How To Change The World

How To Change The World

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

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

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

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

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

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

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

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

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

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

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

(Malay Mail; 6th January 2009)

MIS

Free RPK: It's Not Over

Let me first apologise to you for not having given you an update yesterday. It was a trying day, the culmination of a period of work and stress that began the day RPK was detained. Not just for me but for the other members of the team, in particular Ashok Kandiah and Neoh Hor Kee.

You would have read of how the application was originally fixed for the 26th of September. It was through the enormous efforts of both these lawyers that the hearing was brought forward as it was. It was also through their efforts that the necessary court papers and affidavits (statements on oath) by RPK were obtained as quickly as they were. It was primarily due to their efforts that when, as lawyers say, I got up on my hind-feet in court yesterday, we were ready to give it the best shot we could. I believe that the case we would have mounted for RPK would have been virtually unassailable.

But out attempts were impeded.

I say impeded because at this juncture we do not know whether the High Court is going to hear the original section 73 application now that the Minister has issued a detention order. A fresh application can also, and will be, filed to challenge that order. To be fair to the judge concerned, Suraya Othman J, she considered herself bound by precedent that she thought tied her hands. She acted fairly, albeit conservatively.

As much as some of us may think otherwise, RPK's case is one of many that the judge has to deal with. We must also keep in mind that the judge has not dismissed or struck out RPK’s application even though this was what Federal Counsel sought. It is now for us to attempt to convince the judge that there is merit in proceeding with this application even though she will not be able to order the release of RPK based on this application alone. I would like to think that we still have a chance.

A second habeas corpus application will also be filed to challenge the Minister’s order. We started working on it yesterday. In truth, we are handicapped; the ISA precludes comprehensive review of such an order. Added to this is the legal position that such an order is issued by the Minister at his subjective discretion. The courts have been reluctant to interfere with the Minister’s discretion, save on procedural grounds, on the basis that, firstly, the law does not permit otherwise and secondly, the Minister knows best about national security.

This is the massive obstacle we are faced with.

This is one of the reasons why a section 73 detention is converted to a section 8 detention when the IGP is confronted with a habeas corpus application; the issuance of the Minister's order narrows the scope of review and permits the Minister to shield himself behind a veil of national security. RPK is not the first victim of such a strategy. We experienced the same difficulty during the so-called JI detentions in late 2002.

There are however peculiarities about RPK’s detention that may give us footholds to ease our ascent. The media has reported that the Minister issued the detention order on the recommendations of the police. These pertained to the so-called anti-Islamic articles that RPK is supposed to have written. We at least know the basis of the detention and are able to bring it into focus when we get to court.

There are also no other legal tricks that can be pulled by the Ministry. The issuance of the detention order is as problematic for RPK as it can get. Some have said that this makes the detention virtually immune from challenge. I would like to think that the interests of justice can always be served if we remain hopeful of finding the path to it.

Every case in court brings us into uncharted territory and with it surprises. I have had my share. In 2001, Justice Hishamuddin ordered the release of Abdul Ghani Haroon and N Gobalakrishnan. He also prevented the police from re-arresting the two. I was in court the day he pronounced the orders and the sheer exultation I felt as he did remains with me to this day as has the awareness that there are those who will do the right thing when times seem darkest.

RPK and the other civil society leaders who have shown us the way started a process to transform this country. This legal campaign is a part of it as is the mounting civil society pressure against the ISA that have spring-boarded off his detention and that of Theresa Kok, Tan Hoong Cheng and the HINDRAF 5. RPK knew what would happen and lent himself to the process. For that reason above all, he is firmly ensconced in my mind as a patriot.

We must not lose faith. The fight has not ended, it has just begun.

MIS

A Trial Of Democracy

Anwar, Round 2 has commenced.

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

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

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

***

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

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

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

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

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

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

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

***

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

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

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

But then, Malaysia Boleh.

