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Friday, May 30, 2008

In Defence Of Bangsa Malaysia

In Defence Of Bangsa Malaysia

For many, the date “March 8” will continue to resonate far into the future in as evocative a manner as “May 13”. It was the day that Malaysians reclaimed Malaysia. For the first time in a very long time, they voted on issues. And in ignoring the Barisan Nasional and its artificial divisions, Malaysians ignored race.

Just as May 13 was a display of a vicious racism, March 8 was a concrete display of unity.

We planted a seed that day and that seed has germinated. Discussions about, and more importantly the very public rejoicing in, the pluralism and multi-culturalism that underlie a truly Malaysian national identity are quickly becoming the norm rather than the exception. It would seem that Bangsa Malaysia has come in from the cold and is digging its heels in, strongly intent on staying the course.

Those who lead the way must be congratulated, it does not matter which side they are on or whether they are aligned in any particular way. They lay the foundation for the Malaysia that all of us want to call our home. United, we can start giving thought to what we have been kept from before this: how to harness our collective spirit and passion, our undoubted talent and skill and our unique worldview to take on the world.

At the risk of sounding naïve, I am excited. Very excited.

Which is why I am troubled by what is going on with UMNO. The results of the General Election shocked UMNO into a realization that it needed to reassess itself and its value to Malaysia if it were to remain relevant. And as much as the public posturing of the party could be said to suggest the contrary, subtle and not so subtle indications of a subtle point to a deeper understanding of a need for reform, both internally and as well as externally.

Whatever the motivation, the potential gains for the nation are tremendous. While I remain skeptical about whether the promised reforms will actually happen in the way they should, the traction gained from just a recognition of the need for such as well as what made things go wrong in the first place are invaluable. This recognition underscores the truth that a race based system of politics and its concomitants can only result in declining standards and potential ruin.

UMNO cannot be consigned to irrelevance. The nation needs a strong two-party system for the crucial counter-balance that it ensures and the guarantee it provides that no political party or coalition will take a stranglehold of the nation again. Though prior to March 8th, UMNO hegemony made the prospect remote, the changed political landscape since has brought it within grasp. The mere existence of a strengthened opposition presence in Parliament is not all that is required. For UMNO and the Barisan Nasional to play this very crucial role, reforms must be embraced just as universalism has to be.

The dogfight that is happening within UMNO is however threatening to derail UMNO. While the question of who leads UMNO is an internal matter, the national impact the maneuvering of those concerned makes it a matter of concern for all of us. This is more so where tactical plays involve the inciting of racial and religious sentiments that threaten not only national stability but also Bangsa Malaysia and the promise it holds.

For while to those involved in this macabre political dance, race and religion are merely tools at disposal, the injuries that they could inflict in being misapplied are potentially so serious that the nation may succumb.

Though I am loath to say it, Tun Dr Mahathir has crossed the line. I recognize that he is fully entitled to act in the interests of UMNO. However his invoking of race and his equally dangerous incitement of racial fears directly threaten our existence and our future. His assertion that the Malays will suffer for the fact of non-Malays gaining political power is both unsubstantiated and dangerously misleading. No non-Malay politicians are challenging the status of the Malays. The Federal Constitution guarantees their protected status and there is a glaring absence of any discussion of an amendment to the Constitution. In the same vein, the call for a more equitable method of affirmative action can only be beneficial to the Malay community, a community that, despite the many years of the NEP and its successor policies, many of those under the stewardship of Tun Dr Mahathir himself, is still afflicted by poverty. This sad state of affairs is indisputable and has even prompted calls for reassessment by Malay opinion leaders.

And it goes without saying that a more transparent, accountable and competent government founded on national unity rather than race divisions can only be to the benefit of all. This is what we fought for on March 8th, not just for ourselves but also for our children and their children. It is what we must continue to rally to.

(Malay Mail, 27th May 2008)

The Fact Is, Mr Chor

(Mr Chor Chee Heung is the Deputy Minister for Home Affairs. Unsurprisingly, he gave the usual political answers when confronted in Parliament over the Bandar Mahkota Cheras incident in which according to media reports Chang Jiun Haur was assaulted and battered by FRU officers)

For goodness sake, Mr Chor, why does every answer have to be a political one.

The fact is a young man lies in the intensive care unit of a hospital. He was put there by some twenty police officers who beat him up. They say that he was trying to run them over but not a single police officer appears to have been injured. There is also a great deal of doubt as to whether the young man was trying to run over police officers, or anyone for that matter, or was simply trying to leave the scene, perhaps realizing his mistake for having stopped in the first place.

And the fact is that no amount of provocation short of a direct threat on life warranted a reprisal of this form by the police officers.

Perhaps, Mr Chor, you would care to remind yourself, and the Minister, that you are not the Inspector General of Police and as such, you are not directly responsible for the misconduct of police officers. Perhaps you would even care to remind yourself, and the Minister, that your ministry is responsible for determining fairly what it is that happened and to take steps to ensure that it does not happen again.

