ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.

2, May 2011

Cultural Arguments Against Offensive Speech in Malaysia: Debates

Between Liberalism and Asian Values on Pornography and Hate Speech

Mohd Azizuddin Mohd Sani, PhD

Senior Lecturer in Politics and International Relations

College of Law, Government and International Studies
Universiti Utara Malaysia
Email: [email protected]

Abstract This article is about analysing two issues of pornography and hate speech in the context of political theory and Malaysian
politics. This article examines both issues from liberals arguments and it shows that although liberalism supports the right for free speech,
since the 1970s many liberals feel that pornography and hate speech should not be part of free speech doctrine because both are not
contributing for the public good in democratic system and they are also detrimental to the society. By using the cultural arguments of
Asian values, Malaysia totally rejects these practices because they are not suitable in a cultural and religious conscious Malaysian
multiracial society. Although many are sceptic about the use of Asian values for the rejection and the uses of hate speech by people
including the government, opposition and NGOs for political gain, in principle, Malaysians are in consensus of rejecting both issues for
the good of society.

Keywords: Malaysia, pornography, hate speech, liberalism, freedom of speech, Asian values

1. Introduction

These two months, November 2007 and January 2008, have shocked the Malaysian public with
two high profile events which related to the issues of pornography and hate speech. On the eve
of New Year, two DVDs were distributed anonymously in several towns such as Muar and Batu
Pahat in Johor showing Dr. Chua Soi Lek, Malaysian Health Minister, having sex with a young
woman. On 1 January 2008, Chua admitted that he was the person featured in the sex DVDs.
He claimed of no involvement in the filming and producing of the DVDs. However, on 2
January 2008, Chua announced of his resignation from the government including as the Health
Minister, Member of Parliament for Labis, and Vice President of Malaysian Chinese Association
(MCA) (The Star Online, 2008). Although this was a political scandal, distributing the DVDs to
the public and the pornographic content of it were totally against Malaysian laws such as the
Printing Presses and Publications Act, Penal Code and Broadcasting Act, and taboo to most of
Malaysian society who are strong culturally and religiously against this type of misbehave or
immoral practice.
Meanwhile one month earlier, Hindu Rights Action Force (HINDRAF), a coalition of 30
Hindu non-governmental organisations (NGOs) committed to the preservation of Hindu
community rights and heritage, has organised a rally turned riot on Sunday, 25 November 2007
to submit the petition at the British High Commission. The group has led agitations against what
they see as an “unofficial policy of temple demolition” and concerns about the steady
encroachment of shariah-based law. They also accused of the United Malays National
Organisations (UMNO)-led government of maginalised the ethnic Indian and run a policy of
ethnic cleansing (Chandra Muzaffar, 2007, p. 53). According to Chandra Muzaffar (2007, p. 53),
the statement about ethnic cleansing is dangerous and utterly a reckless and scurrilous allegation.
It is a clear example of hate speech which have hurt and angered many Malaysians especially the
Malays. Chandra argues that if the government pursued a goal as diabolical as ethnic cleansing,
would the principal language of the Indian Malaysian community, namely Tamil, be a medium of

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 122
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

instruction in the government managed national primary school. The illegal temple, which was
built in private area, was not the only place of worship that was brought down; an illegal surau
(small Muslim place for worship) was also demolished. In most instances, when temples or other
places of worship are forced to yield to development projects, alternative sites are made
available. It is obvious that there is no ethnic cleansing in Malaysia like what was happened in
Bosnia Herzegovina and Rwanda, however, the provocative racial hatred statement by
HINDRAF could be easily used by bigots and troublemakers to justify an attack on the Indian
community. Many worry about the response by other ethnics toward people or ethnic of the
people who made the statement. This makes hate speech so dangerous to be permitted in a
multiethnic country like Malaysia.
Both cases of pornography and hate speech are the latest edition of several similar or
slightly similar cases in Malaysia that could tarnish and harm the society. Therefore, the purpose
of this article is not directly to discuss about those two cases or other cases, but is to analyse
pornography and hate speech thoroughly from the perspective of political theory especially from
the view of liberalism. This is because there are split between liberals regarding the protection of
pornography and hate speech from any restrictions. Some extreme liberals argue that
pornography and hate speech are two important components of the doctrine of free speech
which is refuted by the more moderate liberals who believe pornography and hate speech are
degrading the society. This article will also explore the cultural debate in Malaysia with relation to
those two issues. This debate examines the cultural argument of Asian values embraced by
Malaysian society in forbidding the practice of pornography and hate speech, and the rejection of
Malaysian society toward the concept of unfettered freedom of speech.

2. War Within Liberalism

At its most extreme, liberalism means no control on freedom. Supporters of maximal free speech
are inclined to claim that a society will be both more stable and freer in the long run if open
discussion prevails. Rodney A. Smolla (1992, pp. 12-17) argues that if societies are not to be
undermined by festering tensions, there must be “safety valves” through which the citizens may
let off steam. Openness fosters resilience; peaceful protest displaces more violence than it
triggers; free debate dissipates more hate than it stirs. Defining rights as individual and absolute,
liberals recognise that there will be abuses in the practice of free speech but are willing to pay
that price rather than have government set the boundaries. They argue that to establish
permissible limits would ultimately lead to a society unable to decide important question for itself
and thus easy prey for the demagogue or a manipulative government (Stevens, 1982, p. 14).
In recent years, according to Owen Fiss (1996, p. 3), liberals have also been at war with
themselves. For some time, freedom of speech has held them together, but now it is a source of
division and conflict. Liberals have divided over the effort to establish a free speech doctrine.
Two areas of conflict have been pornography and hate speech.

