Of Judges And Contempt

A quotable quote. The excerpt below is from the speech of the then Perdana Menteri, Dato’ Seri Dr Mahathir, on 23rd June 1989 in Parliament when moving the amendment bill that would introduce the now notorious section 8B of the Internal Security Act. This section denies the right to judicial review (except on procedure) and to that end has allowed for arbitrary detention at the discretion of the Home Minister.

Significantly, this amendment was moved after Operasi Lalang during which there were numerous, some successful, high profile applications for judicial review. This included that of Mr Karpal Singh. Some of these decisions led, in part, to the 1988 attack on the judiciary.

The language of the speech is reflective of the views of Dr Mahathir that appeared in the media at the time. One of these articles, an interview that appeared in the 24th November 1986 edition of TIME magazine, is worth reproducing. Dr Mahathir was quoted as saying:

"On the Courts. The judiciary says (to us), `Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our own interpretation.' If we disagree, the Courts will say, `We will interpret your disagreement'. If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to reinterpret it our way. If we find out that a Court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish."

YB Lim Kit Siang took exception and applied to the High Court for an order of contempt against Dr Mahathir on the basis that the statement, in particular “We will interpret your disagreement”, scandalised the Judiciary by bringing in into disrespect and disrepute. At the High Court, Justice Harun Hashim had this to say:

“The Court should not be over-sensitive to criticism. The impugned statement, read objectively, is not even a criticism of the Court far less scandalising it or a threat to the independence of the judiciary. In essence it is the despair of a Prime Minister on the inadequacies of the law and more particularly the officials whose duties are to translate into law the policies and aims of the administration to ensure a more effective government.”

Eight days later, on 11th December 1986, the then Supreme Court affirmed the decision of the High Court. Tun Salleh Abas, Lord President (as he then was), somewhat prophetically, had this to say:

“…the impugned remarks do not ex necessitate connote, with in the requisite of the strictest burden of proof for proceedings for contempt, an attack on the judiciary in the way suggested by the applicant but rather tend to ventilate, perhaps understandably, the vexation of the executive in not being able to get through some desired objective or end without curial intervention.”

Vexation was a gross understatement. Not too long later, a series of events led to the notorious nation wide ISA crackdown and the sacking of Tun Salleh Abas and two senior supreme court justices. These events would herald the commencement of a new chapter for not only Malaysia but also the Judiciary, one that would culminate in “correct, correct, correct, correct” becoming a favourite ring tone.

This is what Dr Mahathir had to say in Parliament (an excerpt):

“Tujuan utama pindaan-pindaan ini dicadangkan adalah untuk menentukan bahawa perintah tahanan yang dibuat oleh Menteri yang memutuskan bahawa seseorang itu mengancam keselamatan Negara tidak dipersoalkan di mahkamah. Ini adalah kerana kebelakangan ini keputusan Menteri mengeluarkan Perintah Tahanan telah kerapkali dicabar dan dipersoalkan di mahkamah. Sekiranya mahkamah dibiar menggantikan keputusan pihak Kerajaan dengan keputusan mahkamah, ini bermakna seolah-olah tanggungjawab bagi keselamatan negara tidak lagi terletak kepada Kerajaan tetapi sebaliknya telah dipertanggungjawabkan kepada mahkamah, yang sebenarnya bukanlah ahli dan pakar dalam bidang keselamatan. Keputusan-keputusan dan aliran mahkamah di negara-negara asing yang memainkan peranan campurtangan atau, dengan izin, “interventionist” menggantikan keputusan-keputusan mahkamah adalah tidak sesuai diikuti kerana ia bertentangan dengan konsep perasingan kuasa atau dengan izin, “separation of powers” antara eksekutif dan kehakiman yang menjadi pegangan kita di negara ini. Jika mahkamah boleh menukar atau dengan izin “reverse” keputusan eksekutif, maka pihak eksekutif tidak akan dapat membuat apa-apa keputusan kerana khuatir mahkamah akan menukarkan keputusan itu. Dengan itu pihak pemerintah tidak dapat bergerak kerana menunggu keputusan-keputusan mahkamah serta rayuan-rayuan kepada mahkamah yang lebih tinggi.”