The fact is, Mr Chor, the Royal Malaysia Police is regrettably virtually synonymous with police brutality. I do not say this of my own accord, I am merely reiterating what it is a Royal Commission of Enquiry had come to conclude. You may recall that the Royal Commission had strongly recommended the establishment of an independent complaints and misconduct commission to address the kind of conduct that was making Malaysians lose faith in the police force. You may recall the proposed independent commission by its acronym, IPCMC, just as you may recall that your government has failed to establish the IPCMC despite promises that the recommendations of the Royal Commission would be given effect.

Incidentally, Mr Chor, you may also wish to remind yourself that one of the reasons that the Commission of Enquiry felt the need for the IPCMC was a seeming unwillingness on the part of the police force to investigate its own conduct. Were it otherwise, why would the Royal Commission have proposed a draft law for the IPCMC which declared, in its preamble:

An Act to establish the Independent Police Complaints and Misconduct Commission whose principle functions are to receive and investigate into complaints about the Royal Malaysia Police, to detect, investigate and prevent police corruption and other serious police misconduct, to set out the powers and functions of such Commission for improving police integrity, reducing misconduct and building public confidence and to ensure that there is vigilant oversight in Malaysia of the Royal Malaysia Police…

It may also be useful to take note that the Royal Commission concluded in paragraph 2.6.8 of its report (page 53) that there was abuse of power on the part of some police personnel and that if those guilty of abusing their power were not punished, this problem would persist. There appears to have been no action taken, and if there was it was not publicized, in connection with the shootings at Pantai Batu Burok late last year, Bloody Sunday and the other very public instances of apparent police misconduct.

This puts paid to the suggestion on your part, Mr Chor, that the police force is capable of investigating the events at Bandar Mahkota Cheras fairly and professionally.

The fact is, Mr Chor, your Ministry is failing the rakyat grievously for failing to take meaningful steps to address this situation. Its continued inaction has resulted in Chang Jiun Haur being in hospital, the tears of his parents and family streaming into the river of tears of other parents, other families who have similarly suffered.

There are questions that need to be answered and action that has to be taken. We are primed however for no further action. In fact, Mr Chor, if the events of Pantai Batu Burok or the HINDRAF Batu Caves incident are anything to go by, we can reasonably expect Chang Jiun Haur to be charged in a court of law soon. Nothing surprises us anymore, your administration is capable of almost anything it would seem.

But then, Mr Chor, I suppose politics would make that an acceptable end for you. And you and your colleagues wonder why so many Malaysians are so sick of the Barisan Nasional?


Saturday, May 24, 2008

Tipping Points

'Tipping Points', a compilation of essays "on the reasons for and impact of the March 8 election earthquake" edited by Oon Yeoh and published by The Edge is out in bookstores. It features essays on the subject by a range of public intellectuals and opinion leaders including Hishamuddin Rais, Azly Rahman, Farish Noor, Ooi Kooi Beng, Wong Chin Huat and Tricia Yeoh.

I was privileged enough to have been asked to contribute an essay. It is reproduced below.


In Search Of Democracy: The Rebirth Of Federalism

Political homogeneity over a long period of time and an aggressive central government that had curbed the freedom and individuality of state governments, much as it had suppressed the ability of Malaysians to think and act independently, had resulted in the general belief that this nation was a federation in name only. For many, we were one nation with one government. Through willful neglect by the mainstream media, Kelantan stood largely forgotten.

In this setting, it is unsurprising that federalism had been relegated to the realm of abstract theory of little practical value. For some, federalism had additionally become associated with events that put an edge to the notion. The tensions in Sabah and Sarawak following the separation of Singapore from Malaysia in 1965, and the race riots of 1969, having arisen in part due to imbalances that were permitted by the federal-state divide, stood as painful reminders of the potential destructiveness of a federal system.

The results of the 2008 general elections however compel a reassessment. Those results, viewed in their context, and their effects - notably the establishment of non-Barisan Nasional governments in five states, a seemingly more discerning wielding of discretion by the monarchs in Perlis and Trengganu, and the forging of the Pakatan Rakyat - offer a valuable opportunity to not only recast positively our view of federalism but also to harness it in nation building efforts.

A consideration of the subject must necessarily start with a reminder. Prior to the proclamation of independence in 1957, even with the British having annexed the territories of Malaya, Sabah and Sarawak, there were separate nation states. Though it may be argued that Penang, Malacca, Sabah and Sarawak stand on a different footing from the other states, this does not undermine the proposition. There were different nation states, each of these states having their own constitutional arrangement, more usually governed by a Ruler. Merdeka brought these states into a compact, sealed by the Federal Constitution, the Rulers of these states agreeing that these states would be collectively administered by a Westminster style government at the federal level complimented by Westminster style governments at the state level to which they would cede authority.