3. Pornography

During the late 1950s and 1960s in the US, the Supreme Court fashioned a constitutional
definition of “obscenity” in order to place limits on state regulation of sexually explicit material.
Only books, magazines, and films that met this narrow definition could be proscribed. Fiss
argues that while conservatives fought for the right of the state to protect traditional sexual
mores and decried the Supreme Court’s stance, liberals uniformly embraced the effort to curb
the censorship of pornography and viewed the sexual politics of the late 1960s as an important
source of personal freedom and moral autonomy.
The term “moral autonomy”, frequently used by those who defend freedom of speech, is
heavily influenced by Kantian accounts of autonomy. This argument suggests that people are

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 123
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

capable of arriving at their own moral convictions but not at their own theories of physics or
medicine where they must rely on the opinions of experts. It is assumed that the wish to restrict
speech comes from a desire to prevent moral harm (Brison, 1998, p. 323). Ronald Dworkin
(1985), in his defence of the right to pornography, appeals to a right to autonomy which he
terms as a “right to moral independence”. He writes:

People have the right not to suffer disadvantage in the distribution of social
goods and opportunities, including disadvantage in the liberties permitted to
them by the criminal law, just on the ground that their officials or fellow-citizens
think that their opinions about the right way for them to lead their own lives are
ignoble or wrong. I shall call this…the right to moral independence…if someone
has a right to moral independence, this means that it is…wrong for officials to
act in violation of that right, even if they (correctly) believe that the community
as a whole would be better off if they did. (Dworkin, 1985, pp. 353-372)

Dworkin holds the view that to restrict people’s speech or to restrict their access to other’s
speech out of contempt for their way of life or their view of the good is a violation of their right
to moral independence or autonomy. In agreement with Dworkin, David Richards asserts, in an
article defending the right to pornography, that freedom of speech “supports a mature
individual’s sovereign autonomy in deciding how to communicate with others…In so doing, it
nurtures and sustains the self-respect of the mature person. Further, freedom of expression
protects the interest of the mature individual, with developed capacities of rational choice, in
deciding whether to be an audience to a communication and in weighing the communication
according to his own rational vision of life…The value of free speech, in this view, rests on its
deep relation to self-respect arising from autonomous self-determination without which the life
of the spirit is meagre and slavish.” (Richards, 1974, pp. 45-91)
During the late 1970s and early 1980s, however, feminists – long a vital component of
the liberal coalition – launched a new campaign against pornography, and as a result this area of
the law became another contested domain of liberalism. The new campaign against pornography
differed from those of the past in that the proposed regulation was intended not to preserve
traditional mores concerning sexuality but rather to enhance equality for women. A number of
the leaders of the feminist movement, for example Andrea Dworkin and Catharine MacKinnon,
claimed that pornography eroticises the domination of women and transforms women into
sexual objects to be used by men and thus is partially responsible for their subordination in
domains both private and public (Fiss, 1996, p. 3). Although autonomy theorists are generally
opposed to restrictions on pornography, it is plausible to argue that such speech succeeds in
presenting harmful actions, such as rape, in a favourable light in ways that bypass an individual’s
deliberative or cognitive capacities. Pornography can provoke our deepest and unarticulated
prejudices and we can find ourselves aroused by pornographic representations, without having
fully contemplated the meaning of such representations. MacKinnon (1987, p. 164) even claims
that pornography should be understood as part of a practice of sex discrimination, and therefore
deserves no legal protection because it is incompatible with gender equality. Laws to control
speech that affect people in these ways would not violate people’s autonomy because, the claim
is, the influence they have is not rationally mediated. Hence, if autonomy theorists want to
defend the protection of pornography, they will have to appeal to something other than people’s
autonomy (Dwyer, 2001, pp. 1-18).

4. Hate Speech

Besides, a similar concern about the impact that public utterances may have upon the social
status of disadvantaged groups has recently led to a revival of interest in regulation of hate

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 124
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

speech, though the psychological dynamic by which that speech inflicts its harm differs from that
of pornography and the group allegedly victimised is not primarily women but racial and
religious minorities. As with pornography, the question posed is whether the regulation of hate
speech is consistent with, or even required by, an acceptable liberal principle of freedom of
speech. On this issue, liberals once again find themselves drawn into sharp combat.
Hate speech can be defined as insults and characterisations that are directed against an
individual’s or a group’s race, religion, ethnic origin, or gender, which may incite violence, hatred
or discrimination (Rud and Sexton, 1999, p. 1). In the United States (US), hate speech is a broad
term that may include a great variety of expression, but according to Nelson v. Streeter 1994, it
generally refers to words or symbols that are “offensive, hurtful, and wounding” and are directed
at racial or ethnic characteristics, gender, religious affiliation, or sexual preference (Trager and
Dickerson, 1999, p. 124). The US courts usually consider hate speech part of the “rough and
tumble” of discourse that is part of a democratic and open society. On the contrary, some
contend that hate speech is deliberately hurtful, morally no better than physical aggression, and
should not be permitted in civilised societies. Hate speech is a form of speech that goes to the
core issues in society, for example, racism, homophobia, and women’s rights. In many countries
including Canada, France, the Netherlands, and Germany, as well as Malaysia, it is not protected.
In the past ten years, too, there has been a movement in the US to have hate speech removed
from its place at the core of protected speech, arguing that it is dangerous and damages
individuals and society. Many support the view that hate speech may be legitimately restricted
because it is not essential to democracy and indeed, it often undermines the equal respect that is
essential to democracy as well as causing other social harms. For instance, it encourages feelings
of inferiority, destroys self-esteem as well as personal security and emotion (Matsuda et al., 1993).
Thus, a number of minority and female writers argue that the US approach to hate speech is
inadequate and that it should be subject to criminal or civil penalties3.
Several theorists criticise the proposal to restrict hate speech, primarily for two reasons.
First, there is an idea that speech should be allowed and tested by the people without restriction.
One leading supporter of this idea is Henry Louis Gates (1993, pp. 37-38), who decries the effort
of critical ethnic theorists who support the punishment of those who engage in hate speech. He
claims that the theory behind hate speech codes – if you banish the speech, you banish the hate
– is not only simplistic but also unrealistic. Equality, justice, and human dignity, if allowed to
remain unchallenged and untested by racists and bigots of every stripe, will not prosper but
become Mill’s “dead dogma”. Gates says that American hate speech codes, which target vulgar
language and epithets, do nothing to halt carefully worded bigotry4. Gerald Gunter (1994, p. 76)
agrees with Gates and argues that opinion expressed in debates and arguments about a wide rage
of political and social issues should not be suppressed simply because of disagreement with the
content or form of the expression. He stresses that speech should not and cannot be banned
simply because it is “offensive” to substantial parts of, or a majority of, a community. The
proper answer to bad speech is usually more and better speech – not new laws, litigation and
repression5.
Second, there is also an argument that the restriction of hate speech will harm the
democratic system and public discourse. Robert Post (1991, pp. 267-328) argues that the banning
of hate speech would sacrifice other important values served by the freedom of speech such as
exchange of ideas and open debate. Democracy serves the value of self-determination by
establishing a communicative structure within which the varying perspectives of individuals can
be reconciled through reason. If the state were to forbid the expression of particular ideas, the
government would become, with respect to individuals holding those ideas, suppressive and
non-democratic. Although Post argues that all opinions should be tolerated so long as their
protagonists urge their acceptance by legal methods, the notion that racist ideas ought to be
forbidden within public discourse because of the offensiveness is thus fundamentally
irreconcilable with the rationale for freedom of speech. He thinks that the case has not yet been