***

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

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

***

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

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

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

***

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

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

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

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

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

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

***

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

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

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

***

Do we panic?

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

Destabilized, confused. Weak.

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

It was not about Anwar Ibrahim.

***

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

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

I think not.

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

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

MIS

Al Fatihah

Zaitun Mohamed Kassim

Anak Bangsa Malaysia

The Methodology Of Fear

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

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

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

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

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

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

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

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

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

Congratulations BERSIH and Malaysian Civil Society

My heartfelt congratulations to the organizers of the BERSIH 10-11 March and to all Malaysians who made the event what it was.

I was on the Bar Council Urgent Arrest response team and found myself waiting on the side-lines for the SOS calls we were anticipating. Thankfully, the calls were few. The events of Masjid Jamek aside and, in my view, the unnecessary arrest of some of the demonstrators, I think the Royal Malaysian Police showed commendable restraint and foresight, a state of affairs which deserves recognition. I believe that it is largely due to this restraint that the event did not become the chaotic melee that some of us were anticipating it might become. The events of Pantai Batu Buruk and Bloody Sunday are still fresh in the minds of many Malaysians.

There were arrests though and as the evening drew to a close, I found myself with a few other lawyers at the IPK KL on Jalan Hang Tuah. The 34 who were arrested were all released by 11.00 pm Saturday evening (the Suaram web-site has details). While the police officers we dealt with were friendly and courteous, the lawyers were not permitted entry to the police station nor any opportunity to meet with our clients. This ran counter to recent amendments introduced to the Criminal Procedure Code that entrench the right of a person arrested to meet with his lawyers before giving a statement to the police. Statements were taken despite our reminders to the police officers concerned of the rights of those detained.

MIS





















With R Sivarasa, lawyer and Keadilan EXCO member, and Shan Kanesalingam, lawyer. Outside IPK KL.

Why A Royal Commission?

There is a call for a Royal Commission. Some of us may be uncertain what such a commission is and how it can help.

A Royal Commission, as it is popularly known, is a commission that is established under the Commissions Of Enquiry Act 1950 (Revised 1973). This Act authorizes the DYMM Yang Dipertuan Agong to, where it appears to him to be expedient so to do, issue a Commission appointing one or more Commissioners and authorizing the Commissioners to enquire into -

• the conduct of any federal officer;

• the conduct or management of any department of the public service of Malaysia;

• the conduct or management of any public institution which is not solely maintained by State funds; or

• any other matter in which an enquiry would, in the opinion of the Yang di-Pertuan Agong, be for the public welfare (other than a matter involving any question relating to the Islamic religion or the Malay custom and/or inquiries for state purposes where Sabah or Sarawak are concerned.
  

What is important for civil society purposes is that it is the YDPA that issues (or establishes) the Commission. In doing so, there is no need for the YDPA to act on advice of the Prime Minister or Cabinet. As such, the establishment of such a commission is not a decision of the Government to take, or not to take, as the case may be.

This is important as it is highly unlikely that the Government would take any step towards an inquiry that could result in an expose of its wrongdoing. One of the more prominent royal commissions in recent times was the commission that conducted an enquiry into the assault on Anwar Ibrahim during his detention. The findings of the enquiry led to the prosecution and conviction of a former IGP.

As the Anwar Ibrahim commission showed, the powers of such a commission to delve into the evidence, through the summoning of witnesses and the holding of hearings, are sufficiently wide so as to allow for the Commission to get to the truth of a matter efficiently and efficaciously. The fact of its ‘royal’ status and the freedom of the YDPA to appoint His Majesty’s commissioners who are more usually retired and respected judges and community leaders, work towards inspiring confidence in such a Commission’s decision making process and the impartiality of its decision.

The terms of reference of a Royal Commission are determined by the YDPA. In this way, such enquiries differ from those conducted by SUHAKAM whose enquiries are more concerned with the question of violations of human rights or civil liberties. A Royal Commission can go deeper into causes than a SUHAKAM commission can and this, and the fact of the ‘royal’ status of the commission may in some circumstances lend more significance to the report of a Royal Commission.