The individual states did not cease to exist. They continued to function as such, though under the aegis of a central government at the federal level. There was as such never any legal barrier to the states being governed in a manner suited to the unique needs of the states and their residents. Though federal controls over certain aspects of governance – policing, the administration of justice, immigration, to name a few – could be said to have allowed for encroachment into the sovereign areas of the states, this in itself did not allow for an undermining of the virtual autonomy of the states on matters directly affecting the interests of the states. This was a vital feature of the Malaysian constitutional arrangement, one that was always intended to be a bulwark against totalitarian control.

The politicization of governance however undermined this crucial aspect of Malaysian democracy. The consistent, near absolute control of all the states by the Barisan had allowed for the colonization of states by the federal government and, through it, the Barisan. With it came a dismantling of essential barricades that allowed for the states to be yoked for the needs of an increasingly elitist, self-interested leadership at the federal and state levels. Sabah and Sarawak exemplify this sad state of affairs.

The taking of five states by the Pakatan Rakyat however now offers a landscape vastly different from that prior to the General Elections. Kelantan is no longer a minority of one. The distinct shift in voter trends, its underlying causes and the dawning realization of the need to resonate with the rakyat have to be reckoned with if the Barisan is to remain relevant. Additionally, the importance of Penang, Perak and Selangor will necessarily force the Barisan to reject the policy of marginalization it employed against Kelantan. Such a policy would not only reinforce support for the Pakatan Rakyat but may also affect vested Barisan interests in these states. The Barisan federal government will eventually have to deal with the governments of these states as independent governments, a competitive state of affairs that can only be in the interests of the nation.

This is a process that may be further fueled by a more independent and discerning articulation of royal discretion. The stand-offs in Perlis and Trengganu are suggestive of ‘makkal sakti’ having left an impression on the monarchs of these states. Despite clear pressure, the state constitutions were correctly applied and decisions made to reject deficient political appointments. This cannot be reasonably characterized as having been wrongly interventionist. Conversely, the positions taken indicate a growing awareness of the full extent to which the autonomy of the state can and should be invoked in aid of democratic process.

In some ways, the mould has been broken. Race riots did not erupt as the Barisan governments of the Pakatan states fell. The ghost of May 13th , and one of the bigger concerns about increased autonomy, may have been put to rest. It is now up to us to shape the democracy that is best suited for us.

Friday, May 23, 2008

A Further Note On Jurisdiction And Syariah Courts

The Federal Court handed down a decision yesterday on the question of the jurisdiction of the syariah courts in the case of Abdul Kahar Ahmad v Government of Selangor & Others. The Federal Court confirmed that it is the Federal Court that has jurisdiction over matters pertaining to the interpretation of the Federal Constitution and the competence of the legislatives bodies to make law, even where such law pertains to Islam. In so concluding, it reiterated its decision in Latifah Mat Zin that the jurisdiction of the syariah courts is as delineated by the Federal Constitution and as vested by enacted law.

I have written about the case before on this blog. Kahar has commenced proceedings in the Federal Court to challenge the validity of certain provisions of Selangor law going to the binding nature of gazetted fatwas (without having passed through the State Legislative Assembly) and the criminalization of certain acts for being offences against the 'precepts of Islam' (this is a constitutional requirement; Kahar amongst other things contends that it is not an offence against the precepts of Islam to act contrary to fatwa as a fatwa is mere opinion).

The Majlis Agama Islam Selangor (MAIS) had applied for leave to intervene as an interested party. The Federal Court allowed the application (Tun Fairuz was then the Chief Justice and chaired the panel that granted leave; we opposed the application as the underlying proceedings concerned only the question of legislative competence). MAIS then applied for a stay of proceedings in the Federal Court on the ground that only the syariah court was competent to decide whether the offences concerned were against the precepts of Islam. This was notwithstanding the fact that the the Federal Constitution itself employs the phrase in delimiting the competence of the State Legislative Assembly to make laws pertaining to Islam.

We opposed the application on the basis that the Federal Constitution clearly empowers the Federal Court to determine proceedings of this nature. We further argued that there was no question of any of the parties, save Kahar himself, being within the jurisdiction of the syariah court as MAIS, the Government of Selangor and the Federal Government were not 'persons professing the religion of Islam'. The Federal Court however did not think it necessary to rule on the latter point.

The Star reports the decision today ('Federal Court to hear application by 'prophet'). It is reproduced below.


PUTRAJAYA: The Federal Court is the right court to hear a 57-year-old self-proclaimed prophet’s application to challenge certain provisions in Selangor’s Syariah Criminal Offences Enactment.

The apex court decided this yesterday when it dismissed an application by the Selangor Islamic Religious Council (Mais) for an order that the issue be decided by the Syariah High Court.

As such, the suit by Abdul Kahar Ahmad to challenge the legality of the five sections of the enactment he is charged under will continue at the Federal Court.

Chief Justice Datuk Abdul Hamid Mohamad, in his judgment, said there was nothing in the Constitution to say (the Constitution’s) interpretation was within the jurisdiction of the Syariah court.

The Syariah court’s jurisdiction, he added, was confined to the matters enumerated in the state list of the Constitution and as enacted by the respective states.

