We, the people

And so the General Election is finally here. 5^th May 2013, a date some are calling, to borrow a phrase from Nehru, our tryst with destiny, and yet others, our day of reckoning. There is no doubt that there is electricity in the air as Malaysians wait out these final days for the General Election that seemed to have taken forever to materialise. This election, it would seem, represents a true opportunity for something.

For many, the decision of who to vote for, one way or the other, was made the day the 12^th general election results were announced on that fateful day in March 2008. Others though, made less certain by the events since then, have an important decision to make. It is perhaps to this constituency that I offer my comments.

I wrote in February (“A heartfelt choice”) of the three primary issues, as I see them, that ought to determine our electoral choices: the rule of law, corruption, and social inclusiveness. I stand by that determination and reiterate that if we are truly concerned about the future of our young, then our choices must be made on the basis that any government we vote in ought have at the forefront of their policy framework measures that address these subjects.

It appears however that these concerns, as fundamental as they are to some of us, do not seem to resonate as strongly with others. Political loyalties, vested interests, fear, amongst other things, are obscuring the implications of our circumstance. They ask whether there is anything wrong with the way things are. After all, it is suggested, Malaysia has done fairly well for itself all things considered. It is no coincidence that the Barisan Nasional campaign is aimed at reminding voters of this as well as warning them of the implications of change. The unsubtle message that is screamed from billboards and advertisement in the mainstream media, leave no room for doubt as to the point the Barisan Nasional makes.

I think Malaysians need to remember that we have a harmonious society because we are a harmonious people. We have stability in spite of, and not because, of our political leaders. Even the most cursory look at the events of the last three decades would reveal a campaign of divide and rule on the part of those leaders, one intent on reminding us of, and playing up to, our differences. No matter how one dresses it up, the politics of race and religion is devastatingly divisive. And yet, we have managed to live together in peace, weathering potential points of crisis that were contrived to render the goodwill that continuous coexistence over generations nurtured. This is not only a point of pride; it is a deep source of confidence and inspiration. We are a resilient people and we must not forget that.

I appreciate that this in itself is not enough to convince those who harbour doubts about embracing the uncertain. It is however a good point to start any consideration of what it is we should be doing when we stand before the ballot box. It also sets the context for the choice that we have to make.

It is not a choice, as some might have you believe, between Najib Razak and Anwar Ibrahim, or even between the Barisan Nasional and Pakatan Rakyat. It is rather a choice that is far more fundamental, one between leaving the way things are now and doing things a different way. This is where the question of what is wrong with the way things are now comes up.

I could attempt to answer this by pointing to all those things that I think are deeply problematic once more. Allow me however to adopt a different approach by asking instead whether we could be doing things differently in a way that would allow us, the nation, to achieve what our potential truly enables us to.

In a recent article for Bloomberg, William Pesek argued “Malaysia needs to more to get off the road to mediocrity”.  In explaining his position, Pesek very credibly argued that the nation’s biggest problem is complacency and that in being change resistant, the government has allowed “nations as diverse as China, Indonesia, the Philippines, Thailand and Vietnam to leapfrog us” to a point where Malaysia is now competing with them for “the same infrastructure dollars, factory projects, bond deals and stock issues.” Singapore, has in the meanwhile, he further asserts, “become the beneficiary of many of Malaysia’s best and brightest, who have emigrated in search of a more merit-based economy.”

It is difficult to credibly argue against this. Just as it is to argue against the obvious need on our part to introduce “reforms that will revitalise the system as a whole”.

Cynics might sneer at this as being wildly theoretical or, alternatively, point to the reforms that the Government has promised us. The problem with the reform-speak of the Government thus far is that it has remained as not much more than rhetoric. True reform would mean, amongst other things, dismantling the construct that the Barisan Nasional depends on for its own vested interests. Pesek insightfully describes the difficulty that the coalition faces as Najib Razak having to navigate

“a 13-party coalition whose interests are as entrenched as any in the world. His partners are pushing back quite assertively, afraid of losing the Malay vote they could once take for granted.”

It is no surprise therefore that Ibrahim Ali has been permitted to contest as a candidate in Pasir Mas over the Barisan Nasional candidate assigned to constituency and Zulkifli Nordin is now mysteriously championing the cause of Indians in Shah Alam. Perkasa is the kind of right-wing vehicle that some of Najib Razak’s partners prefer notwithstanding it being the antithesis of “1 Malaysia”.

True reform is not about to happen as along as the Barisan Nasional remains the way it is. In the aftermath of the 2008 General Election, there were rumblings from within that change was needed. Some five years later, the changes have largely been cosmetic. So much so that I think it is reasonable to conclude that the Barisan Nasional will not reform itself unless it is forced to. What Pesek suggests cannot be dismissed as the ramblings of a foreigner who knows nothing about the country. He has put in words what many of us think but are reluctant to say.

The truth is that our economy is not as vibrant as we have been led to believe. A raft of laws designed to keep critical information away from us has left us dangerously ignorant of the true economic status of the nation. From what is visible to us, the outlook is gloomy. We should remind ourselves that Idris Jala, Minister in the Prime Minister’s Department said in 2010 that unless we rein in borrowings and subsidies, we could be facing bankruptcy by 2019, our trajectory reflecting that of Greece. Instead of reigning in spending and subsidies, we have experienced spending and subsidising in the intervening period on an unprecedented scale. Money, it would seem, is going out of fashion in Malaysia. So much so that the Government is literally giving it away.

Add to that endemic corruption and one is left to wonder whether Malaysians are ever going to have another opportunity to try to bring us back from the brink.

