In Defense of University of Malaya Law Professor Azmi Sharom


September 2, 2014

In Defense of  University of Malaya Law Professor Azmi Sharom

by Din Merican

The Malaysian Insider, Malaysiakini, and other news portals have reported that University of Malaya LawAzmi Sharom Professor Azmi Sharom will be charged with sedition later today ( September 2) over his remarks on the Selangor Menteri Besar crisis. He joins the ranks of a number of Opposition politicians – PKR Vice-President Rafizi Ramli, Padang Serai MP and Lawyer for Anwar Ibrahim, N. Surendran (PKR), Shah Alam MP and PAS central committee member Khalid Samad, and Seri Delima assemblyman R.S.N. Rayer (DAP) –who have been charged under the Sedition Act, 1948.

Seputeh MP Teresa Kok (DAP) and Batu MP Tian Chua (PKR) are also facing trial for sedition, while former Perak MB and Changkat Jering assemblyman Nizar Jamaluddin (PAS) was charged with criminal defamation for a statement he had allegedly made two years ago. But Professor Sharom is the  first academic and civil society activist to be hauled up before our courts on charges of sedition. That is shocking news  to me since I know Professor Sharom well as a man of integrity and reason. In fact, from time to time I have hosted his articles, which are also carried in his column in The Star. These are well written, lucid, constructive, positive and responsible. He is critical but never seditious since he knows his limits.

Azmi is critical but never seditious since he knows his limits.

Azmi is critical but never seditious since he knows his limits.

Why is Prime Minister Najib resorting to the use of The Sedition Act to silence critics of his government? A confident government is always prepared to engage its citizenry. Could he be responding to Tun Dr. Mahathir’s criticisms of his leadership and policies? And that in order to show that he is actually not a weak leader, he has resorted to strong arm tactics to prevent Malaysians from speaking up about  politics, social policy and other matters. Given his wide experience in government and politics, he should know that efforts to silence mounting critical voices will be counterproductive. The best option is to communicate more effectively with civil society, address its concerns and take action. Silence is not golden when it comes public dissent.

Taking on a popular academic like Professor Sharom is, therefore,  Najib’s miscalculated move. It will not silence his critics. Repression is not the answer. I read Amartya Sen’s The Argumentative Indian, a book of essays on Indian history, culture and identity, some years ago (in 2002 to be exact). It contains useful pointers about the value of dissent and critical discourse. In the context of what is happening in our country where dissent is being suppressed, I wish to quote this brilliant Nobel Prize Laureate in Economics, who said in the Preface to his book :

Sen“Discussions and arguments are critically important for democracy and public reasoning. They are central to the  practice of secularism and for even-handed treatment of adherents of different religious faith (including those who have no religious beliefs). Going beyond these basic structural priorities, the argumentative tradition, if used with deliberation and commitment, can also be extremely important in resisting social inequalities and in removing poverty and deprivation. Voice is a crucial component of the pursuit of social justice.

…the critical voice is the traditional ally of the aggrieved,and participation in arguments is a general opportunity, not a particularly specialized skill…”

Professor Sharom is that critical voice in our civil society. He is indeed among a rare breed of individuals with a courage of conviction. He is not afraid to speak his mind. Maybe because of this priceless quality, he is now being singled out for prosecution. But I am confident that our courts will see it fit to dismiss the charge of sedition against him. Let him be free to get on with his duty, which is to educate our young generation on the importance of the Rule of Law, critical discourse, and human justice.

Secession is not an Option


September 1, 2014

After 51 years of federalism in which the centre (Putrajaya) is dominant, the time has come for us Din MericanY to review the bases of our relationship with Sabah and Sarawak. Both states have grown and a few generations have gone, and now there is growing restlessness among Sabahans and Sarawakians. To some extent, Malaysia is already a success. We have created political awareness among the people there. But we have more work to do to achieve national integration.

The Deputy Prime Minister, Tan Sri Muhyiddin Yassin, has said that stern action will be taken against those in the two states who are advocating secession. They have threatened to take the issue of self-determination to the United Nations. The UN route to deal with our internal affairs is a retrogressive step since the issue was settled nearly three scores ago by both the Cobbold Commission and the United Nations team in 1963. Furthermore, I do not have much faith in the United Nations. I believe in our own ability to deal with our problems. We have the means and experience to manage our own affairs.

