The Index On Censorship Award

A big thank you for the very kind and generous congratulatory messages over the past few days.

The Index on Censorship started out as a magazine in 1972. Founded by a group of journalists, writers and artists, the aim of the publication was to provide a platform for views in defence of the freedom of expression. Over the years, it has featured the writings of an impressive list of distinguished writers and thinkers that include Aleksandr Solzhenitsyn, Milan Kundera, Vaclav Havel, Nadine Gordimer, Noam Chomsky and Umberto Eco (Wikipedia)

Since then it has evolved. As Index says of itself, “Index on Censorship is Britain’s leading organisation promoting freedom of expression. Our award-winning magazine and website provide a window for original, challenging and intelligent writing on these vital issues around the world. Our international projects in media, arts and education put our philosophy into action.”

The Index on Censorship launched the Freedom of Expression Awards in 2000 to recognize free expression activity around the world and to honour those who have made outstanding contributions to the promotion of free expression. Since 2000, the awards have grown and are now awarded in five categories: New Media (supported by The Economist). Law and Campaigning (supported by Bindmans), Journalism (supported by The Guardian), the Index Film Award and the T R Fyvel Book Award.

The first Bindmans Law and Campaigning Award was initiated in 2007. The award is given to lawyers or campaigners “who have fought repression, or have struggled to change political climates and perceptions. Special attention is given to people using or establishing legal precedents to fight injustice.”

The first recipient of the award was Siphiwe Hlophe, a Swazi activist who co-founded Swazis For Positive Living (Swapol) in 2001 when she was abandoned by her husband and lost an agricultural economics scholarship when she tested positive for HIV. Swapol campaigns against gender discrimination related to HIV/Aids as well as provides assistance to persons living with HIV/Aids

In 2008 it was awarded to U Gambira (pseudonym), the leader of the All-Burma Monks Alliance, which organized and spearheaded the nationwide protests in 2007. He was detained in November 2007 and is still under detention.

I only came to know that I had been nominated and had been shortlisted when an associate alerted me. In the same way, I came to know who it was that had nominated me much later: Peter Noorlander, legal director of the Media Legal Defence Initiative, an organisation that works globally to help journalists and small media outlets defend their rights. He was formerly of Article 19, a human rights organization that works around the world to protect and promote the right to free expression. I have had the privilege of collaborating with Peter.

The shortlist for the 2009 Award had three other nominees, all very distinguished in their own right: Gamal Eid (Egypt), Harrison Nkomo (Zimbabwe) and Harry Roque (Phillipines).

The recipient of the award was to be announced at an Awards Dinner held in London on the 21st of April. I could not attend the dinner as I was scheduled for hearings in court through the week. Peter Noorlander was kind enough to represent me and to e-mail me as soon as it was announced (“You won”).

This is how Index describes my selection:

“Malik Imtiaz Sarwar is a leading human rights lawyer and activist and the current president of the National Human Rights Society (HAKAM). Imtiaz has been a central figure in fighting lawsuits brought against journalists and bloggers, and was the lead counsel for Raja Petra Kamaruddin, popular blogger and editor of Malaysia Today, whose release he secured last year. In August 2006, a poster declaring him to be a traitor to Islam and calling for his death was circulated in Malaysia. He has proposed setting up an inter-faith council, and spoken in a series of public forums on the need for religious freedom.”

As far as I know the selection was based entirely on an independent assessment of my efforts. I was not contacted by anyone from Index or associated with the awards nor was I requested to submit any materials to the selection panel. It appears however that the panel of judges was acquainted with my body of work.

In conjunction with the event, I was asked to contribute a comment for the Guardian. This was the piece entitled “The Truth About Malaysia” that has been reproduced on various Malaysian soc-pol sites.

As I said in an interview with Deborah Chong of the Malaysian Insider, I am happy to have been nominated and given the award. It presented an opportunity to bring to light the Malaysian situation, one that sadly in the view of dispassionate and objective third parties fits into the parameters of the award.

But then, that should really not come as a surprise, all things considered.

The cause is however one that is worth all the pain and suffering it might entail, a sentiment that I had the opportunity of expressing in the acceptance speech (that Peter was kind enough to read out for me) in this way:

“Being a public interest advocate is at times one of the loneliest things that one can do. Standing up against systemic repression and populist sentiment is not the most popular thing one can do. And yet, it must be done. In the short period that Malaysians stopped doing so, we lost the Rule of Law. The consequences of this failure is the legacy that younger Malaysians have inherited.

The award tonight is a reminder that no matter the specific nature of our respective struggles, the underlying causes are universal. The truths that define us in Malaysia are the same as those that define our friends in Egypt, Zimbabwe, the Phillipines or any other place. We each want to believe that each of our futures is limited only by our ability to dream.”

We must all keep on reaching for the stars. Our futures are written in them.

MIS

Translating Policy Into Practice

Translating Policy Into Practice

The media reports that the cabinet has decided that children of marriages where one spouse subsequently embraces Islam would remain in the faith that the parents had agreed on at the time of marriage. The cabinet has also appeared to decide that the civil courts are to dissolve such marriages.

These decisions are welcome ones. They indicate willingness on the part of the administration to deal with issues that have for some time now been studiously avoided, a state of affairs that had prompted the establishment of the coalition of NGOs calling itself “Article 11” and its “Equal Protection For All” campaign in 2006.

The decisions also indicate the policy position of the current administration, one that on its face appears to adhere to the constitutional guarantees of equality and the right of parents to choose the religion of their children. The Constitution guarantees the right of a parent to decide the religious instruction of a minor child. The Constitution provides that words in the singular are to be understood to include the plural, parent being “parents”. By virtue of this and the guarantee against discrimination on grounds of gender, it is clear that the intention was to vest guardianship rights in both parents. This is reinforced by federal law.

I am however uncertain as to how this policy position is to translate into practice as the cabinet has little or no direct power in this regard. Religion is a matter for the state and not the federal government; each state has exclusive authority over the administration of Islam within the boundaries of that state. This would include matters of conversion of children and the jurisdiction of the syariah courts, both of which are matters in respect of which the state legislative assembly has the competence to enact laws on.

Though the constitution itself lends support to the policy position of the cabinet, and as such could be invoked to reign in those state agencies involved in these matters, the question of whether there has been a transgressing of limits is one for the courts. The courts have however in recent years handed down decision after decision that have undermined the constitutional framework and entrenched as principle the very matters that the cabinet now wishes to address.

In 2004, the High Court in Shamala Sathiyaseelan ruled that the converting husband had a right to convert the children into Islam without the consent of the wife. The court also ruled that it had no jurisdiction to entertain the wife’s application to challenge the legitimacy of the conversion. Accepting that the wife was without recourse for not being able to move the syariah court as a non-muslim, the court counseled her to seek the assistance of the Majlis Agama. This is a scenario that the majority decision of the Federal Court in Lina Joy reinforced in 2007

In the same vein, a majority bench of the Federal Court in Subashini Rajasingam concluded in 2008 that either parent could convert a child of the marriage into Islam. It ignored the non-discrimination guarantee as well as the interpretation provision for words in the singular and focused on the word “parent”, interpreting it to mean “parent” in the singular. The majority also decided that the muslim party was free to commence proceedings in the syariah court even though the non-muslim party was entitled to seek dissolution and maintenance and custody orders in the High Court.

These decisions and others like them stand in the way of the cabinet implementing its policy position. It is ironic that the decisions noted above were largely the result of ill conceived and shortsighted positions taken by the Attorney General’s Chambers on these matters, positions that sought to denude the High Court of jurisdiction to allow for the preservation of an unjust status quo.

To move forward, the cabinet must therefore take the bull by the horns.

I assume that the cabinet made its decisions based on advice from the Attorney General. It is therefore imperative that the Attorney General articulates his revised position on these issues in the courts as soon as possible. The Shamala case comes before the Court of Appeal on Monday and he should apply to intervene to make the necessary points. Being matters of great constitutional significance that are clearly in the public interest, they warrant his involvement.