I am not saying that the Pakatan Rakyat is the answer to all our problems. It too is saddled with its own difficulties and deficiencies. The premise of its campaign however points to systemic reform of a kind that indicates a potential start to the gargantuan task of righting the ship of state. Amongst them is a promise that the rule of law will be reinstated.

If nothing more, this offers a new way of looking at things and offers a more certain way to remove the Pakatan Rakyat from government when the time comes. And at the very least that offers us a chance at establishing the more conventional system of government that the founders of the Constitution envisaged and ridding ourselves of autocracy.

I think that is a choice worth making.

MIS

(This comment was first published in The Edge, 27.04.2013 as "A choice worth making") 

Spoils Of War

(This article first appeared in The Edge in the week of 28th August this year It was my first piece for a column called 'Rule of Law')

Spoils Of War

It feels sometimes that the way things are going political forces are going to rip this country apart. Intent on their respective agendas, for better of for worse, the Barisan Nasional and the Pakatan Rakyat appear to be caught up in a “no quarter” given, fight to the death that is focused more on their survival than it is on our well being. Resources, such as they are, are being deployed more to one end than they are to the more well deserving other.

Sadly, in the Malaysia of now politics is no longer the handmaiden of democracy; it defines it. The campaign being waged around us is about the continued political subjugation of this nation. It is about control. We are not witnesses to a gladiatorial contest for sport; we are the spoils of war.

Though it is a given that in even the more mature democracies the line between government and politics is not always as broad as the ideal requires, that line nonetheless exists if only for the existence of an effective system of checks and balances centered on the separation of powers between the Executive, Legislature and the Judiciary.

The line between government and politics in Malaysia is so blurred that some might describe it as no longer being visible to the naked eye. If there were any doubts about that, it would have been put to rest by any of a number of recent events. The campaign speeches made by the Honourable Prime Minister for the recent parliamentary by-elections in Hulu Selangor and Sibu, the intensified and highly selective policing of free speech, and the resurgence of intolerance against legitimate dissent are instances of what it is that fuels the belief that the Barisan Nasional views itself as the government and vice versa. To criticise one is to condemn the other.

It is crucial for all stakeholders to recognize this as much as it is not in the interests of this nation for this state of affairs to continue. It is equally imperative that we appreciate the reasons for it and commit to addressing matters as they need to be.

We suffer the consequence of several inter-locking processes that were given life during the administration of a Prime Minister who tended to view the ends as justifying the means. I would like focus on one.

Frustrated that an interfering judiciary was impeding his vision, the Mahathir administration moved a constitutional amendment that subjugated the Judiciary to Parliament and showed the Justices that he could remove them if he saw fit. His perception of the role of the Judiciary called more for compliance rather than effectiveness. This was essential to his need for Executive control over the nation.

Perhaps recognizing that it would be impolitic to suspend the Constitution, the Mahathir administration moved amendments to key legislation that would allow for greater central control over matters of free speech and government accountability. These vested subjective discretion over matters exclusively in the Government to the extent that even the courts were precluded from questioning decisions. This allowed for a suppression of civil society and opposition efforts, and in many ways hamstrung the democratic process. This state of affairs in turn allowed the Barisan Nasional to dominate Parliament, the other bastion of check and balance. A docile Judiciary washed its hands of the mounting dilemmas by citing their lack of power. Suggestions that the constitutional and legislative amendments that neutered the Judiciary were unconstitutional were dismissed.

This need for control and the willingness to do what it took ultimately led to the decline of governance in this country. As admitted by Abdullah Badawi during his term the Judiciary was in serious need of reform.

It still is notwithstanding the efforts by our current Chief Justice to increase efficiency within the courts. That is but one heavily nuanced dimension of the issue; the public perception that the Judiciary is not competent and lacking in integrity needs to be directly addressed. Perceptions of bias or extraneous influence cannot simply be brushed aside if the Judiciary is to function as such. Public confidence is as essential to the functioning of this institution as its infrastructure; laws would have no meaning if people reject the validity of the decisions of the courts. And the truth of the matter is that they have been for some time now.

It should not matter that this may be a situation that lends itself to the advantage of the Barisan Nasional. The fact remains that a fundamental feature of our system of governance is skewed. Questions of integrity and competence on the part of the Judiciary go far beyond matters of political significance. They pertain as much to matters of finance and commerce as they do to personal matters and for doing so touch the lives of all Malaysians. Consider the number of Malaysians who suffered by reason of the decision of the Federal Court in Adorna Properties or any number of self-evidently unjust and erroneous decisions of the courts, in some cases the apex court itself.

It is not enough to say “the courts have decided” in the face of decisions that are obviously unsustainable. For us to progress, the standard and quality of justice must be high as it is consistent. This is a feature of the Singaporean judiciary that has reaped much benefit for that nation. In as much as some might say that decisions of those courts involving the Government tend to go one way than the other, their commercial decisions speak for themselves. It is no coincidence that the Privy Council not too long ago adopted the reasoning of a Singapore High Court judge in rejecting a precedent that had held sway for more than a century; it was a matter of planning. From the outset Lee Kuan Yew recognized the importance of a strong legal tradition.

The question therefore is where does that leave us in Malaysia.

MIS

Ipoh, 7th May 2009

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

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

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

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

Martin Luther King

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

I wonder whether anyone is actually celebrating.

MIS

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

The Index On Censorship Award

A big thank you for the very kind and generous congratulatory messages over the past few days.

