Ipoh, 7th May 2009

"...No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.

Go back to Mississippi, go back to Alabama, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream..."

Martin Luther King

The image of the Speaker, Y B Sivakumar, being forcibly removed from the chamber of the Assembly has seared itself into the Malaysian consciousness. That force had to be resorted to it is indication enough that the Barisan Nasional did not have a political or legal solution to the difficulty it found itself in.

I wonder whether anyone is actually celebrating.

MIS

(My column for the Malaysian Insider runs on Monday. It will deal with Perak)

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

Debating The Motion To Suspend Gobind

The tabling of the motion to suspend Gobind Singh from Parliament for a year by Datuk Seri Nazri Aziz is intriguing.

The motion reads as follows (taken from YB Lim Kit Siang’s blog):

ATURAN URUSAN MESYUARAT DAN USUL-USUL

Menteri di Jabatan Perdana Menteri akan mencadangkan:

BAHAWA pada 12 Mac 2009, Yang Berhormat Tuan Gobind Singh Deo, Ahli Parlimen kawasan Puchong semasa perbahasan peringkat Jawatankuasa Rang Undang-undang Perbekalan Tambahan (2009) 2009 telah mengeluarkan kenyataan-kenyataan yang mendakwa YAB. Timbalan Perdana Menteri, Ahli Parlimen Kawasan Pekan terlibat dalam kes pembunuhan.

BAHAWA Yang Berhormat Ahli Parlimen Kawasan Puchong juga telah mengeluarkan kenyataan-kenyataan yang menghina Timbalan Yang di-Pertua Dewan Rakyat setelah diperintah keluar Dewan.

DAN BAHAWA kenyataan-kenyataan yang dibuat oleh Yang Berhormat Ahli Parlimen Kawasan Puchong adalah merupakan satu dakwaan yang sangat serius dan menyalahi hak dan keistimewaan sebagai Ahli Parlimen serta merupakan satu penghinaan kepada Dewan ini.

MAKA INILAH DIPERSETUJUI BAHAWA Yang Berhormat Ahli Parlimen Kawasan Puchong hendaklah digantung tugas dari jawatannya sebagai Ahli Parlimen selama dua belas (12) bulan dari tarikh keputusan usul ini diluluskan. Dalam masa penggantungan ini Yang Berhormat Ahli Parlimen Kawasan Puchong tidak akan dibayar kesemua bayaran elaun dan kemudahan sebagai seorang Ahli Parlimen.

It appears that the motion is grounded on Gobind having abused parliamentary process and privilege in accusing the Deputy Prime Minister of being involved in the murder of Altantuya Shaaribuu.

Leaving aside the questions of whether the matter ought more properly be taken up before the Committee of Privileges and whether the suspension of the Puchong MP for a day on 12th March brought the matter to a close, it is significant that a debate of the motion must necessarily involve discussion of whether Gobind Singh had conducted himself inappropriately.

This would necessarily involve a consideration of whether the making of the accusation was warranted which in turn would involve a consideration of the very matters that the Deputy Speaker had directed Gobind Singh not to speak about on the basis that the matters were “sub-judice”.

If the sub-judice ruling holds, then the motion cannot be debated.

The motion is of punitive nature, it aims at suspending Gobind Singh without allowances and privileges. The MP must therefore be given every opportunity to state his position squarely. Additionally, all other MPs must be given an opportunity to debate the motion fully in order that the issue is fully ventilated. As such, the Speaker cannot limit the scope of debate by ruling that reference to the Altantuya case and its investigation is not permitted. This would be akin to the MP being asked to step into a boxing ring with his hands tied behind him.

If the Speaker allows full ventilation of the issue, it would not only be inconsistent with the ruling of the Deputy Speaker on 12th March and other prior rulings that have impeded the raising of the Altantuya matter in Parliament, it would also permit the Altantuya matter to be raised in Parliament.

I am not certain who stands to lose more if the motion is permitted to be debated.

MIS

Of War And Politics

Of War And Politics

Shortly after the Perak affair commenced, I was at an open house function and met a man of influence. In the course of our conversation, he informed me that he had graduated from the Royal Military College. Not surprisingly, the situation in Perak came up. We spoke about the disappearance, and subsequent reappearance, of the three controversial former opposition members and the move to take over the state government by the Barisan Nasional and the Sultan’s refusal to dissolve the Legislative Assembly and soon found ourselves pondering the ethical dimension of what had transpired. At one point, perhaps because of his background, he said. “Politics is like war, all’s fair. We must expect it to get bloody.”

I understood what he meant.

It could be said that political campaigns have to be strategized like military campaigns. There has to be an objective, thought must be given to the resources available for deployment and tactics planned with a view to achieving that objective using those resources. In this, one can expect bloodshed as such is the nature of war. Losses are anticipated, even acceptable, as a factor that informs the overall strategy.

The analogy is however only apt at a superficial level. When causes and methods are considered more closely, it is obvious that they are vastly different.

Wars must only be waged for lawful cause and in a lawful manner. The United Nations Charter limits such cause to self-defence though there is an argument to be made that customary international law has expanded the scope of justifiable conflict to include humanitarian intervention such as was seen in the Balkan conflict. Further, the Geneva Conventions and other treaties put in place the rules by which wars are to be fought by reference to what is permissible and what is not. Such wars are that are fought for legitimate cause in a permissible manner are just wars, and for that are events of honour. Those who fight them are honourable.