Court of Appeal President Justice Zaki Tun Azmi and Justice Zulkefli Ahmad Makinudin, who sat on the three-man bench with the Chief Justice, concurred with his decision.

Abdul Kahar was charged in the Shah Alam Syariah High Court in August 2005 with five offences under the Selangor Syariah Criminal Offences Enactment.

He pleaded not guilty to all the charges.

Among other things, he is accused of declaring himself a prophet and for ridiculing the practices of Islam.

The next hearing date is fixed for May 28.

Abdul Kahar is seeking to declare certain sections of the Selangor Syariah Criminal Offences Enactment and the Islamic Religious Administration (Selangor) Enactment null and void.

The Star, 23th May 2008

What Gives, Dr M?

Developments within UMNO are intriguing and, much as we would wish for it to be otherwise, have an impact on all of us. The President of UMNO by convention becomes the Prime Minister. UMNO politics also impacts throughout the Barisan Nasional for the opportunities and risks that internal political upheaval presents to coalition members. This has been particularly true in the period after March 8th. The dismal performances of Gerakan, MCA and MIC have been, in part, blamed for the claw-back of political power to the Pakatan Rakyat even as they reconsider their own ideologies and positioning.

These parties forming the Government, it stands to reason that upheavals within UMNO translate into possible repercussions for the nation, in perception if not in fact. The Malaysian commercial world appears to have gone into quasi-hibernation mode, adopting a wait and see stance as it attempts to assess the situation and its risks. Malaysians seem to be talking of nothing else but UMNO and what is going to happen.

I am certain that I am stating the obvious, especially for someone like Tun Dr Mahathir. In thay vein, I am equally confident that that these factors would have been taken into consideration as he developed the strategy that is now unfolding. Above all, Dr M, as he come to be known to us, was a master tactician. There is no reason to believe that he has lost the talent.

The aggressive and very public campaign against the Prime Minister prior to the Election, the way in which the campaign was heightened after the Election to leverage off weakening support for Abdullah Badawi caused by the disappointing shock results, the sudden resignation from UMNO and Mukhriz's breaking of ranks within Parliament are all part of the tactical play that is now unfolding. Dr M is playing to a gallery far bigger than merely UMNO. The nation watches, holding its breath, and he knows it. This has opened up another flank of the Prime Minister as he now not only has to ward of internal attacks but has to also to shore up the support of the wider nation, an important factor in his own push to retain his presidency of UMNO.

Some would say that this is masterful. Judging by the comments that have been left at Dr M's blog, he is even more firmly entrenched in the minds of some as the saviour of the nation.

And this is where I am thrown into confusion. What exactly is Dr M unhappy about, what it is that he would have had the Abdullah Badawi do differently? The obvious answer on the lips of those that oppose Abdullah Badawi is that he lost the Elections in part due to his weakness as a leader and in part due to alleged handing over of control to his family. Though Dr M seems to have his sights on something less obvious, something that pre-dates the Election, he is for the moment satisfied with the opportunity the election failure provides to rally support against Abdullah Badawi.

Let us assume for purposes of argument that both the obvious grounds are made out. They do not however in themselves explain why the support of the rakyat shifted in the way it did. They do not go to explaining nor justifying the fact that UMNO had become detached from reality, that UMNO big-wigs had become so arrogant and so drunk with power that they appear to have lost sight of the fact that they were there to serve the party and their constituencies, that race and religion had become so politicised that they threatened to divide the nation, that corruption had become endemic, that systems had either broken down or were close to it to a point where Malaysians no longer had institutions to turn to to solve their problems AND that many Malaysians of all races were suffering from a widening poverty gap, spiraling inflation and a total loss of hope.

And above all, these grounds do not go far in explaining away the very real fact that many, if not all, these and associated problems, had their roots in the Mahathir Administration. Abdullah Badawi inherited the efidice that Mahathir left him as well as a nation that was struggling against a cancer that Dr M had allowed it to be infected with.

That does not absolve Abdullah Badawi of any fault, he appears to have embraced the benefits of a skewed system with gusto and was equally willing to rely on repressive measures that Dr M himself has relied on as thousands of persons who were tear gassed or water cannoned and the HINDRAF 5 would testify to. As some would say, membership has its privileges. Abdullah Badawi however found out that no measure of spin-doctoring and empty rhetoric could hide the fact of his membership of this exclusive club of one.

It was as such only a matter of time before the rakyat got to their tipping points. It was apparent that when Malaysians could no longer hold their heads up high with dignity due to the overwhelming burden of a range of factors, from religion to personal security, economic or otherwise, they would turn away in search of alternatives. This was a road that Dr M had put them on.

I had thought that the only people who could not see this, it would seem, were the leaders within the Barisan Nasional. It would seem I was wrong, Dr M appears to have been, and still is, oblivious to it.