The Index on Censorship started out as a magazine in 1972. Founded by a group of journalists, writers and artists, the aim of the publication was to provide a platform for views in defence of the freedom of expression. Over the years, it has featured the writings of an impressive list of distinguished writers and thinkers that include Aleksandr Solzhenitsyn, Milan Kundera, Vaclav Havel, Nadine Gordimer, Noam Chomsky and Umberto Eco (Wikipedia)

Since then it has evolved. As Index says of itself, “Index on Censorship is Britain’s leading organisation promoting freedom of expression. Our award-winning magazine and website provide a window for original, challenging and intelligent writing on these vital issues around the world. Our international projects in media, arts and education put our philosophy into action.”

The Index on Censorship launched the Freedom of Expression Awards in 2000 to recognize free expression activity around the world and to honour those who have made outstanding contributions to the promotion of free expression. Since 2000, the awards have grown and are now awarded in five categories: New Media (supported by The Economist). Law and Campaigning (supported by Bindmans), Journalism (supported by The Guardian), the Index Film Award and the T R Fyvel Book Award.

The first Bindmans Law and Campaigning Award was initiated in 2007. The award is given to lawyers or campaigners “who have fought repression, or have struggled to change political climates and perceptions. Special attention is given to people using or establishing legal precedents to fight injustice.”

The first recipient of the award was Siphiwe Hlophe, a Swazi activist who co-founded Swazis For Positive Living (Swapol) in 2001 when she was abandoned by her husband and lost an agricultural economics scholarship when she tested positive for HIV. Swapol campaigns against gender discrimination related to HIV/Aids as well as provides assistance to persons living with HIV/Aids

In 2008 it was awarded to U Gambira (pseudonym), the leader of the All-Burma Monks Alliance, which organized and spearheaded the nationwide protests in 2007. He was detained in November 2007 and is still under detention.

I only came to know that I had been nominated and had been shortlisted when an associate alerted me. In the same way, I came to know who it was that had nominated me much later: Peter Noorlander, legal director of the Media Legal Defence Initiative, an organisation that works globally to help journalists and small media outlets defend their rights. He was formerly of Article 19, a human rights organization that works around the world to protect and promote the right to free expression. I have had the privilege of collaborating with Peter.

The shortlist for the 2009 Award had three other nominees, all very distinguished in their own right: Gamal Eid (Egypt), Harrison Nkomo (Zimbabwe) and Harry Roque (Phillipines).

The recipient of the award was to be announced at an Awards Dinner held in London on the 21st of April. I could not attend the dinner as I was scheduled for hearings in court through the week. Peter Noorlander was kind enough to represent me and to e-mail me as soon as it was announced (“You won”).

This is how Index describes my selection:

“Malik Imtiaz Sarwar is a leading human rights lawyer and activist and the current president of the National Human Rights Society (HAKAM). Imtiaz has been a central figure in fighting lawsuits brought against journalists and bloggers, and was the lead counsel for Raja Petra Kamaruddin, popular blogger and editor of Malaysia Today, whose release he secured last year. In August 2006, a poster declaring him to be a traitor to Islam and calling for his death was circulated in Malaysia. He has proposed setting up an inter-faith council, and spoken in a series of public forums on the need for religious freedom.”

As far as I know the selection was based entirely on an independent assessment of my efforts. I was not contacted by anyone from Index or associated with the awards nor was I requested to submit any materials to the selection panel. It appears however that the panel of judges was acquainted with my body of work.

In conjunction with the event, I was asked to contribute a comment for the Guardian. This was the piece entitled “The Truth About Malaysia” that has been reproduced on various Malaysian soc-pol sites.

As I said in an interview with Deborah Chong of the Malaysian Insider, I am happy to have been nominated and given the award. It presented an opportunity to bring to light the Malaysian situation, one that sadly in the view of dispassionate and objective third parties fits into the parameters of the award.

But then, that should really not come as a surprise, all things considered.

The cause is however one that is worth all the pain and suffering it might entail, a sentiment that I had the opportunity of expressing in the acceptance speech (that Peter was kind enough to read out for me) in this way:

“Being a public interest advocate is at times one of the loneliest things that one can do. Standing up against systemic repression and populist sentiment is not the most popular thing one can do. And yet, it must be done. In the short period that Malaysians stopped doing so, we lost the Rule of Law. The consequences of this failure is the legacy that younger Malaysians have inherited.

The award tonight is a reminder that no matter the specific nature of our respective struggles, the underlying causes are universal. The truths that define us in Malaysia are the same as those that define our friends in Egypt, Zimbabwe, the Phillipines or any other place. We each want to believe that each of our futures is limited only by our ability to dream.”

We must all keep on reaching for the stars. Our futures are written in them.

MIS

Adapting To The Times

Adapting To The Times

Proponents of the Internal Security Act justify their viewpoint by reference to the need for law to enable the authorities to deal with threats to national security. In principle, there is nothing objectionable with that position. As I explain below, the Federal Constitution allows for the enacting of laws to that end.

The shape these laws take, however, depends on the nature of the threat that is sort to be addressed and the measures needed for that purpose. These features inform any discussion concerning the relevance, if at all, of laws that allow for detention without trial under our constitutional framework.

There is no general power in Parliament to validly enact laws that contravene the fundamental liberties guaranteed under the Constitution. That is why the Criminal Procedure Code has crystallized in the form it has, obliging the police to produce an arrested person before a magistrate within twenty-four hours of arrest. If the police want to keep that person in custody without charging him or her for a further period of time to allow for further investigation, they have to convince a magistrate of the need for this extension.

Where the offence being investigated is punishable by death or with imprisonment of more than fourteen years, the magistrate can order a further detention of up to seven days with it being open to the police to seek a further seven days thereafter. Where the offence is punishable with imprisonment of less than fourteen years, the maximum period of further detention is seven days, in stages of four and three days respectively.

