The Cost Of Politics

(This was published by The Malaysian Insider as as "They play, we pay")

The Cost Of Politics

The UMNO Assembly has come and gone and, as has been the case for at least the last three assemblies, in its wake many of us have been left uneasy and in a state of disquiet. Seeing the inner workings of the Leviathan’s mind is never an easy thing, even at the best of times. And these really are the worst of times.

Power-lust has put a debilitating strain on our national institutions; they are in the mind of the public nothing more than lifeless marionettes in a caricature of democracy. The accumulation of money and influence has for some time now been the greater social good in the minds of many of those who claim the right to lead us. Governance has been wholly enslaved to the perverse politics required to feed this monstrous craving.

One does not have to go to great lengths anymore to demonstrate these conclusions. After this last assembly, it is a matter of public record. Reading the speeches made, I was struck by how for many of those who attended the assembly there is no other way other than the UMNO way that they are familiar with: exclusive privilege through patronage.

While it could be said that these are matters concerning the internal workings of UMNO and as such really none of my business, this cannot be the case when UMNO stakes a claim on the premiership of this nation as it does. The Federal Constitution does not provide that the President of UMNO must be the Prime Minister. That is however the understanding within the Barisan whose component parties are compelled to leave the choice of that individual to UMNO’s admittedly skewed method of electing its President.

This state of affairs is made more complex by the expectation on the part of UMNO that it is entitled to govern this nation, a viewpoint it gives life to through its control over the wider system of governance. The experience of the rakyat with matters of state has been a disappointing one and the general belief is that all constitutional bodies and agencies of the state will act to further the interests of UMNO and, where interests overlap, the Barisan.

Seen in this light, the internal workings of UMNO are a matter of national concern; the national interest underscoring the appointment of a Prime Minister is ultimately left vulnerable to those who are able to successfully wield influence at the UMNO Assembly.

As I have written elsewhere, this is not the scheme envisaged by the founders of the Federal Constitution, which instead puts in place an appointment process grounded on His Majesty the Yang di-Pertuan Agong’s judgment as to who it is that commands the confidence of the majority of members of the Dewan Rakyat.

For many in UMNO and the Barisan however, political convention must trump constitutionalism. Both the party and the coalition have made this clear in the way in which concerns over the appropriateness of Datuk Seri Najib Razak as Prime Minister are being avoided.

This cannot be right, the unease that the failure to take appropriate steps to clear the air has given rise to is no small matter. It pertains directly to public confidence in the due administration of this nation. If the positions were reversed, the same rationale would apply: Datuk Seri Anwar Ibrahim would not be an appropriate candidate until the accusation of sodomy by Saiful Bukhari was dealt with.

Public confidence is crucial to our survival. We are a nation in crisis facing external challenges of great magnitude. Part of the reason for this is the sustained maladministration that we have had to endure over a prolonged period of time. Put bluntly, the nation is not firing on all pistons and we are not nearly as prepared or resourced to deal with what we will have to be when the full significance of world events hits us.

The choice of Prime Minister at this point is a crucial one. In addition to addressing Malaysia’s response to the global economic crisis and its impact on the rakyat, the next administration must address two objectives that are vital to our continued survival. The first of these is the serious deficiencies in our current process of general and state elections. These go deeper than the issue of perceived Election Commission and Police bias to the more fundamental question of whether democratic purpose is being achieved through a first-past-the-post system and the “weighted” delineation of constituencies. Electoral ethics must also be made a priority with scrutiny of the continued value of racial ideologies that serve no purpose than to divide us. True democratic process is the only way in which this nation can ensure that it remains competitive.

Secondly, the foundations of governance must be shored up. The doctrine of separation of powers must be re-entrenched to ensure the due application of checks and balances. For this, reforms must be carried out at more than a superficial level. For this to occur, constitutionalism must be breathed into the organs and agencies of state once more. The Judiciary must be liberated from any and all political influence and be made as capable as it once was, with public confidence in the institution. The legislatures of the nation must be allowed to return to previous glory when debates were permitted without fear or favour and the legislative chamber served a purpose higher than rubber-stamping the dictates of majoritarianism.

