Friday, April 25, 2014

Tribute to Karpal Singh

(I was privileged to have been invited to speak at the memorial event held in honour of the late Karpal Singh on 24th April 2014)

Allow me to begin by expressing my heartfelt condolences to the family of the late Mr Karpal Singh. 

Mr Karpal was a close friend of the family. 

I grew up with his children, became their schoolmates in secondary school. First Jagdeep, a year below me, then Gobind, Ram, and Sangeet. Mankarpal was a little too far behind. We treated each other’s houses as our own. We were close enough for our respective mothers to scold us all. There was no discrimination. I describe this to you not as a mark of distinction, or a source of pride, but rather as a means to say that the man I came to know, and love dearly, was always simply Uncle Karpal.

As a young boy, he was a towering presence. Larger than life. That man on the posters, on the back of the jeeps, vans and lorries that carried him on his election campaigns. The walls of the boys’ rooms were filled with cut outs of his exploits, the Lat cartoons that he was quite regularly featured in. His was that comforting presence that, often absent, was nonetheless cherished, even if it involved some of the strangest pranks. In him, we had an ally, not just someone who would protect us from the wrath of our mothers when we created trouble, but someone who would quite happily get involved in the mischief we were brewing if he had the chance.  

Curiously, it seemed the like the most normal thing in the world. This world-class advocate, fearless defender of human rights, parliamentarian, to be getting wholly involved in the childishness his sons and I were more than happy to engage in every chance we got. He was just the coolest person in my view. 

Maybe it was because we, I, didn’t quite understand the true nature of events that were unfolding. Those became apparent in 1987. I was in Singapore for my A Levels when he was detained.

I knew by then that I would become a lawyer. I knew too that I wanted as much as possible to be able to fight the causes that I believed in. It’s only with his passing that I have come to realise how much he had influenced that choice. How much of a role model he had been.  

I would like to focus on Karpal the lawyer.

I spent some time today meandering through the list of reported cases that Karpal handled. There were almost a 1000 according to the Current Law Journal database. His achievements, and it did not matter whether he won or lost the case, that was decided on the facts, he more usually than not, won the point of law, were like a road map to the evolution of criminal and constitutional law in the country. The right of accused persons to counsel, to the principles underlying the granting of habeas corpus, the standard of proof in criminal cases, the powers of the monarchs in the constitutional framework that governs us, the democratic underpinnings of our electoral system, the fundamental liberties of citizens, these and many other principles he helped clarify through the courts, signpost our nation’s journey through the four plus decades that he was a member of the Bar.

It did not matter that he was constantly beseiged, in one way or the other. It did not matter that the disappointments were many. He held an unshakeable belief in the validity of the system, its value. He had faith in our constitutional system, and measured his value by how he could contribute to that system as a lawyer. In all the tributes from lawyers and judges that have poured in since his untimely passing, the narrative has been one of a ethical, gentlemanly advocate who was skilled and appreciated the nature of the adversarial process.

As I read through his cases this afternoon, I was humbled. The practise of law in this country has become more of a challenge with each passing year. More increasingly, those of us who appear in the courts ask what value we bring to the process, to our clients. But challenging as it is for us, was it less challenging for those who preceded us? Karpal had to face operasi Lalang, the constitutional crisis of 1988 and its terrible impact on the judiciary and the legal system, the 1998 trials of Anwar Ibrahim, the scandals that the V K Lingam RCI brought into focus. He was unfaltering, unwavering in his commitment to his duties as lawyer, citizen and statesman.

It does not mean that he was not frustrated. In the last few years, I began to spend much more time in the appellate courts. There, lawyers spend many hours waiting to be called up. It gave me a chance to talk to him, lawyer to lawyer, though in all honesty, it was difficult not to revert to that fidgety child he probably remembered, and thought of, me as. But the one thing that came through consistently was that we could not give up. We had to soldier on for the betterment of the profession, the nation.

It reminded me of what Raja Aziz Addruse, another towering Malaysian, used to say. We have to keep on knocking our heads against that door. One day, it will open, and some light will shine through.

That is the legacy that Karpal left us.  That is the sacred trust that we carry in his memory. He asked for nothing and gave of himself wholly. 

Let me end with an image painted in words by William Blake.

Tiger, tiger, burning bright  
In the forests of the night,  
What immortal hand or eye  
Dare frame thy fearful symmetry?

