A New Beginning

A New Beginning

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

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

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

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

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

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

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

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

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

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

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

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

It is time for a new beginning.

(Malay Mail; 20th January 2009)

MIS

A Note On Comments

I have had to reject comments posted on this blog more frequently in recent times. I would like to explain why with the hope that those of you who have not had your comments published will appreciate why this was so and perhaps see how you can have your viewpoint published.

I do not have any difficulty with publishing views critical of me or of my own points of view. I welcome such criticism as it is crucial for the development of any discussion on any subject. I do not believe that it is only my point of view that is correct to the exclusion of all other points of view.

Having said that, I will not entertain any comment whose author does not appear to have any respect for the subject of discussion or the art of discussion. Though I do not expect any of these authors, or those who share their perspectives, to respect me, I do expect that they will respect the readers of this blog and the laws of this country. I have therefore rejected, and will continue to reject, comments that are racist, inflammatory without substantiation, contain hate speech, sexist, obscene, contain profanity and so on. I have also rejected, and will continue to reject, comments that state facts without verification.

I do not need to be called 'Keling' or invited to an execution or face the rubbishing of persons of any ethnic or religious backgrounds regardless to understand a point of view. If you are going to be insulting, then do so in an intellectual manner and, if you have the courage to do so, put your name to the insult. I would be more than happy to hear from you and to share your views with the readers of this blog.

I am not concerned that other blogs or sites have shown a willingness to publish such comments. While I advocate free expression and would defend your right to express yourselves, I do not see such comments as advancing the freedom of expression. I do not see the rejection of such comments as undermining the same freedom. State your point of view constructively, be as aggressive as you want, respect others, and I will publish your comment.

For those of you who feel that comments were unreasonably rejected, please e-mail me at projectmalaysia@arc.net.my.

If any of you have views on this note, I would be glad to hear from you.

MIS

Concern For Nathaniel Tan

I am concerned about the arrest and remand of Nathaniel Tan. Media reports suggest that he has been arrested in connection with an offence under section 8 of the Official Secrets Act, or the OSA. If this is true, then the Government must take immediate steps to ensure that Nathaniel Tan is immediately released.

For this, it would be useful for us to get a grasp of what the OSA, and in particular section 8, concerns.

As it was originally drafted, the OSA was a law aimed at allowing the Federal and State governments to take measures to ensure that highly sensitive information pertaining to matters of national security could be maintained confidential. The objective was to allow those charged with the security of the country to keep such information away from those who would use this information adversely.

For this reason, as it was originally drafted the OSA allowed for the classification of a very narrow class of documents pertaining to military installations, military prisons and other matters related to state security.

The OSA was amended in 1987 to expand the scope of information that amounted to an ‘official secret’. Since then information so defined include information in the following categories:

• Cabinet documents, records of decisions and deliberations including those of Cabinet committees;
• State Executive Council documents, records of decisions and deliberations including those of State Executive Council committees;
• Documents concerning national security, defence and international relations.
• any information and material relating to the 3 categories set out above and any other official document, information and material as may be classified as "Top Secret", "Secret", "Confidential" or "Restricted", as the case may be, by a Minister, the Menteri Besar or Chief Minister of a State or such public officer appointed
  

The government may add to the first three categories by simply gazetting the variations. This allows for additions outside parliamentary scrutiny and process.

Section 8 of the OSA is one of the main sections of the Act. It sets out offences against the Act in the widest terms. It would be best to reproduce the relevant parts here:


8. Wrongful communication, etc. of official secret.

(1) If any person having in his possession or control any official secret which -
…
(c) has been made or obtained in contravention of this Act;
…
does any of the following -


(iii) retains in his possession or control any such thing as aforesaid when he has no right to retain it, or when it is contrary to his duty to retain it, or fails to comply with all lawful directions issued by lawful authority with regard to the return or disposal thereof; or

he shall be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years.

(2) If any person receives any official secret or any secret official code word, countersign or password knowing or having reasonable ground to believe at the time when he receives it, that the official secret, code word, countersign or password is communicated to him in contravention of this Act, he shall, unless he proves that the communication to him of the official secret, code word, countersign or password was contrary to his desire, be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years.


As one can see, the provision puts almost any activist involved in efforts to improve socio-political conditions in Malaysia in a ‘damned if you do, and damned if you don’t’ place.

The OSA is unconstitutional. In its current form, it violates a range of fundamental liberties guaranteed by the Federal Constitution. Chief amongst these is the freedom of expression, and the associated freedom of information. Seen from the perspective of allowing arbitrary government, the OSA violates the equal protection and equal access to the law guarantees as well as undermining the fair and free elections underpinnings of our system of government.

The OSA in its current form allows for a government to administer this country covertly and in defiance of the accountability and transparency that is crucial to democratic process. This impacts on all our lives in more ways that we can begin to understand as the government is given a means to thwart legitimate public interest by the forced suppression of material and relevant information. The position taken by the government in connection with the disclosure of toll concession agreements illustrates this worrying trend.