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 125
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

made for circumscribing public discourse to prevent the kind of pre-emptive silencing that
occurs when members of victim groups experience “fear, rage, (and) shock”. If the empirical
claim of systematic pre-emptive silencing is accepted, in his view, it is directly the result of the
social and structural conditions of racism, rather than of specifically racist speech. This is the
logic of the argument from pre-emptive silencing does not impeach the necessity of preserving
the free speech of ideas, public discourse could at most be regulated in a largely symbolic manner
so as to purge it of outrageous racist epithets and names. Post concludes that it is highly
implausible to claim that such symbolic regulation will eliminate the pre-emptive silencing that is
said to justify restraints on public discourse, and deliberative self-government is not compatible
with such restriction on free speech (Arthur, 1997, pp. 231-232).
However, the arguments of Gates, Gunter and Post for allowing the expression of hate
speech are rather dangerous. Joel Feinberg (1984) argues that when fighting words are used to
provoke people who are legally prevented from using a fighting response, the offence is
profound enough to allow for prohibition. However, Feinberg also suggests that a variety of
factors need to be taken into account when deciding whether speech can be limited by the
offence principle. These include the extent, duration and social value of the speech, the ease with
which it can be avoided, the motives of the speaker, the number of people offended, the
intensity of the offence, and the general interest of the community at large. In a multicultural and
multiracial society where the risk of violence and disorder is real and can undermine the nation’s
political stability, the restriction of hate speech should be allowed. Speech influences action and
hate speech can spark aggression and violent behaviour. A society that wants to encourage
tolerance between races and ethnic groups must choose a policy that creates political stability and
not one that promotes enmity, and hostility even in the name of marketplace of ideas. The idea
of associating hate speech with democracy and self-government is also unconvincing, as a
democratic political system can still flourish in the absence of hate speech. This is clear from the
numerous democracies where hate speech is restricted.
Public hate speech can be argued to violate the rights of some members of the
community itself. As we have seen, political discourse is often understood on Alexander
Meiklejohn’s (1965) model of the town meeting. Free speech is essential to reach informed
decisions on matters of common concern. At the same time, Meiklejohn stresses that speakers
can be required to observe certain rules of order. These rules do not violate freedom of speech,
but rather make free deliberation possible. In particular, he observes that if a speaker is abusive
or in other ways threatens to defeat the purpose of the meeting, he may be and should be
declared out of order. It would seem to follow from this view that public hate speech should not
be protected under the constitution. Like abusive speech in a town meeting, hate speech violates
the integrity of the deliberative process by undermining the possibility of reasoned discourse. As
Meiklejohn observes, such discourse cannot take place except on the basis of mutual respect
among citizens who regard one another as capable of engaging in rational self-government. Of
course, public debate in a large modern society differs in many ways from Meiklejohn’s town
meeting, and a great deal of speech that would be improper in that setting is considered
acceptable within the polity at large. However, Meiklejohn’s basic insight is valid. Democratic
self-government is impossible in the absence of a minimal degree of civility and mutual respect
among citizens. Although that minimum standard will differ depending on the nature, size,
customs, and values of each society, its members must observe some standard or they cease to
constitute a democratic community. Thus, however minimal our society’s version of that
standard is taken to be, it will be violated by speech that denies recognition to others on the basis
of race, ethnicity, gender, or religion (Heyman, 1999, pp. 1380-1383).