Farewell, Tiger of Jelutong.


Sunday, March 23, 2014

A different paradigm

I have been finding writing my monthly opinion piece an increasingly challenging task over the last year. It is not for a lack of material; this country is a veritable goldmine when it comes to things to write about, especially in a column on the rule of law. 

In just the last two weeks, we have seen Anwar Ibrahim convicted of sodomy and sentenced by the Court of Appeal in a manner that has raised some eyebrows (while glasses have been raised in other quarters, I am sure), and Karpal Singh sentenced to a fine of RM4,000 for saying something which, it would appear, can only be thought of and done (but not spoken of) after a hearing in which the prosecution demanded that the court impose a deterrent custodial sentence on the wheelchair bound septuagenarian for his being a threat to the institutions of this country. Additionally, MH370 disappeared in circumstances which almost everyone but the Malaysian government is describing as questionable, and a Deputy Minister is reported to have described non-Malays as being less sensitive to the rape of their children. Marquez or Llosa could not have asked for better material with which to paint their caricatures of the banana republics that were often the focus of their writing.

The truth is evident, I think. We have plummeted as a nation to a level of intellectual and moral bankruptcy that is as staggering as it is banal. It seems that we are mired in the political schemes of an elite that no longer cares what others think of it and which believes it is entitled to act in its own interests over everything else. Were it not the case, the Government would be acknowledging that the nation is being brought to its knees, and is staring in the face of potential sectarianism, by the self-serving policies that it continues to impose on Malaysians. 

It can, and probably will for as long as it is able to, continue to delude itself into believing that it is doing more than paying lip service to the legitimate expectations of all Malaysians to social security. Reality however has a tendency to impose itself in the most inconvenient manner. 

For instance, who will provide for the thousands of unemployable Malaysians who have been churned out by academic institutions of dubious value that the regime continues to defend against criticism. If Malaysian universities are not getting into the top ranks of academic institutions internationally, is it not obvious that they are not being managed in a way that they need to be? Would it not be better to address the real problem rather than deflect the issue by blaming everything but what really needs to be blamed? It may be that Malaysian leaders have over the years have been hardwired to think and act in that way. How else can one explain the Defence Minister retorting: “There is only confusion is you want to see confusion” to suggestions from the international media on MH370. 

What happens when racial policies have left the institutions in the hands of persons simply not qualified or competent to act in a manner their roles require, if that has not happened already? None of us would put ourselves in the hands of a cardio-thoracic surgeon who was not qualified and sufficiently experienced to do what he or she had to do. And yet, the Government continues to do just that with the nation. A cursory glance at the institutions of state would reveal that we do not, as a rule, have the best people for the job in the institutions of the state (this is not to say that all those in positions of leadership are not qualified or competent). I think the Government would be hard-pressed to say otherwise. And yet, these individuals are defining and implementing policies that will have a tremendous impact on the future of this country.

The point is that all of this has been said before. It has become an overarching theme in general, at all levels and in varied forms. Public discussion or agitation of these matters appears to have had little or no effect. Attempts at shaming our leadership have been met with stoic indifference. Efforts to engage in critical discourse have been skewed. In the meanwhile, business carries on as usual. 

It seems therefore that the political elite operates in a completely different paradigm, one in which the notion of subordinating personal interests to those of the community is wholly repugnant. It has perhaps been foolish for us to think or expect otherwise. 

For all that it promises that paradigm is seductive; wealth, influence, power and all that these things bring with them. For some, if not many, these are highly relevant considerations, particularly so in a society that has become ever more obsessed with material gain. Others, sickened by what it is that this country has become, have left or are planning to.

What purpose then does it serve to continue to highlight the deficiencies of the system, or to propose reforms? These efforts are only meaningful if Malaysians as a whole accept the fundamentals as being of universal application, which one system of governance applies equally to all of us, and not selectively.

It is true that the state of affairs in this country has now been brought under international scrutiny by the tragic disappearance of MH370. Describing Malaysia as “an ethnically polarized society where talent often does not rise to the top of government because of patronage politics within the ruling party and a system of ethnic preferences that discourages or blocks the country’s minorities, mainly ethnic Chinese and Indians, from government service”, Thomas Fuller of the New York Times recently noted that “worldwide bafflement at the disappearance of Malaysia Airlines Flight 370 has challenged the country’s paternalistic political culture and exposed its coddled leaders to the withering judgments of critics from around the world.” 