(Malay Mail; 24th April 2009)

MIS

The Price Of Nation Building

The Price Of Nation Building

I was criticized recently for being biased in my view of the political landscape. The basis of this criticism was a perceived unwillingness on my part to be as critical of the opposition as I was of the government. As this was not the first time, and as I had read similar observations made of other commentators whom I view as being fairly objective, I spent some time reflecting on what it is I had written in the past and why. I also gave some thought to why it is I write.

I am not a member of a political party. I cannot even honestly say that I am a supporter of any particular party. It is true that I have in the past acted as a lawyer for some of the Pakatan Rakyat parties and for opposition members, my role in that regard was limited to that of an advocate. That I have not acted for the Barisan Nasional parties is easily explained by my not having ever been retained to do so.

As a general rule, I write when I have something to say about a particular issue of significance. My training and exposure affords me a perspective that may be of assistance to those seeking to form a view. A weekly column in the Malay Mail and a monthly column for the Malaysian Insider has made this process more regimented, providing the need for a much welcomed discipline on my part. Writing is a skill that requires practice, much like any other.

In writing, my desire to espouse a viewpoint is self-limited by a narrower interest in policy and frameworks, in particular legal and constitutional. I am concerned not so much with what people say or do but with the permissible limits of their doing so.

This has quite naturally focused my attention on matters of governance, primarily at the Federal level. Though I have written at times about matters within a particular state, my relatively infrequent commentary has been largely confined to matters of constitutionality. Notable instances have been comments on the so-called Trengganu crisis last year and more recently, the Perak affair.

Concerned as I am with matters of governance, it is not surprising that I have tended to scrutinize Executive action and its impact. In the nature of things, consideration of Executive action has in turn necessitated a deliberation of the politics underlying Executive action.

An aim to ensure comprehensive analysis has required examination of the agencies through which Executive dictate has been, or has been perceived to be, effected. This has unavoidably led to commentary on the police force and other federal agencies as well as the Judiciary and other constitutional bodies.

I will concede that much of this commentary has not been complimentary. This has however not been because I am anti-government. I do not condemn merely for the fact of what I condemn having been precipitated by the government. I condemn because what it is that I condemn is, in my view, wrong in principle and its long-term implications of grave concern. Being critical does not necessarily arise from the animosity that being anti-anything requires.

Take, for instance, the tabling of the motion to suspend the Member of Parliament for Puchong, Gobind Singh. The decision to allow for debate on the motion on an urgent basis was a matter within the discretion of the Speaker. It could be said that it was also within the discretion of the Speaker’s to not allow Gobind Singh to address the House despite the motion being aimed at him and carrying with it punitive consequences was also within his discretion. Having said that, it is my view that this decision of the Speaker was and is highly questionable for having manifestly denied Gobind Singh of his right to be heard in his own defence.

My criticism in this regard is not intended to reflect my being anti-Barisan or anti-government. It is instead borne out of a commitment to the fundamental principles upon which democracy was established in this country. I would hold the same view if the motion was against a Barisan Member of Parliament and he or she was denied an opportunity to be heard. The Rule of Law is not a matter of expediency.

Where I have asserted that the Executive has occasioned abuses of power, and no such assertions have been made against the opposition, at the Federal level the opposition has no such power to abuse. At the state level, in my view, no such abuse has been demonstrated. That is understandable; the Pakatan Rakyat state governments have no influence over federal agencies or constitutional bodies.

If the Pakatan were ever to form Federal Government, it would be the subject of scrutiny in very much the same way as the Barisan is at the moment. Civil society has promised that it will have higher expectations of the Pakatan. It has already set the tone with its scrutiny of the Pakatan state governments.

And where I have expressed a preference for the Pakatan, then it is only because I think that it is not as entrenched in its politics as the Barisan is and, unlike its counterpart, is still capable of distinguishing its own political needs from those of the nation as a whole. Though it is not without its own faults, it espouses ideals that the Barisan seems to have abandoned some time ago. To the great majority of this country, a strong and accountable system of democracy is more than just a matter of political convenience.

It is far too convenient to dismiss criticism for it being anti-government without regard to what it is that is being said. No government is infallible, least of all one that has virtually untrammeled powers. Confronting the painful realities is the only way in which we can progress, it is the price of nation building.

(Malay Mail; 17th March 2009)

MIS

Is The Die Cast?

Though it is not yet possible to conclude what it is that occurred during the last hours of the life of Kugan Ananthan, those few facts with which the public has been acquainted with strongly suggest some measure of culpability on the part of those police offers involved in his interrogation. It is a fact that Kugan died in police custody during an interrogation in which he had been severely beaten. It is also a fact that the Public Prosecutor has classified the death as having been caused by murder for the purposes of investigations and the police officers concerned suspended.

It must however be emphasized that until and unless the police officers concerned are convicted, they are innocent of any crime. Their guilt should not be prejudged. We should also not rush to any conclusions on the racial dimensions of the incident as there is insufficient material available on which we can form any conclusion.

Having said that, questions must be asked. There is an urgent need for Malaysians to understand what it is that occurred and why it happened. We must also be made to understand why it is the police force responded as it did when news of the death surfaced. Questionable reactions on the part of the ranking police officer in charge have regrettably resulted in an uneasy belief that the truth is somehow being avoided.

The context of this latest tragedy cannot be overlooked. The prevalence of sudden deaths in police custody have been a source of concern for some time now. They were one of the main focus areas of the Dzaiddin Commission established in 2003 to look into the operation and management of the Royal Malaysia Police.

It is not insignificant that the Commission found there to have been a worrying level of abuses of power on the part of police officers coupled with a lack of due regard to the civil liberties in the discharge of their duties. It is equally compelling that the Commission implicitly concluded that the self-regulating the current Police Force Commission in effect allows for had allowed this very worrying state of affairs to have come into existence when it strongly recommended the urgent establishment of an Independent Police Complaints and Misconduct Commission (IPCMC).

The stark reality is that sudden deaths such as Kugan’s are unnecessary and could in all probability be avoided if there are sufficient controls in place. The prevalence of abuses of power regrettably points to safeguards being inadequate despite the obvious need for them. It could as such be said that Kugan died at the hands of a system that, through studied indifference, has nurtured an environment in which police officers seemingly feel justified in taking the law into their own hands.

The consistent refusal on the part of the Government to establish the IPCMC despite the obvious need for the external, and life saving, control it would allow for is mystifying. As has been stressed for many years, the number of deaths associated with the police force is uncommonly high. Allowing this state of affairs to perpetuate is only going to foster the impression that extra-judicial killings of the kind more commonly associated with banana republics is a defining feature of this nation. Public confidence will not be shored by yet another high profile case in which police officers are accused of murder.

It is sad to note that the Government’s reluctance seems to be prompted more by a desire to appease the police force rather than a rejection of the merits of the IPCMC recommendation. This appears to be motivated by a need on the part of the Barisan Nasional, and in particular UMNO, to enlist the police force to further its political causes, a process which suits the convenience of the police force as long as it serves its interests. This quid pro quo is to an extent reflected in the Government’s willingness to implement measures recommended by the Dzaiddin Commission, including legislative amendments aimed at protecting due process rights of arrested persons, that have not put it on a collision course with those who control the police force.

In this, it is impossible to ignore the fact that the only real opposition to the IPCMC has come from the police force itself. That this opposition is manifestly self-serving, and such of little credibility, is demonstrated by the conclusions of the Dzaiddin Commission that abuses of power were systemic and took place under a shroud of pervasive corruption that engendered a lack of transparency and accountability. It is for primarily this reason that the IPCMC was recommended.

This is not to say that the Government or the police force condones extra-judicial killing or torture. I do not believe that either institution does. The high incidence of such deaths however gives rise to the question of whether such deaths are perceived as sometimes being necessary incidents of the kind of tough policing efforts that the country is said to require.

