Wednesday, September 29, 2010

Spoils Of War

(This article first appeared in The Edge in the week of 28th August this year It was my first piece for a column called 'Rule of Law')

Spoils Of War

It feels sometimes that the way things are going political forces are going to rip this country apart. Intent on their respective agendas, for better of for worse, the Barisan Nasional and the Pakatan Rakyat appear to be caught up in a “no quarter” given, fight to the death that is focused more on their survival than it is on our well being. Resources, such as they are, are being deployed more to one end than they are to the more well deserving other.

Sadly, in the Malaysia of now politics is no longer the handmaiden of democracy; it defines it. The campaign being waged around us is about the continued political subjugation of this nation. It is about control. We are not witnesses to a gladiatorial contest for sport; we are the spoils of war.

Though it is a given that in even the more mature democracies the line between government and politics is not always as broad as the ideal requires, that line nonetheless exists if only for the existence of an effective system of checks and balances centered on the separation of powers between the Executive, Legislature and the Judiciary.

The line between government and politics in Malaysia is so blurred that some might describe it as no longer being visible to the naked eye. If there were any doubts about that, it would have been put to rest by any of a number of recent events. The campaign speeches made by the Honourable Prime Minister for the recent parliamentary by-elections in Hulu Selangor and Sibu, the intensified and highly selective policing of free speech, and the resurgence of intolerance against legitimate dissent are instances of what it is that fuels the belief that the Barisan Nasional views itself as the government and vice versa. To criticise one is to condemn the other.

It is crucial for all stakeholders to recognize this as much as it is not in the interests of this nation for this state of affairs to continue. It is equally imperative that we appreciate the reasons for it and commit to addressing matters as they need to be.

We suffer the consequence of several inter-locking processes that were given life during the administration of a Prime Minister who tended to view the ends as justifying the means. I would like focus on one.

Frustrated that an interfering judiciary was impeding his vision, the Mahathir administration moved a constitutional amendment that subjugated the Judiciary to Parliament and showed the Justices that he could remove them if he saw fit. His perception of the role of the Judiciary called more for compliance rather than effectiveness. This was essential to his need for Executive control over the nation.

Perhaps recognizing that it would be impolitic to suspend the Constitution, the Mahathir administration moved amendments to key legislation that would allow for greater central control over matters of free speech and government accountability. These vested subjective discretion over matters exclusively in the Government to the extent that even the courts were precluded from questioning decisions. This allowed for a suppression of civil society and opposition efforts, and in many ways hamstrung the democratic process. This state of affairs in turn allowed the Barisan Nasional to dominate Parliament, the other bastion of check and balance. A docile Judiciary washed its hands of the mounting dilemmas by citing their lack of power. Suggestions that the constitutional and legislative amendments that neutered the Judiciary were unconstitutional were dismissed.

This need for control and the willingness to do what it took ultimately led to the decline of governance in this country. As admitted by Abdullah Badawi during his term the Judiciary was in serious need of reform.

It still is notwithstanding the efforts by our current Chief Justice to increase efficiency within the courts. That is but one heavily nuanced dimension of the issue; the public perception that the Judiciary is not competent and lacking in integrity needs to be directly addressed. Perceptions of bias or extraneous influence cannot simply be brushed aside if the Judiciary is to function as such. Public confidence is as essential to the functioning of this institution as its infrastructure; laws would have no meaning if people reject the validity of the decisions of the courts. And the truth of the matter is that they have been for some time now.

It should not matter that this may be a situation that lends itself to the advantage of the Barisan Nasional. The fact remains that a fundamental feature of our system of governance is skewed. Questions of integrity and competence on the part of the Judiciary go far beyond matters of political significance. They pertain as much to matters of finance and commerce as they do to personal matters and for doing so touch the lives of all Malaysians. Consider the number of Malaysians who suffered by reason of the decision of the Federal Court in Adorna Properties or any number of self-evidently unjust and erroneous decisions of the courts, in some cases the apex court itself.

It is not enough to say “the courts have decided” in the face of decisions that are obviously unsustainable. For us to progress, the standard and quality of justice must be high as it is consistent. This is a feature of the Singaporean judiciary that has reaped much benefit for that nation. In as much as some might say that decisions of those courts involving the Government tend to go one way than the other, their commercial decisions speak for themselves. It is no coincidence that the Privy Council not too long ago adopted the reasoning of a Singapore High Court judge in rejecting a precedent that had held sway for more than a century; it was a matter of planning. From the outset Lee Kuan Yew recognized the importance of a strong legal tradition.