Above all, the Executive must be made accountable once again.

This is what we need if we do not want to see this nation failing. Momentum however threatens to propel us forward in that direction. The brakes need to be applied and our direction changed, impelled forward by the will of the rakyat with the Federal Constitution serving as our roadmap.

The question we must confront is who it is that will be able to lead us in doing that.

If I wonder whether Datuk Seri Najib considers himself capable of doing this, it is because he has said precious little to suggest that he has considered the precarious situation we are in. I am also wary of the political forces that paved his way to the top that will impede him much in the same way as they did the out-going Prime Minister. There is also the matter of public sentiment concerning various matters that he either has been, or is seen to have been, involved in.

Ironically, the one person in UMNO who holds to a need for serious reform at all levels, Tengku Razaleigh, received only one nomination and could not contest the presidency. This was an error on the part of UMNO in my view.

My fear is that the nation will have to pay the price.

Malik Imtiaz Sarwar is the current President of the National Human Rights Society (HAKAM) and a lawyer. He has been at the forefront of efforts aimed at promoting constitutionalism and the Rule of Law. His blog ‘Disquiet’, and weekly column of the same name with the Malay Mail, are widely read

(Malaysian Insider 31st March 2009)

MIS

The Freedom To Be

(I start a monthly column with The Malaysian Insider today. My column will appear on the first monday of each month. This is the first (I have made some minor changes since submitting it))

The Freedom To Be

In his seminal work, “Islam And The Secular State: Negotiating The Future Of Shari’a” (Harvard; 2008), the noted scholar Abdullahi Ahmed An-Naim observes that it is not possible for people of any society to keep their religious belief, commitments and concerns out of their political decisions and choices. He notes that the categories of understanding that people employ in their everyday life cannot neatly be parsed into the non-religious and the religious, an approach which has led to tensions and a spiral of mutual violence and destruction.

An-Naim as such propounds that it is both practical and healthy to recognise the role of religion and then regulate it as a source of guidance for political decision. This must however take place in the context of a secular state. An-Naim defines this as a state in which institutional separation between Islam and the state is maintained and the influence of religion in the public domain is open to negotiation, such negotiation being contingent upon the free exercise of the human agency of all citizens, Muslims and non-Muslims alike. Religion needs secularism, he argues, to mediate between different communities (religious and non-religious) as well as securing the legal and political space for religions to develop as they should. In this context, he observes that the safeguards of secularism, constitutionalism, human rights and citizenship are vital to set limits on the power of the majority and impede oppression.

The points An-Naim makes are of great relevance to us.

It is beyond question that Islam is closely linked to politics in this country with Malay-centric political parties PAS and UMNO making use of the religion for political advantage to their respective ends. For PAS, this has been portrayed as an advancing of its own ideological positions, centered on Islam as they are. UMNO on the other hand invokes Islam in aid of its Ketuanan Melayu ideology. In this, Islam has become political currency and a strategic weapon in the campaign against each other to the detriment of other political and civil society actors who have in any event been largely silenced by the stranglehold maintained by PAS and UMNO on Islam and Malay rights. The spectre of race riots and heavy-handed policing of anti-expression laws have stifled necessary and practical discussion of the very serious issues that arise and which affect all Malaysians.

The upshot is that both parties have ultimately positioned Malaysia as an Islamic state in one form or the other. UMNO continues to push boundaries on the application of Islamic law in an effort to showcase its Islamist credentials. Less circumspect and notwithstanding its membership of the Pakatan Rakyat, PAS insists in the face of constitutional limitations that the syariah must be the supreme law of the land, characterizing its demands for the same as being nothing more than allowing Muslims to fulfill their religious obligations. This has unfortunately given rise to tensions in various quarters.