Dr M may wish to remind himself that Abdullah Badawi led the Barisan Nasional to a significant win in the 2004 Elections (I will refrain from calling it a landslide win until we can be assured that the Election was free and fair in all senses of the expression) and that he did so for one primary reason: he promised a substantial reform of the system that Dr M had left behind. Abdullah Badawi's failure this Election was caused by a failure to deliver on the promises he made. Put another way, he failed to overhaul Dr M's system the way he said he would.

Is Dr M saying that he should have? Or perhaps he is saying that he should never have even talked of reforms.


Of Judges And The Constitution

Of Judges And The Constitution

My last comment ‘Of Religion And Choice’, not unexpectedly, drew some adverse comments on my blog.

One in particular emphasized the need for scrutiny in this very serious matter of Muslims leaving their faith, a process that, according to my critic, only the Islamic courts could properly undertake. It is intrinsic to this viewpoint is a belief that Islam prohibits apostasy.

The difficulty that the Muslim community in general has with apostasy is not a recent nor a localized phenomenon, the rejection of the freedom to leave Islam having been vehemently denied in other parts of the world. This is notwithstanding there being a dichotomy of views on the subject within the Islamic community, the other view being that the prohibition against compulsion in religion extends even to Muslims.

What has made the Malaysian experience unique is that while Muslim society did not support renunciation, until the Supreme Court fashioned a need to procure a declaration of apostasy from a syariah court in its 1999 decision in Soon Singh, there were no legal impediments standing in the way of an individual’s right to express his or her choice to do so. I say ‘express’ because to date, there has been no suggestion by the courts that Muslims do not have the freedom of religion. In Lina Joy, the majority concluded that the freedom of religion applied equally to Muslims but that such freedom was to be exercised through the syariah courts in accordance with Islamic law and that a declaration of apostasy was a pre-requisite to the practice of another faith.

It is significant that the decision in Lina Joy, like the prior decisions in Soon Singh and Kamariah Ali, were cases concerning the jurisdiction of the syariah courts. This was notwithstanding lawyers for or in support of the claimants having argued their cases as being mounted on the freedom of religion.

It appears that the judges concerned took this tact as this allowed them to avoid confronting the very real fact that the Federal Constitution guarantees in Article 11 a freedom of religion for every ‘person’ without qualification. The judges, Muslims themselves, seemed to have been conflicted; giving weight to the rights under Article 11 would pave the way to apostasy, something that they perhaps could not condone.

However, short of declaring the guarantee as not being applicable to Muslims, something they could not do, the judges concerned were bound. Diverting focus to the question of the separate and exclusive jurisdictions of the civil and syariah courts was a convenient compromise. This allowed for lip service to be paid the freedom of religion and, in their minds, caused no harm as they were not shutting the door on renunciation. That this would however create a conflict of interest for the qadhis of the syariah courts and result in a plethora of further complications did not appear to have struck the judges of the Federal Court.

This approach was similarly adopted in those cases where one of the spouses to a civil marriage converted to Islam and where the religious status of deceased persons was in issue, creating more difficulties rather than providing resolution causing SUHAKAM in recent years to call upon the judges to be more courageous.

Courage and personal morality have no place in the application of law. Judges take an oath to uphold the Federal Constitution. In doing so, unless it is unconstitutional, judges commit to upholding the law as it is written no matter how much they disagree with it on principle. If a judge is expected to sentence a man to death even if he disagrees with the death penalty, then a judge must give effect to the freedoms entrenched in the Constitution no matter how much he might find them unacceptable for personal reasons.

In the period before 1999, the courts of this country did not appear to have great difficulty with this concept. Apostasy, divorces by reason of conversion into Islam and other now-controversial matters came before the courts and were dealt with in a fair and just manner in accordance with the law.

What happened, we might ask.

I cannot say for sure. I do however believe that the judges who sat in these cases in the period after do not appear to have appreciated the legal nuances of the issues before them or the need for a strict adherence to the Constitution. In a 1988 decision of the Supreme Court (Che Omar Che Soh), Tun Salleh Abbas noted that as attractive as the argument that Islamic law was the governing legal paradigm of the nation may be, unless and until the Constitution was amended, that was not the case. Judges of the Federal Court in more recent years have not been so strict in their approach, having allowed for a re-writing of the Constitution that has resulted in confusion and injustice.

We cannot deny the impact of the sacking of the judges in 1988 just as we cannot deny the slow and steady erosion of the effectiveness of the Bench as the old guard gradually retired throughout the mid 1990s. And sadly, we can no longer deny the impact of the now confirmed brokering of judicial appointments and promotions.

Did we have as a general rule the best and most suited persons on the bench this last decade or so? It appears that we did not.


Saturday, May 17, 2008

Sabah And Sarawak; Defining And Redefining

I chanced upon a brief history of the entry of Sabah and Sarawak into Malaysia, Zainon Ahmad for The Sun (24.07.2007) reproduced here. It points to the uneasiness in and around the entry of Sabah and Sarawak into Malaysia and points to root concerns that have prevailed ever since.