Politics is however by its nature far from honourable. In this we must understand that a distinction has to be drawn between a cause for which politics is enlisted and politics itself for there may be noble causes in whose aid politics is enlisted.

Political campaigns are not aimed at self-defence, their twin objectives being self-promotion and the disabling of a political opponent with a view to furthering self-interest. This opponent is not necessarily someone from another organization, as political causes involve fighting friends as much as it does enemies. Loyalty and honour have very little to do with anything; they could in some situations even be obstacles to the political process. This has been more so in recent times; those politicians who have stuck to principle and been content to let action speak louder than words have suffered politically for the fact.

Where political hegemony is involved, the difference is even starker. This allows for control of the “system” and the hijacking of governance. In having such control, political objectives do not have to be achieved for lawful purpose or in a lawful manner and the ends will always justify the means.

For all of this and more, politics is not like war. To draw the comparison is to do an injustice to, even insult, those brave men and women in the Malaysian armed forces. They are patriots who, unseen, keep this nation and our way of life safe.

In contrast, save for small minority, our politicians worship at the altar of personal ambition and routinely sacrifice principle for gain. Were it otherwise and politicians understood that being elected to office was a way in which they could truly serve this nation things would be very different. For a start, the Internal Security Act and a host of anti-democratic laws would no longer be on the books, institutions that we have every right to expect to act without fear or favour would be left alone to act as they should, and we would be hopeful for our interests being looked after as they should.

Democracy was never meant to be a ladder for ambitious politicians. Its elections were aimed at ensuring that the rakyat were able to vote to office capable representatives who understood them best and who would do what was necessary to protect their interests and those of the nation. These elected representatives were intended to be the voices of reason that would help shape this nation and point it in the right direction for its journey into our collective future.

Encouraged by a lack of accountability, in the hands of our politicians democracy has become a spectator sport, a winner-take-all gladiatorial blood-fest in which the rules themselves have become weapons in the hands of oppressors who prey on the weak and vulnerable.

In the political feeding frenzy that has taken centre stage, it is the person on the street who suffers the most. Though we tend to blame this on the politicians, we overlook that politicians have been able to get away with what they do for one reason: at some point we stopped caring that our politics lacked ethical foundation. We were satisfied as long as we had opportunity to enlist politics for our individual benefit. Those who did not were dismissed in our minds as acceptable collateral damage.

In doing so, we became a part of the problem.

Politics like war? It would be more in our interests if that were so as limits would be respected and actions circumscribed by honour. However, until we take ourselves out of the equation and look to the nation’s interests, that will never be the case.

(Malay Mail; 10th March 2009)

MIS

Making Sense Of The Perak Controversy

Before embarking on an analysis of the state of play in Perak, it would be of value to consider the objective facts:

• two assemblymen signed undated resignation letters as a condition to their being nominated by their political party for a state election. For this, the party also gave them full support, financial and otherwise. They won their respective seats;

• the undated resignation letters were submitted to the Speaker of the Legislative Assembly. The Perak Constitution allows members of the Assembly the option of resigning their membership “by writing under his hand addressed to the Speaker”;

• the party opted to submit the resignations of the two assemblymen. It is not apparent what prompted this;

• the Speaker has accepted the resignations and communicated the fact of the resignations to the Election Commission. The Speaker has taken the position and ruled for the purposes of the Assembly that the resignations have taken effect and by-elections be held. He will treat the assemblymen as no longer being members of the Assembly for the purposes of proceedings in the Assembly;

• the two assemblymen dispute the validity of the resignation. They do not contend that the resignations letters were not under their hand. They contend that the resignations were procured through duress; and

• the Election Commission has decided that the resignations are doubtful and as such not true resignations.
  

From the above, it could be said that the following questions arose when the controversy first erupted:

• the legal value or validity of the resignations. There is no authoritative decision of the courts on this point. A 1982 decision of the then Federal Court (Datuk Ong Kee Hui) observed that such resignations could be viewed as being contrary to public policy in view of elections at both the State and Federal level being of individuals as opposed to political parties. A question of honoring the wishes of the electorate, that is the electing of the individual as opposed to the party, arises. The Federal Court did not decide on the point as the Member of Parliament concerned did not seek to invalidate the resignation nor had the Speaker been joined as a party. The point is as such open to argument; and
  

• whether the resignation letters were procured under duress,

However, these questions have been overtaken by events, in particular the decision of the Speaker to accept the resignations and give effect to them. The Speaker may be wrong but until he is shown to be wrong through valid process – either in the Assembly (to the extent that such process is available) or through the courts – the Speakers decision must stand.

In this regard, the Election Commission is charged with the conduct of elections. It could be argued that in order to do so, the Election Commission must have the power to determine whether an Election is needed in the first place. Where State and Federal Elections are concerned, this is established by the dissolution of the Assemblies and Parliament respectively. However, where casual vacancies (through death, resignations or disqualifications) arise, the situation is more nuanced.

The Perak Constitution (Article 36(5)) provides that a casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy. Vacancies caused by death and disqualifications are easily established. Where the latter is concerned, the matter is decided by the Assembly itself, which in law is taken to have final say (save where there is a matter of legal interpretation).

In the ordinary course resignations are similarly uncomplicated; the Speaker receives the letter of resignation and communicates the fact to the Election Commission which establishes the vacancy based on the Speaker’s declaration. From this, it is apparent that the vacancy is established by reference to the position taken by the Speaker. This is consistent with the basic principle of parliamentary democracy that it is the Speaker that regulates the assembly.