The question therefore is where does that leave us in Malaysia.

MIS

9 comments:

Tiger said...

Good to see you back here, MIS.
Very well that you have eloquently defined the issue(s) at hand.
What of the solutions?
Supposing after 2013, we have a better set of MPs who really desire to put things right.
What should they do?
Within the Parliament, what can they do?

Anonymous said...

Since the sacking for Salleh Abas the Judiciary has become one component of Barisan Nasional.

And it "performed faithfully and remarkably well" in all cases involving the Perak State Constitution and the elected State Assembly.

Similarly ever single case, criminal and civil filed by Anwar Ibrahim had gone against him.

I am just a man on the street with no legal training and I can see that the Judiciary is there to protect BN, not the people nor the constitution.
This is a national shame.

AnesthMO said...

As V so eloquently put it, "People should not be afraid of their government. Government should be afraid of the people. "
A change of mindset is required. The current prevalent mindset is that BN equals the government.
The change in mindset required is that the people / rakyat is the Employer, the political parties (BN or PR) are the Employees. Government is the Job the political parties are applying for; the General Election is the interview; their manifestoes are their Resumes.
If the Employee does not perform up to mark, the Employer should and would FIRE the Employee from the Job.
Corruption and dereliction of duty should not be tolerated and should be punished accordingly.

Anonymous said...

Dear Mr Malik,

If there are more Malay-Muslim like you in Malaysia, the future of the country is bright.
Unfortunately, there are NOT many like you among the Malay masses.

Worse, good people like you opt to not join political party.
(I assume you are not a member of any political parties).

Please do more, much more. The Malay masses need people like you.

All Malaysian need Malay-Muslim like you. For, if the Malay go down, so would the entire country.

Ted

Frances said...

You're back! I haven't treated myself to your article yet, but it's lovely to see you blogging again.

zarinahtakesapaycut said...

Quis custodiet ipsos custodes, when this question was answered by Plato in his work The Republic, he answered that they will guard themselves against themselves. "We must tell the guardians a "noble lie". The noble lie will assure them that they are better than those they serve and it is therefore their responsibility to guard and protect those lesser than themselves. We will instill in them a distaste for power or privilege; they will rule because they believe it right, not because they desire it."


I put it to you that there is no noble lie in this case, that there are questions you must answer as guardians of corporate governance in this country, that you must feel in you the same distaste for abuse of power and conflict of interest, that you will do what is right, that you will be true to your calling as one of the guardians for the institutions of this great country.

http://zarinahtakesapaycut.blogspot.com/2010/12/audit-oversight-board-aob-malaysia.html

malaysiareform said...

Don't have your email so posting my response to your comments in Malaysian Insider hoping to catch your attention:

I hope Malik and Sreekant reads the comments here because as independent minded potential candidates, party whip may be a hinderence. However I hope they consider it this way. I read this article - Reject all Barisan MPs as long as the whip is imposed all the time and think it makes sense because BN party whip is never lifted irrespective of issue. However I read in that article that DAP and I assume the other PR components have the same policy as per party whip - if the issue pertains to what had been revealed in their party policies and their election manifesto, reps will have to vote along party line. I think that is fair because voters as well as candidates are assumed to have read them and thus vote with assumed open eyes and there should be no objection since reps should be bound by them prior to election. However that article says Lim Guan Eng and Lim Kit Siang have said if it involves a matter of conscience then they can vote according to conscience. I just want to draw their attention to the above so that party whip does not become a hinderence to them standing on their party ticket.

On the other hand while I had reservation on offering candidates to BN, come to think of it, perhaps that may not be too bad an idea as long as how the vote in Parliament is made clear to voters first and they can vote on the same basis as above.

Anonymous said...

Dear Mr. Malik,

By now the legal people in this country must already be talking about this illegal proxi voting in General Elections. I hope that you will take up this issue to give your legal perspective on the mattter. Thanks

Anonymous said...

I read with disgust here http://margeemar.blogspot.com/2011/02/they-cane-form-6-girls-at-penang-free.html#links that at Penang Free School they actually cane Form Six Girls. What has DPM and Education Minister Moohydeen got to say here?