***

As can be seen from the above, a Royal Commission would be an appropriate way in which the matters of Pantai Batu Buruk as well as the matters raised in the Petition Rakyat could be dealt with. This conclusion is premised on the following:

• a Royal Commission is a method in which the YDPA could meaningfully respond to the call of the rakyat
  

• a Royal Commission would be a way in which a seemingly independent and impartial enquiry process could be carried out. The rakyat have confidence in His Majesty. The Royal Commission would be, in effect, a manifestation of His Majesty’s concern for justice and truth, and his compassion for the rakyat, and the enduring truth of the Rule of Law
  

• a Royal Commission could not only enquire into the events of Pantai Batu Buruk but also their causes including:

1. the reasons for the refusal or withdrawal of the necessary permit for assembly;
   
2. the need for such a permit in the first place; the actions of the police including the use of force and the carrying of firearms;
3. the grievances of the rakyat that led to the fracas including serious concerns about the electoral process and the call for electoral reform

MIS

Petition Rakyat

Malaysia Today has initiated a Petition Rakyat to His Majesty, the DYMM Yang Dipertuan Agong. I think this is an important step forward in the effort to ensure that we have the government we really want, that is A Government Of The People, By The People, For The People.

Somewhere along the way, the rakyat seems to have been forgotten. We are the pawns in a game of politics, control, corruption and greed and those who should rightfully be serving us are making us serve them.

The DYMM Yang Dipertuan Agong is the Head of this Nation. It is right that we turn to His Majesty when all other avenues seem closed to us. The events of Pantai Batu Buruk prove to us that we no longer even have the right to hear ourselves think.

If you think a change - big or small - is needed, if you think that enough is enough and if you are wondering what you can do to help, then go HERE, READ and SIGN ON.

MIS

Waking Up

I am Malaysian but am not certain anymore what that means. On a daily basis, I am being told, directly or indirectly, that in having been ‘given’ the right to label myself a Malaysian, I have no right to a view. I am told that I should be more respectful of my context, of the tolerance that is being shown to me and my 'kind'. I am told to be satisfied with what I have been ‘given’ and if I am not, I should go back to wherever it is I came from, ‘pendatang’ that I am.

I come from Penang. I am not clear how going back there is going to make me feel any different.

The civics classes I had to attend (thankfully, compulsory religious classes were not in vogue when I was in primary and secondary school) must have had some impact. I have, like others, a certain level of public spiritedness. I have like others, a certain level of desire to be active in shaping the society around me into a fair, just and productive one. With the Creator’s grace, I have been given the means to do this, in part by having become a lawyer, a state of being which puts me into direct contact with one of the key aspects of how we organise ourselves in this community.

However, I am no longer certain whether I am to do this at all, and if so, how it is I am to do it. I am being told by things happening around me that some of us are more Malaysian than others, and that that some Malaysians (these more Malaysian Malaysians) are quite happy with the way things are, and if the country is headed in a direction that I do not particularly like, it does not matter, as even if the country is driven to ground, it is a decision made by persons having a bigger entitlement than I do.

The “I deserve to be here more, and my views are weightier” approach is worrying. It does not recognise a very basic feature of our constitutional democracy; that we are all equal stakeholders. The approach seems to have become more prevalent in recent times. The reason for this is multi-layered but I believe it starts with the fact that we are all concerned with the way things are going. The metaphorical pie is getting smaller and competition for that reduced resource stiffer. Competition within the ethnic groupings is intensifying, perhaps now outweighing competition between ethnic communities. When things get difficult, it is easier perhaps to cast a stone outside the community, at the 'barbarians' at the gate. The UMNO reaction to the AP scandal last year year showed this clearly. Any other approach would necessitate having to accept difficult truths. And as a nation, we find it inordinately difficult to accept such truths.

