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Sunday, June 29, 2008

A Trial Of Democracy

Anwar, Round 2 has commenced.

Media reports inform us that a police report has been lodged by an aide. The complaint appears to be that he was sodomised by Anwar Ibrahim on Thursday. No particulars of the alleged event have been made public. The complainant was to be given a medical examination and, at the time of writing, it is not certain whether this has been done.

Anwar has issued a statement. He says that the police report is a fabrication (meaning, I think, that the events described in the report). Fully expecting to be arrested, and anticipating the worst, he believes that the same methods employed against him in 1998 are being resorted to again. He claims to have recently obtained evidence implicating the Inspector General of Police and the Attorney General in “misconduct including the fabrication of evidence in the cases launched against me in 1998-1999.”

Ominously, he further says that PKR expects “the media, the judiciary and the police force to all come under the direct and unchecked control of the executive.”


Let’s start with the obvious. If a crime has been committed and a report lodged, then the crime needs to be investigated. Sodomy is a crime (I have my reservations about whether it is constitutional for it to be so if it is a consensual act between adults) and a police report has apparently been lodged. The complaint should be investigated. Even if it is against Anwar Ibrahim and even if it pertains to sodomy, which it does.

It is however incumbent on those in charge of the investigation that the investigation be conducted fairly and comprehensively. This means that the police cannot rely merely on the say-so of the complainant. Even if he was sodomised, which at this stage has not been confirmed, this does not mean that he was sodomised by Anwar Ibrahim. If he was not sodomised, the investigation on the complaint should be brought to an end.

I am curious. How did this alleged act of sodomy occur? Was the complainant held down by Anwar Ibrahim, or perhaps accomplices? What it done with the complainant’s consent, perhaps even at his suggestion? Perhaps he was drugged or beaten unconscious to facilitate the process?

These are questions that the police must ask in attempting to fully understand what it is that occurred, if anything occurred at all. This is more the case in view of the key elements of the sodomy investigation and prosecution in Anwar, Round 1, in particular the alleged confessions of Sukma Dharmawan and Munawer Anees which both claimed had been extracted by coercion. Similarly, the omni-present mattress and the almost magic DNA samples ought not be overlooked. This is underscored by Anwar Ibrahim’s insistence that his prosecution was politically motivated and had, for that purpose, been pre-judged.

The need for transparency and accountability is made even more crucial by the allegation by Anwar Ibrahim that he has evidence in hand implicating the Inspector General of Police and the Attorney General. The IGP figured in Anwar Round 1 (he was then SAC Musa Hassan).

In the same vein, the decision to prosecute Anwar Ibrahim, if at all, must be made only after having taken into consideration all circumstances. The reality is that the Attorney General was 2nd chair to the then Attorney General in Anwar, Round 1. Questions were raised about the manner in which he conducted himself, questions which the Federal Court in the Zainur Zakaria appeal suggested that he may have wished to address. The AG has not done so to date.

The situation is such that both the IGP and the AG may wish to take steps to distance themselves from the investigation and prosecution, if any.


And in the meanwhile, the fact that Morgan Stanley has indicated that some RM330 billion has been dissipated from Malaysian through corruption falls even lower on the list of priorities (if it was on the list at all).

One would not be faulted for thinking that the prosecution of those responsible and the recovery of as much of the money as possible is a matter of national importance and of public interest. The government may wish to remind themselves of the extent to which the Government of Hong Kong went to prosecute Warwick Reid, the former Director of the Commercial Crime Unit. He was convicted and the monies he corruptly received traced world-wide.

Somehow, the sexual proclivities of an individual, whether real or fantasized, do not seem to matter when the country is facing a financial crisis largely due to fat cats having looted and pillaged their way through national resources, seemingly at will.

But then, Malaysia Boleh.


And does it matter that since Anwar, Round 1 a Royal Commission of Enquiry has handed down a report in which the Commission has, in effect, concluded that the relationship between the Executive and the Judiciary was, and by logical extension, still is unhealthily close?

If there is going to be a prosecution, it will be conducted in a Sessions Court. Subordinate court judges are members of the Judicial and Legal Services. They fall within the jurisdiction of the Judicial and Legal Appointments Commission of which the Attorney General is a member. The Attorney General also considers matters of promotions and transfers. He is, in effect, their superior.


Malaysians are fond of a good gossip session. Conspiracy theories rank way up there on the list of things that must be talked about, the first chance one gets to talk about something.

Can you blame us? Nothing seems to work the way it is supposed to, intrigues have become as normal as breathing.

I wonder whether there are any Malaysians at all who actually believe that everything is as it should be. The cabinet and the Barisan Nasional excluded (though a state of denial may be a reasonable excuse).


Anwar says he expects the worst. His caution suggests the use of Emergency powers. There is nothing new there, the Government is still using some Emergency legislation. The declarations from previous emergencies have not been revoked and the Federal Court (the Al-Maunah case) has held that they are still valid.

And, even if there were no declarations of emergency, would the Government need to take any further steps to ensure that things went the way it wished? Organs of state and federal agencies act in a manner that strongly suggests a belief on their part that the national interest is the government’s interest and for that purpose, political interests shape the government’s interests.