The idea of secession is not an option. Sabah and Sarawak are part of Malaysia. That means we cannot entertain the idea of political separation. People advocating this separation should be warned to stop playing with fire. But a better  and more equitable deal for Sabahans and Sarawakians? Yes. According to Dr. Puyok, “[T]he federal-state conflict in Malaysia is caused by an “ideological clash” between federal and state leaders, imbalance in centre-periphery relations, and lack of meaningful engagement between federal and state administrative officers.” I agree with his point of view.

Let us, therefore, not ignore the concerns of Sabah and Sarawak. In stead, we should begin a new era of constructive engagement with our brothers and sisters in East Malaysia. Take integration beyond the level of political rhetoric, and deal with the fundamental issues concerning federal-state relations that have been swept under the carpet for far too long. In this regard, the Najib administration must act in earnest based on a clear vision of national unity and integration.

najib and his deputyProject Malaysia must be taken to a new and perhaps a more enlightened level. The feeling that we at the centre are a bunch of neo-colonialists (and thereby lending credence to President Sukarno’s claim that Malaysia is a “neo-colonialist plot” hatched by the British) must be eliminated.

Let us recognise for starters that what politicians and public officials say and do at the centre affect Sabah and Sabah. One case in point is the Allah issue. Another matter of pressing concern is revenue sharing. Prime Minister Najib should begin the dialogue with leaders of Sabah and Sarawak and civil society as soon as possible.  –Din Merican

Secession is not an Option

by Dr. Arnold Puyok*

Merdeka--57

After 51 years since the formation of Malaysia, the issue of secession has come to haunt the country once again. While the calls for secession by some quarters in Sabah and Sarawak are not as serious as it looks in the social media, anti-federal feelings are real and growing.It is not too late to “save” Malaysia. The federal structure was designed in such a way to preserve the uniqueness of each state in the federation.

The main problem faced by the country lies in the weaknesses in the implementation of the Federal Constitution. It is time that Malaysians – the young especially – to take a hard look at the country’s origin by studying the Federal Constitution.

Now, the Federation of Malaysia is said to be on the brink of collapse. The federal-state conflict in Malaysia is caused by an “ideological clash” between federal and state leaders, imbalance in centre-periphery relations, and lack of meaningful engagement between federal and state administrative officers.

Ideological clash

The ideological approach in federalism discusses the “ideological and philosophical foundation of federalism”. Ideologies clash because of differences in language, culture and religion. Malaysia’s federal foundation is essentially driven by Malay-Muslim ideology – a “copycat” of the previous federal structure under the Federation of Malaya – even though the later federal structure (the Federation of Malaysia) was significantly altered to accommodate non-Islamic and non-Malay territories of Sabah and Sarawak.

From 1957 to 1963, efforts to “build” the country through language and education were done with a strong Malay-Muslim flavour. With a strong federal support, Sabah’s Third Chief Minister Tun Mustapha Harun promoted a policy of “one language (Malay), one religion (Islam) and one culture (Malay)” as a basis for creating national solidarity in Sabah. This was opposed by many non-Muslim Sabahans.

Imbalance in centre-periphery relations

This imbalance is marked by centralisation of power by the federal government.Under Tun Dr Mahathir Mohamad, for instance, the federal government would use its constitutional and political power to force the state to prioritise federal than state needs.

The federal government would “punish” stubborn state leaders who refuse to subscribe to its agenda by declaring them “persona non grata” in the country’s decision-making process and also by reducing the compulsory federal allocation to the state.

In education, school syllabi do not reflect Malaysia’s multicultural outlook. Sabah’s and Sarawak’s unique historical and cultural background were not given due consideration. On the economic front, the government’s revenue and total expenditure were dominated by the federal – 96% and 80% respectively in 1990.

Lack of engagement

Owning a satellite dish by private individuals in Sabah is one of the many thorny issues in federal-state relations.

The federal government disallowed the use of a private satellite dish without licence. Sabah counter-argued saying that the federal government was protecting Astro and was victimising Sabahans, especially those in the rural areas who did not have the means to access to information.

Licensing requirements caused unhappiness and led to perception of federal officers’ lack of sensitivity to local needs.

There is also this issue of Sabah wanting to proclaim its natural sites as World Heritage Site. But the federal government refused to support the initiative unless those sites are federalised. Another “hot-button” issue is the state’s lack of autonomy in educational affairs.

The state has charged that it cannot manage school projects below RM500,000. Many schools, especially in rural areas, are in dire need of repairs and maintenance. However, these are slow as state officers need to wait for approval from their federal counterparts. Work progress is also affected by delay in payment to local contractors by Putrajaya.