Viewed from the perspective defined above, the issue at the heart of the Kugan tragedy is really one of control and regulation. There is absolutely no justification for the abuse or killings of any person by the police. If there are those who think that such conduct is justifiable, then they must be shown otherwise and terminated from service.

That the Government and the police forces itself are respectively incapable of curbing abuses of power, and the incidents of such abuses including sudden deaths in custody, is now beyond doubt. It if were so this latest controversy would not have erupted and we would have seen more decisive action taken over the past five years. External control is as such clearly essential to efforts aimed at reforming the police force. The Government is however opposed to external control for reasons that appear to be primarily shaped by its political perspective, It would not be unreasonable to conclude to that end that the Government views itself as not being in any position to reign in the police.

If so, as shocking as it may be, it would seem that the die is cast and until a new Government is formed Malaysians should accept sudden deaths and other forms of abuses as a part of the Malaysian way of life.

I may have overstated the concern. There is after all one question that remains to be answered by the Government, the one that everything really boils down to all things said and done: Has the Government accepted the risk of such abuses reoccurring as the necessary consequence of a political balance it wishes to maintain? The only way it can show that it has not is to establish the IPCMC; it has every justification to do so now.

(Malaysian Insider; 2nd Feb 2009)

MIS

A New Beginning

A New Beginning

Political analysis is useful for providing the insights that flow from the more rounded appreciation of context such analysis allows for. Without context the significance of specific action will elude us. For instance, a statement by a politician could mean one thing in isolation but mean something completely different when considered against a backdrop of political intrigue. Anwar Ibrahim saying that he has six defectors from the Barisan Nasional is in itself suggestive of nothing more than an erosion of political support for the BN. However, when viewed against all else that Anwar Ibrahim has been involved in these past six months, the statement potentially takes on added resonance.

Post March-8th, there has been a sharp increase of political analysis on the Malaysian socio-political scene. The alternative media and blogs provide a veritable feast of information on a daily basis on a diverse range of subjects in the field. This has been a good thing for in setting out context, Malaysians have been more able to appreciate the many other ways of looking at things. They have also been able to see that free expression is something that does not harm our society as much as it does the politicians who hide their deficiencies behind such fears. Freer access to a range of diverse opinion has allowed for a maturing of the viewpoint of the Malaysian on the street.

There is however a downside, the root of which lies in the self-perception of the analyst that he and what he says is important. In their enthusiasm, analysts sometimes tend to forget that their analysis is not so much about their being able to do so but rather the truth of a given matter.

In an interview in 1993, the late Edward Said reflected that his meditations on politics and life had “always been a matter of exploration, of self-criticism and constant change in trying to surprise myself as well as my readers.” His reflection was prompted by a sense that public intellectuals tended to allow themselves to become “prisoners of their own language” and to be more concerned with “producing more work in fidelity to what they’d done before” at the expense of a truer perspective.

A noteworthy observation, it cautions against the very thing that seems to have occurred as the state of play between the BN and the Pakatan Rakyat intensifies. Analysis in these heightened times could be likened in many ways to commentary on a football league cup with many commentators having picked their side. Governance is however not about picking a side and sadly, more has been obscured than revealed by the parade of viewpoints and assessments.

In the run-up to the Kuala Trengganu by-election and its aftermath, we have been told what it all means for the BN, Abdullah Badawi, Najib Razak, the Pakatan Rakyat and Anwar Ibrahim. There are permutations upon permutations. We are asked to consider whether there was vote rigging, whether it is Abdullah Badawi that the people rejected or Najib or even the BN, whether it was the Chinese vote that swung the result or whether, as the MCA claims, the Chinese remained loyal to the MCA. We are told so many things in one form or the other, that in the end we are told very little.

For all this, nothing has been made clear and the question uppermost in mind is whether it really matters at all anymore who does what and how.

Whatever the spin or counter-spin, it is glaringly apparent that things are not as they should be in this country. Just as it is obvious that things should have been far better and could have been. It would not be incorrect to say that there are Malaysians who feel that they have come to be held hostage by an administration that is more concerned with protecting its own interests than those of the nation.

The state of flux points to many Malaysians having woken up to the fact. They want change in the most fundamental of ways: independence from a mindset that has left them colonized by an elite for its own benefit.

They are not fastidious as to who it is that becomes the Prime Minister of this country or who it is that forms the government. All they want is a government made up of men and women who believe in the ideals that the founders of this nation thought were a solid basis for a glorious future for all Malaysians. They want those men and women to believe in these ideals enough to get on with what needs to be done as a government of the people, by the people, and for the people. They want the respect that each and every one of them is entitled to as a citizen.

In one of the several speeches that President Barack Obama gave on his historic journey into Washington for his inauguration, he said: “What is required is a new declaration of independence, not just in our nation, but in our own lives.”

It is the same for us. We are in search of a new Malaysia. To find it, we must embrace the possibilities. To do that, our minds and hearts need to be liberated.

It is time for a new beginning.

(Malay Mail; 20th January 2009)

MIS

How To Change The World

How To Change The World

I had heard of Haris Ibrahim even before I met him. Some acquaintances had told me of a lawyer who was seemingly singlehandedly taking on the world in his defence of principle. At the time he was involved in the case of the Besut Four, four individuals who had been convicted by a syariah court and sentenced to three years jail even though they had renounced Islam. His was the titanic struggle that pointing to an unpopular and inconvenient truth always is.

Reading of the case in the newspapers, it had struck me how frustrating it must have been for Haris to have to contend with a system that seemed more concerned with finding excuses than solutions. I wondered what it was that made him do what he did.

I came to see the sense of his choices when I met him for the first time at a Bar Council human rights training session a short while later. I saw a man who embraced the world and whose heart had enough space in it for everyone.

Over the years, we have collaborated on various initiatives, driven by a common belief in Malaysia’s need for an open and inclusive society in which all its children, irrespective of race, religion or culture, can have the freedom to pursue their dreams. It is this common belief that saw us developing a proposal for a commission that would be empowered to enquire into matters of religious harmony. It led us to engaging in a public awareness campaign aimed at creating awareness about worrying constitutional trends. It also prompted us to team up in a number cases that we believed had great bearing on the way things would be and which have ultimately left their marks on this nation.

Haris has become one of the most important civil society voices of this era. His highly influential blog, The People’s Parliament, and the range of civil society initiatives he gave life to over the last two years are breathtaking for their depth of reflection and breadth of reach. He was a prime mover of The Peoples’ Declaration, the Barisan Raykat and a host of other initiatives all of which were aimed at making the rest of us see that we had the power to effect change in our hands.

Before we began to believe in ourselves, Haris already did. March 8th proved his faith not to be misplaced. As much as this was about the soundness of his vision of what could be, it was equally about the correctness of his method. I have had the privilege of seeing some of his ideas come to life and I can say with conviction that nothing happened overnight. They developed one step at a time, from conceptualizing to planning to implementation, everything had its time and place.

The lesson I took from this is that to change the world, you must want it to and then take it one small step at a time.

Any effort aimed at improving our community, no matter how small, is a worthwhile one. Change is the by-product of an accumulation of worthwhile endeavours that may have as individual efforts escaped notice. We might think that one person’s choice not to engage in corrupt practices anymore would not bring endemic corruption to an end. If however there were sufficient numbers of such individuals, a tipping point could be reached and we might see a day when those who bribe stood out as the exception rather than the norm.

Understanding that our every action has a consequence is therefore the key that unlocks the door to change. Revolutions always start small. Consider the signals we send to people around us - family, friends or colleagues - and how those signals will be received. If you are a father and you bribe a police officer in front of your child, what you are in effect saying is that corruption is acceptable no matter how you might try to justify your behaviour. In the same way, if you are racist then those who you influence, even indirectly, will be influenced. It is the less obvious dimensions of what we do on a daily basis that trap us into vicious cycles of destructive conduct.