Though the office of the Attorney General is an office created by the Federal Constitution, the Attorney General is nothing more than a civil servant, holding office “during the pleasure of the Yang di-Pertuan Agong” (a standard formula used to describe the holder of office as NOT having security of tenure). The YDPA being a figurehead, the office is held at the discretion of the Prime Minister who advises the YDPA as to the appointment of Attorneys General.

Significantly, prior to 1963 (when the Constitution was amended), the Attorney General was to “hold office until he attains the age of sixty-five years or such later time, not later than six months after he attains the age, as the Yang di-Pertuan Agong may approve.” He could be removed only by a tribunal similar to that to be established for the removal of a judge and only on similar grounds.

Similarly, as we have come to see, the Inspector General of Police depends on the largess of the Prime Minister. This is the reality of the framework in which the persons holding these offices operate in.

It is a framework that places them in the conflict of interest that arises between self-preservation and the duty to act as the Federal Constitution requires when the Government chooses to allow political objectives to trump national interest objectives. It is a conflict that I believe is ultimately resolved by acting on the basis of “saya yang menurut perintah”.


I was told by some senior politicians that there is nothing more effective than a good, juicy scandal to undermine the political strength of a Malay politician who depends on the support of the Malay grass-roots.

If true, it is the basis for a strong argument against racial politics. A politician is a politician be he/she Malay, Chinese, Indian, Punjabi, Eurasian, Dayak etc.etc.etc.

Whether he/she is a useful politician depends only on his/her commitment to righteousness.


Do we panic?

I think not. Under no circumstances. It will not get us anywhere and, conversely, will take us down a road that may lead us exactly where schemers, if there are any, would want us to.

Destabilized, confused. Weak.

We began building a solid foundation for the democracy we want for our young on March 8th. That was a journey we embarked upon for ourselves, our nation, our future.

It was not about Anwar Ibrahim.


That does not mean that we do not support the cause of justice. He is entitled to the full protection of the law. He is entitled to a fair and comprehensive investigation, if one is required at all. He is entitled to a fair prosecution and, above all, he is entitled to a fair trial, if there is one.

In all of all that and more, he deserves our full support. But, fearing the worst, are we going to stop what we started if Anwar Ibrahim is taken down?

I think not.

If Anwar, Round 2 has been brought on for political purpose, then let us show those who are pulling the strings, that race politics do not matter to us anymore.

Let them hear us, loud and clear: We are Malaysians, and only justice matters.


Tuesday, June 24, 2008

A Game Of High Stakes Poker?

Whether the unprecedented SAPP motion of no confidence is going to be tabled for debate appears to have been edged out as the question of the hour by whether there is any substance in Raja Petra’s incendiary Statutory Declaration on the killing of Altantuya that hit the Internet late last week.

The Statutory Declaration, a sworn statement under law which makes a false statement a criminal offence, alleges amongst other things that Raja Petra was reliably informed that a very prominent VVIP together with two other persons were at the scene of the crime, the former witnessing the placing of explosives by one of the two others. He further alleges that the Prime Minister received a written report of the matter from Military Intelligence.

Needless to say, there is some measure of incredulity on the part of some who suggest that Raja Petra of ‘Malaysia-Today’ fame has a tendency towards sensationalism. They question the manner in which the information was made public and the fact that Raja Petra did not lodge a police report. Others have been less quick to brush aside the matter, more confident of Raja Petra having a foundation for the Declaration. A very public figure whose advocacy in the run up to the last General Election is credited by many as one the swing factors, he is already facing a sedition charge for an Internet publication on the Altantuya trial. And all things said and done, a statutory declaration is a very different thing from commentary on Malaysia Today.

Is Raja Petra playing a game of high-stakes poker? That is the million-dollar question and there is no apparent answer.

In the Declaration, Raja Petra states that its purpose is to allow the police to conduct a proper and thorough investigation to allow the truth to emerge. The persons he has identified have not been implicated nor called as witnesses in the on-going murder trial. They have as yet to issue any public denials, seemingly choosing to remain silent. Surprisingly, the Prime Minister has chosen to do so as well, one would think circumstance compel him at the very least to take a public stand on whether Military Intelligence did give him a report.

If founded, the apparent lack of investigation into the matters raise doubts as to not only the culpability of the accused but of whether they have been accorded their full “due-process” rights in law. They also equally point to the possibility of those actually or equally responsible having been let off free. These bring into question the effectiveness and integrity of the criminal justice system and further erode the already seriously undermined administration of justice. The Declaration is as such a matter of great public importance.

Whatever the case, it is imperative that the Government must take appropriate steps to not only look into the matter fairly and thoroughly, but also be seen to be doing so in a transparent manner.

The machinery for an investigation seems to have been fired up. However, in light of a media report that the Attorney General’s Chambers has lodged a police report against Raja Petra, apparently for criminal defamation, I am concerned that the focus of the exercise will be Raja Petra rather than the substance of his allegations in a manner reminiscent of the Irene Fernandez affair. In Fernandez’s case, a defamation report was lodged against her after she made public shocking revelations about goings-ons at the Semenyih detention facility, then under the control of the Royal Malaysia Police. This resulted in Fernandez being prosecuted and ultimately convicted. Significantly, investigations into the events at Semenyih were incidental to the only formal investigations that took place, the investigation for criminal defamation.

I have grave reservations about the Attorney General’s Chambers having lodged the police report. It is more usually the person aggrieved, especially where defamation is concerned, that lodges the report. In this case, it should have been the persons identified in the Statutory Declaration, if at all. Furthermore, the Attorney General is the legal advisor to the Government and serves its interests and not those of individuals, notwithstanding their having a connection with Government.