The question that arises is therefore whether this process is derailed by a dispute as to the validity of the resignation. In my view, it should not be, and the Election Commission must act accordingly. I say this for two main reasons. First, the scheme explained above.

Secondly, it is not for the Election Commission to embark on a fact-finding or adjudicative process as, amongst other things, it does not have the power to do so. In denying the position the Speaker has taken, the Election Commission is in effect asserting that that the Speaker is wrong. The Election Commission cannot do so. If there is a question as to the correctness of the Speaker’s position, then it must be challenged through proper channels.

Seen from this perspective, this unprecedented and very curious action of the Election Commission regrettably raises questions as to its motives. It must be taken to appreciate the precarious position it has left Perak in, one which looked upon objectively appears to have been made more accommodating to the machinations of the Barisan Nasional. I note that by-elections would be inconvenient for UMNO which is scheduled to have its assembly in March. It is as such open to question as to whether the Election Commission has conducted itself in the independent manner the Federal Constitution requires of it.

Where this leaves the Perak Government is an open question. It could seek a ruling of the Court as to the correctness of the decision made by the Election Commission and an order to compel the latter to conduct the by-election. This would be a time-consuming affair and occasion a delay that can only work against the interests of the State. The razor thin margin is undermining of stability and it is more probable than not the attention of those who make up the State government would be focused more on preserving their government than the affairs of the State.

The Election Commission’s stance and the underlying events would afford sufficient cause for the Menteri Besar to request that His Highness the Sultan dissolve the assembly and call for fresh elections. All things considered, this may be the best way to protect the interests of Perak. In these difficult times, governments should be focused on what needs to be done rather than politics.

(Malaysian Insider; 4th February 2009)

MIS

Navigating The Constitutional Impasse

It seems that we are well on the way to a constitutional crisis. A deadlock looms and, as some commentators including Professor Aziz Bahri of the International Islamic University have suggested, much will depend on how proactive the Yang di-Pertuan Agong can and will be in breaking it. In this, and more, it is becoming increasingly apparent that that the line between those who want change and those who do not will be the Federal Constitution.

Let us consider the objective elements.

Firstly, any Prime Minister of the nation must necessarily be the person who commands the confidence of the majority of the members of the Dewan Rakyat. As to who it is that commands the confidence, this is a decision for the YDPA “in his judgment”.

Until the events in Trengganu shortly after the last general and state elections, it was commonly thought that this was really a matter of having the numbers, that is the person with the most number of supporters in the chamber would become the leader of the government. The interventionist position of the Regency Council, for all purposes and intents the Sultan, earlier this year shed light on how things could justifiably be viewed differently. The appointment of Ahmad Said as the Mentri Besar possibly set a precedent and gave us foundation for the argument that it was ultimately the judgment of the monarch that mattered.

This is relevant as the material provisions in the Federal Constitution are virtually identical to those in the Trengganu state constitution. The YDPA could, as such, approach the issue in a similar way. This is not necessarily impossible; the YDPA is the Sultan of Trengganu.

Secondly, a Prime Minister who no longer commands the confidence of the majority has two options. He can ask the YDPA to dissolve parliament and use that to call for fresh elections. The YDPA however has an absolute discretion to withhold consent and as such, could legitimately refuse. This would leave the Prime Minister with no option other than to tender his resignation and that of his Cabinet and pave the way to the appointment of a new Prime Minister, one who in the judgment of the YDPA commands the confidence of the majority.

Thirdly, the Federal Constitution does not say how to establish that the Prime Minister has “ceased to command the confidence of the majority”. A vote of no confidence is an obvious method but not necessarily the only one. To read the constitutional provision otherwise would not only be unwarranted (an unnecessary implication of meaning) but would also allow for unconstitutional action, such as the use of the provision to impede the expression of the majority of the Dewan Rakyat. It is possible that circumstances could arise where an incumbent government seeks to prevent the meeting of members in Parliament to undermine any attempt by the majority to form a new government. To read provisions of the Constitution to lend to such an outcome would be wholly repugnant to the scheme the Constitution puts in place.

As such, it is open to the YDPA to form a view through other means, such as direct meetings with the majority of the Dewan Rakyat, so as to satisfy himself that the incumbent Prime Minister has in fact ceased to command its confidence. Events in Perlis and Trengganu earlier this year are illustrative of this course. That this approach is not necessarily ideal, for being amongst other things, fraught with practical difficulties, does not in itself militate against such an approach having been within the contemplation by the founders of the Federal Constitution.

Fourthly, assuming the YDPA nonetheless felt it necessary to have a vote of confidence put through the Dewan Rakyat, a question arises as to how this would be approached. If parliament were sitting, this could arguably be put through the Dewan. Such a motion would be extraordinary and exceptional. Going to the very foundations of the legitimacy of the incumbent government, it would have to be treated as a matter of priority. To allows such a motion to be encumbered by the procedural requirements of parliament would be wholly repugnant to the spirit, if not the letter, of the Federal Constitution. Even though the Speaker does have control of proceedings in the Dewan, he must allow for urgent debate and a vote on the motion if there is sufficient foundation for the motion. He has taken an oath to preserve, protect and defend the Federal Constitution and, therefore, the system of governance it puts in place. Such a motion and its outcome are self-evidently matters of grave constitutional significance and impact that cannot be ignored.

This would be more the case if the YDPA gave indication that it was His Highness’ wish for the motion to be dealt with as a matter of utmost priority. Under the Federal Constitution, Parliament is constituted of the YDPA and the two houses of parliament and an expression of His Highness’ intent cannot but be given great weight.