Read with a more recent analysis of Sabah and Sarawak post GE2008 written by Anthea Mulakala for the Asia Foundation (see here), the two articles set out an interesting perspective to the discontent that that now threatens to redefine federal government.


Thursday, May 15, 2008

Of Religion And Choice

Of Religion And Choice

It may be wise to pause for breath before rushing out to celebrate the decision of the Penang syariah court in the Siti Fatimah case. Though welcome, not least for the fact that it allows Siti Fatimah to carry on with her life, we must ask ourselves whether it really sets the required precedent that the issue of apostasy requires.

I do not think it does.

The first difficulty I have with the decision is its basis in law. The syariah court has jurisdiction only over persons professing the religion of Islam. Siti Fatimah claimed, and still claims, that she was not such a person and that she converted only for the purpose of marriage. Let us say for purposes of argument that at the time of her conversion, and in the period she wished to remain married, she was for all purposes a Muslim. It is apparent that at some point prior to her petitioning the syariah court, she ceased being one and was, as such, no longer a person professing the religion of Islam.

How then did the court assume jurisdiction?

This brings me to the second difficulty. There are two distinct polar views concerning the issue of renunciation. At one end, there is what I call the pro-choice view that allows every person, without qualification, a freedom to determine of their own right their choice of religion. The Federal Constitution guarantees this choice in Article 11 which vests the freedom in ‘every person’. At the other extreme, there is the view that the choice of leaving Islam is one that can only be exercised through, and as such by, the syariah court. I call this the pro-regulation view.

It is apparent that the pro-regulation view renders illusory the right to choice of religion. For persons who happen in law (as opposed to ‘in fact’) to be a Muslim, the decision of which religion to profess is no longer theirs. If they wished to leave Islam they would have to go on bended knee to the syariah court, uncertain that the syariah court would ultimately agree with their petition. In the legal fiction perpetuated by those who espouse the pro-regulation view, a group that includes those judges of the Federal Court who formed the majority in Lina Joy, a person is a Muslim until such time as that person is declared a non-Muslim. It does not matter that the person may not in fact profess Islam any longer. Though an incredible perspective, it has nonetheless informed constitutional jurisprudence as of late and entrenched a mind-set that has resulted in grave injustice to persons unfortunate enough to have had to confront the issue.

It is on this precarious premise that the syariah court of Penang assumed jurisdiction over a person it ultimately declared as being not a Muslim. Our celebrating of the decision would as such be a celebration of a wrongful seizing of jurisdiction and wielding of power by a court not empowered to do so in law. It would also be, where Muslims are concerned, a commending of the vesting of the right to choose in a third party agency, leaving in tatters the fundamental liberty so painstakingly provided for in the Constitution.

Regardless of the convenience of the Siti Fatimah decision, it cannot be a good thing. Media reports suggest that the Penang syariah court was swayed by Siti Fatimah not having been given proper advice about Islam by her former husband and the Islamic authorities. This means that the court could take a different view of those who were born into the faith, such as Lina Joy, or those who made a decision to embrace Islam after due consideration. The court would after all be at liberty to do so if it were vested with a discretion.

I am concerned that the decision may distract from meaningful and coherent efforts aimed at ensuring a just and constitutional solution to the issue of apostasy. We should not lose sight of the fact that before a grossly misconceived decision of the Supreme Court handed down in 1999 (Soon Singh), Muslims were not required to obtain an exit-order from the syariah courts. They left the faith, declaring the fact by deed poll and carried on with their lives in relative privacy. The public face of Islam was left unscarred and the religion was not made a victim in a way that it has been of late.

(Malay Mail; 13th May 2008)

Wednesday, May 14, 2008

Karpal Singh: 'Disaffection' Not An UMNO State Of Mind

Accusations of sedition are being hurled around as if it is going out of fashion.

I think the offence of sedition in itself ridiculous. It is a vestige of colonialism that was aimed at only one thing: silencing of free expression to protect vested interest. I have decried recourse to the Sedition Act and have consistently advised against filing police reports for sedition. It does not matter who says what, be they from the Barisan Nasional, its component parties or those that make up the Pakatan Rakyat; if statements are found to be offensive, there is ample room in the public space to take it up there without having to criminalise expression. God knows, there are more important things for the police to be focusing on.

The case of Mr Karpal Singh illustrates this. Rightly or wrongly, he expressed a view concerning the position taken by His Royal Highness the Sultan of Perak. His view concerned the validity of the legal position taken by the Sultan. If Mr Karpal Singh is right, then the Sultan, respectfully, erred in issuing a show cause to the Menteri Besar of Perak in the way that was done. If Mr Karpal Singh was wrong, then the Sultan was correct.

Where is the sedition in this? I cannot see it. If there are those who disagree with his view, let them state their position and then let all involved agree to disagree.