It is also mystifying how the Attorney General could have formed the view that the Declaration was defamatory before apparently even looking into the allegations, more so in light of the Inspector General of Police declaring that the police would be calling up the three individuals named in the Declaration. One would have thought that the Attorney General would have considered the matter as whole first before directing the lodging of the police report. This and the fact of the Attorney General’s Chambers not having lodged a parallel report as to the fact of the allegations are suggestive of a presupposition that the declaration is false.

If so, this may impede the objective enquiry called for by the situation. This would be wrong.

After March 8th this year, the Prime Minister in effect said that the Government had to listen to the rakyat more. The rakyat has demanded accountability and transparency. The murkiness surrounding the killing of Altantuya has long been and continues to be the subject of public discussion in part due to her father’s tireless campaign for nothing more than the bringing to book of the killers of his daughter. The fact of his having to do so is an indictment against this nation.

Let the truth emerge. One way or the other, let it out.

(Malay Mail; 24th June 2008)


Update: The PM and DPM have since denied the truth of the Statutory Declaration

Friday, June 20, 2008

Will The Speaker Uphold The Constitution?

It is not insignificant that some have resorted to so-called parliamentary procedure to impede the debate of the SAPP no-confidence motion. It is as clear a sign as any that those who cite standing orders, and those whose interests they serve, would rather not have the motion debated at all. If our experience with the previous Speaker of Parliament is anything to go by, it is possible to make motions disappear in Parliament. All that is needed is a unilateral declaration of irrelevance or a lack of urgency or, as is now suggested, that procedure must be followed.

It is apparent that if attempts are made by SAPP members of parliament to have the motion debated on Monday, the Speaker will be called upon to adjourn the debate of the Motion on the basis that standing orders have not been complied with. Lim Kit Siang has suggested that as there are no specific standing orders on a no-confidence motion, such a motion would be treated as an ordinary motion under Standing Order 27. This requires fourteen days notice and is subject to the Speaker’s discretion. Order 18 which provides for urgent debates on matters of public interest requires forty-eight hours notice and, according to Minister Nazri Aziz, does not allow for a vote.

I am not certain that this is the best or correct way to approach the issue.

The Federal Constitution provides that the Houses of Parliament regulate their own procedure (Article 62). The Speaker is the chief officer of the legislative body, in this case the Dewan Rakyat. He presides at its sittings, exercising authority and power that are in actuality the powers of the Dewan Rakyat which the Dewan Rakyat is taken as having committed to the Speaker for practical purpose. This is the source of the Speaker’s discretion, a state of affairs reinforced by the constitutional provision providing for the election of the Speaker (Article 57).

As in any Westminster system, control over Executive action is a crucial function of parliament. This arises from the Executive being responsible to parliament, the Prime Minister and his cabinet being members of either the Dewan Rakyat or the Senate. Parliament as such supervises administration and influences governmental policies. In this scheme of things, the Prime Minister undoubtedly plays a vital role. As the renowned constitutional law jurist, M P Jain, observes:

“He keeps the fabric of parliamentary form of government in working order. The entire constitutional machinery would appear to revolve around his personality. He has thus been described as ‘the keystone of the Cabinet arch,’ who is central to its formation, central to its life, and central to its death.”

It is for this reason that upon a new Dewan Rakyat being constituted after a general election, the appointment of the Prime Minister is a matter of great urgency. The Prime Minister is by convention the leader of the political party or coalition that forms the majority of the Dewan Rakyat though this is strictly not necessary. The Federal Constitution stipulates that it is the member of the Dewan Rakyat that in his judgment is likely to command the confidence of the majority of the members of the Dewan that is to be appointed as the Prime Minister (Article 43(2)). As we have recently seen in Perlis and Trengganu, this may not necessarily be a matter of having a sufficient number of members of parliament supporting the appointment.

It is equally significant that the Federal Constitution expressly provides (Article 43(4) that:

“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.”

I say significant for two reasons. Firstly, the matter of the Prime Minister no longer commanding the confidence of the majority is in many other jurisdictions a matter of constitutional convention. In the Malaysian context, it is a specific constitutional provision thus underscoring the need for continued confidence in the Prime Minister. Secondly, the inclusion of the provision is reflective of an intention on the part of the founders of the Constitution that confidence in the Prime Minister be understood as a threshold requirement, or a prerequisite, to the functioning of government.

This has great impact on the question of what it is the Speaker should do on Monday. The constitutional framework gives the Speaker no choice but to treat the no-confidence motion as a matter of crucial significance. The motion in effect puts into question the validity of the Prime Minister’s continued functioning as the Prime Minister. In the order of things, this is an issue the importance of which transcends all other issues. How could the Dewan Rakyat debate any other matter, be it fuel subsidies or the price of chicken, when the functioning of the Prime Minister, and indirectly the Cabinet, has been called into question. It is after all not just his resignation he tenders if the majority ceases to have command confidence in him, it is the resignation of the Cabinet.

For this self-evident reason, the no-confidence motion cannot be characterized as an ‘ordinary motion’ or even a special or urgent motion on a matter of public interest. It is an extraordinary motion that that stands on independent footing. Does it matter that no standing order has been issue in respect of such motions? I think not. Its character and nature makes redundant the need for special procedure, demanding immediate attention. The Federal Constitution demands it.

