I even remember the year of that conversation. It was 1994 when I asked Ratna, an extraordinary feminist lawyer and activist, what she thought of Malaysia. Its too quiet, she said. She concluded aloud that perhaps its because we have been silenced through years of repression.

I remember it only because I think I did not actually get that point sorted out in my mind.

Will silence connote repression?

You have to complicate the analysis, Ratna said. The matter did not get 'complicated' as I had to drop her off at the airport.

A couple of incidents triggered the memory of that conversation.

At the last Bar Council's annual general meeting in March, three Muslim lawyers from the floor spoke on freedom of religion. There was a quorum of more than a thousand lawyers.

Does silence mean consent, disagreement or sheer apathy?

Over prime time news on one of the television stations some weeks back, a student said he was speaking on behalf of the silent majority. According to him, the silent majority opposes the 'turun ke-jalan (street) demonstrations.

How do we begin to give any meaning to silence?

Enfranchising silence

Philip Pettit in Enfranchising Silence: An Argument for Freedom of Speech* has an interesting analysis on silence as a form of speech.

Silence becomes a form of speech and is capable of meaning, only when it is 'enfranchised silence'. A 'disenfranchised silence' occurs when silence says nothing and it means nothing at all.

Whether silence is speech or nothing is a matter of construction. As with any matter of construction, the surrounding circumstances become relevant.

Pettit cites an example of China under Mao as illustrated in Jung Chang's Wild Swans.

Jung Chang describes a society in which it is common knowledge that no one, at any level of society or even the party, is in a position to criticise Mao with impunity; a society in which, on the contrary, every word and deed of Mao's is held up as the very essence of wisdom and virtue.

In this society, Pettit says, silence means or communicates absolutely nothing. It could be the product of fear or it could be the product of admiration and approval. No one is in a position to know. When it could be this or it could be that, it means nothing. It cannot be construed as a form of speech.

Silence in such a world is construed by the authorities or the government who give it a suitable interpretation and it would not be the subject of challenge.

Free speech

The silent ones have lost their voices despite the construction of what their silence is, by the powers that be.

If we take this on, it may well be that the 'silent' may not even be sitting on the fence. There are just no fences, so to speak! We do not have to be in China under Mao to appreciate the point made.

Pettit's enfranchised silence is found in a domain in which "freedom of speech is well and truly established". In this domain no one is obstructed, penalised or coerced. No one suffers interference and no one is exposed to the danger of interference.

In this domain, speech covers criticism of other individuals for the things they say and do that has a bearing on the public realm. In this domain, not only speech is significant but it also enables the people or individual to be significant even in their silences.

The significant silence scenario can be summarised thus: When a person speaks or does an act, those who heard or saw the act may be expected to complain if the speech or act is not for the best.

The observers in that domain where freedom of speech is enjoyed, may say nothing and in those circumstances can be said to have approved the behaviour.

They will accept that their silence will be presumed by others as signifying approval of the behaviour. This silence in the presence of freedom of speech is enfranchised silence. Silence becomes an extension of freedom of speech.

Privileged opportunity

It would follow that if speech by civil society is endangered by accusations of sedition, treason, breach of national security and public order not to mention licensing laws for media and the press, that domain is certainly not one where freedom of speech reposes.

Every silence in this domain may well be disenfranchised silence. It could mean fear, it could mean anything but it cannot be a genre of speech. Silence loses its voice.

In this unfree domain, every form of speech and expression attracts potential interference from state apparatuses. Thus whatever kind of speech is made, it is also made not in freedom.

The discussion is not complete without examining speech opportunity. The media represents a speech opportunity. The matter gets complicated when media ownership comes into the picture.

In the example of the student being given a media opportunity to speak on behalf of the silent majority, two factors are to be considered. One is the presence of laws restricting speech, the other is access to television stations (and other media), is limited and controlled by ownership.

Who controls our broadcasting stations and the majority of newspapers?

Those who claim to speak for the silent majority broadcasted by stations owned by them or representing interests of political parties are in fact taking advantage of a very privileged speech-opportunity to make a claim about what is being communicated by ordinary people.

So it becomes important that different interests should have equal media access in order for speech to be free and silence enfranchised.

And the point is? This is a reminder to myself of students I used to have in my law classes querying, is this examinable. Do we have to know this? Why does it have to be complicated?

And with a whiteboard marker poised in mid-air I hoped that there would be life after teaching. But I digress.

Peoples' conduit

The legitimacy of a representative government rests on consensus. A government which operates by consensus must necessarily allow for free speech of its constituency. Consensus is difficult to attain unless speech is free.

Representative government allows free speech in order that parliamentarians can be held accountable to the electorate. Free speech enables criticisms of government actions, to seek to bring about change or call for action.

It increases the flow of information required to make an informed choice. It improves the performance of public officials. Speech becomes the peoples' conduit of participation in the political process.

However not everyone can have their say, for whatever reason. Thus the evidence of a consensus must sometimes rest on the significance of silence in communicating assent or dissent.

Knowing the theory that a disenfranchised silence means nothing may be well and good, but remaining silent means that our silence may be given voice by others to our disadvantage. We may by silence begin to lose our self-governance.

* Article in the book, Freedom of Communication., Tony Campbell & Wojciech Saduski (Dartmouth: 1994).