The rationale is that the individual being investigated should be charged as soon as possible or be let go, the thinking being that if after that many days as is permitted the police have got no basis to charge, then continued detention is not justifiable. The individual can be rearrested subsequently if more evidence surfaces and then charged, but unless and until that occurs, he is entitled to liberty. If charged, the accused then has the benefit of all the safeguards of the criminal justice system the most important of which is a trial.

That is what the guarantee against the denial of life and liberty “save in accordance with law” means.

There is however a constitutionally entrenched exception to this general rule. Parliament can enact laws that circumvent the guarantees of liberty and associated guarantees to deal with the threat of action by a substantial body of persons that aims to destabilize the nation or undermine democracy.

The ISA was enacted using this exceptional power. The “substantial body of persons” concerned was the communist insurgent army whose actions had led to concerns about the security of the nation and its way of life. That is what made its enacting valid; it was a necessary means to disenfranchising the insurgents and preventing them from regrouping. The criminal justice system might have impeded efforts to deal with the insurgents effectively.

We tend to overlook the obvious truth that solutions must be crafted to suit the problems they are intended to solve. The ISA was designed to a particular end. It was never intended to define the upper limits of executive action where national security was concerned. It was never meant to be the yardstick.

There is no difficulty with invoking the criminal justice system to deal with individuals who are not affiliated to a larger body of persons, be they terrorists or the organizers of demonstrations or socio-political bloggers, no matter how convenient preventive detention may be.

This is not a matter of preference; it is the law.

If a crime has been committed, let the accused be tried. If no crime has been committed, then there is no basis for circumventing constitutional freedoms unless the nation itself is threatened.

For those who fear the uncertain, an anti-terror legislation will allow us to deal with actual national security concerns effectively. This law could be of a hybrid nature, applying general principles of criminal law for those acts of terrorism that do not fall within the constitutional exception but at the same time allowing for exceptional steps to be taken where the terrorism concerned does. The aim of these exceptional steps should be to deal with a clear and present danger and not to substitute criminal due process with executive whimsy. Detention periods should as such be of very limited duration, if a crime has been committed there should be a trial, and be made subject to strict judicial scrutiny. This would encourage less sloppy policing and lead to greater security.

Do we really need the ISA? With the range of more effective options available to us in this day and age, I do not think so.

(Malay Mail; 17th April 2007)

MIS

Into The Depths

Moments in history leave their imprints on destiny. Actions translate into consequences.

I have often wondered what it is that was running through the minds of those who triggered Operasi Lalang on that fateful 27th of October 1987. They were about to trigger a chain of events that would put this nation on a collision course with its very foundations. They were about to cast the perspectives and attitudes of a generation of Malaysians who would in turn shape those of another.

Racialism, fear and loathing, supremacist beliefs; a belief in the right of might.

On October 27th, 1987, 106 persons were detained. They were mainly politicians and political activists. Their absence left a gash in our democracy through which ideals and principles were sucked out into nothingness.

In the General Election of 1986, the Opposition held 28 seats. Of these, the DAP held twenty-four seats. PAS held one.

Five DAP Members of Parliament, amongst them the then Leader of the Opposition, Mr Lim Kit Siang, the then Deputy Chairman of the party, Mr Karpal Singh, Mr Lim Guan Eng and the indomitable V David. Four DAP assemblymen were also detained and a host of civil society activists.

The opposition was emasculated.

On 28th October 1987, Lee Lam Thye attempted to move an urgent motion to debate the detentions. The speaker rejected his request, basing his decision on the Prime Minister having given notice that he was presenting a statement on the subject. This excerpt from the Hansard report of the proceedings of that day captures the essence of the Prime Ministe’s address.

Tuan Yang di-Pertua, kita semua masih ingat peristiwa 13 Mei, 1969. Tentulah tidak ada di antara kita yang suka mencetuskan rusuhan berdarah seperti itu sekali lagi. Oleh itu, sikap tidak bertanggungjawab dan kegiatan menjolok isu-isu yang sensitif sepatutnya tidak berlaku.

Walau bagaimanapun, pihak Polis yang sepanjang masa memerhati dan meneliti perkembangan politik dan lain-lain gerak-geri rakyat, mendapati bahawa ada pihak-pihak tertentu yang tidak menghargai sikap Kerajaan. Mereka sebaliknya menggunakan peluang daripada pendirian Kerajaan ini untuk memperalatkan isu-isu sensitif untuk kepentingan mereka dan dalang-dalang mereka. Mereka tidak mempedulikan kesan buruk akibat daripada sikap tidak bertanggung- jawab ini.

Tuan Yang di-Pertua, pihak Polis mendapati bahawa beberapa tokoh pemimpin parti Pembangkang dan kumpulan-kumpulan yang sebulu dengan mereka telah dengan sengaja membesar-besarkan isu yang ada kaitan dengan kaum. Pihak DAP khususnya, terlalu memainkan isu-isu perkauman Cina dan lndia secara terbuka. Mereka memberi gambaran hahawa Kerajaan menindas kaum-kaum ini. Mereka mengadakan rapat-rapat umum, mesyuarat awam, rally, demonstrasi dan lain-lain kegiatan untuk membakar hati orang-orang Cina dan lndia terhadap Kerajaan dan terhadap orang-orang Melayu.

