Minority Rights: On the Importance of Local Knowledge

...Any prospect for a fair and workable reunification with the People's Republic of China cannot ignore the fact that many Taiwanese now think of themselves as sufficiently distinct to seek some form of self-administration...

...2 I quote from a paper presented at a workshop held in Hakone, Japan, June 1995, the first of three workshops on the theme "The Growth of East Asia and Its Impact on Human Rights...

...But political thinkers and activists can and do take different sides on many...

...Liberal thinkers may worry about this line of argument...

...There is, however, a narrower claim being presented by "authoritarian" governments that cannot be dismissed so readily: namely, that particular rights may need to be curbed in particular contexts, for particular economic or political purposes, as a short-term measure, in order to SUMMER • 1996 • 37 Local Knowledge secure a more important right or to secure that same right in the long-term...

...I am not affirming, nor would I affirm, a right to commit lese majeste...

...Whole counties and districts have applied for autonomous minority status on the basis of extremely slender evidence, such as the discovery of nonHan names in genealogies of several generations' depth...

...Still, one can exaggerate this worry...

...Non-Liberal Cultural Traditions But while some aspects of local culture may be invoked for this purpose, the problem is that other aspects can justify curtailing minority rights...

...Trade-Offs Much ink has been spilled debating whether or not civil and political rights need to be sacrificed in the interests of economic development...

...My defense against the charge of lese majeste was my innocence of the charge...

...From this it follows that policies designed to protect vulnerable minorities must draw on the social experiences and political ideals of Western societies, cast in universalist terms...

...Many religious Americans, for example, might think that the idea of human rights derives its ultimate justification from God's special concern for human beings...

...This latter argument may be employed as an excuse to justify or "tolerate" the subjugation of members of cultural groups who have been denied the opportunity to reflect on and criticize norms of deference and humility to powerful leaders...

...An-Na'im notes, for example, that the "secular" human rights activist can criticize the government of Malaysia for denying a group of citizens their freedom of belief and for detaining them without charge or trial on the basis of a ruling from a council of "religious scholars," hence violating the principle that religion not be used for political ends...

...Communalism, and the attendant threat of racial riots, was dealt with by measures intended to construct an ethnically neutral national identity that might override particularist commitments to ethnic groups...

...Not surprisingly, the children of mixed marriages between Han and minority members usually choose minority rather than Han status...

...But this mechanism need not be an absolute right to free speech, and more generally it need not be the same in all times and places...

...But these SUMMER • 1996 • 39 Local Knowledge re-interpretations are unlikely to be widely accepted, and one might conclude that culturally sensitive approaches need to be buttressed by a U.S.-style right to free speech so that majority viewpoints can be challenged and eventually replaced by values more supportive of minority rights...

...Singaporean officials can concede that governments ought ideally to secure minority rights, adding that in this case these rights had to be sacrificed in order to secure more important rights to life and minimal subsistence.' Nor would it be appropriate to respond with social scientific evidence based on generalizations...

...March 13, 1996) 5 I do not mean to imply that Islamic countries are unique in this regard...

...But this is a non-issue if one accepts the official Chinese view that the Taiwanese are not a distinct cultural grouping...

...It is simply not relevant to point out that other countries do not face similar problems or that social peace can sometimes be secured without similar restrictions...

...Xin Chunying, a lawyer working at the Human Rights Center of the Chinese Academy of the Social Sciences, notes that East Asian governments emphasize "the particularity of human rights protection and the priority determined by the specific conditions of each country...

...For example, the many references in the Confucian tradition to "barbarians" may lend support to "civilizing missions" that have the effect of annihilating non-Han Chinese cultures...

...For example, Bhikhu Parekh suggests that laws against libel can be employed to protect minority cultures from various forms of defamation and hate speech...

...Proponents of "authoritarianism"—primarily government officials in East and Southeast Asia— argue that if factional opposition threatens to slow down economic development or to plunge the country into civil strife, then tough measures can and should be taken to ensure political stability...