Clear vision of national unity and integration

The first point of the Vision 2020 is “to establish a united Malaysian nation with a sense of common and shared destiny – a nation at peace with itself, territorially and ethnically integrated, living in harmony and full and fair partnership, made up of one Bangsa Malaysia with political loyalty and dedication to the nation”.

But the questions are: how are we going to become a united Malaysian nation if we are still arguing over the year of our country’s founding? How are we to achieve the Bangsa Malaysia race if we continue to exclusively defend our rights – race, religious, and regional?

Our leaders must be extremely clear about where they want to bring Malaysia to. The concept of 1Malaysia looks ideal on paper but it has to be made workable in practice: is it a concept for the purpose of nation-building? Is it a concept for rebranding of government commercial products? Is it a concept to promote the country’s tourism industry?

Equilibrium in centre-periphery relations

It is time the federal government decentralised power as a way to lessen its dominance and to allow the state to develop independently according to its needs.

Apart from checking and balancing the power of the federal government, decentralisation, if applied effectively and judiciously, can also ensure effectiveness in public-delivery system.

Crucially, the state should be allowed to deal independently with its socio-cultural policy. Sabah and Sarawak should determine how they wish to preserve their people’s diverse culture, just like India’s “territorial linguism” and Ethiopia’s “cultural and linguistic autonomy”.

Our leaders could also enact a Territorial Integration Act to renew the commitment of federal and state leaders to abide by the Federal Constitution.It is a kind of “oath fellowship” that can be found in Switzerland to conserve differences and diversity.

The government should also establish a constitutional court to arbiter conflict between the federal and state governments – i.e. a special court in Germany – the Federal Constitutional Court — to check against the centralising tendency of the federal government.

Before decentralisation of power can be fully implemented, a National Council of Decentralisation orbm_puyok2 National Decentralisation Commission should be established to review aspects that are over-centralised and need to be decentralised, areas that are under-centralised and need to be centralised, and to review the concept of power sharing between the federal and state governments in light of Malaysia’s multicultural make-up.

Constructive engagement

The role of the State Federal Office needs to be strengthened so that federal priorities do not clash with that of a state’s.The government can also organise a yearly conference between federal and state administrative officers to discuss issues in implementation of federal and state programmes.

Secession threats are culminated in dissatisfactions of some sections of society. People who promote secession should be engaged in a civil and rational manner.The government must double the efforts to increase the sense of belonging of people from various races and religions. Malaysia is worth preserving but it also needs changing.

* Dr Arnold Puyok is a lecturer at the Faculty of Social Sciences, Universiti Malaysia Sarawak.

http://www.themalaysianinsider.com/sideviews/article/secession-not-the-solution-to-malaysias-problem-arnold-puyok

Remembering Merdeka


August 30, 2014

Remembering Merdeka

by Tunku Abdul Aziz@www.nst.my.com

tunku-azizMANY of the 300 young Malayans, men and women, who heard the news first-hand ahead of the official announcement in Malacca, that their country would be an independent nation on August 31, 1957 are, sadly, no longer with us to celebrate the 57th Merdeka anniversary tomorrow. The years have taken their toll: the survivors have not been spared the ravages of time.

Those of us who took our places in the Kirkby College Hall on that grey, overcast and bitterly cold February afternoon to welcome Tunku Abdul Rahman Putra, our honoured visitor and future Prime Minister of independent Malaya, had expected nothing more momentous than the standard homily about “working hard and playing hard” that distinguished visitors always seemed to be armed with. The Tunku quickly got into his stride and spoke without notes, in a tone of voice that gave not the slightest hint of what he had in store for his listeners.

He began by telling us that he and his colleagues had been in London holding constitutional talks at Lancaster House with Her Majesty’s Government on Malayan independence. He went on to say that they were extremely pleased with the outcome of the meeting which had paved the way for the country’s independence. He attributed the success of his Merdeka Mission to the “trust and goodwill on all sides”.

He paid special tribute to the people of Malaya for their unstinting support in the quest for freedom. This had proved to be an important point in convincing the British that the various Malayan races were at one in their demand for independence.

Then, without warning, he broke the welcome news that stunned us. Merdeka would be granted on August Tunku31, 1957, God willing. The date until then had been a closely-guarded secret, and how privileged we felt to be the first Malayans to hear the glad tidings.