If parliament is however not sitting, a question arises as to whether the motion should be deferred to a time when parliament reconvenes. The question of the legitimacy of an incumbent government is not a matter that can be taken lightly assuming there is reasonable foundation for a belief that it no longer commands the confidence of the majority. The government does not adjourn as parliament does and it continues to act on the basis that it has the mandate to do so throughout its term. It would therefore be only logical for parliament to reconvene on an urgent basis to debate and vote on the motion. This however raises the question of how parliament is to be summoned.

The Constitution provides that the YDPA summons parliament. This is arguably done on the advice of the Prime Minister and it is for this reason that parliamentary procedure provides for reference to the Prime Minister. The Constitution is however silent on a situation where the motion in issue is one aimed at establishing that the incumbent Prime Minster no longer commands confidence. So are parliamentary rules. Though it could be said that there is as such no power with the YDPA to summon parliament, to read the Constitution as vesting a discretion in the incumbent Prime Minister to determine whether the Dewan will meet on whether he or she commands the confidence of the majority would lend to an obviously self-defeating outcome. It would after all be in the interests of the incumbent Prime Minister not to allow for the summoning of the Dewan. This cannot be right.

It is reasonable to read the Constitution as providing for this exceptional situation in the following way: the YDPA has the discretion to summon parliament for this purpose in view of it being an incident to the absolute discretion of the YDPA to appoint as Prime Minister a person who commands the confidence of the majority. Simply put, the YDPA must be given means to ensure that the Prime Minister is a person who commands confidence if His Highness is given reason to apprehend otherwise.

As such, His Highness could direct the Speaker to summon the Dewan Rakyat to debate the motion. The Speaker would be at risk of defying a legitimate direction of the YDPA and breaching his oath of office, with all the consequences of such an act, if he refuses. Alternatively, the YDPA could direct the incumbent Prime Minister to summon the Dewan. A refusal would similarly run the risk of being an unlawful defiance of a legitimate direction or a breaching of the oath of office.

Sixthly, in the event the YDPA forms the view that the incumbent Prime Minister has ceased to command the confidence of the majority, the YDPA could then appoint a new Prime Minister. A further question arises as to whether the incumbent Prime Minster must firstly tender his resignation and that of his Cabinet. Though this would be ideal, I have my doubts as to whether it is a necessary prerequisite, especially if the incumbent government intends to undermine the forming of a new government. Though the Federal Constitution does not provide for the dismissal of a Prime Minister, the appointment of a new Prime Minister would merely be giving effect to the wishes of the majority of the Dewan and system of governance put in place by the Constitution.

But then, what if the incumbent government refuses to vacate office? If the new Prime Minister is sworn in and given the necessary instruments of power, the incumbent government would in effect no longer be the government of the day and would no longer in law be lawfully possessed of power. Those individuals who lend themselves to this situation could be viewed as trespassing and, worse still, be seen as attempting to usurp the legitimate power of a lawful government. This has grave consequences.

The analysis set out above is based on my understanding of the Federal Constitution and it goes without saying that others may take a different view of the issues. However, it must be borne in mind that as the supreme law, the Constitution defines the way in which we are to organize ourselves and arrange our affairs. This extends to transitions of power, something which the founders could not but have contemplated as being possible. The Constitution was drafted in general terms so as to ensure that it was relevant and applicable to situations in an evolving nation and remain a vibrant and living law. The answers are there if we look for them fairly and objectively.

In the difficult times ahead, it is clear that the various factions will take positions on key constitutional provisions and interpret them in a way that favour their intended aims. In this, the YDPA plays a crucial role as does the Judiciary. It is therefore vital, and I say this respectfully, that both these institutions be seen as being detached and far removed from the politics of the unfolding events. How the approaching crisis is resolved, and the way in which this is done and seen to be done, are matters that go to our ability to meet the future with the stability and conviction that this nation requires to meet the challenges ahead.

MIS

Give Ahmad Ismail A Break, Will You?

I think we should leave Ahmad Ismail and his merry men to do what it is they do best; reinforce the choices voters made on March 8th when they decided to hand over Penang to the Pakatan Rakyat.

Look at it this way. Mustafa K Anuar’s incisive blog-post on the subject (“The Sorry state of apologies in Malaysia”) points to the possibility of more fuss than necessary being made over the issue to justify more aggressive action. This is a view that others share (see, for instance Malaysia Waves, "Ahmad Ismail Reciting Racial "Historical Fact", but for What?").

As we all know, there are those who fervently believe that there is great political opportunity and advantage in race and religion. The threat of racial unrest is a tried and tested method for the deployment of the Internal Security Act. It would appear, judging by Minister Syed Hamid’s comments in the media about the police reports lodged against Raja Petra by several Islamic agencies and departments, the authorities are already exploring the possibility of silencing the seemingly unstoppable Raja Petra on this basis (see “Syed Hamid: ISA can be used against Raja Petra"; Malaysiakini; 6 Sept 2008).

It would not be unreasonable to think that in as much as the Barisan Nasional, and in particular UMNO, may be publicly ridiculing the idea of the Pakatan Rakyat being in a position to form a government by September 16th, or at all for that matter, its less public view of the matter is one fraught with anxiety at the possibility, if not probability. The mind boggles at the possible impact of a new government, in particular on the personal interests of individuals whose actions may have been less than above board. The potential take over is as such no longer merely a matter of political survival for some. To them, it is a matter of survival, pure and simple.

All this points to the real possibility of a desire to take more extreme measures. Desperate times, after all, require desperate measures.