There is however a question as to whether the Speaker should take into consideration the fact that only two SAPP members appear to support the motion. No other members of parliament have as yet formally expressed their support of the same. It could therefore be said that as things stand, the motion can not carry in view of the negligible support it receives. This is a matter that those who wish to support the motion and its urgent debate must take into consideration. A procedural mindset lends itself to the upholding of all formalities.


Thursday, June 19, 2008

The Calm Before The Storm

The Calm Before The Storm

It seems like the chess game Anwar Ibrahim is playing with the nation, or is it poker, is reaching end-game. His apparent revelation of MCA members of parliament imminently crossing the floor has upped the ante and possibly set the stage. What this means for us all is the subject of much debate. Some are uncertain about whether a change of government at this stage is a good thing while others are uncertain as to whether UMNO will allow for a change and the lengths it will go to stop it.

There are whispers of it being possible that the incumbents might resort to triggering Emergency powers, and the suspension of the rule of law that entails, to defeat the possibility of the Pakatan Rakyat taking over government. There are concerns that the Internal Security Act might be invoked, detentions of key figures would greatly assist in undermining efforts to that end.

In all of this, civil unrest in whatever form, from peaceable demonstrations that turn unruly or even violent to endemic and seeming unstoppable violent crimes, could become the convenient excuse for the taking of measures.

It seems like a radical step but then Malaysians are no strangers to extreme strategic plays in aid of power grabbing or simply staying in power. Though we have been virtually desensitized through over-exposure to the socio-political significance of the mass ISA detentions under Operasi Lalang in 1987 and the sacking of Tun Salleh Abas in 1988, these events remain significant not merely for their historical value. In providing an insight into the range of Dr Mahathir’s tactical playbook, they also shed light on the manner in which senior UMNO personalities might approach challenges in the present day.

Dr Mahathir’s impact on the evolution of UMNO cannot be downplayed, more so for the iron grip he had on the party. He was indisputably UMNO during his tenure and it is more probable than not that we will continue to see glimmers of his trademark style of crisis management in the time it will take for UMNO to be free from his influence. The continued detention of the HINDRAF 5 despite the manifest lack of any credible factual basis is just one example. The sacrificing of the lives of those detained and their families to secure a perceived political benefit is classic Dr Mahathir.

That being said, we also have to recognize that much has changed since the former premier’s hey day. In particular, while previous crises within UMNO took place in a context that was politically secure for the party and the Barisan Nasional, the opposition posed no threat. That is however not the case any longer in the same way that UMNO and the Barisan can no longer take for granted the support of a significant portion of the electorate. Consequently, those within UMNO who aspire to greater heights must divide their attention between the not easily reconciled aims of regaining the confidence of rakyat and successful internal politicking. Waging war against the nation, either through Emergency rule or repressive measures is certainly not going to endear UMNO any further in as much as it may win some support within the party.

Whatever the case, Malaysians must see that they are now pawns in a political game being played by both sides of the divide. This does not mean that we should take things lying down. For though we may have little say in whether Pakatan does attempt to take government or whether the Barisan adopts a reactionary stance, we do have the right and the means to make our displeasure known. More significantly, we have the ability to defeat the machinations of any party who acts adversely to our interests as long as we remain united and remain focused on what it is we all need as a nation.

Circumstances make the need for a calm response from the rakyat even more pressing. The drastic fuel price hikes and resultant unhappiness amongst the rakyat have presented a useful political opportunity to both the Pakatan ad the Barisan, albeit in different ways. Demonstrations and mass assemblies are being planned by a civil society more awake to the power of such events. These events are convenient staging grounds for political campaigns, a state of affairs that the Pakatan has been quick to take advantage of and which creates a potentially explosive tension that could be manipulated by those who wish to.

This does not mean we should compromise. If anything, we must strengthen our resolve to stand by principle. It is however vital that we remain vigilant and anticipate the possibility of such manipulation. It does not take much instigation to transform peaceable assemblies into the kind of public disturbances or even civil unrest that will justify intervention in one form or the other.

(Malay Mail; 17th June 2008)

Wednesday, June 18, 2008

Of Justice And The Rule Of Law

Justice Dato’ Hishamudin Mohd Yunus of the Kuala Lumpur High Court today once again displayed the sterling qualities that distinguish him as a judge. In delivering his judgment in the case of Raja Segaran v The Malaysian Bar, he unrelentingly lived up to his reputation as a judge of courage and integrity.

In 2000, the fact of the now notorious trip to New Zealand of Tun Eusoff Chin, the then Chief Justice, and V K Lingam became know to the Bar Council as a result of evidence having come to light in a defamation case involving the Asian Wall Street Journal. The clear implication of the evidence, if credible, was that the Chief Justice had been more closely associated with V K Lingam than had been thought and that this relationship may have been exploited to an improper end.

Quite understandably, the Bar Council reacted and moved to urgently convene an Extraordinary General Meeting of the Bar to consider what it is that had to be done. It was of great concern that the matter be dealt with urgently and transparently to avoid any undermining of the institution of the Judiciary and the administration of justice. The Bar Council quite correctly considered itself and the Bar under a legal duty to take appropriate steps but, again quite correctly, thought it best to leave the decision of what to do to the full membership of the Bar. It should be said that based on proposed resolutions which had intended to be moved at the proposed EGM, the Bar Council aimed to secure a resolution of the Bar calling for a Royal Commission of Enquiry.