5. Malaysia’s Cultural Arguments: The Asian Values

The theory and practice of human rights has emerged in the context of particular social,

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 126
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

economic, cultural and political conditions. The circumstances that prompted the
institutionalisation of human rights in the West do not exist in Asia, but it would be a mistake to
assume that nothing of theoretical significance has emerged from Asia. The debate on Asian
values has prompted critical intellectuals in the region to reflect on how they can locate
themselves in a debate on human rights and democracy in which they had not previously played
a substantial part. Neither wholly rejecting nor wholly endorsing the values and practices
ordinarily realised through a liberal democratic political regime, these intellectuals are drawing on
their own cultural traditions and exploring areas of commonality and difference with the West.
Though often less provocative than the views of their governments, in the sense that few argue
for the wholesale rejection of Western-style liberal democracy, these unofficial Asian viewpoints
may offer more considered and less politically motivated contributions to the debate.
As an advocate of “Asian values”, Mahathir Mohamad, former Prime Minister of
Malaysia, explains that the Malaysian perspective of “Asian values” is based on Malay-Islamic
culture and should be protected against absorption by Western values. He urges the three most
basic elements of “Malayness” – feudalism, Islam, and adat (traditional customs) as he saw it in
1970 in his book, The Malay Dilemma, should all be classed as features to be merely accepted as
realities and perhaps adapted to modern needs (Barr, 2002, p. 42). Mahathir (Mahathir and
Ishihara, 1995, pp. 71-86) rejects the Western liberal notion of unfettered free speech which, he
believes, can corrupt Malaysian culture and religious beliefs. Concerned about the influence of
Western individualism, and the future of Asian values and traditions, Mahathir launched the
“Look East” policy in 1982 as a broader campaign against “Western values”. Mahathir told the
1982 UMNO General Assembly to “Look East” to emulate the diligence found there and “to rid
ourselves of the Western values that we have absorbed” (Khoo, 1995, p. 69).
It has been argued that although the Malays are facing rapid development and
modernisation, especially under Mahathir’s, and his successor, Abdullah Ahmad Badawi’s
leaderships, they are still embracing and prioritising certain values. The Malay values of patience,
respect and togetherness are applied through people’s tactful actions in everyday social
interactions, but more importantly, they are also achieved through linguistic indirectness, hedges
and other “positive politeness strategies”. According to Lim Beng Soon, by avoiding
disagreements, criticisms, complaints and any other face-threatening acts (FTAs) that might
reduce the desirability of the addressee and using hedges or even white lies to avoid conflicts,
one shows forbearance, achieves harmony and demonstrates togetherness, thus meeting the
essential requirement of Malay etiquette (Yuan, 2003, p. 1). For example, people are warned to
guard against speaking in a direct manner as it may lead to serious consequences: “berapa tajam
pisau parang, tajam lagi lidah manusia” – “knives and machetes are not as sharp as tongues”. Malay
culture has significant implications for negotiation processes and outcomes. In negotiation, the
Malays’ compromising and obliging conflict-handling styles are probably manifestations of their
collective nature, which prioritises group over personal interests. In compromising and obliging
styles, negotiators are more concerned with maintaining relationship and safeguarding their
partner’s feeling, hence the seemingly perceived “weak-styles” in goal-oriented negotiation. To
the Malays, even though achieving their goals in a negotiation is important, their values in
preserving harmony and respect for elders take precedence in the negotiation process (Lailawati,
2005, p. 8).
Religion is an integral component of cultural values, although in Southeast Asia its
influence is similarly contested. Ismail Ibrahim (2001) admits that as long as Asian values or
other values are not contradicted by Islamic teachings and values, those values should be
accepted in Malaysian society, e.g. respect to elderly people and good work ethics. He also
stresses that all societies have their own measurements of human rights, which are based on local
values, religious practices and traditions. Freedom of speech should be used in as appropriate a
manner as possible without undermining sensitive issues such as national security, religious
beliefs and multiracial harmony. Some Southeast Asian leaders have argued that the aggressive

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 127
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

separation of church and state in the West – in effect limiting religion to the private sphere – and
the consequent process of secularisation have contributed to a moral void in public life and
accentuated the negative impulses of individualism (Inoguchi and Newman, 1997, p. 1-9). In
Malaysia, despite the obvious diversity of religions – chiefly Islam, Buddhism, Hinduism and
Christianity – and a similar process of secularisation, it has been argued that religion still plays an
important part in everyday life and contributes to group identity and orientation. In fact,
according to Joseph Lo, most East and Southeast Asians would prefer some constraints of free
speech, perhaps in the form of libel laws to protect cultures from various forms of defamation
and hate speech (Bell, 2000, p. 9).
However, many writers criticise the argument of “Asian values” from the context of
culture. Wan A. Manan (1999, p. 359-381) thinks that the discourse on “Asian values” is basically
a cultural construction aimed at maintaining certain practices that came under threat from
globalisation and democratisation. Underlying current global transformations are forces that tend
to generate fundamental changes within society. These include issues relating to human rights,
civil society, gender consciousness and democratic reforms. However, the cultural position that
advocates the division between the “West” and “East” is misleading because these are not two
big permanent static blocks. The dynamic relationships between cultures in the age of global
interactions keep them in a constant state of flux. In any case, proponents of “Asian values” are
not alone in their cultural claim because Western scholars such as Huntington consider their
version of democracy and human rights as the only valid and objective one (Huntington, 1993, p.
22).
The most disturbing use, or rather abuse, of the cultural argument is that it is often a
central plank in the narrative of those governments who actively oppose the application of
international human rights standards in their countries in order to buttress their own power. The
presumed “tolerance” and “pluralism” of culture seems to underwrite a conservative political
agenda: the tolerance and perhaps even maintenance of highly not egalitarian and repressive
political systems, while ironically energies are devoted to the “sentimental education” of ruthless
and cruel dictators (e.g., Suharto of Indonesia and Marcos of the Philippine) and the
predominantly illiterate and subjugated masses of this world. Cultural particularism is often “one
of the most useful ideologies” in mounting a defence and bringing about international
acquiescence in state repression (Wilson, 1997, p. 9).
The concept of human rights, therefore, relates to the dignity of the human individual.
Some critics think that this philosophy is misunderstood by some Asian political leaders, who
conflate the anti-social behaviour of some individuals in the West with the individualism of the
theory of human rights (Fareed, 1994, p. 111). A common source of this misunderstanding is the
relationship between rights and duties. It is said that “Asian” morality is based on duties, while
“Western” morality is based on rights (Ghai, 1995, p. 60). Michael Freeman (1996, p. 361) argues
that this misstates the logic of rights. He explains that Locke (1689/1993), for example, held that
everyone has the duty to respect the life and dignity of others. Rational individuals consent to
live under government on condition that it also implements the same duties. Governments that
violate the rights of their citizens deserve condemnation as tyrannies. So, similarly, societies that
impose imperial rule over other peoples without their consent are guilty of violating the rights of
those people. The concept of human rights justifies democracy and condemns tyranny and
imperialism.
In any case, there are no grounds for believing that norms originating in one place should
be inherently unsuitable for solving problems more generally. Such a belief commits the “genetic
fallacy”, in that it assumes that a norm is suitable only to the culture of its origin. However, the
origin of an idea in one culture does not entail its unsuitability to another culture. If, for example,
there are good reasons for protecting the free speech of Asian people, free speech should be
respected, no matter whether the idea of free speech originated in the West or Asia, or how long
it has had currency. In fact, Asian countries may have now entered into historical circumstances