***

Everyone, even judges, need to heal from hurt.

It is time to start the process of reconciliation. Apologising to Tun Salleh Abas, Dato' George Seah and the late Tan Sri Wan Sulaiman and to the other judges who were suspended, and their families, is a necessary start to a crucial process.

MIS

Crisis In Trengganu? What Crisis?

It may be that in all the posturing that is happening within UMNO, within the Federal Government and the Attorney General’s chamber concerning the events in Trengganu, some of the actors in the unfolding saga have lost sight of the obvious. In the absence of the Sultan, His Royal Highness the Regent of Trengganu has the absolute power and discretion to appoint the Menteri Besar of the state. Put another way, the choice is that of the Regent, and no one else. It is as simple as that.

The Constitution of Trengganu is a document in 3 parts: Laws of the Constitution of 1911, Laws of the Constitution of Trengganu (First Part) and Laws of the Constitution of Trengganu (Second Part). In determining the constitutional position on any matter pertaining to the state, all 3 parts must be read harmoniously. Put another way, all three parts must be reconciled.

It follows therefore that in determining the ambit of powers of the Sultan (referred to as Raja in the constitutional documents), or the Regent as the case may be (and for ease of reference, only the Sultan shall be referred to in this comment), reference must be made to all 3 documents.

Chapter Six of the 1911 Laws emphatically provides that His Royal Highness is empowered as the sole authority for appointing ministers and officials. The chapter does not qualify the power of His Royal Highness to do so nor does it set out any criteria by which His Royal Highness is required to exercise his power. As I see it, Chapter Six vests an absolute discretion in the Sultan to appoint ministers and officials. This would necessarily include the Chief Minister or Mentri Besar.

Article 63 of the First Part expressly preserves the prerogatives, powers and jurisdiction of the Sultan except where expressed otherwise in the First Part. This is significant as the absolute power of the Raja to appoint a Mentri Besar is preserved except where otherwise expressly provided.

Article 14 of the First Part provides for the appointment of the State Executive Council including the Mentri Besar. The appointment is made by His Royal Highness. The language of the provision does not detract from His Royal Highness’ power to appoint. Criteria are however provided as follows: the candidate selected must be a member of the Legislative Assembly AND must be a member who in His Royal Highness' judgment is likely to command the confidence of the majority of the members of the Legislative Assembly.

The Second Part is silent on this aspect of the powers of the Sultan.

Reconciling Chapter Six of the 1911 Laws with Article 14 of the First Part, two points are manifest. The power to appoint the Mentri Besar is that of the Sultan and only that of the Sultan. In exercising this power, His Royal Highness must choose a member of the Legislative Assembly who in His judgment commands the confidence of the majority of the Legislative Assembly. Put another way, it is the subjective view of the Sultan that matters and not of anyone else. Though expressions of support are factors that should be taken into consideration, the Constitution does not bind the Sultan to act only in accordance with such expressions of support.

Furthermore, it is unreasonable to suggest that all that matters are the numbers. The Sultan cannot be expected, nor does the Constitution require His Royal Highness, to act as a rubber-stamp

In this context, I am of the view that the Sultan may take into consideration all matters that His Royal Highness may reasonably view as having a bearing on the question of confidence. What if the Sultan formed the view that he was not confident that a particular member who seemingly had popular support would not make a suitable Chief Minister. Statements issued by the Palace indicate the concerns of the Palace over the handling of the Pantai Batu Burok episode as well as events that occurred during the recent General Election by Idris Jusoh. These are matter that are evidently bearing on the minds of those who advise the Regent.

These are considerations of weight that go to the question of confidence more so for the fact that it is glaringly obvious that twenty UMNO assembly-men who have endorsed the appointment of Idris Jusoh may not necessarily be acting in accordance with their own conscience but rather the dictates of the party. There is, in a manner of speaking, a dimension of duress in the saga, made obvious by the threats of disciplinary action that have been leveled against Ahmad Said by UMNO. To this end, it is questionable whether it can be said that Idris Jusoh truly commands the confidence of the majority of the Legislative Assembly.