For this reason, it would be prudent to employ restraint in the way we react to the entire issue. That Ahmad Ismail was inelegant in the way he made his point and that he caused offence is beyond dispute. He did and if the media reported him correctly (and this seems to have been the case, why else would the Deputy Prime Minister offered an apology), what he said smacks of racism. But then, a lot of other people make these kinds of statements all the time. That Ahmad Ismail is someone senior in UMNO does not make his statement any more exceptional as the sentiment he expressed is of the kind that we have sadly come to expect from UMNO officials.

The fact that his statement has afforded a political opportunity to those in whose interests UMNO bashing lie should not make it exceptional as well. The bigger picture demands that we view it so and not distract ourselves from what needs to be done.

The objective is to democratize Malaysia. There is a stronger possibility of this happening if a new government is formed. Reactionary behaviour will allow the powers that be to set in place obstacles to that process by validating aggressive reprisal.

We do not want that. We do not need it.

And, after all, if Ahmad Ismail feels the need to throw his weight behind the transformation of Malaysia by making the Barisan Nasional that much more unattractive, should he not be getting our praise and gratitude? Give the guy a break.

MIS

Why The Unholy Haste?

Many, including the opposition, are troubled by the unholy haste with which the DNA Identification Bill is being rushed through parliament. Their complaint is founded on two concerns. First, that the bill is not well thought through and substantially erodes fundamental safeguards intended for an accused under the criminal justice system. Secondly, that it appears that the principal aim of the exercise to target Anwar Ibrahim. To that end, he may be its first casualty.

That the timing is convenient cannot be disputed. It not unreasonably lends to an inference that the Government, and by that I mean the Barisan Nasional and more particularly UMNO, hope to be able to harness the significant prosecutorial advantage that the proposed statute offers to its own political benefit. However, in as much as one may question the propriety or even the morality of the decision to table the bill in the way it has been and the apparent complicity of the Speaker in that process, there is no legal obstacle to their doing so. The Speaker controls parliamentary process and the Barisan Nasional has a majority in parliament.

As such, if the Barisan Nasional has its way, and it appears that it will, the bill will be law very soon. This does not however necessarily mean that the law is constitutional. I do not think it is for rendering the right of an accused to a fair trial predicated on the presumption of innocence illusory. In this, I share the reservations so succinctly expressed by Mr Edmund Bon, Chairman of the Bar Council’s Human Rights Sub-Committee. These were set out in Malaysiakini (DNA Bill tabled for second reading; August 26th 2008) and I take the liberty of setting them out here:

• There are no safeguards in relation to the storage and testing of DNA samples and for DNA profiles as well as how they are to be handled. No regulations were prescribed.

• No provision for the accused to do his or her own independent DNA test which means that the accused have no way of testing the authenticity of the DNA sample claimed to be his or hers.

• Categories of persons from whom samples may be taken from are to arbitrary and wide meaning that regardless of whether or not one is being investigated for an offence, DNA sample can be extracted from them.

• Criteria and power safeguards are lacking in relation to suspected and convicted persons rendering it susceptible to manipulation

• Privacy rights is illusory and those who refuse to provide samples will be subject to punishment and criminalisation

• The bill would mean that those who have not been charged or convicted prior to the passing of the bill would be affected by it

• Destruction of samples should not only be permissive but mandatory after a certain period of time as this provision will leave the head of the DNA databank discretionary powers to do anything with it.

• Clause 18 of the bill gives no assurance that the extracted DNA sample is not to be used and stored somewhere else after it has been used for a particular case.

• Clause 24 of the bill states that the extracted samples are conclusive evidence which means that the court and the accused have no authority to question the process of the DNA profiling.

• Without proper DNA data protection laws, the power to export DNA samples to foreign law agencies should be curtailed all together.

I do not take issue with the need for law on the subject, many other jurisdictions have legislation in place to allow for DNA profiling and testing. Any law introduced to achieve the stated aims must however not undermine the rights of an accused person. The proposed law regrettably does exactly that. As noted by Tommy Thomas, a senior constitutional lawyer, in an interview with Aniza Damis of the New Straits Times (Spotlight: CSI Malaysian style; 24th August 2008) the proposed law in effect allows for a reversal of the presumption of innocence. It will compel an accused person to prove his innocence by battling the purported conclusiveness of evidence collected. These are serious concerns that warrant closer scrutiny.

In the current climate, the fact of judicial scrutiny being brought to bear is not sufficient to assuage these very grave reservations. The trial courts will apply the law as enacted and, judging by recent precedents, will be compelled to take an unduly narrow view of the freedom of an individual to a fair trial in these circumstances on the basis of parliamentary, as opposed to constitutional, supremacy. Added to this is the fact that serious concerns have arisen as to the independence of the Judiciary, particularly in light of the conclusions of the Lingam Commission of Enquiry. Confidence in the judiciary is at an all time low and measures aimed at restoring confidence are still very much on the drawing board.

The provisions of the proposed law also give significant powers to the police, an institution whose integrity was brought into serious question by the findings of two prior Royal Commission of Enquiry, one pertaining to an assault on Anwar Ibrahim. As with the Judiciary, recommended measures are still merely a matter of rhetoric.

Given that the implementation of the measures in the proposed law are left to institutions which, as a matter of public record, have been shown to be amongst other things open to abuses of power, including on matters pertaining to Anwar Ibrahim, it is not unsurprising that many fear the worst where the trial of Anwar Ibrahim is concerned. Circumstance lends legitimacy to the fears being expressed.