Judging by the response from our Government, it appears that very little will change. 


(First published in The Edge, 22nd March 2014)

Sunday, October 20, 2013

A matter of law, not policy

It looks fairly certain that the decision of the Court of Appeal on the use of the word “Allah” in the Malay version of the newsletter of the Catholic Church, Herald, will be appealed to the Federal Court. It is improbable that the apex court will deny permission to appeal, considering the obvious constitutional implications of the matter.

It is obvious that the Federal Court will have much to consider. Amongst the criticism leveled against the Court of Appeal is the suggestion that the Court had made a policy decision, as opposed to a legal one. Considering the reasons advanced by the judges concerned for their decision, there is substance to this complaint. 

The Court of Appeal was required merely to determine whether the High Court judge had arrived at a decision that was consistent with the relevant legal principles. That decision related to only one question; whether the Home Affairs Minister had exercised his powers in a manner that was justified in law in imposing the condition that the word “Allah” was not to be used in the publication. And while the Court of Appeal would have been right to interpret such law as it was required to for the purpose of deciding whether the High Court judge had erred, it ought not have gone so far as to effectively develop a legal framework for the protection of Islam. 

Settled principles of law dictate that the courts are not to substitute the decisions of administrators with those of the courts. All that the courts can do in affording judicial review is to consider whether the administrator concerned, in this instance the Minister, had adopted the correct decision making process, and whether the administrative decision challenged was reasonable having regard to the circumstances as they stood at the time the administrative decision was made. These legal constraints were in fact recognised by the judges of the Court of Appeal who discussed them in their respective judgments.

In this context, all that the Court of Appeal ought have done was to enquire into the reasons advanced by the High Court to quash the decision of the Minister. These reasons ultimately centered on one primary conclusion; that the Minister had no reasonable basis on which he could objectively conclude that the use of the word “Allah” in the Herald would be a threat to public order.

A review of this conclusion by the Court of Appeal would have entailed an objective consideration of the basis of the Minister’s decision, that is the factual considerations that the Minister took into account at the time he made the decision, with a view to determining whether his decision was one that any reasonable person in the Minister’s shoes would have made. For this purpose, negative reactions on the part of the public to the decision of the High Court were not relevant, it being a matter of established principle that the popularity of a decision of the courts is not the yardstick by which the correctness of that decision is to be measured. Were it otherwise, many a litigant would arrange for public controversy in order to gain a foothold in the appellate courts.

It must be appreciated that at the most fundamental level, the complaint of the Catholic Church was that the condition impacted on the right of the Church, and the members of its congregation, to express themselves fully. And while it is tempting to characterise disputes of such a nature as concerning the freedom of religion, this was really a case about the freedom of expression. From a constitutional standpoint, it is established principle that all Malaysians have the right to say what it is they want save where their right to do so has been limited by law on grounds of national security and public order. Such law must however be reasonable, and the restraint on expression limited to only what is essential to achieve the aim of the law. These constraints apply equally to any administrative action sanctioned by law.

It is telling that the current Deputy Home Minister has sought to justify the decision of the Court of Appeal by limiting it to publications by the Herald. And while the Deputy Home Minister may have a point, the case concerns only the permit to publish the Herald and nothing else, the assertion that the word “Allah” can still be used in Malay language bibles in East Malaysia wholly undermines the position taken by the then Home Minister that the use of the word by the Herald would result in public disorder. The Church has after all accepted that the Herald can only be circulated to the Church’s congregation.

Seen in this light, there was no necessity for the Court of Appeal to enquire into, and conclude on, what was integral to the Christian faith. It is not for the courts to define what is and what is not essential in any faith and I can see no reason for any superior court in this country to ever take such an extraordinary step. Not only is such a course wholly inconsistent with the various dimensions of the constitutionally guaranteed freedom of religion, it is unnececessary. 

Any concerns about the intersection of the free practice of religion and public order are addressed by the constitution itself. The freedom of religion is expressed in a manner that permits the legislature, and consequently the State, to encroach where required to by the dictates of public order. It is unnecessary for the courts to determine whether a particular practice is essential to a particular faith, or not, in such cases as the constitution focuses attention on solely the maintenance of public order. The courts are as such only required to consider whether a particular course of conduct on the part of the administration is justified by reference to the public order concerns asserted.