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 128
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

where the affirmation and protection of free speech is not only possible but also desirable
(Xiaorong, 2001, pp. 42-43). Therefore, some of the criticisms of the “Asian values” position
carry the further implication that the stress on “Asian culture” is found only at the elite,
leadership level. The wider population in Malaysia, Singapore and the other countries of Asia, it
seems to be suggested, hold values that are not radically different from those usually associated
with liberal democracy (Kahn, 1989, pp. 5-29).
In response to the criticism, many writers argue that culture, indeed, plays a significant
role in everyday life of Asian society. Despite these question marks over the practice of cultural
analysis, however, a number of recent studies underline the danger of dismissing entirely the role
of different cultural perspectives in analysing processes of change and interaction within the
Asian region. In a survey analysis, Joel Kahn (1997, pp. 29-30) has reported on one hundred and
twenty interviews with “middle class Malays” he carried out from 1992-1994. He “found that
almost all respondents articulated some form of the Asian values argument”. They stressed
concerns about the “threat posed to Malay culture by modernisation” and criticised the West for
its “lack of family values, individualism and selfishness, a lack of cultural values, permissiveness,
secularisation and uncaring”. Although the phrase “Asian values” possesses real inadequacies as
a descriptive expression, it also argues that we cannot proceed from this point to the further
assumption that there is no need to examine the substantial range of cultural perspectives and
values which influence behaviour within and between Asian societies. Mahathir and Lee Kuan
Yew, of course, are well aware of the political usefulness of “Asian values”, but the evidence
clearly demonstrates that these Southeast Asian leaders do not by any means construct their
ideological packages in a cultural vacuum.

6. Freedom of Speech is not Absolute: There is no Such Thing as Pornography and Hate
Speech in Malaysia

Regarding the issue of free speech, I am persuaded by Li-ann Thio (1999, pp. 1-86) who argues
that a distinction should be drawn between contested human rights norms and those norms
upon which all agree, such as the right to free speech. The controversy surrounding the latter
category is one with respect to the scope of application, not the substance of the value. The right
of free speech, which underpins a democratic society, is, for example, formally guaranteed in the
Malaysian Federal Constitution and as well as the US Bill of Rights. The controversy concerns
the degree of liberty that should be permitted and the permissible grounds for derogation. This
can have extensive ramifications in the practical realm, as illustrated by the following quote from
a scholar, Shad Faruqi:

Admittedly, the rugged individualism, un-inhibitedness and licentiousness of what is still

“the wild, wild West” is contrary to Asian tradition. Our attitudes to nation, religion and
culture, race, family and community are reverential. We draw a line between liberty and
license. We do not deem it a matter of constitutional principle that there should be a
right to desecrate our national flag, to blaspheme our religions and to walk freely into
shops to buy murderous weapons. We view a free-wheeling sexual lifestyle, drug taking
and alcohol addiction with revulsion. With the bulk of us, pornography is not part of
free speech, abortion on demand is not part of personal liberty and homosexuality is not
part of freedom of choice. We acknowledge that rights and responsibilities must go
hand-in-hand and that freedom is not an end in itself. (Shad, 1996, p. 17)

Joseph Chan (2000, pp. 59-74) has identified approaches – which he calls “thin” accounts of
human rights – as a cause of the disjunction between Western liberalism and the social
conservatism of the “Asian values” discourse. He regards such declaratory accounts of human
rights as nothing more than “shorthand” for the results of bundles of sophisticated and

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 129
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

contingent arguments. The right to freedom of speech, for instance, is a shorthand that describes
several different rights, each with its own rationale; the rights to commercial speech, political
speech, artistic expression, and religious expression. Shorthand can be useful for facilitating
discussion and for coining a slogan, but the slogan should never be mistaken for the argument.
Hence Chan argues that:

…the general right to freedom of speech as such is a generalisation from these

independently justified specific rights. Thus to decide whether cigarette
advertising should be regulated, it requires substantive reasoning from square one
– we need to discuss what sorts of interests and what parties are relevant and
how those interests should be balanced. (Chan, 2000, p. 65)