The controversy over the implementation of hudud laws illustrates the foregoing. Under the Constitution as it is currently framed, it would not be possible for hudud and qisas law to be implemented at either the State or the Federal level. As it stands, the Constitution divides legislative power between the State Legislative Assemblies and Parliament. The power to enact criminal law is vested in Parliament with the State Legislative Assembly having only the limited power to enact offences against the precepts of Islam where such offences do not concern any of the matters within Parliament’s power to enact criminal law. These offences are only as against Muslims. Furthermore, the syariah court is limited to imposing a maximum sentence of three year jail or a fine of RM5,000 or six strokes of the whip or any combination thereof. It is obvious therefore that the State has no power to make hudud and qisas laws, which amongst others are punishable by amputation and stoning. This was the basis of Zaid Ibrahim’s legal challenge against Kelantan and Trengganu in 2003.

The constitutional scheme is not beyond PAS’ comprehension judging by its shift in rhetoric. The suggestion that hudud and qisas would now be introduced if the Pakatan Rakyat forms the Federal Government strongly suggests that PAS appreciates that criminal law is a matter for Parliament. It would nonetheless be impossible for PAS to replace the current criminal law system with a syariah based system without a constitutional amendment and an overhauling of the entire system of justice. The constitution as it stands allows for the enacting of criminal law that does not fall within the ambit of offences against the precepts of Islam or, put another way, neutral or secular criminal law. This is consistent with the guarantees of religious equality and harmony as well as individual autonomy under the Constitution that impede the imposition of religious based law on person of other or no faiths.

That PAS continues with its posturing nonetheless reflects the continued political value of the religious card, as does UMNO’s failure to reject the possibilities outright. In doing so, both have adopted a majoritarianism that in projecting Malaysia as a hybrid-Islamic state oppresses both Muslim and non-Muslim alike.

For non-Muslims, the public space for expression and discussion has been limited through discriminatory policies that are justified by reference to their aim of protecting Islam. The recent directive to cease publication of the Herald in the Malay language illustrates this as do a range of other policies or directives. The question must be asked whether Islam or even the Malays are in need of protection and, if so, from what. Islam is already protected under the Constitution and the legal framework, and ample provision has been made for Muslims to practice their faith.

For Muslims, the freedom and diversity provided for by the syariah have been obscured in the shadow of the monolithic Islam that authorities have been permitted to erect. Through laws and fatwas and denunciations, it has become such that only one type of Islam may be permitted, that type which the State defines and applies. This does not concern only the so-called deviationist types of Islam, the Ahmadiyah movement in Selangor being the latest target for a display of religious zeal on the part of the state; it equally pertains to the freedom to be a thinking and conscious Muslim. The banning of books and the recent yoga controversy epitomizes the status the Islamic administration has in this country and the detrimental impact this has had on the life of a Muslim. As An-Naim candidly observes, “As a Muslim. I need a secular state in order to live in accordance with the Shari’a out of my own genuine conviction and free choice, personally and in community with other Muslims, which is the only valid and legitimate way of being a Muslim.”

These trends are worrying, more so for their exploiting a tremendously weakened system that does not safeguard society as it is intended to. We must find the space that will allow each of us to be who we are in the way An-Naim suggests.

To do that, I believe that we do not have to look any further than the Constitution. The key elements of An-Naim’s model are provided for in this manner: it limits the administration of Islam to matters of personal law and in doing so mandates the neutrality of the public law system. It nonetheless allows for Islam to be developed fully through a separate system of personal law administration. The Constitution also guarantees the freedom of expression and association that allows entities such as PAS and ABIM to exert influence to the extent that they can, their views being counterbalanced by different views. These and other guarantees guarantee the free exercise of human agency.

If this system were permitted to achieve equilibrium as it once did, it would be possible to see a flourishing of Islam and the development of a truly just, compassionate and fair society for all. That is something one does not need the label of an Islamic state to attain.

MIS