These factors go to show that there is basis for doubt in the mind of the Regent and the advisory council as to the appropriateness of appointing Idris Jusoh. If so, this doubt may reasonably undermine the belief of the Regent and the advisory council that Idris Jusoh truly commands the confidence of the majority.

Regrettably the rhetoric of the Prime Minister and the Attorney General lend to a conclusion that the Regent and the advisory council are expected to rubber stamp the wishes of the majority. Though this may have been how appointments were made in the past, this does not bind the Sultan or the Regent in the present, more so where the past practice may not have been Constitutionally thought through.

In the same vein, I would say that there is no basis for the assertion that the Regent is acting unconstitutionally. In the circumstances, such statements verge on being disrespectful.

For purposes of argument, I would go further. Even if the Regent had decided for no apparent reason to appoint Ahmad Said as Mentri Besar instead Idris Jusoh, there would be no basis for challenging the decision to appoint the said person. The decision is solely that of the Sultan and as such, is in my view not justiciable in a court of law. The only recourse for those members of the Legislative Assembly who disagree is to move a vote of no confidence in the Legislative the Assembly. This is clearly envisaged under the Trengganu Constitution (Article 14(6)).

Significantly, if that were to happen, a new State Executive Council would be appointed unless the Sultan is requested by the Mentri Besar to dissolve the Legislative Assembly in which event elections would have to be held. This may not be politically expedient for those who complain.

And perhaps that is what this is all about in the final reckoning.

MIS

Anti-Hopping: Of Politics, Morality and the Law

There is a great deal of discussion in the media about the possibility of elected members of parliament crossing over to parties other than those that they were members of when they contested in the recent General Election. Some opinion leaders, including the recently appointed “Law” Minister, Datuk Zaid Ibrahim, and constitutional law scholar, Professor Shad Faruqi, both of whom I have respect for, have suggested that laws aimed at preventing such cross-overs, or “hopping”, should be enacted and that such legislation, if enacted, would be consistent with the Federal Constitution.

I have my reservations about the correctness of these views. Though the “morality” of a decision by a particular member of parliament to cross over may be questionable, there are several inter-locking aspects that must be considered. As will be shown, these center on two core themes: the freedom of association and the freedom of choice.

It would be best to deal with the more obvious aspects of the issue. The Federal Constitution guarantees the freedom of association (Article 10(1)(c)). The Supreme Court in 1992 decided that this freedom necessarily includes the right to dissociate (Dewan Undangan Negeri Kelantan & Another v Nordin Salleh & Another). In so concluding, the Supreme Court struck down as unconstitutional legislation by which the Kelantan state constitution had been amended to declare a seat vacant if a member of the state legislature resigned from or left his/her political party. The Nordin Salleh decision has become foundation for the proposition that anti-hopping laws are unconstitutional.

It must be noted that Parliament can however legislate laws that impact on these freedoms if such laws are deemed “necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality” (Article 10(2)(c)). It would follow that if crossing over were a threat to security, public order or morality, it would be permissible to enact laws to restrict the right to association and, concomitantly, the right to dissociation. I believe that in articulating the positions they do, Datuk Zaid and Professor Shad rely on this proviso.

There is a difficulty with this view.

The proviso allows for encroachment into a guaranteed fundamental liberty. Constitutionally guaranteed liberties are jealously guarded as they represent the foundations of the free choice that democracies are built on. It is a hallowed principle of constitutional law that encroachment is allowed for only where the Constitution permits such encroachment. Further, those provisions that allow for such encroachment are to be interpreted narrowly so as to allow only for a degree of encroachment that is essential to achieve the aim underlying such provisions. It is apparent that the proviso in Article 10(2)(c) is aimed at ensuring public security and public morality. The standard of morality that decisions are to be benchmarked however is the general standard of the community as a whole and not the standard adopted by certain factions within the community. This is an important feature of this discussion and I will return to it.