The same caveats apply to the application of the “freedom of speech” mantra to pornography,
expressions of racial hatred, and sexist language, not to mention issues to which we barely give
second thought, such as a child’s “freedom of speech” vis-à-vis a parent’s or teacher’s authority.
It is because we have mistaken imprecise shorthand generalisations for the real thing that so
many supposedly fundamental and universal human rights commonly conflict with other
fundamental and universal human rights (Barr, 2002, pp. 188-189). For example, consider the
right to freedom of speech in the case of pornography. Pornography has been more heavily
censored in some Asian countries, e.g. Singapore, Malaysia, and Indonesia, than in most Western
ones. Does the prohibition of pornography unjustifiably violate freedom of speech? Adopting
the three-party analysis of interests mentioned above, some may judge that what is required is a
balancing of the interests of the publishers (commercial and ideological interests), the
audience/consumers’ interests (in erotic excitement) and third-party, or community, interests.
Important disagreements may centre on the third-party interests, some may take the view that
the community as a whole has an interest in maintaining its moral standards, and that society’s
morals should, therefore, enter into our judgements. However, this view offends many liberals
who uphold a particular mid-level principle, namely, that it is not the business of the state to
enforce a society’s particular moral ethos. On this view, the maintenance of morals is never a
legitimate interest to enter into the balancing calculus. According to Chan (2000, pp. 70-72),
those accepting the legitimacy of, for example, the principle of legal moralism would allow
society’s morals to be put on the scale; those liberals who are against legal moralism would not.
In Malaysia, moralism is parallel with the cultural and religious (Islamic) practices and normally,
principles of political morality guide Malaysian society to make this kind of fundamental
decision, such as banning pornography. The government has an essential role to represent
society’s moralism and act on cultural value and religious belief.
There is strong consensus amongst Malaysians whether they are Malays (or other
indigenous tribes), Chinese, or Indians, which rejects materials of a pornographic or sexual
nature as immoral and obscene. Pornography is seen as a kind of exploitation as it degrades,
endangers, and harms the lives of women. Although many in the business argue that the
women’s involvement in pornography is voluntary, many Malaysians believe that there is an
element of exploitation by the pornographic industry. Mahathir argues in this context:

…there are limits to freedom, and I believe it is important for every member of a society
to know these limits. One good example is pornography. You can have computer
animation, which may be ever so creative – and thus should be freely available – but if
this “freedom” is used to produce pornographic films that are purveyed to the
impressionable young, then the fruits of the freedom should not be accepted and
allowed by society. In Malaysia, it is not my impression that business ingenuity or
creativity have been stifled by our Malaysian value system which sets clear limits to
individual freedom and generally emphasises the community over the individual. To the

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 130
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

contrary, I believe that our value system has been the foundation for our society’s
stability and prosperity, at least until the economic crisis struck. (Mahathir, 1999, pp. 73-
74)

On this matter, the government takes the initiative to protect public morality and the traditional
way of life from pornography and sexual exploitation. For instance, in February 2002, the
government banned a rerun of the controversial feminist play The Vagina Monologues. The play,
presented by local performers, and according to the producer of the show, the play contained
adult material but was neither vulgar nor obscene. The play was banned because of alleged
complaints by members of the public on the vulgar content and title of the play.
Mahathir also attacked Western liberal democracy which often tolerates offensive and hate
speech:

Malaysian democracy is not a liberal democracy and not bound to accept every new
interpretation of democracy in the West where democratic fanatics have pushed
devotion to a pedantic notion of democracy to include the protection of neo-fascists or
the empowering of a vocal minority of political activists over the silent majority of
ordinary citizens. (Leigh and Lip, 2004, p. 320)

Mahathir’s successor, Abdullah Ahmad Badawi, in his first speech to the Parliament on assuming
his appointment as the Prime Minister in November 2003, expressed his conviction that
democracy is the best system of governance, but:

Democracy does not mean absolute freedom. Issues that inflame religious, racial
(ethnic), and cultural sentiments should not be sensationalised, while attempts to
undermine national security must be dealt with firmly. (SUARAM, 2004, p. 21)

Abdullah will pledge to ensure ethnic harmony and stability, and continue restricting hate speech
that is deemed to be a threat to national security and public order.
Furthermore, K.J. Ratnam (2003, pp. 34-35) rejects the liberal argument that every time a regime
embarks on actions that curtail political freedoms it does so without legitimate cause and only for
self-interested reasons, or that opponents of governments are themselves always believers in
democracy and civil rights. He argues that the importance of social and political stability,
especially in multiracial society, is strong enough to justify substantial restrictions on hate speech.
With regard to the media, Ratnam (2003, pp. 54-55) urges that editors should disallow the
publication of views that inflame ethnic feelings or in other ways undermine the fabric of society,
even though the reasons for publishing those views are to honour their commitment to freedom
of speech and their opposition to censorship. He concurs with the decision by the editor of a
major Malaysian newspaper not to published letters, reports or articles that incite people to racial
hatred.
However, we also have to beware of the government’s leaders, members and supporters
who use hate speech in strengthening their grip in power and exploiting ethnic issues for political
purposes. Sumit K. Mandal (2004, p. 57), for instance, realises this and criticises the Malaysian
government’s policy on racial hatred, arguing that racialised, and even racist, instruments of state
and politics find their place in the public spaces of Malaysia without much sustained and rigorous
criticism. Notable examples of racialised language are the primordialist terms “Malay supremacy”
(ketuanan Melayu) and “newcomer” or “immigrant” (pendatang) used by chauvinist elements in the
Malay leadership to assert an inherent difference between their “own” and “migrant” others. In
recent decades, according to Mandal, these chauvinist terms have come to the fore during elite
political crises in order to galvanise groups along racial lines. Hence, when oppositional groups,
including NGOs, accuse the state of racist politics, their arguments often run aground and do