Tuan Yang di-Pertua. pihak Polis mendapati bahawa pemimpin-pemimpin parti DAP amat gemar menggunakan isu-isu yang berbau pcrkauman untuk mendapat sokongan bagi parti mereka. Mereka bukan sahaja herlagak sebagai juara kaum Cina dan India, tetapi juga sengaja mencabar parti-parti kaum Cina dan lndia dalam Kerajaan kerana kononnya tidak memperjuangkan kepentingan kaum-kaum mereka. Dengan ini maka parti kaum Cina dan lndia dalam Kerajaan pun melenting dan cuba pula untuk melebihi parti DAP dalam ketebalan perkauman mereka.

Usaha menjadi jaguh ini meningkat apabila DAP dapat mengalahkan beberapa calon dari parti Cina dalam Barisan Nasional dalam Pilihanraya 1986. DAP sengaja mengejek parti Cina dalam Barisan Nasional sebagai "running dogs" parti UMNO. Dengan ini maka semakin bertambahlah usaha parti Cina dan India dalam Barisan Nasional untuk membuktikan bahawa mereka juga kuat dari segi perkauman bahkan lebih kuat lagi daripada DAP dan pemimpin-pemimpinnya. Berbagai isu dijadikan asas ujian tentang siapa lebih kuat perkaumannya. Beberapa daripada isu-isu ini amat sensitif termasuk soal tarian singa, soal koperasi, soal papan tanda dan iklan, soal bahasa Cina, soal Bukit Cina, soal pakaian, soal ikrar murid di sekolah, soal matapelajaran elektif di Universiti Malaya, KBSR, soal pribumi Bumiputera dan akhir- ahkir ini soal guru sekolah Cina. Satu perbuatan yang amat bahaya ialah penggunaan kuil untuk mesyuarat perkauman.

Dalam usaha-usaha yang dibuat sewaktu membincangkan isu-isu ini, banyak kata-kata kesat yang boleh ditakrif sebagai hasutan; disuarakan dengan lantang. Reaksi daripada orang Melayu juga meningkat kerana sebab-sebab yang tersebut sehingga ke peringkat yang melampaui batas. Semua ini dilaporkan oleh akhbar- akhbar dan majalah-majalah dan media massa ini juga semakin berani…

The Prime Minister’s address received approval from all the Barisan Nasional Members of Parliament present. Not one of those MP’s expressed concern.

The stage having been set for greater executive control, and taking advantage of a weakened opposition and a media lock down, laws were enacted to stifle expression. Amongst them was the constitutional amendment to Article 121(1) of the Federal Constitution that suborned the Judiciary to Parliament, the jurisdiction of the former being a matter that from that point on became a matter of federal law. On the heels of that amendment, came the amendments to the ISA that precluded judicial review. The Printing Presses and Publications Act was amended to vest a subjective discretion in the Minister to suspend or shut down publications. The Police Act was amended to enhance the power of the police to regulate public assemblies.

The Judiciary was assaulted, a new brand of justice given life to. Democracy was taken hostage.

All of this while the leadership of the Opposition was in Kemunting for conduct that was said to be wholly destabilizing of the nation. None of those detained were ever charged for any crime. Some of them are still in Parliament or serving the nation in other capacities.

The message that the Mahathir Administration sent in 1987 has been the single biggest obstacle to developing a sustainable and inclusive foundation for this nation. We still suffer its familiar strains. We still struggle against fear.

Intimidation can never be a tool for nation building; it carries the imprimatur of autocracies. Unity can never be decreed, it is a heartfelt condition.

Malaysia can only be one when this government recognizes that the chain of consequences that emanated from that day in October, 1987 have us all in a stranglehold; its weight threatens to pull us down into the depths of oblivion.

MIS

Finishing Point

Finishing Point

The Internal Security Act has no place in the modern society that Malaysia is. It was designed for a very different time and purpose. As Tun Abdul Razak emphasized in Parliament in 1960 when questioned by a very concerned Opposition as to the purpose of the then pending bill, it was intended only to address the threat to democracy that the Communist insurgency was.

As Malaysians learnt the hard way, it was used for more than that. It became the weapon of choice of politicians who were not averse to prioritizing their personal interests over those of the nation.

The populist gesture of releasing detainees by newly minted Prime Ministers underscores this point. Prime Ministers not having the prerogatives of Kings, there is no basis for benevolent munificence on their part. They are, like the rest of us, expected to act according to the law. The release of detainees is as such intended to reflect a departure from the policy positions of the previous administration and in this, the ISA invoked as a symbol of wrong to showcase a willingness to embrace what is right. The gesture as such proves the injustice that the ISA is.

In fairness, the gesture this time has come with a twist, the promise of a review. Though it is not clear what this means or even that it will occur, the Prime Minister must be given the benefit of the doubt. His concession has vindicated the movement against the continued existence and use of the statute. It also presents a useful opportunity to consider what it is that must be done and why it should be.

There have been numerous objective and careful studies conducted on the ISA by various interested parties. All of these have pointed to a need to review the law, some even going so far as to suggest a repeal of the statute. The essential point made is that the ISA is not consistent with guarantees of civil liberties under Malaysian and international law. The Government has consistently disregarded these suggestions and in justifying itself has pointed to the courts having validated the ISA and actions taken under it, and the need for anti-terror legislation.

Judicial decisions of the apex court have however been formulaic and shaped by an uninspiring view of liberty, more so since 1989 when judicial review was precluded by way of an amendment to the ISA. The quality of some of these decisions is also suspect, the conclusions drawn questionable.

For a successful review, a new approach must as such be adopted. This must be grounded on an acceptance of the immutable truth that our civil liberties are guaranteed in the widest sense and that government must be in accordance wit the Rule of Law.