It is not sedition to voice an opinion. It is only where the opinion is stated in a way that gives rise to a ‘seditious tendency’ within the meaning of the Sedition Act that the opinion could be arguably characterised as being seditious. The Sedition Act sets out six heads of a seditious tendency as follows:
  1. to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;
  2. to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established;
  3. to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;
  4. to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State;
  5. to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or
  6. to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.
Looking at the facts of the scenario at hand, it would appear that those who accuse Mr Karpal Singh of sedition take refuge in limbs (1) or (4). Mr Karpal Singh has clarified that he did not seek to question the prerogative of the Sultan, such as it was, and contends that in his view the Sultan was not exercising prerogative in the circumstances.

It is significant that at the heart of both limbs (1) and (4) is a requirement of, at the very least, discontent or disaffection. To establish this is no easy task. It is not enough to merely point to the words giving rise to a tendency towards, putting it simply, dissatisfaction. It is necessary to establish that the potential dissatisfaction would be directed at the institution of the Sultan and would be of such a widespread nature that the institution itself would be in danger.

As was observed by the High Court (PP v Param Coomarswamy, 1986):

"Disaffection" means disloyalty, enemity and hostility against Authority. In the same way, "discontent" means dissatisfaction against Authority. Therefore, "to raise discontent or disaffection" among the people means to create discontent or disaffection among the people against Authority. Consequently, the assertion of a grievance or complaint which tends to create discontent must be directed at Authority for it to be seditious.

Looking on at the enthusiastic show-boating by certain UMNO quarters, I am hard pressed to conclude that such expressions as we have heard would amount to a dissatisfaction, let alone such a level of dissatisfaction.

Quite aside from that, it is significant that thus far no one, including the Attorney General, has pointed to section 3(2)(a), Sedition Act which plainly provides: act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency to show that any Ruler has been misled or mistaken in any of his measures;

Is that not what Mr Karpal Singh was attempting to do? An inference to the contrary is something which, try as I might, I cannot draw from the circumstances.

UMNO must realize the glass house it is in. Judged by the criteria forming the basis of its position on the issue of Mr Karpal Singh having committed sedition, much of what was said in and around the appointments of the Menteri Besars of Perlis and Trengganu could similarly be said to be seditious. But then, I wonder whether this even matters. The political expediency of the very public and highly sensationalised accusations appears to outweigh all other considerations.


Tuesday, May 13, 2008


In my post 'The Politics Of Compromise' I questioned the levels of the Barisan government's commitment to judicial reform. The New Straits Times ran a report yesterday (Najib: Lingam report decision still pending) which included a reference to Mukhriz Mahathir (who's views I will take as representing some quarters in UMNO) as follows:

"On judicial reforms which Abdullah proposed in April, Mukhriz said: "Reforms are good but I also need to be convinced that the judicial reforms will make us win the next election, because I don't see how reforms will bring back confidence to Barisan Nasional."

"If we don't solve issues like rising oil and consumer goods prices, I don't think we'll win the elections."


Saturday, May 10, 2008

'Disquiet' On Paper

The editors of the new Malay Mail had very kindly asked me to write a weekly column in the new Malay Mail. I got the assurances I needed from the editors and am now writing 'Disquiet' for the Malay Mail every Tuesday. My arrangement with the newspaper allows me to post my article on this blog two days after the print version appears. My first article appeared on Tuesday, 6th May. Here it is.

(My article for next Tuesday is on the decision of the Penang Syariah Court on the apostasy application of Siti Fatimah)

The Fortress

March 8th brought with it a new landscape, one that to many, across the divides, offered a promise that had long been abandoned. Some dared venture a little further into a hope of a new beginning, tentatively at first but then with more conviction as they realized the full effect of what had transpired.

I was asked soon after how I saw things. I said that I thought that it was a good result, one that would show the politicians that Malaysians now took democracy more seriously, that we valued our freedoms that much more and were prepared to defend it. My inquisitor, who as it turned out shared my view, asked where I would start if I could rebuild things.

I gave it a thought and while it was tempting to point to a greater freedom of expression and assembly or even of religion or liberty, there were more fundamental problems that had to be tackled as a matter of priority.

One of the first insights gained when learning about human rights is how much of a cornerstone freedom from discrimination is. The right to equal treatment, regardless of race or religion or gender or any other factor, informs every aspect of the human condition. It is the right to be treated as equals that allows us to stand up and hold our heads up high, regardless of where we have come from, that protects our personal dignity. It gives meaning to a simple truth; that each of us wants to be able to live our lives to the fullest and achieve our dreams in a way that only each of us can.

No one has the right to tell us who we are, or to tell us how we should live our lives. No one has the right to tell us that we cannot reach for the stars. No one.

The right to equality, to equal protection, is a cornerstone of the constitutional framework of this nation. It is cast in stone, even though it was unnecessary to do so for it being so self-evident. Merdeka brought us together as one, the collective beating of our hearts setting the rhythm by which we would stride into the future.

And yet, it would seem that even the most sacred of truths are not spared when they stand in the way of ambition. Fifty plus years into our history and Malaysia does not have a culture of non-discrimination. Race politics, greed and the lust for power have trampled into near obscurity our path to the single thread that binds us all together, the freedom to be Malaysian.