It took a second or two for the full import of the momentous announcement to sink in before the assembly, as if on cue, broke into a restrained round of applause.Understated would aptly describe our reaction: British reserve had triumphed over our traditional Malayan exuberance. I suppose the freezing English winter weather was partly to blame for the less than wildly boisterous reaction to the historic occasion.

What tangled thoughts ran through our minds as we began the process of bringing them into some semblance of order, I could only guess? It would be fair to say that most of us harboured, albeit secretly, grave doubts about the country’s future.

We wondered whether the two major communities, the Chinese and the Malays, would be able to find accommodation and live in peace and harmony. Continuing, the Tunku reminded us that the fight for freedom without democracy would be quite meaningless. He talked about our duties and responsibilities as citizens of a free country, and how important it was for all Malayans to live in harmony so as to ensure lasting peace and prosperity for all. It was a message that continues to be relevant and, perhaps, even more so in today’s political climate.

We were not too sanguine about the country’s long-term prospects for racial harmony having read enough about what the coming of independence had done, a decade earlier, to India. The spectre of widespread ethnic and religious violence that so marred and blighted India’s independence was very much in the forefront of our collective consciousness.

Jawaharlal Nehru’s famous speech to the Indian Constituent Assembly on Aug 15, 1947, Tryst with Destiny, containing that memorable line, “At the stroke of the midnight hour, as the world sleeps, India will awake to life and freedom” made a deep impression on most of us young people.

Nehru more than Mahatma Gandhi was my inspiration. Tunku came later as a leader I admired greatly. Even as the great Indian statesman was speaking, India was engulfed in flames: the streets of that ancient land were awash with Hindu, Sikh and Muslim blood. Religious violence still breaks out in parts of India with regular monotony. We had every reason to fear for the future of our country, and that was only natural. Were we ready for independence with all that this implied in social, political and economic terms? It was a question that loomed large for us then.

For all the apprehension about what the future might bring, none of us would ever forget the event that unfolded in that little corner of rural Lancashire on February 7, 1956. It was in a very real sense the beginning of a dramatic spiritual journey into the unknown for all Malayans, and unlike most journeys, there was no turning back when the Union flag finally came down past the midnight hour on the Selangor Club Padang. It might have signalled the imminent end of empire for the British, but for us it was the dawn of a new life, the life that we were at long last free to live as we chose.

merdekaWhen we reacquired our country in 1957 through negotiations, we set to with a will to confound our detractors and prove how wrong they were all along. Few thought we would survive the first few years on our own, and yet, 57 years later, despite the teething problems and birth pangs of a new nation, we remain a people deeply committed to multiracialism as a way of life.

When we think of the complexity of our society, what we have achieved for our country borders on the miraculous. As we stride out proudly to celebrate our many achievements tomorrow, let us remember that the key to our future is racial harmony and unity of purpose. We have much to be grateful for: the future is in our hands.

Many Happy Returns of the Day, Malaysia.

Happy Birthday (Selamat Hari Jadi) Malaysia


August 29, 2014

Happy Birthday (Selamat Hari Jadi) Malaysia

Kamsiah and DinDr. Kamsiah and I wish all Malaysians Happy Independence (Merdeka) Day. Yes indeed. On August 31, 2014 we will celebrate the 57th Anniversary of Independence.Let there be peace, harmony, prosperity and unity in our bountiful nation.

Before we forget, August 31, 1957 was when Malaya got its independence from the British. September 16, 1963 was when Sabah and Sarawak joined Malaya to form Malaysia (leaving aside Singapore which left the Federation on August 9, 1965). Two different dates to commemorate independence.

Why the need to have two national holidays, one we call Hari Merdeka and the other we label Hari Malaysia ? Let us decide if our national day is August 31 or September 16. This is a simple decision to make.Let us choose if we want to be known as Malaysians, not as Sabahans, Sarawakians, and West Malaysians. We are able to have a common time; yet we cannot have a common national day. That does not make any sense to us. Maybe that is not important enough to our political leadership. On the contrary, we think this issue must be addressed as a matter of top priority. Since the formation of Malaysia, we have not gone beyond the rhetoric of national integration. Read article by Balan Moses (below)

Having been to Sabah and Sarawak many times, Dr. Kamsiah and I are struck by the fact that there is no affinity between us. We have, in fact, become antagonistic towards and suspicious of one another. It is, therefore, time for us to address this issue of national integration seriously, and nip all the talk of secession from Malaysia in the bud. To do that we must give members of our multi-ethnic society a fair deal  to enable us to live the Malaysian dream as envisioned by Tunku Abdul Rahman and his colleagues at the time of  the formation of Malaysia.–Dr. Kamsiah and Din Merican

Proclamation of Malaysia

AND WHEREAS it has been agreed by the parties to the said Agreement that as from the establishment of Malaysia the States of Sabah, Sarawak and Singapore shall cease to be colonies of Her Majesty the Queen and Her Majesty the Queen shall relinquish Her Sovereignty and jurisdiction in respect of the three States:

In the name of God, the Compassionate, the Merciful, Praise to God, the Lord of the Universe, and may the benediction and peace of God be upon Our Leader Muhammad and upon all his Relations and Friends.