...The Dalai Lama proposed a similar formula in 1988, but the Chinese government, seemingly oblivious to historical precedent, denounced the offer, calling it a "disguised form of independence...

...6 Dr...

...This aspect of the case is particularly concerned with my being Siamese and belonging to the Siamese cultural tradition...

...the group's written, audio, and visual presentations were banned...

...Identifying the Group Political thinkers tend to define cultural groups in terms of language, race, or religion...

...But some tangible benefits are in fact granted to officially recognized minority groups...

...In an age when Social Security payments may no longer be economically sustainable at their current level and when it is widely seen as morally acceptable in the West to commit relatively fit elderly parents to nursing homes, it may not be entirely implausible to promote the value of filial piety in liberal societies...

...The government of Malaysia could potentially have appealed to the notion of apostasy (althclugh many Muslim scholars today oppose this view of Shari'a), but "by failing to apply even the notion of apostasy with its own legal safeguards under . . . Islamic law, the government of Malaysia has given itself licence to penalize and persecute Ashaari and his followers without conforming to the demands of the principle of legality and rule of law under Shari'a itself...

...What is needed is a mechanism for change within a tradition that allows minority viewpoints to become dominant or, at least, politically relevant...

...The Malaysian leader and founder ofAl-Arqam, Ashaari Muhammad, was arrested and held without charge or trial...

...More generally, the second through fourth sections of this essay draw on papers presented in Hakone and at the second workshop held in Bangkok, Thailand, March 1996, as well as on ideas contained in my article "The East Asian Challenge to Human Rights: Reflections on an East West Dialogue," forthcoming in the Human Rights Quarterly, August 1996...

...pressing minority rights conflicts...

...Moreover, the argument for respecting the norms and practices endorsed by most adherents of particular cultural traditions (including leading social critics) can sometimes be employed to expand rather than restrict the set of rights typically enjoyed by members of liberal Western societies...

...Justifications for the temporary suspension of a particular right are put forward by government officials, but often attract significant local support...

...Note, however, that the Singaporean government need not object to the principle of minority rights...

...Local Justifications It is commonly believed that secular Western societies are uniquely tolerant and respectful of nonmainstream ways of life, including the cultural particularities of minority groups...

...In my view, it is important to refrain from moral and political judgments about disputes of this sort until one has acquired detailed knowledge of local political circumstances and relevant cultural outlooks...

...Consider as well the development of a distinctive Taiwanese identity defined primarily by a common experience with free market institutions and (more recently) a relatively democratic form of government rather than by shared language and ethnicity...

...Sulak aimed to persuade fellow citizens that the dominant political system should be replaced with an alternative, relatively democratic political structure, but he made it explicit that he did not want to challenge a mechanism for change that places a constraint on direct criticism of the Thai king...

...Self-administration in practice, needless to say, does not amount to much...

...Kevin Tan, a professor of constitutional law at the National University of Singapore, notes that Singapore in the 1960s was plagued by a "communalism which pitted Singapore's majority Chinese population against the minority Malays...

...On the other hand, a richer and fuller respect for minorities may translate into expanding the set of social and economic rights typically granted in liberal societies...

...It is instructive to look at some examples from China...

...Of course, gross violations occur "off the record," but in such cases the task of the human rights activist is to expose the gap between public allegiance to rights and the sad reality of ongoing abuse...

...Let me be more explicit about how these arguments may bear on the question of protecting vulnerable minorities from the decisions of majorities...

...and Malaysian Muslims were prevented from joining AlArqam or participating in any of its activities...

...Political debate tends to center on the question of whether the right to filial piety is best realized by means of a law that makes it mandatory for children to provide financial support for elderly parents (as in Singapore or Japan), or whether the state should rely on more indirect methods such as tax breaks (as in Hong Kong) and housing benefits that simply make care for the elderly easier...

...Liberal thinkers in the West then counter by reaffirming the value of civil and political liberties for human beings in general or by pointing out that social scientific evidence simply does not support the claim that there is a causal connection between authoritarianism and economic success...