A lawyer named Raja Segaran took issue with the proposed course of action and demanded that the Bar Council desist from proceeding with the EGM. His complaint was primarily that the proposed meeting would be contemptuous of the Judiciary and seditious, and was in any event a course of action that Bar did not have legal power for. The Bar Council refused to accede to Raja Segaran’s demands as a consequence of which Raja Segaran filed an unprecedented legal action against the Bar, the Bar Council and its then President. This was Raja Segaran 1.

Leaving aside the question of law as to whether Raja Segaran had the standing in law to file the legal action in the first place, the primary issues went to the freedom of association, and the incidental right to self-regulate, and the freedom of expression of the Bar and its members. One would have thought that the matter was open and shut: the Bar undoubtedly had the requisite power to proceed with a discussion of the matter with a view to making the necessary recommendations in law.

The High Court did not share this view. It granted an injunction against the Bar. The Court of Appeal affirmed this order on the incredible premise that the conduct of judges could only be discussed in parliament. Tun Ahmad Fairuz, then judge of the Court of Appeal, delivered the judgment of the Court of Appeal. The Federal Court declined leave to appeal on the basis that the application for leave to appeal “had no merit” notwithstanding the self-evident matters of constitutional significance.

During this time, Tun Eusoff Chin was the Chief Justice.

The matter went to trial. Significantly, despite the trial having been closed and the matter reserved for judgment, Raja Segaran then applied for leave to discontinue the action. The High Court allowed the discontinuance. The Court of Appeal took a different view and directed the High Court judge to deliver his judgment. This took some time but when judgment was delivered, the Bar lost. In the period from the close of trial to the delivery of the judgment, Tun Eusoff Chin retired, Tun Dzaiddin became the Chief Justice and retired, and Tun Ahmad Fairuz became the Chief Justice. It was during his tenure that the Court of Appeal affirmed the trial judgment. Whether this had any bearing on the way things played remains a matter of speculation though the revelations during the Lingam Commission proceedings and the recommendations of the Commission are suggestive. Whatever the case, the line of reasoning adopted by the Court of Appeal leaves much to be desired.

For a while it seemed that the story would end that way, with the Judiciary having seemingly insulated itself from criticism and reproach. The Bar could do so only at the risk of being found in contempt or guilty of sedition. There was a second part though, one which Justice Hishamudin’s judgment brought to a close yesterday with his judgment.

Shortly after Raja Segaran 1 was commenced, the then de facto Law Minister Datuk Seri Utama Dr Rais Yatim gave an interview to the Australian Broadcast Corporation in which he described how it had been intimated to Tun Eusoff Chin “in no uncertain terms” that the holiday in New Zealand constituted “improper behavior”. This sparked off a public exchange in the media between Tun Eusoff and Dr Rais with other public figures weighing in, predominantly in favour of Dr Rais’ position.

The Bar Council took a decision that this fresh development was sufficient basis for it to make fresh moves towards calling for a Royal Commission of Enquiry. It called for a fresh EGM of the Bar to discuss these developments. Raja Segaran commenced fresh proceedings and sought a further injunction. This was Raja Segaran 2, the case in which Justice Hishamudin delivered his judgment.

In the forthright and direct style that the Bar has come to expect of His Lordship, Justice Hishamudin firstly found that Raja Segaran had not established that he had been specifically aggrieved by the decision to convene the EGM, in part by reason of his having failed to appear at the trial to give evidence, Raja Segaran did not have the requisite standing in law, or locus standi, to commence the proceedings.

Justice Hishamudin then went on to observe that he would be failing in his duty as a judge if he did not touch on a matter that he considered to be of constitutional importance. Considering the same constitutional provisions that had been relied upon by the Court of Appeal in the Raja Segaran appeals, the judge concluded that the reasoning of the Court of Appeal was “far-fetched” as the constitutional provisions relied upon by the Court of Appeal in the said appeals to shut out any discussion by the Bar only went so far as to prohibit parliamentary debate on judicial conduct without a substantive motion. Significantly, Justice Hishamudin observed that the “restriction or the prohibition is not imposed on the general public” and that he “could not fathom how such a conclusion (with its startling consequences) can be arrived at by the Court of Appeal.”.

Rightly so. The Federal Constitution guarantees the freedom of association and expression. The Legal Profession Act enumerates the object of the Malaysian Bar. These can be resolved to one primary object: upholding the rule of law. The conduct of Tun Eusoff Chin and V K Lingam was clearly questionable and, if left unaddressed would have undermined the administration of justice. The Lingam Commission report has vindicated the Bar’s position. We would have not got there if the Bar had not marched and if it had not convened an EGM to underscore its demands for a commission of enquiry.

The Lingam Commission report was however merely that, a report. The recommendations regrettably do not have the force of law and matters have been left to the Attorney General. We have yet to hear of what steps have been taken and what the Attorney General proposes to do. One could not be faulted for thinking that nothing much is going to be done perhaps in the hope that time will dim our collective memory of events.

And perhaps it will. Though the promises of reform have been welcome, they they do not indicate that for those of us who champion the rule of law, the struggle has ended or that victory has been secured.