The change we effected last year was only skin deep. For us to transform ourselves we must confront the question of whether we really want change. We cannot run away from the fact that though the politicians are to blame for a good number of things, the ills that ravage our society stem from a value system that we have allowed to warp over time for our own convenience.

The question for us is what we propose to do about it.

(Malay Mail; 6th January 2009)

MIS

A Nation In Progress

A Nation In Progress

The year draws to an end.

A kaleidoscope, 2008 defies description. In the swirl of colours and sounds, chords were struck and themes developed. I imagine an orchestra tuning up, falling silent and then suddenly and majestically playing a symphony of divine beauty.

Each of us an instrument, our voices lent themselves this year to the harmonies that described and cumulatively defined us as a society and a nation. In the silence behind each echo, we felt whom it is that we could be if we wanted to: one nation, one people.

2008 was the year that transformed us. We found our voices.

We may have voted for one candidate or the other, or even for one party in preference to another. We may have regretted our choices or felt vindicated in the time since or even suffered bitter disappointment for expectations not having been fulfilled. Whatever the case, this year we reclaimed democracy and the right to choose.

It does not matter that since March this year we have seen more political bickering than we would have liked to on either side of the divide, and within the ranks on either side. Any vision that emerges from a true democracy is necessarily the product of the synthesis of varied perspectives and opinions. There never is just one side to things and the heated exchanges about key aspects of our lives is something that we should welcome rather than fear. It is only the truths that flow from this crucible that are sufficiently strong to forge the foundations of a lasting civilisation.

Equally, it does not matter that the governments of the federation or the states made decisions that we would have preferred them not to. It does not matter that this politician or that one acted in a manner that we would have preferred him or her not to have. The reality is that for the first time in a very long time we have had these governments and those who form them behave with some regard to what it is we want; such is the power of the ballot box.

Enhanced opposition presence in parliament, the establishment of Pakatan Rakyat governments in five states and a courageous civil society have also allowed us to see all concerned as they really are, warts and all. We have come face to face with the fact that politicians are not very pretty to look at just as they have had to confront the fact that their fates do really lie in our hands.

And as each of us has come to feel more involved, our sense of belonging has heightened and with it our feeling of ownership. It is your Malaysia as much as it is my Malaysia and together, it is our Malaysia. With that awareness has come the understanding that each of us is responsible for what it is that we become. This has been accompanied by a nascent evolution of attitudes and orientation.

This is the breadth and depth of what it is we achieved this year. It has not been about reformasi but rather, transformasi.

The process is however just beginning and we must continue to be vigilant. As we offer thanks for what is that was bestowed upon us this year, let us not forget that there are those who do not want change. Race politics, with its attendant religious elements, and corruption also continue to threaten us. The latter has gravely undermined us through its insidious colonizing of the wider system and the political process. Its mark is evident in every aspect of our public system, so much so that we are now held to ransom by it.

As for race politics, despite it being self-evidently divisive it sadly continues to play out in the continued politicization of race and religion at great cost. Its destructive quality is seen most clearly in the distorting of legitimate efforts to find more effective methods of affirmative action as attempts to undermine the special status of the Malays under the Constitution.

As we move forward, we must commit to taking it upon ourselves to ridding ourselves of these difficulties. It is not sufficient for us to pay lip service to ideals; we must focus and act decisively. We must develop a more rounded understanding of the sensitivities and fears involved as it only through this that we will be able to develop the necessary language to build bridges with.

The light of the new year illuminates the recently cleared footpath that may ultimately lead us to where it is we should be getting. Though the way is treacherous, our belief that we can be all that we want to be will guide us if we let it.

I believe we want it to.

(Malay Mail; 30th December 2008)

MIS

Happy New Year to all.

Respecting Change

Respecting Change

A friend of mine told me recently that he was considering home-schooling his two sons. A battle with the private international school where his sons are enrolled and fruitless encounters with Ministry officials who were either incapable of seeing his point of view or could not empathise nor appreciate his lack of options had brought him to that point. It could be that to many a civil servant, private schooling is an elitist luxury that one purchases at the expense of its ills and pains. If so, this overlooks the reality that for many in this country private schooling is not about snob appeal but rather a necessity in an increasingly competitive world.

Many a parent is caught in a conflict between wanting to avail themselves of public services, be they education, medical or otherwise, on the one hand, and doing the right thing for those they love on the other. They, like many others here in Malaysia, have been forced into these positions of conflict by a public system that has been increasingly undermined by political and vested interests despite the obvious consequences.

It is evident that for a nation to progress sustainably into the future, the pillars of the nation must be protected and continuously strengthened. Of these, much has been said of the Judiciary and the Legislature. We should however not underrate the significance of the civil service. It is crucial for being the engine that impels the nation in the direction it should. Civil servants serving in a diverse range of capacities from teachers, administrators, lawyers, doctors, engineers, surveyors, geologists and so on provide invaluable input and service. They reach far into this nation’s heart, its people, and provide the nurturing and guidance that keeps it safe and beating.

Civil servants oversee every aspect of the system from schools to hospitals to hill developments. It is therefore crucial that those who take on the responsibility of administration be suitably qualified for their jobs. This is both a matter of competence and integrity. There is no excuse for not having the best possible persons for such positions, be they teachers or director generals of Ministries.

Even a cursory glance at modern Malaysia would show that this is sadly not the case. If it were otherwise, we would not be stuck in the rut that we are. The nation lacks sparkle, energy and drive. Hamster like, we run on the spot in our wheels of misfortune as the system, such as it is, wears itself down at the expense of the future we could have. Can we really say that we have the best people for the job in the various ministries, departments and agencies that we rely on to make sure this country runs at the optimum level in all respects? I think not.

It seems that the only employer that does not complain about poor levels of competence, at least publicly, is the government. This is understandable. The civil service has always been potentially useful as an employment bank, a direct means of furthering agendas, for control and, for all these reasons, winning votes. Somewhere along the way, that potential was harnessed, and welfare and privilege elements exploited to justify abuse.

The notion that employment in the civil service is an aspect of welfare or privilege is self-serving and dangerous. The civil service is so inextricably linked with our future, giving meaning to the adage “we reap what we sow”. This is not just about the alarming number of unemployable local graduates and school leavers, as worrying as that is, it is also about bad decision making with sometimes catastrophic results, tangible and intangible, and other equally significant aspects.

Things are definitely not as they should be in this nation. We are slipping far behind as we drown in a dizzying cocktail of lackadaisical attitudes, a total lack of imagination, mind-numbing incompetence and corruption. Mediocrity has become our standard. And though we rush to justify and distract from failings, be it for having allowed our tertiary institutions to slip into the “not worth bothering” section of the rankings or the increase in corruption, this is not addressing the problems.

Change became a catchword this year with even UMNO elites claiming it for their banner. If we are sincere about transforming Malaysia, the alarming state of the civil service must be addressed.

For this, ground-rules must be set and respected. Politicians must learn to respect the intent underlying civil service regulations that restrict political involvement: civil servants must be left alone to do what needs to be done. They do not serve political parties; they serve the government of the day. Additionally, key sectors of the civil service must be made impermeable to appointments based on race quotas and be defined only by appointments based on of high levels of competence and integrity.

Above all, politicians must learn to respect the civil service for the fundamental role it plays in nation building. Change is in its hands.

(Malay Mail; 9th December 2008)

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Striking A Pose

Striking A Pose (Of Crime And Punishment)

THE recent ruling by the National Fatwa Council on yoga has resulted in a range of responses, from dismay to unqualified and devoted acceptance. I must admit to bewilderment in part because of all the pressing issues that confront Muslims in this country, many of which directly pertain to matters of social justice, yoga was one of the least expected amongst those that demanded urgency. It would have been useful for the Council to have directed its mind and resources to matters of faith that complement efforts aimed at the nurturing of an inclusive, just and compassionate society.