...But local knowledge is also necessary for the argument that the "state of emergency" can, and therefore should, be lifted...

...In this context, arguments that appeal to widely shared religious values are far more likely to be effective than arguments founded on the principle that a human rights regime mandates a strict separation between religion and the state...

...If the aim is to identify vulnerable minority groups deserving of special political rights, however, definitions in terms of shared language, race, or religion may have the effect of unjustifiably rewarding some groups and denying the legitimate aspirations of others...

...As Professor An-Na'im puts it, "there must be the widest possible multiplicity of voices and perspectives on the meaning and implications of cultural norms and institutions...

...Sulak Sivaraksa, a leading pro-democracy activist in Thailand and a nominee for the Nobel Peace Prize...

...Rather, Subei are defined as such by virtue of being individuals whose families were originally povertystricken refugees from Jiangsu province...

...Against this view, however, it can be argued that values similar to Western conceptions of minority rights can also be found in some nonWestern cultural traditions...

...Chinese rule over Tibet in the mid-eighteenth century, for example, was primarily a matter of form, with the Tibetans in 38 • DISSENT Local Knowledge charge of their own affairs so long as they secured social peace and recognized a formal link with China...

...I cannot stand forward, and give praise or blame to anything which relates to human actions, and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction...

...The word Thailand was initially imposed by the dictators in 1939...

...Consider the case of Dr...

...This "culturally sensitive" approach, needless to say, requires a great deal of time and energy spent learning a society's culture, history, politics, and language, but there may be no other path to sound and effective political judgments...

...But the argument that there is a pressing need to secure this right in East Asia is not a matter of political controversy...

...This right, the secular activist will argue, is due all human beings simply by virtue of their humanity, and does not depend on the interpretation of a particular religion or cultural tradition...

...These officially recognized minorities are labeled as such by virtue of being "non-Han," meaning they do not use the Chinese script or bear all the physical characteristics of the Han Chinese...

...Article 4 goes on to state that the derogation of rights against murder, torture, and slavery, among others, may not be made under this provision...

...Consider the case of the persecution of the Al-Arqam Islamic group in Malaysia...

...There is no reason to doubt Dr...

...Sulak explains that he uses "the older terms Siam and Siamese rather than the government terms Thailand and Thai out of respect for the non-Thai minorities within the country...

...Of course, even if the critic were to concede (a) that the social crisis is real and (b) that curbing minority rights is the most effective way of overcoming it, such local justifications for the denial of minority rights are only of limited validity: they no longer apply once the crisis is overcome...

...Sulak for lese majeste and for defaming him (the general) in a speech given at Thammasat University...

...When countering specific trade-off arguments for rights violations, one can question either the premise that the society under question is actually facing a social crisis requiring immediate political action or the idea that curbing minority rights is the best means of overcoming that crisis...

...In the eyes of Islamic legal scholar and human rights activistAbdullahi A. An-Na'im, however, the government of Malaysia "violated Shari'a law in the name of protecting Islam against 'cleviationism.'" Deviationism, explains An-Na'im, is unknown to any orthodox formulation of Shari'a...

...In short, local cultural traditions may well provide sufficient resources to justify local commitment to values and practices similar to minority rights, and strategic considerations may speak in favor of using these resources to protect vulnerable groups...

...Edmund Burke, Reflections on the Revolution in France A small set of crucial human rights are valued, at least in theory, by all governments in the contemporary world...

...Vernon Van Dyke, for example, defines an ethnic community as "a group of persons, predominantly of common descent, who think of themselves as collectively possessing a separate identity based on race or on shared characteristics, usually language or religion...

...Sulak explains: "I did not . . . stake my ground on an absolute right to free speech...

...In this essay I propose four arguments in favor of a "culturally sensitive" approach to minority rights...

...It is not well known that the Iranian Parliament guarantees five seats for religious minorities...