Further, it is settled principle that encroachment is permissible only to the extent that it falls within a margin referred to as the “margin of appreciation”. The boundaries of the margin, as is clear from the expression of the constitutional provision, are defined by “necessity”. Whether there is a necessity is not to be determined subjectively. Jurisprudence on this issue points to an objective assessment of a given situation to determine whether such encroachment is necessary in the interests of democracy, having regard to public security or morality. If so, then an incursion is permitted. This is however not to be taken as a blanket right on the part of legislature to enact laws as it pleases. The incursion must be proportionate to the nature of the threat sought to be dealt with.

From the above, it is clear that encroachment is permissible but within a very narrow margin. The question is therefore whether the reasoning advanced in support of a call for anti-hopping legislation falls within that margin.

Before considering the question, it would be useful to remind ourselves that the Federal Constitution and the state constitutions do not limit candidates for elections at the federal and state levels respectively to members of political parties. In fact, the Federal Constitution expressly declares that unless disqualified every citizen resident in the country qualifies for membership (Article 47). Election laws reinforce this position further. This is why independent candidates are qualified to stand for elections. I have made a point of reiterating this to demonstrate that from the constitutional and legal perspective, voters vote individuals rather than parties. No matter the social considerations, in particular trends that point to some voters voting by reference to parties rather than individuals, when determining the legality of a situation (and conversely, to determine whether a situation should be made illegal), it is the constitutional and legal perspective that matters.

From this perspective, it is not readily apparent that a member of parliament is, as some have suggested, “cheating” his constituents by leaving the political party he was in when elected. The assumption in law is that he was voted in as an individual and not as a member of a political party. That the characterization (of cheating) is used loosely as is clearly shown by the fact that it is improbable that a member of parliament could be charged, let alone convicted, of the offence of cheating for leaving his party.

We must therefore address the question by asking ourselves whether it is wrong to firstly, dissociate from a political party, and if no, then whether dissociating is made wrong by joining another political party. In my view as the former cannot be answered absolutely in the affirmative, then the latter must be answered in the negative. My reasoning is as follows.

I have already explained the ‘personal’ as opposed to ‘party’ basis of elections. Let us explore that further by assuming that a member of a particular party has been elected a member of parliament. He is then required by the political party to do something – for instance, involve himself in corruption – that he doe not agree with as a matter of principle. He sees that corruption has become so entrenched that, in effect, it stands in as an ideology of the party. He decides that he can no longer associate with the party and its members for their advocating of corruption. Is it being suggested that he cannot leave the party?

The example is an extreme one but it goes to illustrate how nuanced the question really is. In order to enact anti-hopping legislation, all the nuances will have to be considered. And as this is done, it will be progressively seen that it would be impossible to predict with certainty the various permutations involved. For a law to be enacted, it must be capable of certainty. The possible scenarios that present themselves do not allow for the level of certainty required of legislation. Not every case of dissociation and cross-association is necessarily immoral as some suggest. In fact, some might see such actions as not immoral at all.

The political perspectives of party members who’s interests may be affected by such actions is not a true perspective and cannot be made the basis of law.

I can however see that there is sense is establishing a basis for deterring disassociations and cross-associations committed in bad faith. I believe that the basis is already in existence. There are laws pertaining aimed at preventing corruption that can be invoked if in fact members of parliament were ‘bought off’ by opponents. If such action involves elements of criminality, the Penal Code provides for a range of offences. There are also offences created under the Election laws.

And above all, there is the voter whose perception of a particular member of parliament will be affected by actions on the part of the latter that are seen as morally wrong. The fact that a member of parliament will lose credibility and be seen as untrustworthy and lose the next election is the strongest deterrent.

Is there a basis or even a need for anti-hopping laws? I do not think so.

MIS

Release The HINDRAF 5

A while ago, we heard from the Government (of the Federation) of how the rakyat wanted the Internal Security Act to remain on the books. I have my reservations about the truthfulness of that assertion. Whatever the case, I believe that if the Barisan Nasional component parties are sincere in their self-declared aim of wanting to re-evaluate themselves, they must question their continued support and use of anti-democratic legislation like the Internal Security Act, the Official Secrets Act and the Printing Presses and Publications Act.