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 131
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

not find widespread support. The racialisation of state initiatives like the New Economic Policy
(NEP) soon after the watershed of 13 May 1969, have institutionalised race and made it part of
an effective political system, thus furthering its unproblematised existence. As a result, according
to Mandal, the state may be credited with making colonial era racialisation, with a policy of
divide and rule, a post-colonial success.
Anwar Ibrahim also made a same argument and accused the government of appealing to
puritanical Muslim sentiment to reinforce support ahead of the vote in the next 12th general
election. Commentators in multiracial but Muslim majority Malaysia have sounded alarm over
the growing “Islamisation” of the country and the increasing polarisation of the three main
ethnic communities. Anwar, speaking in the Institute of Southeast Asian Studies’ Regional
Outlook Forum, argued that Malaysia’s problem is not radicalism but the issue of state-
sponsored Muslim Puritanism which is more by racist sentiments than religious principles.
Anwar said that “for some reason it is the belief of the present administration in Kuala Lumpur
that playing the puritanical card would be best bet for the UMNO-dominated ruling coalition to
secure electoral success in the coming election…By holding themselves out to be the staunchest
defender of Islam, UMNO hope to garner greater support” (Agence France-Press, 2008, p. 1).
Clearly, hate speech is not only spoken by bigots and racists, but also sometimes by some people
in power who try to achieve their objective of retaining the political power. They will use any
mechanism to ensure they get what they want including by using hate speech. Germany’s Nazi in
the Holocaust during World War II and Rwanda’s Hutu/Tutsi in Genocide in 1990s proofed
that hate speech could be used to achieve certain racist policy of the government. In Malaysian
history, the 13th May 1969 racial incident was the obvious example that hate speech had been
utilised to gain seats and win constituencies for political power.
Therefore any practices of hate speech should be stopped in order to ensure the real
racial harmony and political stability exists in Malaysia. Any disagreements or dissatisfactions
should be resolved in civil as manner possible. Proper peaceful dialogues and discussions could
be the way in resolving any problems especially with regards to racial issues. In general,
Malaysians can accept that the restrictions on pornography and hate speech are for the common
good. No such campaign, either by the government, opposition and NGOs, in legalising the
pornography and hate speech in Malaysia is a comprehensible proof that Malaysians dislike those
kind of speeches or expressions.

7. Conclusions

The liberal argument for free speech is not suitable to be implemented in a multicultural or
multiracial society if pornography and hate speech are allowed to be practised and state
intervention in maintaining social order is discouraged for the purpose of defending unfettered
free speech. Speech such as pornography and hate speech, which certain societies may value as
important for individual rights and freedom of choice, are not included under special
constitutional protection, especially in Malaysia, because they are not contributing anything to
the democratic process and, of course, against cultural values of many societies, thus restricting
them cannot be seen as a breach of civil liberties or free speech. The constitutional protected
political speech has value for the community as a whole, beyond its value to the speaker, and
consequently ought to be specially nurtured. Suppression may be especially justifiable because
“evil” speech is not just a private wrong to another individual but a public bad that may lead to
harm to the whole community (Mill, 2002; Baker, 1989, p. 35).
There are two reasons why the “Asian values” thesis provides a legitimate basis
restricting freedom of speech particularly pornography and hate speech. These are first, to
protect cultural identity, and second, to defend national stability. Asian values are the best
protection for Malaysian culture from the invasion of negative Western culture. “Asian values”
has been used as shield to prevent Western culture from overwhelming Malaysian culture.

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 132
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

Although the Malaysian people do not totally reject all of Western culture and its values, certain
practices such as pornography and hate speech are unacceptable to the Malaysian multiracial
society. These practices are also unacceptable in the sense that they conflict with the dominant
cultural and religious beliefs of Malaysian peoples. Although, many are sceptic about the
government intention of promoting Asian values, the use of cultural values in containing
pornography and hate speech should be encouraged in order to promote public good in the
society.