...If all it meant to say is that rights had to be curtailed in response to a pressing social problem (the need to curb racially motivated violence), then it seems besides the point to counter with the argument that rights are universal and cannot be restricted under any circumstances...

...A recent article in the International Herald Tribune noted that "Iran's 30,000 Jews turned out in force in general elections here to elect their representative to the Islamic republic's Parliament...

...On the one hand, respect for minority groups in liberal societies may translate into (illiberal) restrictions on criticism of aspects of cultural traditions held to be sacred by all (or nearly all) members of those groups...

...As Emily Honig explains in her book Creating Chinese Ethnicity: Subei People in Shanghai, 18501980, the prejudice against Subei people is comparable to that experienced by African-Americans in the United States...

...What defines group particularity in this case is shared attachment to the rule of law and experience with a free economic system, not shared language or ethnicity...

...Unlike African-Americans, however, the Subei are not physically distinct from the rest of the Shanghainese population, almost all of whom are Han Chinese...

...But whether the issue is restricting rights, expanding rights, or learning from nonliberal cultures, the political proposals that we endorse should always be based on detailed knowledge of the cultural self-understandings of minority groups...

...But how persuasive are these universal justifications in a country dominated by a Muslim majority where rights are generally thought to have theocentric foundations' and where Islamic legal codes already shape family and criminal law...

...Still, the struggle to promote minority rights is more likely to be won if it is fought in ways that build on, rather than challenge, local cultural traditions...

...my defense was my loyalty to the King and Royal Family and, even where I discussed the use of the charge of lese majeste in current Siamese political practice, it was to highlight abuse and to point to the ways in which abuse might undermine the monarchy, rather than to defend any theoretical right to commit this action...

...Perhaps the social critic could also invoke Article 27 of the United Nations International Covenant on Civil and Political Rights: "In those States in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their culture, to profess and practice their own religion, or to use their own language...

...Sulak's sincerity (perhaps he, like many Thais, would feel deeply offended, if not personally harmed, by an attack on the king...

...Nicholas Tapp notes that "provisions for representation of minority nationalities in state organs, general exemption from the most stringent applications of the regulations on birth control, and the lower marks commonly required of members of minority nationalities who apply for admission to universities or colleges add up to a policy of positive discrimination...

...The political result is that Subei people do not benefit from the official Chinese policy of positive discrimination and special political representation for minority groups...

...Contrary to popular belief, the Chinese government does recognize in principle that minority groups are entitled to special status in the Chinese political system...

...Leading experts on 36 • DISSENT Local Knowledge the subject such as June Teufel Dreyer (author of China's Forty Millions) and Colin Mackerras (author of China's Minorities) also operate with the government's definition of a minority group...

...No doubt the government of Malaysia's behavior can also be criticized by appealing to nonreligious political principles...

...One response available to the proponent of a "culturally sensitive" approach is that even aspects of cultural traditions seemingly inconsistent with minority rights can sometimes be re-interpreted in ways that render them consistent...

...Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing colour and discriminating effect...

...q Notes I It is worth noting, however, that in a different context even the Chinese government concedes that minority groups with legitimate aspirations for autonomy need not be defined in terms of language or ethnicity...

...In 1991, the Thai ruler, General Suchinda, pressed charges against Dr...

...In court, Sulak did not deny that he had attacked the "dictator" Suchinda, but he did deny the charge of lese majeste, referring to the many services he had performed for the Royal Family...

...At the same time, restricting the definition of minority groups to shared language or ethnicity can conceal vulnerable minority groups from political view—and so play into the hands of conservative majorities intent on denying legitimate aspirations for self-administration...

...I am inclined, however, to question the need for an internal cultural discourse that allows for "the widest possible multiplicity of voices and perspectives...

...Perhaps the parents of East Asian immigrants can be given the right to immigrate as well, and adults of East Asian origin who care for their elderly parents can be given a special right to claim tax benefits...

...Rights against torture, murder, genocide, and slavery are simply not contested in the public rhetoric of the international arena...