We live in a society in which our racial and, more recently, religious differences are emphasised on a daily basis. And though to a significant extent multi-racial Malaysians have found a way in which they can live with each other, this does not translate into the picture of multi-racial harmony that our administrators attempt to characterise it as. Every so often, we are reminded that for those of us that may be bold enough to think about expressing a view, let alone actually express it, there is a particular sensitivity that we might offend, and a law which might be used to sanction and a cell with our name on it. It is unsurprising that some, if not many, feel disenfranchised and even disillusioned.

This state of affairs has led to a non-partisan, non-involved approach to life on the part of many a Malaysian. With pressing concerns about communal politics, (for all purposes and intents) one party rule and the right to meaningful access to meaningful justice, it is unsurprising that citizens have their backs to the wall even as they dream of a better place to live in. The sooner we realise this state of affairs and begin dealing with it, the better.

There is another layer to this. Sad as it is, and as difficult as it is to say, we are no longer the learned or mature society that we perhaps once were. In place of sophisticated and objective analysis of crucial issues, there is now a regime of sensationalist ignorance and belligerence.

Worse still, we live in a state of denial, insisting that we are more advanced and intellectual than we really are. Look at the issues that figure prominently in the arena of public discourse. How many of these relate to the fundamental aspects of our lives as Malaysians. Admittedly, civil liberty issues such as nude squats and burial rites are important, but where do a lack of coherent economic policy, a lack of coherent governance, a lack of political foresight, an overemphasis on vested interests, institutionalised and crippling corruption and a lack of direction for this great country of ours figure? They do not, in any meaningful way. In having allowed these crucial issues to fall by the way side, in having allowed ourselves to become more interested in being titillated by insane billionaires, sex scandals, Mawi and Academia Fantasia, we have begun throwing away our future.

I used to think that this was due wholly to a media block by the authorities, implemented in tandem with a policy of de-education. I have reconsidered my view and believe that a large part of this is due to an inability, and a lack of desire, on the part of Malaysians to articulate themselves anymore. This is why our media is devoted to gossip and our broadsheets reduced to tabloids. We are all to blame.

By taking sensationalist positions, be it on racial or religious grounds, we are perpetuating the context that has led the country to where it is. And where is it, some of you might ask. Take a look around you. We are somewhere near the bottom. Stock market performance indicators suggest that as an emerging market, we are far behind Mexico, Argentina, India and China. In the Southeast Asian region, we have been left behind by neighbours who we traditionally condescended down to. In Indonesia and Thailand, effective economic policies have created amongst other things a potential powerhouse of agricultural based SMIs, increased revenues and the GDP. Sweeping democratic reforms have allowed for a meaningful reshaping of the economy and political landscape. Important issues are being debated; openly and with the hope that the dialogue will have some bearing on things as they stand.

As Malaysians, we can rest assured that with proposed Islamic snoop squads, even more regulation over our personal lives, and the continued vigilance of our censors and their censors our moral futures are intact. Even as we delude ourselves into believing that spending then kind of money we do on our daily needs, from foodstuff to electricity and water, is perfectly justifiable and fair. Even as we delude ourselves into believing that inflation is not a problem in this country. Even as we potentially plunge headlong into a financial crisis which may take us down the road towards non-emerged nation status. Ethnic and religious bigotry will provide no solutions then, just as they provide no solutions now. Sloganeering will not take us any further.

We have only one country. It is ours. As tempting as it might be for some to believe, and to perpetuate the belief, the majority of citizens are not about to abandon this country when it hits rock bottom. And it will not be surprising that of those of us who actually ultimately flee to greener pastures, or abandon ship, a significant number will be made of up those who, according to popular logic, have no place to go except their ‘tanah air’.

It bears restating: we validate the impression that we do not have a stake in the country if we do not act like stakeholders. Malaysians of all races and backgrounds are to blame for what is that is happening.