The OSA as it is also violates international human rights norms and runs counter to representations made by our government at the international level about the state of play in this country where civil and political rights are concerned. Malaysia is a current member of the United Nations Human Rights Council. It must act in a manner consistent with its membership.

These are not my views alone. The OSA has been widely condemned (see here for a comprehensive analysis of the Act by Human Rights Watch).

In view of the above, short of repealing the OSA or amending it to neturalise the contraventions of constitutional guarantees and international human rights norms, no charge or charges should be made out against any person under the OSA. Such an act would run counter to the promises of transparency and accountability of the current administration under Abdullah Badawi.

The move against Nathaniel Tan is particularly worrying in light of indications in the media that the investigations are being carried out in connection with concerns about matters published in blogs. In a previous posting, I had explained how vital blogging is to nation building efforts.

MIS

Defamation And The Blogger

Defamation Proceedings

There is a fallacy that needs to be addressed. Blogging on the internet is not immune from legal process. Like other publications on the internet if a blog publishes defamatory material the blogger responsible for the publication, and even the host of the blog, can be subjected to defamation proceedings.

I believe that Dr Mahathir’s promise of internet freedom could only be taken as being a promise that the Administration would not restrict internet freedom. Based on this promise, Malaysians could reasonably expect that no criminal proceedings are brought against persons publishing on the internet and that no steps will be taken which have the effect of impeding free access to the internet.

I do not believe that Dr Mahathir’s promise was a licence for bloggers to publish material in a reckless and irresponsible manner. You can imagine the extensive damage that could be done if this were the case. For as many bloggers who publish responsibly there are that many more who do not, hiding behind their anonymity and their mistaken belief in immunity. Their attacks on the reputations of individuals and businesses do have an impact and it will sometimes be necessary for those who have been attacked to take steps to vindicate themselves.

This is at the heart of defamation proceedings, the desire to clear one’s reputation and achieve vindication. In more traditional systems, such as in the UK and Malaysia, an award of damages is seen as being the best means of vindication. The award is intended to represent to the world at large the inaccuracy and lack of truth in the offending statements. They are also intended to deter, through a ‘chilling effect’, publications of a similar nature. The courts do not order the publication of an apology, the failure to voluntarily do so by the wrongdoer when asked being one of the factors taken into consideration in quantifying damages. In other systems, such as in Germany, the courts do order the publication of an apology.

Seen from this vantage, those who sue for defamation cannot be faulted for so doing where there is legitimate basis. We have heard of and seen how defamation proceedings have been invoked as means of pressure and intimidation, the complaint most commonly being made with regard defamation proceedings in Singapore. Where done with that intent, the proceedings could be said to have been brought for collateral purpose and despite the plausible legal basis for doing so, could be seen as being ‘less legitimate’. This too is a factor that the court can take into consideration where damages are concerned.


Blogging And Nation Building

However, in the Malaysia context, the analysis should not end there. I believe that there is a social and moral dimension to the discussion. This dimension is founded on the crucial role that blogging plays in socio-political Malaysia and in nation building efforts. There are several ways this can be approached.

First, the reality is that press freedom in Malaysia is limited. The need for permits and the threats of closure and prosecution are not conducive, even where there is editorial will for freer publication. As such, information is available to the public on a limited and ‘structured’ basis. Responsible blogging allows for gaps in information to be filled and the establishment of a more informed polity. In this vein some blogs have, in a manner of speaking, become alternative journalistic institutions. There are of course numerous other blogs that are purely of a personal nature and do not fit into the scheme of things as outlined here.

Second, we cannot deny that the fact that Malaysians having had to exist in a ‘climate of fear’ since, at the very least, 1987 has resulted in an inability on the part of many Malaysians to engage in critical and constructive of analysis on topical issues. The ‘de-education’ of Malaysians by the education system has worsened this state of affairs. The democratic space that blogs open up and the education in logic, critical analysis and constructive dialogue are invaluable.

Third, we similarly cannot deny that race politics and its consequences has also caused a continuing brain-drain. This has seriously undermined the quality of the views expressed and allowed for the insulation of an Administration that is clearly not the best qualified for that role. The blogs have allowed for an involvement of Malaysians living abroad and a harnessing of their views.


Competing Interests

Keeping the foregoing in mind, it becomes apparent that where suits are brought against blogs that are recognized as playing a crucial role in nation building, then it is the nation building process itself that is being threatened.

Having said that, from time to time, as with all publications, offence will be caused. Aggrieved persons will have rights of action and will be legally entitled to recourse and vindication. This points to a need on the part of bloggers to be more responsible and professional in the way material is published.

Equally however, the evolution of the Malaysian blogsphere and the crucial roles that blogs and bloggers play point to a need for greater appreciation of how vital they are for nation building. I do not think I am overstating things when I say that Malaysia is in a state of crisis, politically and economically. The freedom to access information is more vital than ever.

As such, I believe that a balance has to be struck between these two competing interests; personal reputation and integrity on the one hand, and nation building on the other. We cannot lose sight that in as much as vindication may be achieved, the chilling effect may have far wider, and unintended consequences.

MIS