WHEREAS by an Agreement made on the Ninth day of July in the year one thousand nine hundred and sixty-three between the Federation of Malaya, the United Kingdom, North Borneo, Sarawak and Singapore it was agreed that there shall be federated the States of Sabah, Sarawak and Singapore with the Federation of Malaya comprising the states of Pahang, Trengganu, Kedah, Johore, Negri Sembilan, Kelantan, Selangor, Perak, Perlis, Penang[1] and Malacca, and that the Federation shall thereafter be called “MALAYSIA“:

AND WHEREAS there has been promulgated a Constitution for Malaysia which shall be the supreme law therein:

AND WHEREAS by the Constitution aforesaid provision has been made for the safeguarding of the rights and prerogatives of Their Highnesses the Rulers and the Fundamental rights and liberties of subjects and for the promotion of peace and harmony in Malaysia as a constitutional monarchy based upon parliamentary democracy:

AND WHEREAS the Constitution aforesaid having been approved by a law passed by the Parliaments of the Federation of Malaya and of the United Kingdom has come into force on the Sixteenth day of September in the year one thousand nine hundred and sixty-three:

Tunku1stNOW in the name of God, the Compassionate, the Merciful, I, TUNKU ABDUL RAHMAN PUTRA AL-HAJ IBNI ALMARHUM SULTAN ABDUL HAMID HALIM SHAH, Prime Minister of Malaysia, with the concurrence and approval of His Majesty the Yang di-Pertuan Agong of the Federation of Malaya, His Excellency the Yang di-Pertuan Negara of Singapore, His Excellency the Yang di-Pertua Negara of Sabah and His Excellency the Governor of Sarawak, DO HEREBY DECLARE AND PROCLAIM on behalf of the peoples of Malaysia that as from the Sixteenth day of September in the year one thousand nine hundred and sixty-three, corresponding to the twenty-eighth day of Rabi’ul Akhir in the year of the Hijrah one thousand three hundred and eighty-three, that MALAYSIA comprising the States of Pahang, Trengganu, Kedah, Johore, Negri Sembilan, Kelantan, Selangor, Perak, Perlis, Penang,[1] Malacca, Singapore, Sabah and Sarawak shall by the Grace of God, the Lord of the Universe, forever be an independent and sovereign democratic State founded upon liberty and justice, ever seeking to defend and uphold peace and harmony among its people and to perpetuate peace among nations.

Prime Minister
Kuala Lumpur
16th day of September 1963

MALAYSIANS: LET US BE THE CHANGE WE WANT TO SEE

by Balan Moses

http://news.abnxcess.com/2014/08/malaysians-let-us-be-the-change-we-want-to-see/

WHEN Tunku Abdul Rahman’s shouts of “Merdeka” rang out three times in the Merdeka Stadium on August 31 57 years ago, he was rejoicing in the freedom that Malayans would be enjoying in their new country.

No more the multitude of restraints in the clutches of a colonial master; no more the lack of a common identity as a nation; no more the lack of self-determination.

The other founding fathers from the Chinese and Indian communities would have felt similarly, joining the Malay prince in laying a common platform of rights and privileges for all.He probably envisaged a nation of perpetual sharing, an united nation where the running theme would be one for all and all for one.

Those were indeed less complicated times when people were more humane and there was anBalan-Moses-ENG NEW-1 unbelievable level of give and take among Malayans.Were there latent signs of uneasiness among the various communities? I really don’t know but history tells this child of the 50’s that life went on without major disagreement  among the people.

Was it because we were almost one against the British and that our commonalities as a people came into play for that day and time?  Perhaps.But as we prepare to usher in the 57th year of independence as a nation, we find ourselves split politically, racially and socially like never before.