That being said, a ruling has been made. I say ruling because until and unless the ruling is endorsed by the fatwa committees of the various states and the Federal Territories and then gazetted (published in the official government journal), the ruling is not a fatwa.

The administration of Islam is a matter that falls within the exclusive purview of the state under the Federal Constitution and, as such, where fatwas are concerned within the sole domain of the state fatwa committee. In this context the National Fatwa Council allows for policy consultation at a federal level to facilitate a more unified vision of the practice of Islam, each state being legally entitled to pursue its own vision.

Within the state, it is for the Majlis Agama to take steps to gazette a ruling of the state fatwa committee. The resultant fatwa is prescribed by the respective state law as being binding on all Muslims as a dictate of Islam. They are duty bound to abide by and uphold the fatwa unless permitted by Islamic law to depart from it in matters of personal observance, belief or opinion. The burden of establishing that an exemption is permissible is however on the individual as state Islamic criminal law provides that acting contrary to fatwa is a criminal offence.

It is significant that despite a fatwa being for all purposes and intents a ‘law’ the breach of which is punishable, there is no need for rulings to be referred to the State Legislative Assembly before they are gazetted and become binding as fatwa. Seen in this light, it could be said that the Majlis Agama and the fatwa committee are therefore legislating.

The pressing question arises as to how this can be sanctioned in view of our Constitution having put in place a system of law-making centred on legislatures constituted by duly elected representatives. The making of binding fatwa in the manner provided for is a glaring anomaly from the dictates of the democratic processes enshrined in the Federal Constitution.

It is this very concern that drove a team of us to taking up two challenges in the Federal Court involving persons allegedly having been involved in deviationist Islam not too long ago. Amongst other things, our clients had been charged with acting contrary to fatwa; charges that for the reasons explained above took us to heart of law making.

In its decision earlier this year, the Federal Court disagreed with us and upheld the validity of the fatwa making process. With respect, in so concluding, the Federal Court in effect allowed for a subverting of Parliament, and the accountability the institution is intended to promote, in this extremely crucial aspect of the constitutional framework by giving licence to the religious bureaucracy to autonomously fashion a parallel system of law outside the established legislative structure and the supervision it envisages. I clarify here that I do not intend to cast aspersions on the qualifications, character or aims of the members of the respective majlis-majlis and fatwa committees. The implications of the decision of the Federal Court are however not easily reconciled with the very purpose of legislative power being constitutionally entrenched in the legislature, and the value of this entrenching to wider society.

The rakyat elected representatives to the legislature to ensure that our respective views were presented and taken into consideration as well as to allow us to have oversight over the processes that ultimately shape our lives. Our representatives should be making law as well as overseeing its making.

Legislature cannot be permitted to delegate its essential legislative function in any field, even to a well-intentioned specialist committee. This is not just about Islam; it is equally about all the other fields that specialist committees might be created for in the same way.

The limited numbers of a committee cannot compare to the full weight of the august houses of Parliament. That some of those in parliament may be of questionable competence, some might say sanity, is of no relevance as it is the underlying principle that is in issue. Allowing for a divesting of legislative power and control is most certainly a state of affairs that will wholly undermine democracy and true nation building.

Consider it from a different perspective. Would a State Legislative Assembly have enacted the offence of practicing yoga? I have my doubts, not least for the heated debates that the tabling of a bill to create the offence would have resulted in. If this were the case, then how is it that the system allows for the criminalising of yoga by the ruling of a committee and the mere gazetting of that ruling?

On the other hand, if a state fatwa committee were to produce an expert opinion that was then made the basis of a bill tabled in legislature, would it not be conceivable that with logic and reason, the bill would be carried? More work might have to be done, as explanations would have to be made that much clearer and factual basis of concerns set out coherently. However, considering that laws are being made, these are necessary prerequisites in any event for such grave efforts.

In the meanwhile I wait with bated breath for the next fatwa. Who knows, it may be about corruption.

(Malay Mail; 25th November 2008)

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Subsequent to this article being submitted for publication yesterday, the Perak State Religious Department has acknowledged that it is necessary for His Highness the Sultan of Perak and the state Fatwa Committee to consider the matter before the policy can be implemented in the state of Perak. The Sultan of Selangor has also indicated reservations (see here). The gazetting of a fatwa requires the assent of the Sultan.

Keeping The Faith

Keeping The Faith

Over the weekend, the blogosphere was filled to the brim with posts and comments concerning Justice Syed Ahmad Helmy’s decision to release Raja Petra.

Many expressed surprise at the Judge having had the fortitude to rule as he did, going against the grain not being the easiest of options. Some were unfeelingly dismissive of the decision and its significance to Petra and his family, and to society as a whole. One of the theories advanced was that the decision to release Petra was engineered by Prime Minister Abdullah Badawi as part of a campaign of political maneuvering against Deputy Prime Minister Najib Razak. Others cynically suggested that it was typical of the lawyers involved, myself included, to have made self-servingly positive statements concerning the Judge and the decision as we had won the case.

These comments made me wonder. Have we really been so thoroughly wrung that all hope and optimism have been bled from us? Are we so broken that we are incapable of appreciating the tiny and not so tiny miracles that happen in our lives every day?

Last Friday, as the first sob of joy escaped captivity in a courtroom that had been stilled by uncertainty, as the first tears of redemption rolled down cheeks that had been numbed by countless disappointments, I was reminded again that it is our collective faith in what is right that has consistently forged the way forward. As the cheers erupted from the many Malaysian throats present, and the Judge attempted to restore order, I understood that as our ties together as a community have strengthened so too has that faith. I saw, as Alice Walker pointed out recently to Barack Obama, it is we who we have been waiting for.

It does not matter what those who scoff say, justice was done last Friday.

No matter what we call it or how we dress it up, detention without trial is cruel. Stripped of everything, a human being has only his or her dignity and conscience. It is to these most fundamental of elements that the right to fair trial and the presumption of innocence speak. It is these elements that preventive detention aims to destroy. They are torn apart in the same way that the lives of those detained and their families are.

The due process of law ensures that the number of people who get shut away erroneously is small. A person charged with a crime in this country has at least two tiers of appeal. His conviction would have been scrutinized at least three times by several judges. A person detained without trial is detained with the stroke of a pen wielded by a Minister who is presumed to be objective enough to do what he needs to do in a way that ensures there is no possibility of error.

Where is justice? If the reasoning of the Minister is to be accepted, it does not enter the picture.

The Minister contends that detentions are a matter left by the law entirely to his subjective discretion. This means, he reasons, if he decides that an individual is a threat to national security, a court has no option but to accept this as a truth. This being the case, there is no need for the Minister’s conclusion to be justified. Extrapolating this analysis, the Minister is not required to argue that the justice of the case favours continued detention without trial. Justice is as such not a feature of the analysis and injustice an irrelevant consideration.

The Judge obviously felt otherwise. His observation, made in the course of his reasoning, that the law could not be understood as empowering the Minister to arbitrarily detain individuals for reasons that had nothing to do with the statute such as, for instance, simply having red hair, was illuminating.

Was his reasoning correct? I would like to think so. The Judge merely applied the law as framed by the legislature and in doing so gave expression to the intention of the drafters of the law: limiting preventive detention to the kind of exceptional “terror” situations described. The Federal Court may however take a different view, just as it may of the points of submission we made that the Judge disagreed with. We will get to argue these again if an appeal is lodged.

Was I happy that the Judge decided the way he did? I would have been foolish not to be, not least for Petra being reunited with his family. Do I think positively of this Judge? Most certainly for having shown me that it is not audacious for any of us to hope as we do. Would I have been disappointed if we lost? I would have but far less than if the Judge had not given us the excellent hearing he did. As we left court on the day we presented arguments, all of us understood that we had had the hearing that all of us wanted: a fair one.

And to those who suggest that the Judge was influenced, I say this. You do a disservice to yourself and to this nation. Had you been in court, you would have seen as we did a Judge keeping the faith.

