The Calm Before The Storm

The Calm Before The Storm

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

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

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

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

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

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

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

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

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

(Malay Mail; 17th June 2008)

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.

The Politics Of Compromise

Any reform of an institution or an institutional nature will require political will. As we have learnt, the Barisan Nasional federal government is impervious to public opinion. Were it otherwise, we would not have heard the kind of rhetoric we did these past few years and that we continue to hear. Like all bullies, the Barisan responds to aggression and power. Until March 8th, when Malaysians coalesced into the phalanx that drove the Barisan out of five states and denied it the traditional two-thirds majority it had become accustomed to, there was no power that could match that of the Barisan. Safe in its control of key institutions and agencies, it had sat back and thumbed its nose at everyone else.

The slap it received on March 8th made the Barisan reel. But even as it took one, maybe two, steps back, it quickly steadied itself and clung to whatever it could, notably government. And despite seeming efforts to bridge the gap between it and Malaysians through the trumpeting of the need for reforms, the Barisan has thus far governed pretty much as it had prior to March 8th. We have in the short time since the elections heard about threats to racial harmony, seen the race and religious card played, heard the usual excuses over non-performance and, as expected, heard of how the opposition is the cause of all ills in the nation. Business, as such, is pretty much as usual, perhaps more so for the fact that the internal power struggle in UMNO is eclipsing all else on the list of priorities. Governance, it would seem, has once again fallen second to politics.

In this climate, it is apparent that Malaysians can only reasonably expect to see reforms where these reforms intersect with the political agenda of key players within UMNO. For all purposes and intents, more so than before in light of their dismal performance at the polls, the MCA and the MIC are largely irrelevant.

This setting makes me wonder how to perceive these wonderful promises of judicial reform. I know Zaid Ibrahim and I think he is doing a good job at trying to push for reforms. His efforts strike me as being sincere and aimed more at nation building than politics. If he were the only factor in the mix, I would be heartened and would view the situation optimistically.

However, Zaid is not the only factor nor he is the only player. Neither is the Prime Minister, assuming that he is solidly behind the push for reform. There are those on the cabinet who, in many ways, represent the old guard and for that reason alone may choose to oppose any measure involving acknowledgments of wrongdoing, tacit or otherwise. I note the Deputy Prime Minister’s emphatic rejection of the suggestion that the gesture made by the Government to those judges who were victimized in 1988, was not, repeat, not an apology. This refutation is manifestly inconsistent with Prime Minister’s declaration of a need to make amends. This and the presence on the cabinet of other senior UMNO members who may be nervous about crossing Tun Mahathir, who in these politically treacherous times is now openly acknowledged as being the principal cause of the downfall of the Judiciary, hints worryingly at the possibility that the reform proposals may not gain traction.

The ex-gratia payment and the speech delivered by the Prime Minister fell short of the full vindication that the affected judges, so well versed in the parceling of fault, are deserving off. The payment and speech go someway to beginning a necessary process of truth and reconciliation not only the victims of 1988 but for the Judiciary and the nation. We must credit Zaid and the Prime Minister for that.

Having said that, it must be recognized however that no matter how we characterize the gesture, it in itself does not go far in reforming the Judiciary. Zaid had declared that there were three key aspects to the reform package he was offering Malaysia; the apology, the establishment of a judicial appointments commission and reinstating Article 121(1) of the Federal Constitution to ensure the separation of powers. Of the three, as thing stand, only the first has to an extent become a reality.

The Prime Minister’s declaration that the government proposes the establishment of a judicial appointments commission does not quite hit the mark where the second is concerned, in part because it is for the government to take steps and not to propose. His explanation that this will involve some time as the process has to be worked out is not reassuring in light of the split in ranks within the cabinet. The Prime Minister had in 2005 similarly reassured Malaysians that the IPCMC would be established. We have yet to see it, largely due to resistance from within. The establishment of the National Human Rights Commission (SUHAKAM) took some seven years. If that is what is meant when the Prime Minister says that the process will take time, I am not inspired. I do not know whether Malaysia can take another seven years of the Judiciary in its current state.

The avoidance of any discussion of Article 121(1) in the speech is similarly worrying. The reinstatement of the article as it was prior to 1988 is a crucial step in re-entrenching the separation of powers and re-establishing the judiciary as a bulwark against totalitarian arbitrariness. The Barisan government has time and time again shown us why Malaysians cannot afford to lose the right to seek judicial review. We are largely where we are because the courts felt themselves unable to intervene or, if permitted, were unwilling. The absence of any reference to this key aspect of the discussion further undermines my belief that the Government will actually take concrete steps forward.

Seen from this perspective, it is glaringly evident that the nation is currently caught up in a huge public relations exercise that the Barisan has hinged on the promise of judicial reforms. The public relation campaign does not necessarily of itself lead to the implementation of reforms.

It is for this reason that civil society must keep on pressuring the Government to act and to act decisively. The Pakatan Rakyat should consider tabling a private members bill for the establishment of an adequately empowered judicial appointments commission. All possible avenues to create awareness and force accountability must be explored. The battle has not been won, it has just begun.

Which is why I find the overwhelmingly supportive reaction of the Malaysian Bar somewhat surprising. The Bar has always been at the vanguard of rule of law issues. It has been steadfast in its condemnation of the events of 1988 and the subsequent decline in the quality and integrity of the Judiciary. Nothing less than a full apology and a reinstatement of all benefits of the judges who were wrongly attacked should have warranted the standing ovation given to the Prime Minister. But there was a standing ovation, and that at a dinner hosted by the Bar but paid for by the Government, something I never thought I would see in my lifetime as a lawyer.

The Bar needs to be wary of accommodating, or being perceived as accommodating, the politics of the Executive. It is however veering dangerously close to doing just that and compromising itself in a manner that will rob it of its credibility.

When, and if, the proposal for a judicial appointments commission comes to fruition, the Bar will be the primary voice of civil society to ensure that the commission is established as it should be. In all likelihood, the appointments mechanism will not satisfy the criteria of an independent appointments commission. At that point in time, the Bar must ensure that it is in a position to live up to its responsibilities. Positions it takes now will limit its freedom to react appropriately. Regrettably, the extent of support shown to the Government, from the hosting of the dinner to the adulatory speeches, may have already had their impact.

Commending the Prime Minister for the step taken was the proper thing to do, but to offer, as the media reports suggest, congratulations for the loosening up of controls over the freedom of expression, is to ignore the very real and very painful suppression of the numerous demonstrations of 2007 by force. The shots fired in Pantai Batu Burok still ring out, as do the cries of peaceful marchers and demonstrators as they were tear gassed and attacked with water cannons. The Prime Minister was responsible for all that and more.

I appreciate that activism will require tactical concessions. I also understand that it is better to seize what gains one can when one can rather than not making any progress at all. However, gains should not be taken at the risk of principle. The rule of law cannot be built on compromise.

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

A Giant Step Forward

"...WHEREFORE WE, THE RAKYAT OF MALAYSIA all races and of various faiths, having now rejected the race-based political governance of the country and now making known our desire to have in its place a non race-based system of governance and making further known that we desire that the original aims of the NEP be immediately given effect to and implemented, now:-

• declare our belief that a mandate for governance should be given to such individuals and political entities that recognize as legitimate the concerns and aspirations set out above; and

• call upon all stakeholders to to come together for a better Malaysia..."

(for full text of the foundation documents of the Barisan Rakyat see here. More to follow)