References

Agence France-Presse. (2008) “Malaysian government playing Islamic card ahead of vote: Anwar”. 1 January.
http://news.my.msn.com/regional/article.aspx?cp-documentid=1179732 (accessed 10 January 2008)
Arthur, J. (1997) “Recent Work in Freedom of Speech”. Philosophical Books 38(4): 225-234.
Baker, C.E. (1989) Human Liberty and Freedom of Speech. Oxford: Oxford University Press.
Barr, M.D. (2002) Cultural Politics and Asian Values: The Tepid War. London: Routledge.
Bell, D. (2000) East Meets West: Human Rights and Democracy in East Asia. Princeton, New Jersey: Princeton University
Press.
Brison, S.J. (1998) “The Autonomy Defense of Free Speech”. Ethics 108(2): 312-339.
Chan, J. (2000) “Thick and Thin Accounts of Human Rights”. In Human Rights and Asian Values: Contesting National
Identities and Cultural Representations in Asia, edited by M. Jacobsen and O. Bruun. Surrey: Curzon Press.
Chandra Muzaffar. (2008) “Ethnic cleansing claims ludicrous”. The Star. 13 December.
Dworkin, R. (1985) A Matter of Principle. Cambridge, Massachusetts: Harvard University Press.
Dwyer, S. (2001) “Free Speech”. The Nordic Journal of Philosophy 2: 1-18.
Fareed Z. (1994) “Culture is destiny: Interview with Lee Kuan Yew”. Foreign Affairs 73(2): 109-126.
Feinberg, J. (1984) Harm to Others: The Moral Limits of the Criminal Law. Oxford: Oxford University Press.
Fiss, O.M. (1996) Liberal Divided: Freedom of Speech and the Many Uses of State Power. Boulder: Westview.
Freeman, M. (1996) “Human Rights, Democracy and ‘Asian values’”. The Pacific Review 9(3): 352-366.
Gates, H.L. (1993) “Let them talk: Why civil liberties pose no threat to civil rights”. The New Republic. 20 September.
Ghai, Y. (1995) “Asian Perspectives on Human Rights”. In Human Rights and International Relations in the Asia-Pacific
Region, edited by T.H. Tang. London: Pinter.
Gunther, G. (1994) “All speech should be unrestricted on College Campuses”. In Free Speech, edited by B. Leone.
San Diego, CA: Greenhaven Press.
Heyman, S.J. (1999) “Righting the balance: an inquiry into the foundations and limits of Freedom of Expression”.
Boston University Law Review 78: 1277-1390.
Huntington, S.P. (1993) “The Clash of Civilizations?”. Foreign Affairs 72(3): 22-49.
Inoguchi, T and Newman, E. (1997) “Introduction: ‘Asian Values’ and Democracy in Asia”. In ‘Asian Values’ and
Democracy in Asia. 27 March. Shizouka: Shizuoka Prefectural Government. http: //www.unu.edu /
hq/unupress/asian-values.html (accessed 16 August 1999)
Ismail Ibrahim. (2001) Interview: Former Chairman of the Malaysian Institute of Islamic Understanding. 13 October. Interview
via The Internet (Email).
Kahn, J.S. (1989) “Culture, Demise or Resurrection?”. Critique of Anthropology 9(2): 5-29.
Kahn, J.S. (1997) “Malaysian Modern or Anti-anti Asian values”. Thesis Eleven. 5 August.
Khoo B.T. (1995) Paradoxes of Mahathirism: an intellectual biography of Mahathir Mohamad. Kuala Lumpur: Oxford
University Press.
Lailawati M.S. (2005) “High/Low Context Communication: The Malaysian Malay Style”. In Proceeding of the 2005
Association for Business Communication Annual Convention. Kuala Lumpur: Association for Business
Communication.
Leigh, M. and Lip, B. (2004) “Transitions in Malaysian Society and Politics: Towards Centralizing Power”. In The
Asia-Pacific: A Region in Transition, edited by J. Rolfe. Hawaii: Asia-Pacific Center for Security Studies.
Locke, J. (1689/1993) “The Second Treatise of Government”. In Political Writings of John Locke, edited by D.
Wootton. New York: Mentor.
MacKinnon, C.A. (1987) Feminism Unmodified. Cambridge, Massachusetts: Harvard University Press.
Mahathir Mohamad. (1999) A New Deal For Asia. Selangor: Pelanduk Publications.
Mahathir Mohamad and Ishihara S. (1995) The Voice of Asia: Two Leaders Discuss the Coming Century. Tokyo: Kodansha
International.
Manan, W.A. (1999) “A Nation in Distress: Human Rights, Authoritarianism, and Asian Values in Malaysia”.
SOJOURN: Journal of Social Issues in Southeast Asia 14(2): 359-381.

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 133
ISSN 2039 - 2117 Mediterranean Journal of Social Sciences Vol.2, No.2, May 2011

Mandal, S.K. (2004) “Transethnic solidarities, racialisation and social equality”. In The State of Malaysia: Ethnicity,
Equity and Reform, edited by E.T. Gomez. London: RoutledgeCurzon.
Matsuda, M.J., Lawrence, C.R., Delgado, R. and Crenshaw, K.W. (1993) Words That Wound: Critical Race Theory,
Assaultive Speech and the First Amendment. Oxford: Westview Press.
Meiklejohn, A. (1965) Political Freedom: The Constitutional Power of the People. New York: Oxford University Press.
Mill, D.V. (2002) “Freedom of Speech”. Stanford Encyclopedia of Philosophy. http: //plato.stanford.edu/entries
/freedom-speech/ (accessed 8 November 2004)
Post, R.C. (1991) “Racist Speech, Democracy, and the First Amendment”. William and Mary Law Review 32(2): 267-
328.
Ratnam, K.J. (2003) Rights, Freedoms and the Civil Society. Penang: Penerbit Universiti Sains Malaysia.
Richards, D.A.J. (1974) “Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment”.
University of Pennsylvania Law Review 123: 45-91.
Rud, D. and Sexton, N. (1999) Hate Speech Defined. http: //www.unc.edu/courses/law357c (accessed 17 November
2004)
Shad F. (1996) “What are Human Rights? Some Explanations on Different Conceptions and Perspectives”. In
Human Rights and The Media, edited by R. Haas. Kuala Lumpur: Aidcom.
Smolla, R.A. (1992) Free Speech in an Open Society. New York: Vintage Books.
Stevens, J.D. (1982) Shaping The First Amendment: The Development of Free Expression. California: SAGE Publications,
Inc.
Suara Rakyat Malaysia (SUARAM). (2004) Malaysia: Human Rights Report 2003. Petaling Jaya: SUARAM.
Trager, R. and Dickerson, D.L. (1999) Freedom of Expression in the 21st Century. Thousand Oaks: Pine Forge Press, Inc.
The Star Online. (2008) “Dr. Chua Soi Lek admits to being the man in sex DVD”. 2 January.
http://thestar.com.my/news/story.asp?file=/2008/1/2/nation/19898249&sec=nation (accessed 10
January 2008)
Wilson, R.A. (1997) Human Rights, Culture and Context: Anthropological Perspectives. Chicago: Pluto Press.
Xiaorong L. (2001) “‘Asian Values’ and the Universality of Human Rights”. In Dealing with Human Rights: Asian and
Western Views on the Value of Human Rights, edited by M. Meijer. Oxford: WorldView Publishing.
Yuan Y. (2003) “Lim Beng Soon: Malay Saying as Politeness Strategies”. In Review: Report on SAAL Talk. Singapore:
SAAL (The Singapore Association for Applied Linguistics. http: //www.saal.org.sg/sq63.html (accessed 14
May 2006).

MCSER – Mediterranean Center of Social and Educational Research

Rome, Italy, www.mcser.org 134