Even in those limited cases where a court is called upon to determine a question of fact that relates to the practice of religion, and in my experience this occurs exclusively in the Islamic sphere as, unlike the other religions of this country, the Islamic faith is regulated by law, the Courts only go so far as interpreting codified law, often with the assistance of experts.  For instance, in two matters that came before the Federal Court several years ago, it was contended that the legislature of the states of Terengganu and Selangor had acted without power in creating certain offences. The Federal Court availed itself of the views of experts in order to determine what the phrase “precepts of Islam” in the constitution meant. Similarly, in the early 1990s the Penang High Court took into consideration a fatwa in determining whether a person had died a Muslim.

It is unfortunate that the Court of Appeal felt it necessary to go as far as it did. Respectfully, the court appears to have substituted its own decision for that of the Minister, albeit to the same end. This was unfortunate, not least because the decision has fueled fears concerning efforts to establish the primacy of Islam in the public sphere and the implications this has. It has also overshadowed the emphatic declaration by the Supreme Court in 1988 that the public law of this country is secular.

Stripped of political implications, the case is one that is easily determined. It was made controversial by certain quarters for their own purposes. Regrettably, in failing to recognise the controversy for what it was, the Court of Appeal may have inadvertently laid the ground for the further machinations of those who would divide this nation.

It is my sincere hope that the Federal Court will appreciate that the case was only ever about whether the “Allah” condition was warranted, reasonable and accorded with the constitutional guarantee of free expression. Whatever the decision the court ultimately arrives on this narrow issue, it is imperative for the court to deal with the highly divisive policy dictates of the decision of the Court of Appeal. It can do so by underscoring that religion is a personal matter and theological debates cannot, and must never, be brought into the courts. 


(First published in The Edge on 19.10.2013)

Sunday, September 15, 2013

And so it has come to this

Another merdeka day has come, and with it an opportunity to consider where it is that we are at.

Current affairs points to it having come to this; ideologues, of the totalitarian kind, saying things of very little value or sense in as loud as manner as possible, content in the knowledge that in Malaysia those who bray as brashly as possible and for the longest time usually win the day. And the reality is that very few are capable of doing that and, were they to try, would fail at the outset. For them (meaning most of us in this sadly undermined nation that has been held to ransom by its politics), some things are just too ridiculous to say.

Not for those who hold sway over the airwaves and the media it would seem. For them, it is perfectly normal to act as if the laws of this country, in particular the Federal Constitution, do not apply any more, except when convenient to them.

For them it does not appear to matter that the supreme law we were entrusted with in 1957 guarantees us a representative democracy in which a very clear line is drawn between the government of the day and the nation we live in. In this land, which belongs equally to all of us, we are allowed to express dissent or dissatisfaction with our elected government without that amounting to a lack of patriotism. We are allowed to say, if we think so, that those who claim to lead us are fools who do not have their minds wrapped around the issues that so fundamentally affect us in a way that circumstances required, be they shootings by the police, or the potential economic meltdown that appears to be staring at us over the horizon.

For them, nation and elected government are one and the same. Criticism of one is the other. Hence, we are facing the possibility of having to compulsorily fly flags and stand up when the national anthem is played in cinemas. All in the name of a misguided notion of what exactly I am not sure. As I see it, no one has expressed any disloyalty to the nation, in as much as many are critical of the government of the day.

The nuances are however obscured. Legitimate criticism is labeled sedition, even as those who label say some of the most scandalous things imaginable. Questions are taken as threats. Mistakes are treated as if they are declarations of war. To these quarters, the nation is under serious threat, under siege in the most terrifying way; we are about to explode, disintegrate, and be annihilated. If they are to be believed, the sky is about to fall on our heads.

For them, those who do not like the way the Government is doing things and say so undermine the stability of this nation and, to borrow an expression, should leave the country. Otherwise, they should be deprived of their citizenship. This, they suggest, is to stop any further undermining of the nation.

This seems to me to be a ridiculous state of affairs, one calling for intervention on the part of the Executive or the agencies of state.  The only thing that appears under siege, and I say this with the greatest respect to the freedom of those concerned to say what they think (and in the belief that the rest of us are equally entitled to say what it is we feel), is the seeming fragile personalities of these ideologues. So overwhelmed are they by the shifting sands of the Malaysian socio-political landscape that they have been taxed into a state of intellectual paralysis.