For all these reasons, it would be a matter of common sense for the Government to stay its hand on the bill to allow for the more comprehensive consideration that so many stakeholders are calling for as well as implementing measures aimed at restoring confidence in these institutions. The Government has, after all, already waited some seven years and, surely, a while longer will not cause any further harm. Conversely, further damage will be done to the Barisan; its already low levels of support may be eroded further by what is being perceived as a display of belligerence and unfairness.

MIS

A Matter Of Faith

A Matter Of Faith

More than ever, we need to remind ourselves of the fundamentals. Our fundamentals.

I am a Malaysian. I want my country to be a country in which every citizen has his or her place and has the opportunity to live life in the fullness that each and every one of us deserves.

I want public education, public health, public transport and the public services to be world class and, to that end, I want to see every single sen in every single ringgit I pay in taxes to be used for what it is meant to be used for: creating a secure life for all of us. I want to have competent administrators with vision and I would like to be able to look at an official without having to wonder, even fleetingly, whether he or she is corrupt.

I do not want to wake up angry each morning at the state of Malaysia. Fed to the teeth on a diet of scandal for breakfast, arbitrariness for lunch and abuse of power for dinner, with a whole lot of political intrigue for snacks in between.

Those are my fundamentals. And I think they are also those of many other Malaysians. I would say all Malaysians but I do not think I can fairly include the politicians who lead us.

For them, fundamentals are things like politics, super corridors, mega- projects, race-politics, equity participation and, of course, incidental things like sodomy. These are heady obsessions that take up a lot of time and energy, as does having to tread treacherous political waters.

Which makes me wonder whether these politicians have the time to deal with the more mundane business of governance. Looking at the way things are, it would seem that they do not.

The Government seems to be in a perpetual holding pattern with no real decisions being made. It would seem doing as little as possible and preserving status quo is the best way to ensure political advancement. Ministers routinely fend off demands for results, improvements and reforms with the kind of political double-speak or compromise calculated to buy the time needed to make it someone else’s problem. The continuing decline in standards in schools and public services, the seemingly increasing corruption and crime, and the host of other very sad and painful realities that have become the norm despite the repeated and very loud pleas of civil society is proof enough of the phenomenon that we have come to know as ‘government’.

Everything, for all purposes and intents, is merely a means to a political end.

In fairness, the same could arguably be said, though to a lesser extent, of some of the politicians on the other side; flexing their new muscles, adjusting to the idea of influence and popularity and, of course, the thirst for even more power. It is significant that the opposition landscape has been so dominated by little other than September 16th this year.

All this inescapably points to one conclusion. The buck really does stop with us, the rakyat. The political process is skewed to a political end whose fundamentals are far removed from the realities of our lives. If no one is going to take charge as the situation requires, we have to. At the heart of the Bangsa Malaysia ideal is ownership; we own this country. It is the field we till, reaping what we sow

Which is why, as significant as the events of the weekend involving Anwar Ibrahim may be, we cannot allow them to distract us from the business of getting our lives back in order. There is much for us to do.

We should not be distracted from the fact that despite the promises of judicial reforms, nothing of lasting significance has been done. We are yet to see a bill for the proposed Judicial Appointments Commission or the reinstatement of the pre-1988 Article 121 that underscored judicial independence. It is not even evident whether cabinet supports the initiatives. For Zaid Ibrahim seeming to be a lone voice in the wilderness, one cannot help but think there are those who view these reforms as threatening.

And just as we have yet to see any developments on the recommendations of the Lingam Commission, there has been no further sign of traction on the proposed Anti-Corruption Commission initiative. Corruption is at the heart of the nation’s ills. The inability of the Government to implement an equitable and effective response strategy to manage the hardship caused by increased fuel prices is clear testament of the extent to which this nation has been undermined by corruption. Though an independent anti-corruption body is clearly of crucial importance to the revitalizing of this nation, we have heard precious little since the initial fanfare.

For these and other equally significant reasons, we must remain calm in the face of ongoing events, as destabilizing as they may be. We must keep our eye on the target; an inclusive, equitable and competitive Malaysia.

These are challenging times. Effecting and managing change was never going to be an easy process. Whether we see it through to its end is entirely in our hands. It is a matter that depends on our continued ability to believe in ourselves and in a Malaysia that belongs to all Malaysians.

It is a matter of faith.

(Malay Mail; 1st July 2008)

MIS

Tipping Points

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

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

MIS

In Search Of Democracy: The Rebirth Of Federalism

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

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

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

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

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

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

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

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

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

What Gives, Dr M?

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

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

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

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

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

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

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

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

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

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

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

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

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

MIS

Reforms?

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

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

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

MIS

A Broken Record

How do we begin to measure the pain so many of us have felt at being told that we had a lesser right to be Malaysian than others.

***

I do not like any form of discrimination, I think it's very wrong.

As a secondary school student in the mid-80s, no matter how I tried, I could not get my mind around the fact that it was unjust, unfair and ruthless to hand out scholarships hand over fist to under-achieving Malay students purely on the basis that they were Malay when many well-deserving, very needful non-Malay students were being by-passed.

I could understand giving help to those who were less privileged and for whom, without a helping hand, the future was an inescapable cycle of despair. And I recognised that history had left some of us more vulnerable than others. But to inflict the pain of hopelessness on those as deserving, or even more so, purely on the basis of race was cruel and wrong.