Of course, there was May 13, 1969, but that should be seen as an exception to the rule that we have had a relatively good run as a nation with mutual respect being the order of the day.No amount of sugar-coating that we are still intact as a multi-racial nation will detract from the truth that a huge chasm has formed politically with the ruling Barisan Nasional at loggerheads with Pakatan Rakyat.

Both sides do not give or take any quarter from each other, going for the jugular in any situation to try and obtain the advantage.

On the religious front, we have an Islamist party with a stated policy of introducing Syariah Law if it ever came into power nationally winning 15 seats for itself in the most developed state in the country. It is currently calling the shots in the process of determining who the Menteri Besar of Selangor will be despite the fact that the multi-racial Parti Keadilan Rakyat and DAP together won 29 seats in the state legislative assembly in the last general election.

Najib and Merdeka

The Muslim-Christian divide is threatening to escalate to untold proportions with dialogue almost non-existent between the Muslims and Christians who form less than 10 per cent of the population. Some have tried arguing that there may be a semblance of racial and religious communities being at each others’ throats and that the ones threatening peace and order represent only a small segment of society.

Perpetual efforts are made to reinforce the point that the discordant voices do not represent the moderate majority in every community.But if this is the case, where indeed is the voice of the moderate Malaysian?

Where is the coalescing of moderates from the Muslim, Christian, Hindu, Buddhist and other communities in a single entity ready to engage with extremists of all creeds and hues?

All we are seeing are truly small groups of late from the various communities that are trying to speak in one voice as Malaysians but seeming to get nowhere. The mainstream politicians do not seem to want to move from their stated positions, digging in for the long-term with their policies that champion the rights of specific races.

Will there never be a time when we will proudly call ourselves Malaysians irrespective of our religion, race and colour? At the moment the only time probably that we proudly engage as Malaysians is when we are abroad and find strength in an alien society through a common identity.

The other is when out festivals come around and we attend open houses in a show of oneness that is largely scripted by those with power and influence.I am forced  to ask these questions as we approach August 31 as serious thought has to be given to the issue of where we stand as Malaysians.

I fear for the next generation of Malaysians who have never enjoyed the level of conviviality that those born in the 40s, 50s and 60s had with one and another in an era that we may never see again. It is imperative that every Malaysian drum into their children and grandchildren that this is our country and that our actions will dictate where we go in the future as a people.

And so fellow Malaysians, we have to do the right thing now for the future of our nation. Let us be circumspect when we act and speak as our actions and words cannot be truly retracted with damage never truly repaired.That is the nature of things and the sooner we realise this the better.

Happy 57th birthday Malaysia and may you see peace and prosperity always.

Selangor: On deferring to the Sultan in MB saga


August 29, 2014

On deferring to the Sultan in MB saga

by Dr. Kua Kia Soong (08-28-14)@www.themalaysianinsider.com
sultan selangorHRH The Sultan of Selangor

Pakatan Rakyat seems to be caught between a rock and a hard place over the Menteri Besar selection. Whose fault is it? Historians do not have to go very far in time to see how they have found themselves in this quandary. In 2008, Pakatan Rakyat set the precedent by deferring the prerogative of selecting the Menteri Besar to the Sultan. This is evidenced in this commentary I wrote in the online press on March 14, 2008:

MB squabbles: Integrity & Professionalism

“The DAP’s squabble over the choice of MB for Perak and Deputy MB for Selangor exposes a lack of integrity and professionalism…they should simply put forward their candidates before the Sultan for endorsement, as is required in our democratic system. Instead, the DAP leadership has continued with their tedious PAS-phobia posturing and in so doing, have demeaned our parliamentary democracy by passing the buck to the sultans.

“In Selangor, we have seen a situation in which the DAP cannot blame PAS but can only blame itself. The choice of Deputy MB has become the arena of DAP’s intra-party squabble. Such factionalism in the DAP has been hitherto relegated to the gossip columns and the leadership is really showing contempt for the people of Selangor by dragging on the issue of Deputy MB. As in Perak, we have seen the DAP passing the buck to the sultan, who now plays the role of executive ruler instead of a constitutional monarch!”

Principles of a constitutional monarchy

According to one of the most important writers on the subject of constitutional monarchy, Walter Bagehot, the monarchy merely symbolises the unity of the national or in our case, state community; from the point of view of political power, the Sovereign in a constitutional monarchy has only three rights: “the right to be consulted, the right to encourage, the right to warn”.