The power to enact laws that impinge on these liberties can only be used sparingly and in a very narrow compass. Actions taken under these laws must be subjected to strict judicial scrutiny. Terrorism can be dealt with effectively without undue compromise of freedoms; societies across the world are doing just that using appropriately crafted anti-terror laws.

There is no point to a review if the Government wishes to preserve an unfettered power to detain at will. This must be the starting point of any discussion on the subject. If accepted, it will also be the finishing point: the ISA must be repealed.

(Malay Mail; 10th April 2009)

MIS

(Disquiet in the Malay Mail is now published on Fridays)

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 Price Of Nation Building

The Price Of Nation Building

I was criticized recently for being biased in my view of the political landscape. The basis of this criticism was a perceived unwillingness on my part to be as critical of the opposition as I was of the government. As this was not the first time, and as I had read similar observations made of other commentators whom I view as being fairly objective, I spent some time reflecting on what it is I had written in the past and why. I also gave some thought to why it is I write.

I am not a member of a political party. I cannot even honestly say that I am a supporter of any particular party. It is true that I have in the past acted as a lawyer for some of the Pakatan Rakyat parties and for opposition members, my role in that regard was limited to that of an advocate. That I have not acted for the Barisan Nasional parties is easily explained by my not having ever been retained to do so.

As a general rule, I write when I have something to say about a particular issue of significance. My training and exposure affords me a perspective that may be of assistance to those seeking to form a view. A weekly column in the Malay Mail and a monthly column for the Malaysian Insider has made this process more regimented, providing the need for a much welcomed discipline on my part. Writing is a skill that requires practice, much like any other.

In writing, my desire to espouse a viewpoint is self-limited by a narrower interest in policy and frameworks, in particular legal and constitutional. I am concerned not so much with what people say or do but with the permissible limits of their doing so.

This has quite naturally focused my attention on matters of governance, primarily at the Federal level. Though I have written at times about matters within a particular state, my relatively infrequent commentary has been largely confined to matters of constitutionality. Notable instances have been comments on the so-called Trengganu crisis last year and more recently, the Perak affair.

Concerned as I am with matters of governance, it is not surprising that I have tended to scrutinize Executive action and its impact. In the nature of things, consideration of Executive action has in turn necessitated a deliberation of the politics underlying Executive action.

An aim to ensure comprehensive analysis has required examination of the agencies through which Executive dictate has been, or has been perceived to be, effected. This has unavoidably led to commentary on the police force and other federal agencies as well as the Judiciary and other constitutional bodies.

I will concede that much of this commentary has not been complimentary. This has however not been because I am anti-government. I do not condemn merely for the fact of what I condemn having been precipitated by the government. I condemn because what it is that I condemn is, in my view, wrong in principle and its long-term implications of grave concern. Being critical does not necessarily arise from the animosity that being anti-anything requires.

Take, for instance, the tabling of the motion to suspend the Member of Parliament for Puchong, Gobind Singh. The decision to allow for debate on the motion on an urgent basis was a matter within the discretion of the Speaker. It could be said that it was also within the discretion of the Speaker’s to not allow Gobind Singh to address the House despite the motion being aimed at him and carrying with it punitive consequences was also within his discretion. Having said that, it is my view that this decision of the Speaker was and is highly questionable for having manifestly denied Gobind Singh of his right to be heard in his own defence.

My criticism in this regard is not intended to reflect my being anti-Barisan or anti-government. It is instead borne out of a commitment to the fundamental principles upon which democracy was established in this country. I would hold the same view if the motion was against a Barisan Member of Parliament and he or she was denied an opportunity to be heard. The Rule of Law is not a matter of expediency.

Where I have asserted that the Executive has occasioned abuses of power, and no such assertions have been made against the opposition, at the Federal level the opposition has no such power to abuse. At the state level, in my view, no such abuse has been demonstrated. That is understandable; the Pakatan Rakyat state governments have no influence over federal agencies or constitutional bodies.

If the Pakatan were ever to form Federal Government, it would be the subject of scrutiny in very much the same way as the Barisan is at the moment. Civil society has promised that it will have higher expectations of the Pakatan. It has already set the tone with its scrutiny of the Pakatan state governments.

And where I have expressed a preference for the Pakatan, then it is only because I think that it is not as entrenched in its politics as the Barisan is and, unlike its counterpart, is still capable of distinguishing its own political needs from those of the nation as a whole. Though it is not without its own faults, it espouses ideals that the Barisan seems to have abandoned some time ago. To the great majority of this country, a strong and accountable system of democracy is more than just a matter of political convenience.

It is far too convenient to dismiss criticism for it being anti-government without regard to what it is that is being said. No government is infallible, least of all one that has virtually untrammeled powers. Confronting the painful realities is the only way in which we can progress, it is the price of nation building.

(Malay Mail; 17th March 2009)

MIS

Chilling Out With Karpal Singh

Distilling it to its essence, Karpal Singh is being prosecuted for stating a legal opinion and for indicating an intention to seek remedy from a court for his clients.

I was in court yesterday and had the benefit of hearing the charge read out to him. The charge of sedition is in respect of certain statements made during a press conference on 12th February 2009, held just after the Perak controversy erupted. These statements included the following excerpts reproduced by Malaysiakini:

"The allegedly seditious statement read out this morning was from a partial transcript of a press conference held at the law firm, during which Karpal had said Sultan Azlan Shah could be taken to court in his official capacity for authorising the removal of Pakatan Rakyat Perak Menteri Besar Mohd Nizar Jamaluddin.

Based on the underlined parts of the transcript, Karpal is alleged to have said: ‘With that ruling of the federal court which has stood the test of time for 32 years, beyond a pale of a doubt, the Sultan of Perak has contravened Article 16(6) of the constitution of the state of Perak.