I was lucky enough to be awarded an ASEAN Scholarship by the Singapore Public Services Commission in 1986. It got me a place in an extremely good school in Singapore where I did my ‘A’ levels. This was an experience that showed me not only how little I really knew about anything but also the fact that for so many of us opportunities for advancement and the kind of life that we deserved were not to be found in Malaysia. Many of my fellow scholars were leaving on what seemed to be for most a one way trip, a perception that time soon made a reality. Most of them are now all over the world, some carrying Singaporean passports, others having no vision of returning to this country.

In many ways this has not changed. I recently addressed a group of about 150 bright Malaysian students studying in top universities in the United States and I could see that uppermost in many of their minds was whether it was in their best interests to return home.

For, after all, what is it that they would be coming back to? A landscape shaped by ‘ketuanan Melayu’ in which it has become a rule of society that we must believe, and enthusiastically at that, the propaganda that would have some believe (I am not sure who) that the Government does really appreciate that all of us have our rightful, and equal, place under the sun?

I read law at the International Islamic University, commencing my term in 1989. I was called a ‘keling’ for the first time during my time there. I was also told that I shouldn’t be so sensitive to being called a ‘keling for the first time during the same period. Somehow, being told not to be sensitive just didn’t do it for me, didn’t make me feel any better.

Along the way, I have confronted my share of racism, both personally and in the course of my work as an activist and a lawyer. Exposure to it has not made it easier to bear; the increasingly bizarre justifications are just as hollow. And through it all, I have been haunted by UMNO’s obsessions with ‘ketuanan Melayu’.

***

The Prime Minister’s advisors don’t see to understand that ‘ketuanan’ by any definition means just that: supremacy. When put next to the word ‘Melayu’, it means the supremacy of the Malays.

Any notion of ethnic supremacy in a multi-racial country in which all are guaranteed equality as a fundamental liberty is misplaced. When articulated to defend preferential treatment, it is discrimination. When pushed to a point where other ethnicities are suppressed in favour of those who consider themselves supremacists by virtue of their own ethnicity, it is racism. A championing of ‘ketuanan Melayu’ and all that it connotes in this society is a championing of a racist cause.

The defence of ‘ketuanan melayu’ by the Prime Minister as being reflective of the need for Malays to excel is incomprehensible. ‘The Star’ (‘Pak Lah explains meaning of ‘ketuanan Melayu’’, 29.04.2008) paraphrased the Prime Minister’s explanation this way:

“He said Malay supremacy meant that the Malays, as the indigenous people in Malaysia, needed to strengthen themselves to ensure they were successful and developed.”

It went on to quote the Prime Minister as follows:

“If they are not successful and developed, then they are not tuan (masters), therefore they will be coolies. I am sure we do not want to become coolies who do not play any role in development because we are weak and not able.

“So when we talk about that (Malay supremacy), we mean we must be successful in many fields. It is never about ruling over others, or forcing our power upon them,” he told reporters after chairing the Umno supreme council meeting last night.”

The logic, or lack thereof, underlying this explanation is of the same ilk as that which was advanced to justify the now notorious unsheathing of the keris. The explanations turn on an assumption that Malaysians will believe that all that was said and done should be accepted as it was merely intended to serve the Malay agenda in one way or the other.

I do not think so.

The almost infantile structuring of the explanations is an insult to all Malaysians. There is no place nor is there a need for a separate and distinct Malay agenda. The Malays are the majority and not the minority. By their numbers, they cannot be victimized. A large amount of the total wealth of the population is in Malay hands. They do not need to be told that they are supreme in order for them to excel. The Nazir Razaks and other extremely capable Malays of this nation are testaments to this fact. They would not agree that they need ketuanan melayu not to be coolies.

It does not appear to have struck UMNO that saying that UMNO is playing to the Malay agenda is not a good thing, not even after the treatment the Barisan Nasional (and therefore UMNO) received on March 8th. ‘The Sun’ (‘Shahri defends UMNO’s ‘Ketuanan Melayu’, 30.04.2008) paraphrases Shahrir Samad in this way:

“He said Ketuanan Melayu is something that exists under the constitution. What Umno is doing – in shouting for Ketuanan Melayu – is just defending the concept of Malay special rights as enshrined in the constitution that is.”

I have great difficulty in swallowing this - hook, line or sinker.

The Constitution does not provide for the supremacy of any ethnic community. Conversely, it guarantees equality even as it provides for a means of protecting the Malays and the natives of Sabah and Sarawak. To assert that the Constitution provides for ‘ketuanan Melayu’ would necessarily mean that the Constitution similarly provides for ‘ketuanan Orang Asli’. Is UMNO saying this? I don’t think so.

I resent revisionist thinking aimed at substantiating a political position. I resent it even more when it involves perverting and misrepresenting the Constitution. But then, I shouldn’t be surprised. It would seem that very little is sacred in this country any more.

The word ‘ketuanan’ or ‘supremacist’ should not be in the lexicon of Malaysia in this day and age. If at all, it should only be used to describe our Constitution or the significance of the rakyat.

And nothing that UMNO can say about it will change that. Birthrights can never be denied.

MIS

Whatever Happened To Francis Udayappan?

Enough excuses. The Prime Minister has admitted to not having done enough to put in place the reforms he had promised. Admitting the failure is one thing, doing something about it is another.

April 16th is the anniversary of the astounding disapperance and death of Francis Udayappan. On this day in 2004, he had supposedly fled from police custody. It took a month to locate the body when it was fished out of the Klang river without its head, the identity of the body being confirmed by an inquest about two years later. This inquest returned an open verdict - insufficient evidence to establish cause of death - but ruled out foul play, something Francis' family has insisted took place. A High Court challenge was filed but to date remains unheard.