It for this reason that the Bar and this nation owe a debt of gratitude to Justice Hishamudin, not only for having had the courage to state the obvious but for having stated for posterity what needed to be said. In doing so, he has reminded us that though judges and lawyers come and go, though regimes change, the rule of law remains if we wish it to.


Friday, June 13, 2008

Islam Hadhari And The Pakatan Rakyat

The 'ban' on the promotion of Islam Hadhari in Selangor and Penang is something of concern. I say this not in defence of Islam Hadhari, which I believe that as well-intentioned as it may have been at conception had evolved into a convenient justification for a range of wrongs, but rather from the perspective of governance, civil rights and politics.

The 'ban', if it can be called that for its legal basis remains unclear, is heavily nuanced. In as much as it calls for a consideration of Islam Hadhari and the Barisan Nasional, it equally raises very crucial questions about the Pakatan Rakyat. Farish Noor, who is equally concerned, has already written on it, asking some of the questions I have in my mind. I have republished his article (originally published on The Other Malaysia) with permission as the first posting in a series on this subject. I have also discussed the issue with Haris Ibrahim who has similar reservations and intends to address the matter on The People's Parliament as well.


Islam Hadari and the Politics of Banning

There are ideas, and there can be stupid ideas; but to ban an idea simply because of its stupidity seems to be a rather stupid thing to do in itself.

Among the ideas that circulate in the congested bowels of Malaysia’s public domain is the somewhat nebulous idea of ‘Islam Hadari’; loosely translated at times as ‘civilisational Islam’ or ‘societal Islam’. Others of a less charitable bent have dubbed it ‘theme park Islam’, ‘Crystal mosque Islam’ and even ‘Badawi’s brand of Islam’. Branding aside, it would appear that this brand of Islam has come under close scrutiny and admonition of late. In May the Pakatan-led state government of Selangor announced that henceforth the state would no longer promote Islam Hadari and this was later followed up by a similar move on the part of the Pakatan-led state government of Penang.

The rationale behind this prohibition leaves us with some unanswered questions that might as well be raised at this point. Who called for the prohibition of Islam Hadari and on what grounds? And if Islam Hadari is to be banned by the Pakatan-led state governments, what does this entail for the Muslims and non-Muslims of Malaysia? What, in the final analysis, was the objective of this ban?

Now this academic would hardly call himself a fan of Islam Hadari, as anyone who has read these columns would realise. Time and again we have pointed out the shortcomings, contradictions, double-standards and downright hypocrisy between the ideals of Islam Hadari and what has been put into practice. Islam Hadari – as a broad statement of inter-related intentions crafted in the form of a statist religio-political discourse – promised us the opening of the Muslim mind, the creation of a more open civil space, the protection of pluralism and difference and the promotion of gender equality.

Yet what we have seen thus far falls short (and very short, mind you) of the abovementioned objectives. In Trengganu I walked into the Islam Hadari theme park that seemed more like a vulgar imitation of Disneyland than a concrete affirmation of rationalism and the spirit of enquiry. The famous ‘crystal mosque’ that accounted for the whopping price tag of the whole theme park failed to impress and was certainly a pale mimic of what Islamic aesthetics could achieve. And one wonders how such grand and money-devouring projects would serve the ends of opening up the Muslim mind when all we see are posters and banners celebrating the ego and image of the man said to be the mastermind of the grand logic of Islam Hadari itself, the Prime Minister.

Criticisms like these, however, serve to keep the powers-that-be in check and to remind them of their public commitments to ideas and values that they fail to practice in office. How, pray tell, can you open up the minds of Malaysians when the very same government that preaches Islam Hadari remains as a passive witness to the spate of book-banning and the narrowing of discursive space in the country?

This, however, should not be taken as the license to simply ban Islam Hadari – or any other ideas or interpretations of Islam – outright. For if we were to say that Islam Hadari is wrong in toto simply because the people who thought it up don’t even understand it themselves, then would we not also be rejecting some of the better ideas and values that have been inculcated into the general framework of the project itself? Islam Hadari, on paper at least, calls for the respect of difference and pluralism and the promotion of gender equality between men and women. Are these ideas to be rejected too, simply because they have been brought within the ambit of Islam Hadari? For my part, I am quite happy to see any party or politician, be they of the ruling parties or those in opposition, endorsing pluralism, democracy and gender equality at any time of the day…

Which leads us to the actors and agents behind the prohibition of Islam Hadari in Selangor and Penang. Now according to reports, the calls for the ban on Islam Hadari have come from those who claim to be representatives of the Muslim community and this includes members of political parties, Muslim lobby groups, Muslim NGOs and former Muftis. The justification for the ban, we are told, is that some of these individuals feel that “the teachings of Islam are perfect as they are” and that “there is no need for supplements”. Their calls for the prohibition of Islam Hadari, it would seem, is fuelled by the desire to “return to the true teachings of Islam”. But this immediately leads us to the obvious question: Is defending gender equality, promoting openness and recognising pluralism and difference (both among Muslims and between Muslims and others) not essentially Islamic anyway? How, pray tell, does promoting gender equality amount to ‘supplementing’ or ‘deviating’ from the teachings of Islam?

Despite assurances that this move to prohibit the promotion of Islam Hadari is not political, we find it ludicrous to suggest that the move is void of any political motivation. Islam Hadari itself began as a political project – to politically engineer the opening of Muslim discursive space, though this did not happen – and the reactions to it have been political as well.