‘In my view, until such time the assembly has invoked the provision of Article 33(1), both Mohd Osman Jailu and Jamaludin Mohd Radzi remained PKR assemblymen, together with Jelapang assemblywoman Hee Yit Foong remaining with the DAP until her resignation letter was subjected to determination by the assembly pursuant to Article 33(1), thereby causing the Pakatan Rakyat to have 31 members in the assembly of 60 members.

‘It cannot therefore be said that the Sultan of Perak acted intra vires (when) in fact (he) acted ultra vires Article 16(6) when he determined that Menteri Besar (Mohd) Nizar Jamaludin had ceased to command the confidence of the majority of the members of the legislative assembly and was therefore required to tender resignation of the executive council over which he presided including his own resignation.

‘Clearly the Sultan of Perak cannot invoke his powers under Article 16(1) which states [His Royal Highness shall appoint an Executive Council] to appoint a Barisan Nasional executive council with a new menteri besar and a new government. The government of Menteri Besar Nizar Jamaludin still had constitutional supremacy and legitimacy. The actions of the Sultan of Perak are clearly premature.’

These statements give a sense of the nature of what Karpal said and of what the senior lawyer was trying to communicate. It would not be unreasonable to say that the nature of his observations was similar to that of the numerous opinions on the issue that were published at the time.

It is true that Karpal did go on to speak about the remedies that Nizar could see and explained that these could and would be procured by way of an action againt His Highness, Sultan Azlan Shah. Karpal however explained why this was so and pointed to precedent in the course of his explaining his position.

Looking at this in the objective and unemotional way that one assumes the authorities did, it seems that the State will no longer tolerate any expression of opinion concerning the Rulers, and presumably the other matters with which the offence of sedition is concerned. In this regard, section 3(1) of the Sedition Act defines a “seditious tendency” as a tendency:

(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;

(b) to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established;

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;

(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State;

(e) to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or

(f) to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.

The impact of the decision to prosecute is yet to be fully understood, in part because the charge did not explain the seditious tendency that is the foundation of the charge. It does however appear that the prosecution case is founded on the statements having excited disaffection against His Highness, the Sultan or having questioned a matter of prerogative. Much has been said about the decision of the Sultan having been made pursuant to prerogative discretion.

How this will be reconciled with the proviso in section 3(2) is however not clear. This proviso reads as follows:

(2) Notwithstanding anything in subsection (1) an act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency -

(a) to show that any Ruler has been misled or mistaken in any of his measures;

(b) to point out errors or defects in any Government or constitution as by law established (except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in subsection (1)(f) otherwise than in relation to the implementation of any provision relating thereto) or in legislation or in the administration of justice with a view to the remedying of the errors or defects;

(c) except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in subsection (1)(f) -

(i) to persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Government as by law established; or

(ii) to point out, with a view to their removal, any matters producing or having a tendency to produce feelings of illwill and enmity between different races or classes of the population of the Federation,

if the act, speech, words, publication or other thing has not otherwise in fact a seditious tendency.

I recognize that the State has a duty to ensure the freedom to express is not abused. The right of the State to intervene is however limited to where intervention, and this must be by way of federal law, is necessary in the interests of democracy. Where this is the case, the extent of the intervention must be proportional to the threat that is sought to be dealt with. What this means is that the State cannot erect a complete barrier to expression, a state of affairs that the legislature recognized in enacting the proviso in section 3(2). Expression on sensitive issues is essential in certain circumstances.

The prosecution does not appear to have an easy case on its hands. It must show that Karpal's statements did disclose a seditious tendency and, if so, did not fall within the ambit of the proviso. From comments made by Karpal that have been carried by the media, it appears that he is not too worried in view of the way the sections are to be understood and applied. Seen from this perspective, it may be premature to say that the freedom of expression has been curtailed; a court is yet to make a decision on the subject.

Having said that, the decision to prosecute Karpal will undoubtedly have a chilling effect on free speech. Many will think that if Karpal could be prosecuted for stating a legal opinion, then it is possible that others may be charged for less. Against a backdrop of other individuals being charged for comments left on internet site, this would not be an unreasonable conclusion.

MIS

Debating The Motion To Suspend Gobind

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

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

ATURAN URUSAN MESYUARAT DAN USUL-USUL

Menteri di Jabatan Perdana Menteri akan mencadangkan:

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

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

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

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

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

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

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

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

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

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

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

MIS

Of War And Politics

Of War And Politics

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

I understood what he meant.

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

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

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

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

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

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

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

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

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

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

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

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

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

(Malay Mail; 10th March 2009)

MIS

Assault On Legislature, Constitution Dead

Discussing the Perak situation with specificity is, by this stage, a difficult thing to do. So much has happened so quickly. Nuanced actions and counter-actions, some of it in uncertain legal terrain, and relatively scarce details have made it precarious to consider certain key events – the legal action against the Speaker and its incidents, for instance – with the depth that only certainty would allow for.

Having said that, whatever the specifics may be and whoever may be right as to the validity or legality of certain aspects of the unfolding saga, when considered from a broader perspective and with reference to the fundamentals of democracy, I do not think that the situation in Perak is very complicated at all. As Tengku Razaleigh recently observed, a chain-reaction of illegality has left Perak possibly without a legitimate government and the Constitution a dead piece of paper.