Islam is not, and could never be, under siege. It is the religion of the majority of the citizens on this country. It has been given legal status in a way the other major (or minor) religions of this country have not. Its administration is effected through a bureaucratic apparatus that, I think, is unrivalled anywhere else in the world.

The Malays, howsoever one defines the term (this is a vexed question that comes up from time to time), constitutionally or anthropologically, are not under siege. They form the majority of this nation. Their status has been recognised by several constitutional provisions, one of which provides a pathway to affirmative action. 

Malaysia is not under siege, except perhaps by those who insist on thrusting their perverse views of what it is they aspire to without regard to the sensitivities of others (those from all backgrounds) or the established legal framework. We are at peace with our neighbours, and no sovereign nation is threatening to invade us. We have a defense budget that ensures that we have the means to protect ourselves and we have friends who will come to our aid if need be.

Yet, despite this obvious state of affairs, the Executive has worryingly chosen to avoid involving itself. It has not sought to curtail, either by open dialogue with these ideologues or otherwise, this alarming trend. Further, from a third party perspective it seems like the agencies and institutions of state do not seem to be too concerned either. They appear to be relatively content with this alarming state of affairs, for them it is business as usual. The implications are of grave concern, some quarters may well believe that these ideologues may be justified in what they are saying or doing.  This will undoubtedly resulted in an undermining, some might say further undermining, of the system.

It will also serve to distract us from the real threat to this society, a lack of competitiveness that is the product of a administrative framework that has been tolerant, even accepting, of corruption, and that has been shaped not so much by reference to merit but rather a mélange of cronyism, racial preferences and politics.  Entrenched in this is a public service organization, and this includes the education system, that is struggling to remain relevant in the globalised world.  This lack of competitiveness has been the subject of recent discussion amongst a range of persons regionally who have an interest in this nation and its continued well-being.

Curiously, this is not something that the ideologues feel too concerned about. 

So, where does that leave us this merdeka? With much to think about, I feel. The, any, government of the day must start asking some very difficult questions, and look beyond its political self-interest. I would be surprised if it was not already doing so. The nation is floundering and is in desperate need of statesmanship. Parochial perspectives that ignore the fundamentals of this nation are, and will continue, to do much damage. The incumbent government must step up and start acting responsibly as a government of all the peoples of Malaysia.

And it can start by explaining to us, not with slogans or fancy advertisements but with concrete and decisive action, why it is that Malaysians have before them the endless possibilities that it seems to think we have before us.


(This comment was first published in The Edge on 2nd September 2013)

Wednesday, May 22, 2013

Of confrontation and reconciliation

And so the General Election has come and gone and the Barisan Nasional has been returned to power at the Federal level with a reduced majority.  Concerns that the election process were unfair from the systemic standpoint brought into focus by the Coalition on Free and Fair Elections (Bersih), and would become even more so during on election day, have spiraled into unequivocal assertions of wholesale electoral fraud. The extent of the matter is such that even the international press has felt obliged to air concerns on the part of some quarters that the elections were hijacked. 

The Pakatan Rakyat thinks so, as do a sizeable number of Malaysians, enough for several rallies on the subject to have been more than convincingly attended by Malaysians. The anger and disappointment being expressed goes beyond the normal frustrations of a voter whose candidate was not returned; it would be foolish to characterize it as such. It cannot be overlooked that, as rhetorical as it may seem, some have denied the legitimacy of the current government.

Much of this anger is directed at the Election Commission whose duty it is to ensure that all election officers shall act with fairness, impartiality and in compliance with the Federal Constitution. Some have asked for the Election Commission to resign. Lim Kit Siang, whose DAP has the second largest block of parliamentarians, has called for a bipartisan parliamentary committee to be put in place to recommend a replacement Election Commission.

No matter how one looks at it, it is manifest that the purity of the electoral process in the 13th General Election is severely under question. It requires more of a response from the Government that the sweeping dismissiveness we have seen thus far. Bersih, to public acclaim, has initiated the establishing of a “People’s Tribunal”. Rather than rejecting as the whimsy of a group of un-subservient non-governmental organisations - and it is prudent here to note that Tun Mahathir initiated a similar tribunal on war crimes not too long ago on the basis that the criminals, as he saw them, would not be brought to justice by a system they were very much a part of – the Government should view the idea as one that it should support. 