If effort can be made to stay up and watch Akademi Fantasia, then should we not be registering as voters and exercising that one most fundamental of all rights? Should we not be familiarising ourselves with the critical issues from more than just a sensationalist perspective. Why is that I would stand a better chance of getting a head to toe analysis of the Razak Baginda case than I would a view about water or toll concessions, or a judicial appointments commission.

Isn't it time we all woke up to reality?

MIS

No Discrimination Please, We’re Malaysians

Equality? What’s that?

Perhaps it has been the years of abuse that has been permitted under the guise of the NEP or the devastating continued and divisive emphasis on race and ethnicity by our leaders and politicians. Whatever the cause, most Malaysians have become cynical about Unity and Equality.

The former has become nothing more than a political catchword heard more often as General Elections draw near. The latter is a word that even politicians fear to use, possibly fearing that they might be called upon to justify what they have said. I would think that any attempt to articulate Equality against the backdrop of contemporary Malaysia is akin to taking a stroll in a minefield.

Think about it. When did you last hear a politician say the word Equal when talking about Malaysians. I do not think I have ever heard it being said. I hear, all the time, “We are all Malaysians” or “This is for the good of all Malaysia”, or words to that effect. But never “We are all equal” or anything like that.

But why should that be the case? The law does not support discrimination.


What Is The Law?

The Constitution is built on a foundation of non-discrimination. Each citizen is guaranteed basic rights, including the right to equality (Article 8). This particular right is structured around two central pillars: the right to equality before the law and the right to the equal protection of the law. It is put this way in the Constitution:

“8. Equality.


(1) All persons are equal before the law and entitled to the equal protection of the law.


(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”


The provision means what it says. There shall be no discrimination on the ground only of religion or race or gender (amongst other things). That means every one of us is entitled to say that we want our place in the sun, to quote the Raja Muda of Perak. We have an equal right to define ourselves by our own religions, race, and gender. We are all guaranteed an equal right to avail ourselves of the law, the principles of which are equally applicable to all of us. After all, we are all guaranteed an equal right to participate in representative government through the right to vote.


What About The Special Status Of Malays/Natives Of Sabah & Sarawak?

My first posting on this blog explained the impact of Article 153 of the Constitution, the provision providing for special status for the natives of Sabah and Sarawak and the Malays ("A Matter Of Protection, Not Privilege"). It bears repeating: the provision allows for limited preferential treatment for the purpose of protection. The provision does not bestow privileges on the communities identified nor does it create a privileged class.


What About Islam?

What about Islam then, some might ask. The Constitution does not in any way provide that Islam is to be preferred to other religions. To the contrary, the Constitution declares that all religions may be practiced in peace and harmony (Article 3(1)).

Similarly, the Constitution does not provide that Islamic law is to be applied in preference to civil law. Instead, the Constitution envisages that in matters of public and private law, secular law is to be applied. Islamic law is to be applied only in respect of matters of Islamic personal law and to persons professing the religion of Islam. As to what that personal law is, it is for the relevant legislative body to enact law to provide for it.

The question then is whether the existence of an Islamic law system for the application of muslim personal law discriminatory i.e. in violation of Article 8? The answer is no as Muslims are legitimately treated as a class or category distinct from others. This is contemplated by the Constitution which envisages the application of Islamic personal law to Muslims. Constitutional theory permits what is referred to as ‘rational classification’ where it is necessary to view individuals as belonging to a class. This permits a difference of treatment between members of that class and non-members. In this case the distinctive feature of members of the class in issue is the professing of the religion of Islam.

It follows that Islamic personal law cannot be applied to non-Muslims. Civil law applies. Further, all members of the non-muslim class are to be treated equally and have equal protection before the law in so far as personal law considerations are concerned. Subjecting non-Muslims to Islamic personal law would be in violation of Article 8. It would be discriminatory.

In all other aspects save for where Article 153 is applicable, all Malaysians are to be treated equally.


Where Does That Leave Us?