Those who claim that any modern revisionist attempt to re-think Islam is deviant or dangerous, and that Islam is perfect as it is, are obviously missing the point: We all know that Islam in its essential, fundamental, literalist form conjoins and promotes equality, freedom and justice. But a cursory overview of the normative religio-cultural and social praxis of Islam in the daily lives of Muslims the world over today will show that the Muslim world is riddled with the problems of sexism, racism, feudalism, communitarianism and sectarianism. The appeal to ‘return to the Quran’ or the fundamentals of the Muslim faith ring hollow when we look around us and see how the politicisation of Islam has served only the agendas of elites who manipulate the sentiments of the majority, who have organised and led pogroms against racial and religious minorities, who have been the first to accuse other Muslims of being ‘kafirs’, ‘munafikin’ and apostates. Why, all this talk of Islam being singular and perfect makes me glance to our neighbours next door in Indonesia where at this very moment the Ahmadiya minority are being labelled as deviants, apostates, enemies of Islam, etc. while the self-proclaimed ‘true Muslims’ are calling for them to be banned, their mosques burned to the ground and their members harassed, attacked and murdered.

So let us not kid ourselves with the worn-out cliché that Islam has not changed over the past fourteen centuries, or that Islam does not require a modernist interpretation that meets the needs and reflects the realities of the modern age. For Islam to remain a meaningful and dynamic belief and value system today, it has to undergo a process of serious, thoughtful, objective and critical interpretation that allows it to reflect the complexity of Muslim social life in the present. This means evolving a contemporary theology and orthodoxy that reflects the strides that have been made in promoting gender and racial equality, the advancement in Muslim thought, the openness of Muslim society today. We don’t need some conservatives telling us to go back to the Golden Age of Islam 1,400 years ago, because frankly I would rather live in Malaysia in the present, thank you.

And if Islam Hadari is to be criticised – and it deserves to be criticised constantly, too – it should be for the reason that those who have tried to promote it have failed to meet the standards they have set for themselves. Cakap tak serupa bikin, as they say. I don’t need some tawdry crystal mosque to impress me about Islam, Prime Minister. Lets see you lift the ban on the Ahmadis and recognise other Muslim groups like the Shias, and maybe my opinion of you might be revised somewhat.

The Pakatan-led state governments, on the other hand, would do well to focus on real issues such as governing this country well; as the previous lot obviously had no idea how to do that. The banning of books, ideas, belief and value-systems and alternative cults and sects should be relegated to the past and the dark ages of the Barisan Nasional government. The March 2008 elections was a vote for a new Malaysia, one where pluralism and diversity would be defended. Lets not let this vote be misunderstood as an endorsement for an Islamic state shaped according to the mould of UMNO, PAS or any sectarian Muslim party or organisation. Banning should be a thing of the past, like the BN; and if Islam Hadari is to be dumped into the dustbin of history, it should be relegated there on account of its contradictions and mis-application by incompetent politicians, and not because some Mullah wanted it so.

Dr. Farish A Noor is a senior fellow at the S. Rajaratnam School of International Studies, NTU, Singapore and affiliated professor at Universitas Muhamadiyah Surakarta, Indonesia. He is also one of the founders of the research site.

Wednesday, June 11, 2008

Our Malaysia, Our Folly

Our Malaysia, Our Folly

It is high time that we face up to the fact that Malaysians are paying the price for their folly, and more distressingly, their vanity.

We were fools for believing in political rhetoric that left us divided, distrustful and wholly vulnerable to exploitation. We were bigger fools for having allowed our vanity to persuade us to that cause. As we clamoured and argued amongst ourselves about not very much to begin with, the Government we should have all been watching like hawks – for which government is it that has been capable of refraining from giving in to temptation – was on a frolic all of its own.

I drove into Putrajaya this morning. Once again, I was reminded of the colossal waste of money that Putrajaya was and continues to be. Leave aside the fact that most of us go to Putrajaya not because we want to but because we have no choice. Consider instead how much it cost us. Some speculated, almost reverentially, that it had cost some RM4 billion, a fearful sum beyond imagination. Some said it was far less, others insisted it was far more. Last month, under pressure from a more sizeable opposition presence in Parliament the Prime Minister disclosed that it had cost the nation to date a staggering RM11.83 billion

The Malaysian experience does not allow for any justification for that sort of expenditure. Rural and urban poverty is still a reality just as not having meaningful access to electricity and water is in some parts of the country. Those of us lucky to have access to these utilities are obliged to pay dearly for the privilege, just as we do for a range of other services. Our public healthcare and education systems need a major overhaul to get them to even acceptable levels and so on and so forth. The average Malaysian spends a great deal of time worrying about the fact that there is not very much left over at the end of the month and what that means.

The potential real development and essentials, from schools to dialysis machines to vaccines, that RM12 billion could buy is mind-boggling and the Government spent it all on Putrajaya. Did we need it? I do not think so but then, judging by the pontificating we have been hearing as of late, it would appear that the Government considers an ivory tower a prerequisite to it being able to function.

We are not without blame. We were stakeholders in the Government we voted in, it is what we allowed it to become. We let ourselves be seduced by its pied-piper tune of race and religion, privilege, supremacy and power sharing, stability and prosperity. We clapped our hands gleefully as it stroked our collective ego, some would say lobotomized us, with Malaysia Boleh.