For one, it is in line with the national reconciliation that the Prime Minister promised on election night.  More fundamentally, the Government should support the idea – perhaps by advising the Yang di-Pertuan Agong to establish a Royal Commission on the matter – for it being a means to allow the truth to emerge, and to that end, a conduit by which the frustrations of a sizeable section of the community can be channeled. 

It would not be sufficient to point to the courts, as some have done, as a means of addressing the matter of electoral fraud. For one, in as much as the Chief Justice may be trying to rebuild public confidence in the Judiciary there is still some way to go on that journey. There are still traces of the suborning of the institution by the Mahathir Administration, not least the amendment to vital provisions of the Constitution, as is the lingering perception that the courts may not be as cut off from the Executive as they should be. It is of no value to say, as one UMNO parliamentarian did recently, that Anwar Ibrahim or other members of the opposition seem to have no problems with the courts in light of his utilizing the judicial process to gain redress for defamation.  That is a facile point of view that does not do justice to the complexities of the subject of judicial independence.

For another, in the minds of many, the perceived electoral fraud appears to have been coordinated and to that end had a systemic nature to it. Many point to the revelations that have sprung from the on-going Royal Commission on Project IC to underscore their concerns that foreigners voted in the elections. If true, this necessarily involved state actors who may have well abused powers in doing what they did. This is a matter that the Election courts may not be in a position to address as fully as the situation warrants.

The Election courts are creatures of statute. They are limited in the scope of their scrutiny. In part this is due to a restrictive approach that the apex court has over time laid down. This requires such courts to act strictly by reference to the legislation that circumscribes such courts, rather than the underlying purpose of the law. As such, though the courts recognize the need for due emphasis to be given to the overriding principles of democracy, and the need to protect the purity of the election process, they are often times left powerless to deal with what might reasonably be perceived as electoral impropriety by an unduly strict interpretation of the legislation imposed on them by the apex court. 

This approach has left lawyers and petitioner having to navigate through a minefield of procedural obstacles that have ultimately drastically reduced the number of, otherwise potentially, successful challenges. The strictness of this approach has, in my respectful opinion, undermined the right of the voter to a free and fair election and the associated right of meaningful access to justice. As was observed by Justice David Wong Dak Wah, now Judge of the Court of Appeal, in 2008:

“In my view if a 'strict observance' approach is adopted by the courts, those rights will definitely be diluted. Take the case of the right of access to justice. If a 'strict observance approach' is adopted, no citizen will be able to act for himself or herself to file an election petition because surely as night follows day the petition would be knocked out by preliminary objections. Further if the respondents' contention is sustained, the petitioner will have to go through the relevant provisions of the Election Act, Election Offences Act or Election (Conduct of Elections) Regulations 1981 with a fine tooth comb and put the relevant provision in the petition. That would be a task which a petitioner will not be able to fulfill. I say that for the simple reason that day in day out in our courts, judges, Sessions Court Judges or Magistrates have seen it fit to amend charges in criminal cases when they held that the charge had been wrongly framed by the prosecution. In those criminal cases, the charges are drafted by qualified lawyers and yet they had been found to be wrong. So in election cases, what chance does a person who wants to file an election petition himself or herself have? My answer would be next to none and that would in my view make the constitutional right of access of justice an illusionary one. The remedies of law should be accessible to the ordinary people and laws should not be interpreted in such a manner that only rocket scientist can access remedies in the law as that cannot ever be the intention of Parliament.” 

Having regard to the nature of the complaints made public thus far, challenges would in effect require the mounting of cases of either corrupt practice or electoral offences. This would require the petitioners to state from the outset, with great specificity akin to the framing of a criminal charge, the exact wrongful act done, the time and place of the wrongdoing, and the persons involved. The nature of things may impede that process. 

Some may recall that Zaid Ibrahim’s election petition in respect of the by-election for the Hulu Selangor parliamentary constituency put in issue amongst other things, Najib Razak’s promise at a rally that the Government would donate RM3 million to a school in the constituency if the Barisan Nasional candidate were returned. Though the promise was a matter of public record and the subject of intense national discussion, the petition was struck out as Zaid Ibrahim had not pleaded in the petition itself the identity of persons in the hall at the time the promise was made. Zaid had the information and was ready to subpoena the persons concerned at trial, but never made it that far. His well-intentioned desire to protect the individuals cost him the opportunity.