In voting as they did this year, Malaysians were not only protesting, they went in search of a viable alternative. The Barisan Nasional must realize that it had allowed itself to become, or perhaps be portrayed as, a corrupt regime that considered itself above the law. This had largely been driven by the repressive methods that were allowed for by these self-serving laws. So much so that the rakyat had come to understand that the use of these laws, in particular the ISA, were not so much aimed at protecting the security of the rakyat and the nation but rather the interests of the Barisan Nasional.

If the Barisan Nasional wants to remain relevant, they will have to confront reality. The rakyat have spoken. They have not only signaled their rejection of the selfish ways of the coalition, they have also signaled their rejection of the methods the coalition has employed to its own ends.

Last December I wrote of how there was no justification to detain the HINDRAF 5 under the ISA. If they had committed crimes, the only proper thing to do was to charge them in a court of law and let due process run its course. I maintain this position.

In this context, the outcome of the General Election proves two things. Firstly, how deeply the issue of marginalization resonates with the rakyat. Whatever the posturing and the rhetoric, marginalization was the primary cause that underlay HINDRAF efforts.

Secondly, the outcome clearly establishes how Malaysians have matured far beyond May 13th 1969. If the Barisan Nasional government were to be believed, Malays would have only voted for Malays, the election result would have led to severe reactions and there would have been blood flowing through the streets as Malaysians turned on each other. As we saw, that was not the case. Malaysians transcended the parochial expectations of the Barisan, forging together in a common cause.

It is on the premise that I once again question the truthfulness of the stated belief of the Barisan Nasional government that the HINDRAF 5 are a threat to national security. The groundswell we experienced last Saturday clearly shows that they are not. Their detention cut, and continues to cut, into the consciousness of Malaysians of all ethnic backgrounds.

Mr Karpal Singh has called for the release of M Manoharan (Malaysiakini; ‘Karpal: Release Manoharan now’). He says, in effect, that by having voted for him in the context of GE2008, the people have declared that he is not a threat to national security. I agree with Mr Karpal but go further. The logic applies equally to the other detainees.

The step of releasing the HINDRAF 5 is an obvious choice in determining which of the series of conciliatory measures that the Barisan Nasional government will have to undertake first in order to win back the trust of the rakyat. Repealing the OSA and permitting publications of newspapers without permits follow closely behind.

Release the HINDRAF 5.

MIS

The 75th Candidate

At about 11 am on the morning of the General Elections, I spoke to Haris Ibrahim.

I was due to be interviewed by Al Jazeera and was trying to get a sense of where things stood on the ground. In his tireless campaign for reform through change, Haris had spoken at a ceramah almost every day since the commencement of the campaigning period. In almost hushed tones, Haris told me that he thought that the Barisan Nasional might be denied two-thirds majority. The feeling on the ground, he said, was electric and voters seemed to have reoriented themselves around issues.

His impression echoed that of Azmi Sharom. The night before Azmi had recounted his experience at a ceramah in Lembah Pantai at which Anwar Ibrahim and Raja Petra had spoken. As he told me how the largely Malay audience had erupted into cheers as Raja Petra had declared that Indians and Chinese would be defended with Malay bodies if they were victimised, the hair on my arms stood. He too thought that there was a real possibility of the two thirds majority being denied.

I was hopeful but uncertain as I drove into the city for the interview, perhaps because I was afraid to allow myself hope. A denial of the two-thirds majority would change the political landscape significantly, reintroducing a semblance of balance and forcing accountability.

A telephone call to Farish Noor, who was in Kota Bharu, fueled the uncertainty further. Though, as he observed, celebrations by supporters of PAS had begun even before polling was completed, claims of phantom voters being bussed in were causing anxiety. Tensions were running high, justifiably so in the context. A few days earlier, the Election Comission had mysteriously revoked its directive on the use of indelible ink. The lack of a coherent explanation for this extraordinary step, and it should not be overlooked that the Abdullah administration had show-cased the use of indelible ink as proof of the Government taking the matter of free and fair election very seriously, cast the situation in a very ominous light.

