. The question we should start asking ourselves is – what can we do to address this?

“Blaming” the majority

Yesterday I attended a closed-door discussion on litigating religious expressions. One of the speakers, whilst acknowledged that apostasy is a matter of personal autonomy, claimed that there is nothing that can be done because the majority view is that apostasy is a sin, an offence against the precepts of Islam and thus punishable. The learned speaker repeated “majority” several times throughout the discussion. Do you see what is the underlying problem? The majority? Nope, dive deeper. Government? Nope, think. Islam? Of course not. The underlying problem is the minority who give in and surrender themselves to the majority without challenging the same. You might say, “Well, what the hell am I supposed to do? Our view is only the minority and the rest of the society constitutes the majority view. How is it even possible to overpower them? If you think it’s easy, go and try to make an unpopular comment on a Facebook post by a celebrity and see what kind of attack you will get la!”

Sure, it takes a hell of a courage to challenge conventions, stereotypes, norms and you will most likely end up not achieving the outcome you intended. But what good can be done should you remain silent? The majority is the majority because the minority dare not speak up against it. Rome was not built in a day, so does the formation of a recognised view.

The story of Malala

You must have heard of the story of Malala. In a picturesque valley in Pakistan, where the grass was greener only literally but not literately, girls were banned from attending school. The majority view was to deprive girls of proper education. Malala was the minority. To be specific, Malala was like any ordinary minority. She was threatened and side-lined. She received death threats and was in fact shot in the head though survived after a coma. What made her outstanding was her courage to speak up.

“I tell my story not because it is unique, but because it is the story of many girls.”

Malala

Now you might ask, “So what? Did she get what she wanted? Do all girls in Pakistan now have access to education?” Well, guess what, many girls who did not stand a chance are now attending school. It is a long battle ahead for Pakistan but the now 21-year-old Malala is determined to continue her fight until every girl could go to school.

The story of Malaysia

Back to Malaysia, the minority is similarly threatened and side-lined. What is painful though is when a privileged minority who is equipped with knowledge and earns a decent pay check remains silent in midst of all the abuses against the two women he/she would never have wished to go through regardless of his sexuality for the simple reason of being fearful. What would happen to my career if I speak up? How would my family, friends, boss and colleagues react? What would my community think of me? Should I speak up only if the views are divided even within the majority, like the child marriage issue? Is it convenient for me to speak up?

This is a live issue even within the Judiciary. Hamid Sultan JCA was the minority when sitting in the Court of Appeal during the hearing of the Indira Gandhi matter. What treatment did he receive as a minority? He was severely reprimanded by his superior in front of the other two judges who formed the majority. Constitutional cases and public interest matters were no longer assigned to him. But guess what? His bold dissent in Indira Gandhi was upheld by the Federal Court and the majority judgment was overruled. This event spoke not just of the character and value of a Judge as the guardian of the Federal Constitution, but a pressing dilemma within the Judiciary.

Many of the Federal Court Judges are scheduled to clock-out by the end of this year. While the pending vacancies serve as a great opportunity for an institutional reform, the first question we should ask is – what is the role of a Judge?

A layman might say, “To do justice!” That then begs the next question of what is justice?

A lawyer might say, “Justice means you apply the law fairly.”

However, is mere application of the law enough? Is a Judge’s role limited to applying the law to the facts of the case? In law school exams, it is common to give candidates case scenarios and assess them based on how well they can apply the law to the facts. Lawyers are trained to do the same but they are inherently minded to applying only laws which shed positive light on the facts of their case and argue around it. What then makes a Judge a Judge? We all have a part to play in shaping the law but a Judge is put in a privileged position to build a legal framework that will shape how we live our lives. It is by having this clear conscience in applying the law to the case at hand regardless of the popularity of the decision that makes the role of a Judge indispensable in a democracy.

Sure, you are not a Judge but you have a similar duty to act in your conscience at all times. After all, as part of the society, your view even as a minority will have an influence on how your peers look at the issue. The majority view became the majority because many people spoke up about it. The minority will become a recognised view too if enough people have the conscience to speak up about it. Start speaking up before the majority takes your silence as supportive of their views.

“The world is in greater peril from those who tolerate or encourage evil than from those who actually commit it.”

Albert Einstein

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