Malaysia’s most distinguished jurist, Tun Mohamed Suffian bin Hashim in “An Introduction to the Constitution of Malaysia”, spells out the role of Rulers and Governors as “acting in accordance with advice”:

“A Ruler, though sovereign, has no autocratic powers. A Ruler and similarly a Governor must act in accordance with the advice of the state Executive Council or of a member of the Council (usually the Menteri Besar) acting under the general authority of the Council, except as is otherwise provided by the federal or state constitution…The Ruler or Governor is entitled, at his request, to any information concerning the government of the state which is available to the Executive Council. The Ruler or Governor is not a member of the Executive Council. Members of the Executive Council meet only among themselves, and thereafter the Menteri Besar or the Chief Minister submits the Executive Council’s advice to the Ruler or Governor…”

Nonetheless, a Ruler does have discretionary power in the performance of the following functions including: the appointment of the Menteri Besar; the withholding of consent to a request for the dissolution of the Legislative Assembly; request for a meeting of the Conference of Rulers; any function as Head of the Muslim religion or relating to the custom of the Malays; the appointment of an heir; the appointment of persons to Malay customary ranks, titles, etc., the regulation of royal courts and palaces.

How the soap opera unfolds from here will ultimately depend on how convention has been tempered by the precedent set in 2008 and the wisdom of the Sultan.

* Dr Kua Kia Soong is Suaram adviser.

NOTE:

On Constitutional Monarchy

The rights to be consulted, to encourage and to warn

Walter Bagehot famously wrote in The English Constitution (1867) that the British monarch has three rights: the rights to be consulted, to encourage and to warn.

“To state the matter shortly, the sovereign has, under a constitutional monarchy such as ours, three rights — the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others. He would find that his having no others would enable him to use these with singular effect. He would say to his minister: “The responsibility of these measures is upon you. Whatever you think best must be done. Whatever you think best shall have my full and effectual support. But you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. I do not oppose, it is my duty not to oppose; but observe that I warn.” Supposing the king to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his minister. He might not always turn his course, but he would always trouble his mind.

In the course of a long reign a sagacious king would acquire an experience with which few ministers could contend. The king could say: “Have you referred to the transactions which happened during such and such an administration, I think about fourteen years ago? They afford an instructive example of the bad results which are sure to attend the policy which you propose. You did not at that time take so prominent a part in public life as you now do, and it is possible you do not fully remember all the events. I should recommend you to recur to them, and to discuss them with your older colleagues who took part in them. It is unwise to recommence a policy which so lately worked so ill.” The king would indeed have the advantage which a permanent under-secretary has over his superior the parliamentary secretary — that of having shared in the proceedings of the previous parliamentary secretaries. These proceedings were part of his own life; occupied the best of his thoughts, gave him perhaps anxiety, perhaps pleasure, were commenced in spite of his dissuasion, or were sanctioned by his approval.

The parliamentary secretary vaguely remembers that something was done in the time of some of his predecessors, when he very likely did not know the least or care the least about that sort of public business. He has to begin by learning painfully and imperfectly what the permanent secretary knows by clear and instant memory. No doubt a parliamentary secretary always can, and sometimes does, silence his subordinate by the tacit might of his superior dignity. He says: “I do not think there is much in all that. Many errors were committed at the time you refer to which we need not now discuss.”

A pompous man easily sweeps away the suggestions of those beneath him. But though a minister may so deal with his subordinate, he cannot so deal with his king. The social force of admitted superiority by which he overturned his under-secretary is now not with him, but against him. He has no longer to regard the deferential hints of an acknowledged inferior, but to answer the arguments of a superior to whom he has himself to be respectful. George III in fact knew the forms of public business as well or better than any statesman of his time. If, in addition to his capacity as a man of business and to his industry, he had possessed the higher faculties of a discerning statesman, his influence would have been despotic. The old Constitution of England undoubtedly gave a sort of power to the Crown which our present Constitution does not give. While a majority in parliament was principally purchased by royal patronage, the king was a party to the bargain either with his minister or without his minister. But even under our present constitution a monarch like George III, with high abilities, would possess the greatest influence….

It would be childish to suppose that a conference between a minister and his sovereign can ever be a conference of pure argument. “The divinity which doth hedge a king” may have less sanctity than it had, but it still has much sanctity. No one, or scarcely any one, can argue with a cabinet minister in his own room as well as he would argue with another man in another room. He cannot make his own points as well; he cannot unmake as well the points presented to him. A monarch’s room is worse…. He will not refute the bad arguments of the king as he will refute another man’s bad arguments. He will not state his own best argument effectively and incisively when he knows that the king would not like to hear them. In a nearly balanced argument the king must always have the better, and in politics many most important arguments are nearly balanced. Whenever there was much to be said for the king’s opinion it would have its full weight; whatever was said for the minister’s opinion; would only have a lessened and enfeebled weight.”