This is not to say that the aggrieved should avoid the courts. They must seek recourse and present their respective cases as best as they can. I doubt however that the court actions will in themselves serve to assuage the discontented amongst us.

It would equally be irresponsible for the Government to continue to allow attempts to divert attention from the problem by means of racist and extremist rhetoric. This is going to do great damage to the nation, and deepen fissures that highly divisive policies, and an extremely racialist election campaign that the Barisan Nasional unashamedly took credit for, have created. It is truly a sad state of affairs that Malaysians in this time and age are being subjected to this kind of venom. And it says much about the Barisan Nasional government that Malaysia remains one of the very small group of countries that have yet to ratify the 1966 International Convention on the Elimination of All Forms of Racial Discrimination. 

In the same vein, it would be foolhardy for the Government to resort to strong-arm tactics involving the suppression of peaceable assembly and expression. This would only serve to inflame the situation.

The way forward for the Government on this issue is self-evident. It needs to confront the subject and deal with it in a transparent and accountable manner. This obvious truth makes it equally plain that Najib Razak may have no choice in the matter.


(This comment first appeared in my 'Rule of Law' column in The Edge on 18.05.2013)

Tuesday, May 7, 2013

Resolving doubts about GE13

It is apparent that a sizeable enough number of Malaysians harbour doubts about the validity of the declared outcome of the 13th General Election in light of numerous complaints of electoral fraud. Given the possibility of fraud having occurred, possibly on a large scale, it is simply not open to Malaysians to accept the analysis of results now offered to them by reference to voter sentiment. This is more so for the fact that the popular vote was in favour of the Pakatan.

In this context BERSIH’s intended Peoples’ Tribunal is a welcome suggestion. It will allow Malaysians an opportunity to present proof of electoral fraud, such as there is, and look to answering the question of whether the polls were hijacked, and if so, by whom. I look forward to hearing more details of the proposed initiative. Such evidence that may come to light would then provide foundation for further initiatives.

The National Human Rights Commission (SUHAKAM) should facilitate the enquiry. Vested with statutory powers, it is empowered to do so in a way that BERSIH is not. It would be useful for persons with proof of fraud to lodge complaints directly with SUHAKAM.

I hope the Barisan Nasional Government of the day, and the institutions of the State will view this process as necessary, not least for the fact that it will allow those Malaysians who feel aggrieved, rightly or wrongly, to channel their frustrations in a constructive manner. To that end, they should look to facilitating the enquiry as well.


Monday, April 29, 2013

We, the people

And so the General Election is finally here. 5th May 2013, a date some are calling, to borrow a phrase from Nehru, our tryst with destiny, and yet others, our day of reckoning. There is no doubt that there is electricity in the air as Malaysians wait out these final days for the General Election that seemed to have taken forever to materialise. This election, it would seem, represents a true opportunity for something.

For many, the decision of who to vote for, one way or the other, was made the day the 12th general election results were announced on that fateful day in March 2008. Others though, made less certain by the events since then, have an important decision to make. It is perhaps to this constituency that I offer my comments.

I wrote in February (“A heartfelt choice”) of the three primary issues, as I see them, that ought to determine our electoral choices: the rule of law, corruption, and social inclusiveness. I stand by that determination and reiterate that if we are truly concerned about the future of our young, then our choices must be made on the basis that any government we vote in ought have at the forefront of their policy framework measures that address these subjects.

It appears however that these concerns, as fundamental as they are to some of us, do not seem to resonate as strongly with others. Political loyalties, vested interests, fear, amongst other things, are obscuring the implications of our circumstance. They ask whether there is anything wrong with the way things are. After all, it is suggested, Malaysia has done fairly well for itself all things considered. It is no coincidence that the Barisan Nasional campaign is aimed at reminding voters of this as well as warning them of the implications of change. The unsubtle message that is screamed from billboards and advertisement in the mainstream media, leave no room for doubt as to the point the Barisan Nasional makes.

I think Malaysians need to remember that we have a harmonious society because we are a harmonious people. We have stability in spite of, and not because, of our political leaders. Even the most cursory look at the events of the last three decades would reveal a campaign of divide and rule on the part of those leaders, one intent on reminding us of, and playing up to, our differences. No matter how one dresses it up, the politics of race and religion is devastatingly divisive. And yet, we have managed to live together in peace, weathering potential points of crisis that were contrived to render the goodwill that continuous coexistence over generations nurtured. This is not only a point of pride; it is a deep source of confidence and inspiration. We are a resilient people and we must not forget that.