I was still in an uncertain frame of mind when at about noon that day, I was asked during the interview whether I thought the matter of irregularities in the electoral process, as some claimed, was going to be even more pertinent this General Election.

Looking out onto an unusually deserted KLCC park, it struck me how empty the city was. And as it struck me that people were away voting, I realized that there was a fighting chance. For many, the future could not get any worse. It could however get better if there was will to make it better.

And Malaysians were going to fight for that opportunity.

I was concerned though. The slim margin by which the two-thirds might be denied did not allow for irregularities. These irregularities would define the future of Malaysian. A strong mandate for the Barisan Nasional would have been politicized, allowed for a perpetuation of the state of denial and been used to reject much needed reforms.

***

The voter turn out was approximately 80 per cent, the highest it had ever been.

Malaysians have much to be proud of. On the 8th of March, 2008, they reclaimed the nation. It did not matter who they voted for, each candidate and political party had their strengths and weaknesses. It mattered that they voted, conscious of their choices.

They planted the seed for a new democracy.

***

I started watching the results come in at a friend’s place over dinner.

On they way there, I had stopped by Blog House where Haris Ibrahim and friends had set up camp to monitor the results. A white board had been co-opted. The team was going to list down the parliamentary seats that the opposition captured. Haris pointed to a space for the 75th candidate. That was what it was going to take to safely deny absolute control.

He told me, a mad gleam in his eye, that we were going to get there. And this time, I had no doubt that we would.

***

Civil society paved the way, giving shape to the hopes of Malaysians and forging a voice for the disenfranchised.

Its efforts took many forms. In fighting their causes, NGOs highlighted areas of concern. In its road show, Article 11 brought into sharp focus the way in which the Constitution was being undermined in the name of religion but for the cause of politics. Almost 900 people turned up at 9 am on a Sunday morning for the first forum in Petaling Jaya. Looking out over the crowd, I remember feeling that we were at the start of something very, very big. And perhaps if I had been listening more closely to the cheers that morning as we spoke in turn about equality and the right to equal protection under the Federal Constitution, I would have heard the whispers of a wind of change.

Other NGOs showed how various aspects of our public lives had been compromised through corruption, political appointments and incompetence. The marches and the demonstrations made the rakyat see that we could no longer leave matters to others. The fearlessness of the organizers, the unflagging efforts of all concerned, were strong and very visible reminders of why each and every one of us had to start being responsible.

Malaysiakini, Malaysia Today and bloggers filled the information gap, providing essential information and critical opinion, their unrelenting commentary helping undermining illusions and delusions. In doing so, they became the conscience of the nation.

Individuals banded together and explored ways in which the rakyat could be empowered. Haris Ibrahim’s ‘The People’s Parliament’ started off about a year and half ago as a means to help voters understand that they could do much more if they organized themselves. Its ‘pick a candidate’ campaign was aimed at creating awareness that the power to change lay in ourselves.

As Haris thundered from many a stage these last two weeks, it was apparent that ‘The People’s Parliament’ had become so much more. As a prime mover behind the ‘People’s Declaration’ and the Barisan Rakyat, it forged the way for greater cohesion amongst the then opposition political parties. In persuading these parties to collectively endorse the Declaration, I believe that Haris and his team created the glue that will keep these parties together as they face the challenges of the future.

This is not to say that the political parties did not play a pivotal role. They did, and they did so remarkably. They were the political underdogs who were fighting for our survival and this time they were recognized as such. While many have described the result as a protest vote, I would rather think of it as a demand by the electorate of a viable alternative. The maturity of the Malaysian voter had surpassed the very average and uninspiring candidates that the Barisan offered. That the opposition had chosen to field committed, dynamic, younger professionals with little or no vested interest was a move that paid off richly. Malaysians are going to benefit tremendously from having Gobind Singh Deo, R Sivarasa, Charles Santiago, amongst others, in Parliament.