(Malik Imtiaz Sarwar was counsel to Raja Petra Kamarudin. He is the current President of the National Human Rights Society and blogs at www.malikimtiaz.blogspot.com)

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Finding Equilibrium

Finding Equilibrium

Zaid Ibrahim’s impassioned call for a rejection of race politics last Friday at the LawAsia conference is one that deserves its place in history. His plea for the restoration of democracy and the Rule of Law has reverberated throughout the nation.

This is not surprising. Zaid’s message is rooted in an obviously deep and heartfelt commitment to the nation and the interests of all its citizens. Where the Malays are concerned, he is strident in his rejection of policies that have left the community struggling against a siege mentality that robs it of its ability to meet the challenges of a globalizing world. As he observes, the “Malays are now a clear majority in numbers. The fear of their being out numbered is baseless; they are not under siege. The institutions of government are such that the Malays are effectively represented, and the there is no way the interest of the Malays can be taken away other than through their own weakness and folly.”

Equally forceful in his defence of non-Malay interest, Zaid laments attempts by politicians to do away with a social contract that guarantees “equality and the promise of the Rule of Law” in favour of one that promotes a supremacist ideology that ultimately serves only the interests of an elite. This, he opines, has left the nation deeply divided and cut off from the democracy and Rule of Law so vital for the sustainable and inclusive development that all Malaysians need, irrespective of race and religion.

Put another way, Zaid has given voice to what it is most Malaysians think: that we need to be united to face the future. The founders of this nation understood we could, appreciating that there was no reason for fear and that we had every reason for mutual respect and dignity. Fear mongering has however kept us apart and from seeing the threats that confront us, and what we need to do to counter them.

Zaid’s message is persuasive for its simplicity and self-evident truth. He must be credited for having been able to say what had to be said, as it needed to be said.

If there is any doubt as to the legitimacy of the viewpoint expressed, then we need only consider the reactions from senior UMNO members entrenched in the leadership structure of the party. These reactions not only make it evident that Zaid hit the nail on the head, they also show why it is UMNO and the Barisan Nasional need to seriously reconsider how to make themselves relevant. Two responses are illustrative.

Perlis UMNO liaison chief and former Menteri Besar Datuk Seri Shahidan Kassim had this to say, according to media reports, “Zaid should repent. Otherwise he should get out of the ‘rumpun Melayu’. Paraphrased by BERNAMA, his explanation for this was that “if Zaid continued to question the Malay supremacy concept, then he should no longer be a Malay as a Malay should be defending the Malays and not running them down.”

But, is that not what Zaid was doing? Apparently not, for the New Straits Times reported Home Minister, Datuk Seri Syed Hamid Albar, who is incidentally an UMNO supreme council member, as saying that Zaid was “a traitor to his own race and should apologise for his remarks.”

Both responses are so self-defeating that they boggle the mind. They typify the might is right attitude that Zaid speaks out against. Being senior UMNO members, both individuals must be open to the possibilities. As Zaid put it, if “affirmative action is truly benchmarked on the equitable sharing of wealth that is sustainable, then we must confront the truth and change our political paradigm; 40 years of discrimination and subsidy have not brought us closer.”

Zaid was not alone in expressing concerns about the way things are. At the same conference, His Royal Highness Raja Nazrin Shah, the Raja Muda of Perak, called for a rejection of discriminatory policies. The Raja Muda observed that the “consequence of not empowering citizens or, worse, disempowering them, is to create a deep sense of alienation and hostility. Indeed, it is very often an overwhelming sense of alienation and powerlessness that causes the rash acts of violence that fracture societies. It gives these citizens every reason to seek to divide society in order to redress their dissatisfactions. This is bad and insensitive politics. On another level, we cannot morally turn our backs on the fundamental responsibility of ensuring that all stakeholders in our society, no matter how small or seemingly insignificant, have a place under the sun.”

The ideal could not be better articulated. Malaysians, all of us, want our place in the sun. We do not wish to live in fear, looking over our shoulders all the time. There is more than enough for us all to share in. We have been blessed with a nation so abundant with resources and so rich with potential that generation upon generation will be able to live in peace and prosperity. The only catch, if it can be called that, is that we need to be left alone to find our equilibrium. Only then can we get on with the task of doing it right.

(Malay Mail; 4th November 2008)

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Running Away

Running Away

A few days ago, I was talking to a friend. A meandering dialogue, it was really an excuse for us to reconnect as friends do. And as these exchanges tend to, we drifted into matters of family. She spoke about her children, her brother, the usual assortment of fears and hopes, funny moments, painful ones. I reciprocated.

At some point I began to talk about my father. And as I progressed into my narrative, she suddenly remarked that it was as if I was describing someone very different from the person I had talked about a year and a half ago. I thought about it and understood that she was right. The person I had just been describing was a warm, humorous and slightly dotty academic who, in the recounting of his madcap adventures across the globe in search of his truths, came across as a less sexy version of Sean Connery in his role as Indiana Jones’ father. The father I had described the year before was a quiet, reserved man so removed from his context and so driven in his academic research that he was virtually impossible to relate to. So much so that I had at times wondered what it was that he was running away from.

It struck me then that my father had not changed. I wondered whether I had been romanticizing my account of my father. Writers tend to exaggeration in the name of art, they call it artistic licence, and I was really a closet writer who had stumbled into the practice of law. But then I reconsidered, if that were the case why had I not done that before and, if the truth were to be told, our relationship had always been disjointed. I saw that there had to be another reason.

The more I thought about it, the more I became convinced that I was the reason. I had changed, it seemed, and in as big a way that allowed black to have somehow become white. How that had happened, what had caused that shift in me, these were things I was less sure of.

Over the next few days, I kept on going back to that insight, twisting and turning it in my mind to look at it from different angles. I gnawed at it like a dog with a bone, trying to extract its essence. Slowly, my ruminations took me through the ebb and flow of the preceding year. Gradually, realization dawned.

At some point, I had accepted him; the good, the bad, everything. More crucially, I had accepted that I was his son and that without him, I would not have journeyed down that road that allowed me to become who I was and who I was becoming. My father may have been running, but I had been on my own long distance run. One that had instead of taking me towards where I wanted to get to had taken me away from it. I had stopped running. There was no reason to any longer; there had never been one.

And I saw then that we had to stop running away from who it is that we are.

For years we have fought off any idea of a real Malaysian identity, one in which we could just simply be Malaysian without having to underscore whether we were Malay, Chinese, Indian, Kadazan, Iban or anything else. We have done this not because we know that we cannot have such an identity but because we have preferred to believe in a fiction that had over the years been constructed on the foundation of pain, anguish and hopelessness that enforced separation from one another has caused us all.

It is in the interests of those who prefer to say that a Malaysian identity, a Bangsa Malaysia, is a myth, or that it can only be built around a national identity that prefers one aspect of our beautifully diverse lives, to perpetuate the reasons that keep us apart. The proof that what it is they say is the myth and that each and every one of us has a role in creating, nurturing and evolving our national identity, lies all around us. We just have to want to see it: the way we eat each other’s food and how that food has in a way become all our food, the way we celebrate each other’s festivals with as much gusto as we would ours as if they were our own, the mixed marriages and the children they have blessed this country with, the common dreams and ambitions, the aspirations of our young, our collective destiny.

What are these if not aspects of who it is we all are?

What makes us uniquely Malaysian is our difference and the way we embrace it as one community, warts and all. If we could begin to see that, then that day when we topple that foundation of illusions, and with it that edifice that has for far too long cast a gloom over us, will dawn.

My father is my father and I am his son. I am a Malaysian and I want to stop running.

(Malay Mail; 28th October 2008)

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On Unity

The River

In the valley of Kadisha where the mighty river flows, two little streams met and spoke to one another.

One stream said, "How came you, my friend, and how was your path?"