I appreciate that this in itself is not enough to convince those who harbour doubts about embracing the uncertain. It is however a good point to start any consideration of what it is we should be doing when we stand before the ballot box. It also sets the context for the choice that we have to make.

It is not a choice, as some might have you believe, between Najib Razak and Anwar Ibrahim, or even between the Barisan Nasional and Pakatan Rakyat. It is rather a choice that is far more fundamental, one between leaving the way things are now and doing things a different way. This is where the question of what is wrong with the way things are now comes up.

I could attempt to answer this by pointing to all those things that I think are deeply problematic once more. Allow me however to adopt a different approach by asking instead whether we could be doing things differently in a way that would allow us, the nation, to achieve what our potential truly enables us to.

In a recent article for Bloomberg, William Pesek argued “Malaysia needs to more to get off the road to mediocrity”.  In explaining his position, Pesek very credibly argued that the nation’s biggest problem is complacency and that in being change resistant, the government has allowed “nations as diverse as China, Indonesia, the Philippines, Thailand and Vietnam to leapfrog us” to a point where Malaysia is now competing with them for “the same infrastructure dollars, factory projects, bond deals and stock issues.” Singapore, has in the meanwhile, he further asserts, “become the beneficiary of many of Malaysia’s best and brightest, who have emigrated in search of a more merit-based economy.”

It is difficult to credibly argue against this. Just as it is to argue against the obvious need on our part to introduce “reforms that will revitalise the system as a whole”.

Cynics might sneer at this as being wildly theoretical or, alternatively, point to the reforms that the Government has promised us. The problem with the reform-speak of the Government thus far is that it has remained as not much more than rhetoric. True reform would mean, amongst other things, dismantling the construct that the Barisan Nasional depends on for its own vested interests. Pesek insightfully describes the difficulty that the coalition faces as Najib Razak having to navigate
“a 13-party coalition whose interests are as entrenched as any in the world. His partners are pushing back quite assertively, afraid of losing the Malay vote they could once take for granted.”

It is no surprise therefore that Ibrahim Ali has been permitted to contest as a candidate in Pasir Mas over the Barisan Nasional candidate assigned to constituency and Zulkifli Nordin is now mysteriously championing the cause of Indians in Shah Alam. Perkasa is the kind of right-wing vehicle that some of Najib Razak’s partners prefer notwithstanding it being the antithesis of “1 Malaysia”.

True reform is not about to happen as along as the Barisan Nasional remains the way it is. In the aftermath of the 2008 General Election, there were rumblings from within that change was needed. Some five years later, the changes have largely been cosmetic. So much so that I think it is reasonable to conclude that the Barisan Nasional will not reform itself unless it is forced to. What Pesek suggests cannot be dismissed as the ramblings of a foreigner who knows nothing about the country. He has put in words what many of us think but are reluctant to say.

The truth is that our economy is not as vibrant as we have been led to believe. A raft of laws designed to keep critical information away from us has left us dangerously ignorant of the true economic status of the nation. From what is visible to us, the outlook is gloomy. We should remind ourselves that Idris Jala, Minister in the Prime Minister’s Department said in 2010 that unless we rein in borrowings and subsidies, we could be facing bankruptcy by 2019, our trajectory reflecting that of Greece. Instead of reigning in spending and subsidies, we have experienced spending and subsidising in the intervening period on an unprecedented scale. Money, it would seem, is going out of fashion in Malaysia. So much so that the Government is literally giving it away.

Add to that endemic corruption and one is left to wonder whether Malaysians are ever going to have another opportunity to try to bring us back from the brink.

I am not saying that the Pakatan Rakyat is the answer to all our problems. It too is saddled with its own difficulties and deficiencies. The premise of its campaign however points to systemic reform of a kind that indicates a potential start to the gargantuan task of righting the ship of state. Amongst them is a promise that the rule of law will be reinstated.

If nothing more, this offers a new way of looking at things and offers a more certain way to remove the Pakatan Rakyat from government when the time comes. And at the very least that offers us a chance at establishing the more conventional system of government that the founders of the Constitution envisaged and ridding ourselves of autocracy.

I think that is a choice worth making.


(This comment was first published in The Edge, 27.04.2013 as "A choice worth making")