***

The unofficial results came in fast and furious. Samy Vellu, Zainudin and Sharizat had lost, along with a host of other Barisan candidates. Penang, Kedah, Perak and Selangor had been seized by the opposition.

Laughter took on a hysterical note, the giggling was almost maniacal. I found myself wondering about that list at Blog House.

***

Farish Noor and I spoke at a forum held by Sin Chew just after Merdeka last year. It was aimed at understanding where we stood, 50 years down the road. We spoke at length about the political landscape and both us of, in our ways, looked at the question of racial politics.

During my presentation, I asked why it was that Malaysians were so complacent about their future. We all saw how things were going so wrong. Race politics had allowed for a monopolizing of political control by an UMNO. Power sharing was notional at best. The way in which the submission of the memorandum concerning religious freedom by a faction of the cabinet had been handled and the incredible justifications offered for the keris waving and supremacist posturing at its annual assembly was reflective of UMNO’s intolerance of any views but its own.

The Barisan Nasional operated on the fiction that as the component parties were constituted along racial lines, these parties spoke for all persons of these races. And yet it had become increasingly evident that these parties did not speak for all members of their particular communities. If at all, they largely spoke for the members of the party, and even then only for those who wielded influence. Malaysians all of ethnicities were suffering as a result of this elitist, self-serving presumption. As HINDRAF was about to show us, the consequences could no longer be suppressed and hidden.

In the face of these obvious truths, we had to ask ourselves why is it that Malaysians had allowed, and continued to allow, the Barisan to continue as it did with obvious consequences. Malaysians either did not vote or voted for the Barisan to an extent that not only did the Barisan form the government of the day but controlled parliament almost absolutely.

Security and stability are important considerations. Making a government accountable through the ballot box does not in itself necessarily create discord nor destabilize a community. A government did not have to be returned with an absolute majority to the extent that it considered itself beyond the reach of not only the opposition but the rakyat that voted that government in. Whether external factors – racial tensions – would lead to chaos was something that we had to confront. Malaysians had to start believing that we had matured since May 13th 1969 and if we had not despite the immense resources that had been invested in measures aimed at reducing disparities amongst the ethnic communities, then there was all that much more reason not to vote the Barisan in again.

Grand promises of reform made at the 2004 General Election had gone unfulfilled. The justifications offered for this failure were mainly political. If the system did not lend itself to reform, then it was the Government’s responsibility to change the system. If the politics of the parties that constituted government impeded the changes, no matter the nobility of the aspiration, those parties did not deserve to be in government.

Change would however take time, stepping out of comfort zones and embracing an uncertain future were undeniably difficult things to do. We had to be shown incrementally that deviating from what had almost become a Malaysian tradition – the return of Barisan to power - was a constructive thing for the nation. Nothing was going to happen however if we did not take that first step.

I asked the audience that night to deny the two-thirds majority, to give the opposition 49 per cent of parliament if they were uncertain. The laughter my suggestion generated made it seem a very distant possibility.

Farish and I spoke at another forum on the 2nd of March this year. The mood was different. And when I suggested that Malaysians should vote the opposition to help the government, the laughter had a very different ring to it.

***

It was almost 4 am when we got to the 75th candidate, Loh Gwo Burne.

The official results were slow in being broadcast. They trickled in, heightening the excitement those of us there felt as the number of candidates on that list slowly increased. Some have suggested that the late declaration and broadcast of official results was aimed at downplaying the shock result so as to avoid untoward incidents. The directive by the police that there be no victory parades supports the theory as does the calls by the DAP for calmness when it learnt of its victory in Penang.

I have a different view. As useful as these efforts were in helping maintain order, if there were going to be clashes that night there would have been. The simple truth is that there were not going to be any clashes that night and the nature of results were the strongest indicator as to why this was going to be. Throughout the country, Malaysian of all communities had voted in support of a multi-racial opposition. They had voted on issues and not on race. There was no reason for any clashes, neither was there a context. Malaysian politics had matured.

And as a friend suggested two days later, perhaps we had laid to rest the ghost of May 13th. I would like to think so.

MIS

GE2008

MERDEKA!