With the right to insist on equality of treatment. Such insistence is in no way a challenge to the special status of the Malays as contemplated under the Constitution. Equality of treatment can co-exist with measures aimed at providing protection to the Malays. Equality cannot however co-exist with a 'privilege' system. In the same way, Unity cannot co-exist with a 'privilege mindset'. Continuing to delude ourselves will only be to the detriment of the nation. All of us will be affected, Malay and non-Malay.

Isn’t it time for us to start insisting that our politicians start using the E word?

MIS

Willing Conspirators

Looking around, it seems that so much fear permeates through Malaysian society at so many levels.

The average Malaysian lives in a world defined by fear. Fear that the ‘authorities’ will take action at even a single expression of discontent. Fear that he/she is going to be ‘black-listed’ by employers, by ‘those in power’. Fear that he/she is going to be singled out, vilified.

These fears are largely unsubstantiated and self-serving. The average Malaysian lives in a state of paralysis largely of his/her own contrivance, allowing him/her to not have to do anything.

The question is why? I accept that there are laws that allow the State to control us. But laws are laws and leadership is leadership. The latter uses the former to control only where it is absolutely essential to ensure continuity. The legitimacy of any government is undermined when draconian laws are brought into play because the average person knows that the laws are not being used for any true or legitimate purpose but rather to preserve the status quo. In the Malaysian context, they seem to be applied only where there is a consequence beneficial to the powers that be. And while these laws exist – ISA, OSA, Printing Presses and Publications Act, Sedition Act – the Administration appears to have applied them only where it believed it could do so without suffering too much of a political consequence.

I believe that the Administration has only acted in these situations when it knew that the rakyat would not react or that such reaction that might occur would be negligible in its effect or could be controlled.

The painful reality is that Malaysians, perhaps too comfortable, have not reacted or have not reacted sufficiently. This might have been out of fear, or apathy, or a lack of sensitivity or even a total lack of concern. The truth is that the resounding silence of Malaysians in the face of unacceptable actions or decisions on the part of the Administration has had little to do with a rational, objectively founded fear. Instead, it has had almost everything to do with vested interest.

It is this state of affairs that has allowed the Administration to believe that Malaysians can be bullied or coerced or duped into submission. In turn, it is these factors that have led to most Malaysians thinking they should not speak out. More crucially, it is these factors that have led to the isolation and marginalizing of those few that do speak out and to the Administration constantly undermining civil society.

The adage that there is strength in numbers cannot be more true where Malaysia is concerned. It is easy to house a few in Kamunting, it is not so easy to house thousands.

Malaysians not speaking out allowed for the victimization of Lim Guan Eng and Irene Fernandez. Malaysians not speaking out have allowed the Malaysian Government, a member of the UN Human Rights Council, to not agree to the request by the Special Rapporteur on Human Rights Defenders to carry out her functions in Malaysia. To carry on violating basic human rights in one form or the other. How else can one justify the decision of the Administration not to ratify the Covenant on Civil and Political Rights and the Economic, Social and Cultural Covenant. Is it because Malaysians accept that they are not legitimately entitled to these rights?

Worse, Malaysians appear to support racial discrimination. Why else has the Administration taken the position that it does not have to ratify the Convention Against Racial Discrimination (CERD)? Does the Malaysian Government believe that Malaysians support discrimination? Can the NEP, in one manifestation or the other, be seen as a Malaysian (as opposed to Malay) policy of racial discrimination? If it is not one or the other, if we truly believe in ‘Bangsa Malaysia’, then should we not be reacting enough to ensure that the Government ratifies CERD and brings it into force at the national level.

We are as much to blame for the pitiful state of affairs that we are in. Malaysians through their silence have encouraged the dismantling of the rule of law and democracy in this nation.

We are to blame. The government is a government of the people. Its decisions are those of the people. Our claims to fear are hollow. Self-censorship is an excuse for inaction. In our silence we have become willing conspirators with those we condemn.

MIS