I was too young to fully appreciate the terrible impact on democracy that the events of 1987 and 1988 had. Understanding came later, as I learnt to see what needed to be seen: the supremacy of the Constitution, the separation of powers and the check and balance it is aimed at, the independence of the judiciary and, correspondingly, the legislature. But even as my awareness of what had happened and how it had happened increased, I rather naively found myself thinking that it was unlikely that we would ever see anything of the likes again. Those events had simply been too heinous and the injuries inflicted on this nation too serious to ignore, even by those who had been responsible and those who would possibly follow in their footsteps.

Or so I thought.

The savagery of what has happened in Perak and the utter disregard of consequence on the part of those orchestrating the campaign go far to show how foolish I was to have believed that all of us, without exception, recognize that some costs are too great and for that, even blind ambition has its limits. It is clear now that this is not necessarily the case; for some, even the nation itself is expendable.

In saying savagery, I recognize that there has been neither bloodshed nor preventive detentions, though it is still too early to say for sure that things will stay that way. The incitement carries on, and mobs are being driven to frenzy to the throb of the war drums. Amidst the calls for blood, bullets have been sent, a disabled parliamentarian assaulted and some of his colleagues battered. The police have apparently too much on their hands to move with the speed that they are capable of and, as such, as things stand serve no useful role as the deterrent that the situation sorely requires.

Violence has however been done; to the Federal and State constitutions, to the Rule of Law and to all that these fundamentals represent. War has been waged on democracy itself.

I can think of no other way to characterize events.

As thing stands, the Speaker is still the Speaker. He has been at all times vested with the full powers of his office and the discretion to exercise those powers. He may have committed mistakes in arriving at certain decisions, but those are matters for the Legislative Assembly itself or, where legal limits have been transgressed, for the courts whose powers in this regard are limited by reason of the separation of powers. Until corrected, the Speaker’s decisions stand, be they the acceptance of the resignation of the three members who crossed the floor, the issuing of the show cause notices to the alleged usurpers of power and the effecting of their suspension, or the calling of the emergency sessions of the Assembly.

And yet under the hand of the Executive, in a manner reminiscent of the locking up of the Supreme Court in 1988 the Legislative Assembly itself was put out of bounds to members of the Assembly, This was done at the instigation of the State Secretary, an officer of the executive and as such its representative, with the assistance of a police force duty bound to protect the system of governance and associated freedoms put in place by the constitutions of this nation.

In doing so, the Executive laid siege on the Legislature. The sight of the Federal Reserve Unit barring the way into the Legislative Assembly, fangs bared and water cannon poised, was as close a physical depiction of democracy being taken hostage as we will ever see. The underlying intention of the exercise brings this further into relief. It was apparent that the Assembly had to be prevented from meeting for as long as it took for the lawyers to do what they could in court. Injunctions against the Speaker had been applied for. Once these were granted, the process that the Speaker had started would be brought to a halt.

The fact that the injunctions had been applied for shows clearly how far democracy was subverted. The making of the applications underscores awareness on the part of those orchestrating the campaign that self-help was not permissible. The validity of the Speaker’s actions had to be tested before a court of law. If they were not needed, the injunctions would not have been sought.

Despite this appreciation of the obvious, the might of the state was brought to bear. A federal agency was brought in and tasked to do what it was not mandated by law to do: keep the Assembly at bay to protect the interest of a coalition of political parties.

There is no law that allows police officers to deny members of a legislative chamber access to that chamber for the business of Legislature. It is not for any police officer to unilaterally determine that the business being conducted is not within the ambit of the legislature, no matter who might say it is. What the police force did was not justified in law. No crime had been committed. Though the gathering masses was reason enough for a police presence, breaches of the peace did not occur nor were orders to disperse issued, unsurprising given that the focal point was the denial of access to the Legislative Assembly.

It is glaringly obvious that confronted with a scenario that left it vulnerable to a tactical maneuvering of legislative procedure, and an inability to resolve the imbroglio to advantage, the Barisan Nasional at the state and federal level collectively took the law into its own hands. The plan to capture Perak had run into a brick wall and rather than go around it, they decided to blow it up and everything else with it.

The situation is comparable to a hypothetical scenario in which Pakatan Rakyat Members of Parliament barricaded Parliament House to deny Barisan Nasional Members and the Speaker access so as to prevent them from legitimately making a law that they would otherwise have. The only difference is if that had occurred, the Barisan Nasional would have denounced the exercise as an attempted coup d’etat and punished those involved to the full extent of the law at its disposal.

It does not make any difference that that the Barisan Nasional forms the Federal government of the day and is in a position to direct the police force; like all other institutions, these institutions are bound to act constitutionally and in accordance with the law. Malaysia is still a democracy predicated on constitutional supremacy. The expectation that all affairs will be conducted to the exclusive convenience and the advantage of the Barisan Nasional and its leaders is more suited to a dictatorship in which the Rule of Law means nothing.

Through the last week Malaysians have borne witness to a shameless display of belligerence and arrogance. We have heard a senior minister describe the emergency session, held by necessity under that now immortalized rain-tree, as “uncivilized”. Another senior minister described the Speaker as a ‘boy’. Though in line with the other ridiculous observations of ambitious UMNO leaders that Malaysians have had to endure since the beginning of the Perak affair, they do little to mask the obvious; that the Barisan Nasional appears to see no limits to what it is permitted to do to achieve its objectives.

And if it could do this in one state, what is to stop it from acting in the same way in other states or at the federal level. Judging by the way in which it has responded to criticism over its actions these past few weeks, it would seem nothing much. It is manifest that the Barisan Nasional considers itself a law unto itself.

That is the painful truth that lies at the heart of Tengku Razaleigh’s declaration that the Constitution is dead.

(Malaysian Insider; 6th March 2009)

MIS