Worlds best, truly Asia, everyone loves us. We are Malaysian.

We cheered as we were told that we were sending a Malaysian into space, even though it was costing a us a great deal of money, directly and indirectly – there were submarines in the mix, after all – and even though we really did not need a man in space, particularly one who was interested in making teh tarik and playing congkak.

We cheered as the petro-ringgits were spent as if they were going out fashion on the trinkets for us, and the big ticket items for a small elite. We cheered as we were told, over and over again, that we were the finest at this and the greatest at that, even as standards across the board were declining rapidly. University ratings, corruption and rule of law indexes, we slid down all of them without discrimination. Did we care? Apparently not, like that Emperor with his new clothes we were more interested in the lies.

The reality is that the Government does not have an explanation for the use of the billions of ringgit of oil revenue that has been generated since 1974. Though some of it has been ploughed back into the nation, a great deal of it has been applied without thought to the future or has been allowed to dissipate through unaddressed corruption, cronyism and sheer incompetence in an orgy of reckless and unnecessary spending. As the Malays say, bagai kera dapatkan bunga.

The question is what do we do about it now that rocketing crude oil prices have allowed us to see how mismanaged this nation has been, still is.

The veil has been lifted. As we stare out at the approaching storm clouds, we must be resolute, firm in our understanding and belief that inflation and hardship do not recognize race and religion, they cut into all of us. And we must recognize that it only as a united force, as Malaysians, that we can do what it is that needs to be done. Demanding our just dues.

(Malay Mail; 10th June 2008)


Saturday, June 7, 2008

Kamunting ISA Vigil Without Incident

Just spoke to Haris Ibrahim. FRU was present but nothing untoward happened. The event was allowed to proceed and wrapped up by 9.


Wednesday, June 4, 2008

Of Subsidies And Corruption

Of Subsidies And Corruption

Subsidies are on everyone’s minds these days. Even as the rakyat is faced with the bleak prospect of a more difficult future as the reduction of subsidies impacts on their lives, the government has to figure out how to go about unraveling subsidy frameworks that though attractive when introduced are now threatening not only the competitiveness of the nation but also its sustainability. There are risks – social, political, economic – that need to be confronted in an environment not necessarily conducive to objective and rational consideration of the very crucial issues involved.

Though complaining, and vehemently at that, is tempting, it will not get us very far. The fact that to a large extent the subsidy problems we face today are the result of poor economic management in the past does not help address the situation. Political consequences will follow, we have to deal with the issue. As in other countries, change is necessary. The question for us really is what changes should be made and how they are going to be managed.

We pay taxes in various forms, they are the principle source of revenue of the nation. It is mainly these funds that are used to pay for the operating costs of a given year. In the social democratic framework that we are supposed to have, some of this money is to be used to provide for basic needs such as healthcare, schooling and essential infrastructure such as a reliable police force, efficient and effective regulatory frameworks, electricity, clean water and roads. This is not just about building the hospitals and schools, it is also about maintaining them and ensuring that the services provided are a sufficiently high standard. The same goes for roads, water and so on.

This is how it is meant to be in theory. If implemented, many of the basic needs of an average household would be taken care of, without the need for additional expenditure. A significant amount of the monthly earnings of the average householder would be freed up, making it easier to face the prospect of increased prices from the reduction or even elimination of subsidies.

The reality is however very different. Those who can choose private schools and private hospitals, use toll roads, and employ private security guards or live in gated communities. Do not just take my word for it, ask the average Minister what his or her lifestyle choices are.

These choices are not necessarily prompted by elitism. It comes down to confidence, or the lack of it. The truth is that the public services are worryingly deficient, if not in levels of competence then in resources, to an extent that for many they are no longer a viable choice. This is especially true where children are concerned. Parents want to give their children the best, often at great personal sacrifice.

In some cases, there is no question of choice. The privatization of water, electricity and energy production and the steady increase in their pricing have had a domino effect that have left many having to manage increasing expenditure on shrinking earnings. Too slowly, Malaysians have woken up to the painful realization of how everything happening on the macro level around them has a direct bearing on their lives. The widening poverty gap is leaving us poorer by the day.

Which is why being able to depend on public services is so crucial. As we have however seen, that is not something we can do. What we are paying taxes for then?

It is indisputable that corruption has to a large extent pushed us into the corner we are. We are paying the hidden costs. Things are that much more expensive or that much more inefficient because somewhere, at our expense, someone is making a gain or someone who was not good enough is being given a contract. And the reality is that when someone makes a corrupt gain in the millions of ringgit, that is our money being handed over. That is our right to development that is being denied.

It is a sad truth that many of us will suffer the impact of a removal of subsidies, and suffer badly for it, because we have been robbed of the means to face these challenges by endemic corruption. We stand alone purely because the money we invested over the years to weave our safety nets has been stolen from us. There are not nets.

Managing change as such must involve increasing integrity, accountability and transparency. Corruption cannot be a part of the equation. Improving public service, regulating effectively and efficiently where it is needed and ensuring that things are priced based on their value rather than the private needs of a fat-cat official, will make it easier for Malaysians to deal with increased prices where those are really needed.

That is the least this government can do for us. It will save a staggering amount of money from cutting back on subsidies, money that can be deployed more effectively and equitably. Money that leaves no room for excuse.

(Malay Mail, 3rd June 2006)

Al Fatihah

Anak Bangsa Malaysia