If the Prime Minister is serious about wanting to make Malaysians believe that his government cares, then an Independent Police Complaints and Misconduct Commission (IPCMC) must be established as a priority. The IPCMC must be the kind of independent and empowered body the 'Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police' recommended to the Prime Minister in 2005. This was after the Commission had heard testimony on amongst other things police brutality and corruption.

Malaysians have heard excuses and distractions but have seen precious little movement. Such inaction only goes to show the continuing disrespect for the memory of Francis Udayappan and all that he represents.

As G Sara Lily commemorates the loss of her son today, her anguish inconsolable and deepening, we cannot lose sight of that fact. Her tears are a reminder of the kind of wrongs and injustices this Government has allowed to occur and continues to through its inaction.

They are a reminder of why we must be vigilant and continue to lead the nation by our hearts and minds. On March 8th, we reclaimed the nation to ourselves. This nation belongs to us, not to the Barisan, not to the Pakatan. We must continue to show those who do not care, who would allow the inflicting of harm on any one of us that that they have no place amongst those who lead us.

A prayer for Francis, a prayer for all who have suffered at the hands of unjust aggressors and continue to do so.

MIS

The Malaysiakini report 'Francis Udayappan remembered' can be read here.

Release The HINDRAF 5

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

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

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

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

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

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

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

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

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

Release the HINDRAF 5.

MIS

The 75th Candidate

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

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

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

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

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

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

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

And Malaysians were going to fight for that opportunity.

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

***

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

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

They planted the seed for a new democracy.

***

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

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

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

***

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

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

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

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

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

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

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

***

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

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

***

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

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

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

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

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

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

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

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

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

***

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

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

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

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

MIS

Race And The Poverty Gap

I have been traveling since last Friday. Internet access has not been a certainty and will continue to be irregular.

Being in new and different places is useful. It shows how different things could be, or how similar they are.

In Jakarta, the tower blocks reach out to the sky with the same ambition of the new projects being developed in Kuala Lumpur. They less successfully block out the squalor and poverty than ours. A small group of elites unthinkingly spend more on one meal out than most families earn in a month. They shop at designer shops that rival, or even beat, those in the best and most prestigious shopping localities in Kuala Lumpur. The elites, like those elsewhere, shape policy through their investments, their influence and support, hold their nation to ransom. The poverty gap widens every day and this is justified in the name of development and progress.

Much like it is in Malaysia.

This does not necessarily suggest a devious and sinister plan on the part of the administration. It could be simply a matter of perspective on what is needed, and as such what is expendable, for democracy. In Poland, the solidarity movement, spectacular for its validity and credibility, caved in to the free market, unleashing the beast, simply because the new democratically elected administration could not see any other option. More than 20 years later, there is a level of poverty and want in Poland that Lech Walesa possibly never saw as even a remote possibility as he pushed the movement forward. There is also unimaginable wealth.

I have increasingly found myself wondering what the guiding principles of the Malaysian administration policy on development and progress are. If there is such a policy in the first place. It sometimes feels as if there is none.

The 5 year Malaysia plans do not qualify as such, they do not allow us to understand the government's vision of where we will be in the next 30 years, other than in highly ambiguous and speculative terms. It is evident that there is a widening poverty gap, and the majority of the Malay community are falling victim to it as much as the other communities. From this, it appears that the societal safety net that a significant amount of tax goes to is not closely knit enough to prevent a significant number of Malaysians from falling through the gaps.

Leaving aside the extremist language of the HINDRAF campaign, the seemingly far fetched assertions of ethnic cleansing and state sponsored terrorism, this is what is being said: a significant number of the Indian community, predominantly tamils, are falling through the gaps into the poverty trap. In appreciating that many Malays have also fallen through the gaps into the same traps, we may be able to draw parallels and understand that racialist notions may not be the driving force behind what it is that ails Malaysia.

My sense is that it is the seeming absence of a coherent plan for sustainable and inclusive development. That is why many a Malaysian asks 'where will we be in 3o years?', 'will my children have a future in this country?'. These are questions that transcend racial boundaries. They are concerns that all of us share as we strive forward.

Malaysians are however fixated on race and religion, mainly because these are the staples of our public discourse. These are undermining, not only because they are divisive factors, but because they distract from the core issues. Insufficient attention is consequenty given to those aspects of our society that crucially require it. This is something that the Barisan Nasional has not let on that it understands. In this way, the pleas of the rakyat for accountability are not so much about a desire for a shift of power but rather an urgent call for more effective action on the part of the administration.

Many feel that time is running out. Oil reserves are depleting, there has been insufficient investment in human capital to allow us to reinvent ourselves effectively by break ing into new areas and seemingly increasing systemic corruption is a major deterrent for investment. Malaysia is fast losing ground, falling behind others of comparable development or potential as its ability to compete steadily dips.

There is no magic solution, a perfect answer.

At a forum earlier this year, I said that shifting leadership to the opposition - assuming that was practically possible - is not the answer. The opposition has no experience in governance. As much as some might say that the Barisan Nasional goverment could do things a lot better, a view I share, the BN government has an experience base of some 50 years to draw on. Solving the difficulties we are in calls for a greater commitment to fundamentals, an even greater willingness to account (as I understand things, this is the focal point of civil society efforts this year) and an understanding of the very real need to harness more effectively a collective viewpoint on development and progress.

MIS