And the other answered, "My path was most encumbered. The wheel of the mill was broken, and the master farmer who used to conduct me from my channel to his plants, is dead. I struggled down oozing with the filth of those who do naught but sit and bake their laziness in the sun. But how was your path, my brother?"

And the other stream answered and said, "Mine was a different path. I came down the hills among fragrant flowers and shy willows; men and women drank of me with silvery cups, and little children paddled their rosy feet at my edges, and there was laughter all about me, and there were sweet songs. What a pity that your path was not so happy."

At that moment the river spoke with a loud voice and said, "Come in, come in, we are going to the sea. Come in, come in, speak no more. Be with me now. We are going to the sea. Come in, come in, for in me you shall forget your wanderings, sad or gay. Come in, come in. And you and I will forget all our ways when we reach the heart of our mother the sea."

Khalil Gibran, "The Wanderer" (1930)

How To Be Happy

How to be happy

The idea of enacting a law that deals specifically with race relations in this country is a good one. It is evident that politics, tunnel vision and a lack of imagination have resulted in our society being a great deal more fractured than it should have been, all things considered.

Who would have thought in 1957 that fifty plus years down the line, there would still be a demand for supremacist rhetoric and the fruits of discrimination. But here we are; confused and frustrated, trapped in a labyrinth of our own making. So much so that we have lost sight of plain and obvious truths that could lead us into an age of miracles if rediscovered.

A long while ago, I was rummaging amongst a friend’s book collection and came across a little book by the current Dalai Lama entitled, I think, “How To Be Happy”. Wanting to be happy, I turned to the first line on the first page. If I remember correctly, it said something to this effect: in order to be happy, one had to be happy.

You can imagine how I was somewhat put out by this. If it were that simple, I mused somewhat cynically, we would all be a lot happier. There was surely more to it than that for how else was one to deal with the mysterious complexities of life, I grumbled. I put the book back where I had found it and moved on to a glossy magazine with great photographs.

In hindsight, I realized that I should have paid more attention to that drop in the ocean of wisdom.

Quite a few years later I suddenly realized that over time, life had compelled me to simplify how I dealt with it. It was either that or become victim to the stresses and turmoil that I seemed to have had a knack for subjecting myself to. More and more, I had learnt how to accept the obvious and to say ‘no’ when I needed to, distancing myself from distress, even as I found out how to accept what I did not understand with a more open heart. I saw then that though I had some way to go on my journey, I was relatively happy and that I had got there by, well, trying to be happy.

I tried to find that book again but it had moved on to illuminate someone else's life.

The most obvious truth about being a Malaysian is that all of us, regardless of our background and ethnicity, call this country home and share it with everyone else. We got together at independence because we all believed that we had a place here and that we could live together harmoniously and respectfully for all our benefit. That made us all fulfilled and each of us contributed to its, and each others’, growth.

Somewhere along the way however, we began to take that truth for granted and after a while it was left by the wayside, forgotten. In its place was a void that was soon filled by resentment with a deep, burning need for recognition and belonging that we sated with anything that offered immediate gratification. Race, religion, anything that gave us an identity, was soon being fed to that driving hunger. As with all gangs, those with stronger numbers and greater resource soon ruled the day and discrimination became a way of life.

It still is, and for being so interleaved with so many aspects of our life, is the single, biggest obstacle to our living together harmoniously. It is also the greatest cause of distress and for being that, is something that we must collectively distance ourselves from as we learn how to appreciate and embrace the self-evident truths of being Malaysian.

Discrimination has however become so entrenched that the way forward needs the careful guidance that only a structured policy can offer. A race-relations law, providing for the necessary structures such as a race-relations commission, is arguably the only effective way for such a policy to be introduced and implemented.

Worryingly though, those who have proposed such a law seem more focused on creating more strictures in an already hidebound existence rather than on creating a shared platform for sustainable and inclusive development. This is not the correct approach. We do not need more regulations on what we can or cannot say, we have too many already. What we need is a way to ensure that no Malaysian is sacrificed in whatever way to satisfy the need of another.

For that, a sustained effort must be made to fully eliminate any and all forms of discrimination in public life in this country. Where the race-relations law is concerned, the focus must be on racial discrimination. The law should aim at creating an environment in which the equality of all citizens can be promoted and fostered in the way that the Federal Constitution guarantees. The constitutional scheme aimed at protecting disadvantaged Malays and natives of Sabah and Sarawak through objectively applied affirmative action is not inconsistent with such a goal.

Can we be happy? I think so. It requires us to open our hearts and accept some truths. It needs a little creativity and a lot of trust.

I would like to think we are up to that challenge.

(Malay Mail; 23rd September 2008)

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Selamat Hari Malaysia

Selamat Hari Malaysia.

This photograph gives you an impression of the state of euphoria in Kelana Jaya last night at the Pakatan Rally (photo by TV Smith, more here; photos by Chee Seong here). More importantly, it gives you an idea of what a pluralist Malaysia would look like. I say would, not could, because it is an inevitable reality built on the undeniable truth that the only thing that keeps us apart from each other is politics. We are all anak Bangsa Malaysia.

September 16th, 2008. Whether it happens today, tomorrow, or the day after, Malaysians will get a government that they are entitled to, one that stands for truth, justice and fairness for all. Anwar Ibrahim says that the Pakatan Rakyat has the numbers. Even if they do not, even if it takes us a few more months or years to get to a point where Malaysia will look like it does in this photograph, with or without the Pakatan Rakyat, we will get there. I am convinced of this.

We are reclaiming what is ours, a free Malaysia.

MIS

Update: see also Thinkvision's Weblog for more photos and commentary

One People, One Destiny

One people, one destiny

I was reading the Proclamation of Independence again recently. It struck me how the proclamation starts with not only with the utterance “In the name of God, the Compassionate, the Merciful” but also, in the next sentence, “Praise be to God, the Lord of the Universe (Rabb Al-‘alamin) and may the blessings and peace of God be upon His Messengers.”

The expression Rabb Al-‘alamin resonates. It is my favourite description of the Creator, saying to me that Allah’s embrace is so all encompassing, like a mother’s, that no one, not a single one of us, will ever be allowed to fall from His cradle. ‘Abdullah Yusuf Ali conveys the nuances of this phrase richly in translating it as the “Cherisher and Sustainer of the Worlds”. “Worlds”, not “world”. Worlds. ‘Abdullah Yusuf Ali says, “There are many worlds, astronomical and physical worlds, worlds of thought, spiritual world and so on. In every one of them, God is all-in-all.” I agree. The world I live in is in many ways different from the world in which my neighbour lives. My family, friends, experiences, history and spirituality are so different from his, as are his from mine.

As I read the opening words to the Proclamation again, I was reminded of how in invoking Rabb Al-‘alamin and His Messengers, our founders had not only proclaimed this nation as one in which Islam was the religion of the Federation, they had also recognized that the Malaysian universe was one made of up of so many different worlds. The Proclamation goes on to declare: “AND WHEREAS by the Federal Constitution aforesaid provision is made to safeguard the rights and prerogatives of Their Highnesses the Rulers and the fundamental rights and liberties of the people and to provide for the peaceful and orderly advancement of the Persekutuan Tanah Melayu as a constitutional monarchy based on Parliamentary democracy.”

We are one people, all of whom have a common destiny. We come from different worlds and we will continue to have our own peculiarities even as we forge a common identity. Islam is embedded in the Constitution and that will not change. Leave aside the practical impossibility of ever denuding the Constitution of Islam, our shared history and our present are so interleaved with the faith that its absence would leave a void for many of us, even non-Muslims. A friend of mine of another faith used to complain about the azan until she spent a long time away and realized how it had given her comfort, signaling the end of night and the start of another day. In the same way, the funds that are used for the advancement of Islam in this country come, in part, from taxes collected from all of us and we do not hear complaint about it.