...In the case of Hong Kong the Chinese government officially endorses a "one country, two systems" political proposal for rule in the post1997 period...

...In accordance with a ruling from the "National Fatwa Council" and a decree by the Ministry of Home Affairs in August 1994, the Malaysian government launched a systematic campaign to suppress the Al-Arqam group...

...In other words, Dr...

...But whatever the response, the social critic must be armed with detailed and historically informed knowledge of that society...

...This included such policies as a public housing program designed to break up ethnic enclaves and compulsory education in the unifying language of English...

...For example, Nurcholish Madjid of the Indonesian Human Rights Commission notes that "Islam too recognizes . . . the right to use one's own language, the right to practice one's own culture, and the right to freedom of religion...

...Jews, Zoroastrians, and Armenian and Assyrian Christians are allowed to elect deputies...

...SUMMER • 1996 • 41...

...Whether the dispute is over the choice of language in schools and parliaments, the decentralization of govermental powers to regions controlled by minorities, or the protection of traditional homelands, there do not seem to be any readily available general proposals for noncontroversial solutions...

...The specific argument that in the Singaporean context restricting minority rights was the most effective way of dealing with racial riots need not be (and may not be) a general argument for repression...

...And defining minority groups in terms of language or ethnicity leads one to endorse the official view.' Vulnerable minorities are more likely to be protected by policies sensitive to their actual history and self-understanding...

...For one thing, there may not be many other examples of illiberal constraints on challenges to prevailing cultural viewpoints endorsed by both political leaders and leading social critics (certainly one could not justify curtailing rights against murder, torture, slavery, and genocide on these grounds...

...Nor should one rule out the possibility that liberal majorities learn from the cultural traditions of minority groups...

...The problem, however, is that under the current system benefits may accrue to individuals and groups not in need of special protection...

...For example, East Asian societies influenced by Confucianism strongly emphasize the value of filial piety or the idea that children have a profound duty to care for elderly parents, a duty to be forsaken only in the most exceptional circumstances...

...The claim that for strategic reasons the social critic should sometimes appeal to local traditions to justify values and practices that in the Western world are normally realized though a rights regime may be palatable, but few liberals will go along with the suggestion that cultural traditions can provide a genuinely moral foundation for illiberal norms and political practices...

...Is there anything wrong with a mechanism for changing a cultural tradition that has constraints like this one, endorsed by both defenders and critics of the prevailing views...

...Consider for example the recent political history of Singapore...

...And even if changes can be temporarily instituted on the basis of secular human rights principles, long-term commitment to minority rights is best secured by drawing on the expressed aspirations of those who adhere to a particular tradition...

...These policies seem problematic: what do minority rights mean in practice if not the right to education in one's mother tongue and the right to live together as a community...

...For example, the National People's Congress in 1984 passed "The Law on Regional Autonomy for Minority Nationalities" that allows for self-administration in Tibet and other "minority regions...

...Moreover, if the purpose of rights is primarily to protect minority cultures from the political decisions of the majority, then clearly the functional equivalents of rights practices can sometimes be found in non-Western traditions...

...There is not much point deliberating about practices that everyone already condemns...

...According to the Chinese government, there are over fifty-five ethnic minorities in the country, amounting to more than 8 percent of the population...

...3 It is worth noting that Article 4 of the United Nations International Covenant on Civil and Political Rights (1966) explicitly allows for short-term curbs on some rights (ineluding the right to the protection of minority cultures, Article 27) if these are necessary to deal with particular social crises...

...Unlike most contemporary philosophers and political theorists, I want to found judgments not on principles derived from reasoning about universal human needs and interests but rather on the actual dispositions and pressing concerns of a society in this or that historically contingent condition...

...Fearing for his life, Sulak fled the country, but returned in 1992 after the Suchinda government had fallen to face the charges...

...In political practice this means that parents have a right to be cared for by their children and that it is in40 • DISSENT Local Knowledge cumbent on East Asian governments to provide the social and economic conditions to facilitate the realization of this right...