It is so wrong when we separate our children into Malays, Indians, Chinese and Others. It is so wrong when we tell our young that they should be wary of their friends just because they are different. It is so wrong that some of us feel ourselves entitled to a better life at the expense of others. It is so wrong that we have been made to fear others, not for what it is they intend to do to us, but for what is we are told they will do.

And it is so wrong that the nation, and the futures of all that call it home, are held to ransom by a political vision whose driving purpose is to protect vested interests. For those who find divisions along racial and religious lines useful, a multi-racial Malaysia in which the energy and vision of all Malaysian are harnessed to a common and beneficial end, is threatening. It is in their interests to make it equally threatening for others.

The declining standards in the public service, from education to health care to the administration of justice, all stem from this sad state of affairs. In the fortress that has been built around the Malay community, it is trapped in a vicious cycle that prevents it from seeing the obvious and doing what is necessary. In the push to protect the Malays from perceived threats and enemies, Malays and non-Malays have suffered. The pain that has been caused is immeasurable, the extent of the injury unmapped.

What would I do, where would I start? I would start here.


Thursday, May 8, 2008

The Methodology Of Fear

This evening, Haris Ibrahim was taken away from Dataran Merdeka by the police. He was there to participate in the candle-light vigil for Raja Petra.

He has since been released, apparently without any intention on the part of the police to take the matter any further. I spoke to him a short while ago and he was his usual jocular self, musing whether he could say that he had faced an arrest when it appeared instead that he had been harassed.

In the period between when I was first told by Tony Yew of Haris being taken away to the point where I managed to speak to him and find out firsthand what is that had occurred and what would, or would not, be happening, a range of thoughts crossed my mind. Being Malaysian and having lived in this country for the better part of my life, these thoughts, not unusually, largely centered on the possibility of his being prosecuted for, perhaps, sedition or, worse still, a detention under the ISA.

Later, after I was informed that he had been released, I went back to my reactions during that period. And I got angry.

At the fact that thoughts like that are the norm in this society. At the fact that the administration had nurtured an environment that keeps us in a constant state of tension and anxiety, so much so that many of us do not even register these feelings any more. At the fact that the administration felt that it had the right to do so.

Why is it that those of us who believe in a better Malaysia should live our lives in the expectation of reprisal. I am not alone in this. After I was told about Haris’ arrest (a flu had kept me home), I called around and, unsurprisingly, everyone I spoke to had the same reaction. The same questions came to mind. Sedition? ISA? Was he going to be ok? And they came to mind because Haris speaks out, regularly and loudly.

Paranoia? Perhaps a little, but then, that’s part of the wider strategy, an element in the methodology of fear by which those in authority keep the rest of us in check. Remember that the next time the Home Minister asserts the continued need for the ISA, remember that he is defending a means of fear-mongering as lethal as it is a means of suppression.

And remember that the only interests that require protection through suppression and fear are vested interests.


Wednesday, May 7, 2008

Free Raja Petra

"I am happy. We bloggers have declared war on the government. We are not scared of the government. The government should be scared of us".

Raja Petra

As I stepped out of my home on the morning of the 9th of March, it felt like I had been holding my breath for a lifetime and there I was, suddenly, drawing breath. Perhaps it was the adrenaline, still surging through my veins, the few hours of sleep unable to extinguish the exultation of victory.

And it had been a victory.

It was not just about the fact that the Barisan had been given the trouncing it rightfully deserved. It was also, perhaps more importantly so, about the many personal stories, the sacrifices, of those who had helped change the course of destiny in their own ways, big and small.

We had been involved in a war without even knowing it. Two wars. The first, a war on democracy waged by those who saw only the value of their own empire, to whom the language of democracy was merely a useful means by which to distract from the glint of the weapons as they came hurtling down at us. The arbitrary detentions, the brutality, the perversion of justice, the muzzling of free expression and the subversion of the institutions of state kept us in a constant state of shock that left us blind to all that was being taken from us.

There were visionaries however, those who were our compass stars. They showed us, in their own ways, the true north. They showed us that for us to reclaim democracy, we had to go to war for it. They showed us the way into that war, that second war, the war for democracy.

I saw it as thousands marched for free and fair elections. I saw it as thousands marched against marginalisation. I saw it as thousands marched for justice. I saw it as people stood up in defiance, stood up to be counted. I saw it as people said “No More!”.

And I saw it in the campaigns of truth that spread across the blogs.

Raja Petra, like Haris Ibrahim, and many others, were, are, visionaries who have continued to show us the way through courage and tenacity. These patriots, standing up in defence of their motherland, are the mirrors in which we see ourselves and all that we stand for, all that we should be.

March 8th was a decisive victory for all of us. But it was not the only one that we need. We may have won the battle, but it is the war we want to win. Let the deeds of those who have paved the way with their sacrifice become the standards under which we march. For this time, we march to win. This time, we march for Malaysia.