An appreciation of this, and the equally protected status of the Malays, must necessarily bring with it an equal understanding of our need for mutual respect. This is not just about the guarantee of equality in the Constitution, this is about what common good requires of all of us. I do not profess to be an expert but I recognize at my core that God made us equals even as He made us different so that we could understand acceptance within His full embrace. I understand that our diversity mirrors the worlds that are His domain, as much as I understand that our diversity is a reflection of His Oneness. For this reason, when we cleave any one of us away from the rest of this society, it is a cause of great pain and anguish. There are sensitivities that have to be handled very delicately even where we feel that there are issues that need to be confronted. Perhaps too belatedly, I understand now that so focused on law and constitutional rights have I been that I have at times overlooked the need to be less robust in the way I explained myself; though things needed to be said, and still do, they could have at time been said that much better.

When Dr Rais Yatim opened the conference at which the proposed Interfaith Commission Bill was to be discussed, he said something that has remained with me since, “We must know the sharp edges protruding in a multi-religious and multi-racial society.” Rightly so, for how else are we to understand how to live with each other more harmoniously unless we know the sharp edges. We must confront, understand and resolve. And while sensitivity is necessary, it must not be permitted to keep us away from what we have to do as a community of worlds or to shut us out.

We must also not blind ourselves to the fact that sensitivity is a two-way street. No one person or community has a monopoly over the right to feel pain. We all bleed the deep, red blood of Malaysia. Tanah tumpahnya darahku.

(Malay Mail; 9th Sept 2008)

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Project Malaysia: A Commitment

Response has been positive. We are receiving contributions and expressions of interest from individuals with diverse backgrounds.

I would like to address some of the concerns I have seen expressed in some of the blogs that have been kind enough to highlight the inititative. This will also let me clarify its policy.

For Project Malaysia to be effective, it has to be representative. Appreciating that much of what we intend to consider involves politics in one way or the other, it is essential that the political perspective is offered as well. We commit to ensuring that all political perspectives are fairly presented. We have been privileged enough to have YB Nur Jazlan submit a perspective piece which is already on-line. We are hoping that more UMNO and other Barisan Nasiaonal representatives will present their views, they collectively play such a big and important role in all that happens in this country. This applies equally to the parties that make up the Pakatan Rakyat. Invitations have been extended, whether these are taken up is a matter for those invited. Appreciating that limitations impact on our ability to invite all relevant personalities, help us do so. At the same time, we would be happy to receive voluntary submissions. Do not wait for an invitation if you have something to say on the issues at hand. And say it in any language you feel comfortable doing that in. We are at the moment working on the basis that submissions will be in Bahasa Malaysia and English but we will look at how to also feature material in any other language.

Similarly, when we get to the theme on religion or any other subject considered controversial, we wish to ensure that all views are presented. The experiment will not have been a success if we do not. I am as such hoping that all interest groups - including ABIM, ACCIN, FORKAD and so on - will contribute submissions. The only agenda is one aimed at ensuring that a broad discussion of common ground and problem areas is made possible. We need to understand each other and the only way we can do this is by talking to each other, fairly and respectfully. And that, if at all, is the only caveat we have: state what has to be stated, but do it in an objective manner with the understanding that we are having a discussion after all.

Project Malaysia is not about me or any of the other persons involved in it. It is about all of us, or as many of us that want to make it our own. I give you my assurance that that will be the case throughout and am open to feedback that I have strayed from my promise to you.

And for those of you who are sceptical at the moment, all I ask is that you keep an open mind and engage with us, privately if you must, to convince yourself that this is really something that you do not want to be involved in. We would of course prefer it to be otherwise.

MIS

Project Malaysia - Sighting Common Ground

Project Malaysia - Sighting Common Ground

Some friends and I launched a non-profit initiative called ‘Project Malaysia’ on Merdeka day this year. An on-line journal on key contemporary Malaysian issues, it will run for twelve months during which twelve core themes will, we hope, be deconstructed objectively and comprehensively. Our aim is to offer solutions for a stronger, more united Malaysia.

The idea for the initiative came up towards the tail end of 2006. The Article 11 road-show had become controversial as had my involvement in the Lina Joy appeal at the Federal Court. Circulating, were posters denouncing me as a traitor to Islam and flyers declaring that I was the principal mind behind an anti-Islamic campaign. About a year earlier, I had chaired the steering committee of an initiative aimed at promoting the establishment of a statutory interfaith commission. That too had become controversial, and judging by the campaign in Permatang Pauh, is still something that some see as being useful for purposes of agitation.

Needless to say, these events got me thinking. I had involved myself in these efforts for the same reason that I had been involved in human rights and civil society work since 1996. Appreciating that coexistence in a multi-cultural society such as ours would involve some friction from time to time and that historical antecedents would lend itself to majoritarianism and the unfairness it could entail, my objective had been to find constitutionally just solutions to potentially problematic scenarios. In the case of the proposed commission it had been to find a mechanism by which infringements of religious harmony could be considered with the detached objectivity that problem-solving required. With the Islamic conflicts cases, it had been to highlight the avoidable problems that an erosion of constitutionalism had led to.

No matter what my detractors might say, at no point in time did I advocate the rejection of either Islam as the religion of the Federation, the system of Islamic administration or the special status of the Malays. And yet that is what certain quarters had come to represent with much force. It is readily apparent that the truth had been manipulated and controversy created for the sake of a less obvious agenda, much as it was when the Bar Council held its forum recently.

As I began to appreciate more clearly what it is that had happened, I saw a similar trend in other aspects of our lives. Instead of addressing issues, some of which went to the heart of our ability as a society to remain cohesive and capable of facing the future, it seemed that those in positions of influence were more concerned with scoring points and creating opportunities through proverbial storms in teacups. Added to this was a high degree of politicking from which nothing, it seemed, was sacred, including governance. There was as such a lot of noise and drama, but very little being done.

When confronted, our leaders would have us believe that there was hardly any, or no, common ground on these issues, that they required detailed study by persons unknown, or, all else failing, the matter was too sensitive for discussion. This attitude left little or no means by which issues could be viewed constructively and resolved. Talking to the opposition is only as effective as the opposition is as a means to influencing change and as interested as it is in the issue at hand, the latter not being a given.

The more I thought about this, the more I became convinced that unless Malaysians were given access to objective viewpoints from all relevant perspective, they were going to be constantly in the dark and vulnerable to influence. Difficult scenarios would only multiply.

I began to talk to friends about what it is that could be done. The fact that Malaysia appeared to be awakening, and it cannot be denied that all things said and done the Abdullah Badawi administration did create more space for discussion, was a key element in our discussions. Over time, we began to see the need to challenge preconceptions, not only about issues but also how we were to address them. In this vein, maybe rather presumptuously, we began to look at the possibility of a nation building experiment.

That experiment became known as Project Malaysia. It was meant to have kicked-off about a year ago but schedules, commitments and circumstance made it impossible. In retrospect, this was a good thing as we gained the advantage of the events of March 8th and all that has happened since.

Whether we manage to achieve our goal is something that all Malaysians have a role to play in. We intend to approach each theme in the following manner. An article on the theme will be presented to selected respondents, leaders or experts in their respective fields, and a response invited. The respondents having been selected from the range of relevant stakeholders, it is hoped that a multi-faceted, perhaps comprehensive, analysis of the theme will be presented. Shorter comments on varying aspects of the theme by interested participants should allow us to keep the discussion relevant and real.

Through this, we hope to be able to identify common ground, problem areas and possible avenues forward. At the end of twelve months, we should have a blueprint for a better Malaysia.

As our first step into the void, we chose the theme “Race” and invited responses to a comment entitled “The Politics Of Race”. Already featured are perspectives by YB Nur Jazlan Rahmat of UMNO, Ooi Kee Beng, Tricia Yeoh and Mavis Puthucheary. There are many more to come, some which may surprise. We take the view that the more dimensions the better.

This is, after all, for a better Malaysia.

(Project Malaysia is at www.projectmalaysia.org)

(Malay Mail; 2nd September 2008)

MIS