To this day, Halsbury’s Laws continues to recognise these rights:

“[The Queen] still has the right to be consulted, the right to encourage, and the right to warn. However, she also has the right to offer, on her own initiative, suggestions and advice to her ministers even when she is obliged in the last resort to accept the formal advice tendered to her.”

 Source : http://cakeofcustom.blogspot.com/2011/07/rights-to-be-consulted-to-encourage-and.html

Let the Khmer Rouge Record Show


August 27, 2014

The Opinion Pages | Op-Ed Contributor

Let the Khmer Rouge Record Show
Cambodia Shouldn’t Censor the Khmer Rouge Court’s Files

By Craig Etcheson,
August 26, 2014

PHNOM PENH, Cambodia

Former Khmer Rouge leader Nuon Chea appeEarlier this month a United Nations-assisted tribunal in Cambodia handed down long-overdue judgments against Nuon Chea (pic. left) and Khieu Samphan(right) for their roles in the catastrophic Khmer Rouge regime of 1975-79. Nuon Chea, the Deputy Secretary of the communist party, and Khieu Samphan, the President of the Khmer Rouge state, were sentenced to life in prison for crimes against humanity.

For some observers, this seemed like too little too late for too much money. Eight years have passed since the Khmer Rouge tribunal — officially known as the Extraordinary Chambers in the Courts of Cambodia (E.C.C.C.) — began operations, it has cost more than $200 million, and these verdicts concern only a fraction of the total charges. Yet the delay was a result of the extensive procedural protections rightly afforded the accused and the complexity of the case: The indictment is the most complicated since the Nuremberg trials. And it was worth the wait, not least because the tribunal has amassed an extraordinary cache of documents and testimonies.

But now there is reason to fear that this database, a major contribution to existing scholarship on the Khmer Rouge era, will not be made available to researchers after the E.C.C.C. fulfills its mandate. Given the Cambodian government’s unease about its connections to the Pol Pot regime, these extraordinary archives risk being censored or put under semipermanent lock and key.

Between the fall of the Khmer Rouge regime in 1979 and the launch of the E.C.C.C., historians assembled significant evidence detailing the mayhem. After 1995, the Documentation Center of Cambodia, an independent research institute originally established by Yale University, gathered tens of thousands of previously unknown internal documents from the Khmer Rouge regime, as well as thousands of interviews with both victims and Khmer Rouge cadres. (I was once a director of DC-CAM.)

That material was then made available to the E.C.C.C. Scholars from around the world also shared notes and interviews. And then the court itself sent out investigators across Cambodia to try to resolve ambiguities in the existing record. More than 1,000 interviews were collected as a result. Another major contribution were the testimonies of the nearly 3,900 victims who have joined the proceedings as civil parties — a feature of the E.C.C.C. that makes it unique among all international and hybrid criminal courts — plus thousands of complaints submitted by other victims.

Killing Fields

All this evidence was gathered in a sophisticated digital database, which now contains more than one million pages of information, thousands of photographs and hundreds of films and audio recordings. The material is readily searchable, allowing all parties in the case to make connections that had previously eluded researchers and to develop a finer-grained understanding of the Khmer Rouge regime.

I worked as an investigator for the prosecution in 2006-12, and our office used all this information to construct an elaborate model of the notoriously secretive Khmer Rouge organization, from center to zone to sector to district to commune. We created more than 1,000 organizational charts depicting the staffing of political, military and governmental units. These gave us an unprecedented insight into the chain of command among all echelons of the organization across the entire country, and they graphically revealed the waves of internal purges that swept through the Khmer Rouge.

Such cross-referencing helped prove charges against Nuon Chea and Khieu Samphan, such as some crimes committed after the Khmer Rouge seized the capital, Phnom Penh, on April 17, 1975, and then forcibly emptied it of its two million residents. Drawing on hundreds of accounts from people who passed through checkpoints on major roads out of the city, the trial judges concluded in their recent judgment that killings of officials from the regime that the Khmer Rouge deposed in 1975 were not isolated acts by undisciplined soldiers, but evidence of a systematic pattern resulting from a centralized plan.

Many more connections can be drawn from the E.C.C.C. archives, some with a direct bearing on the charges that will be considered in the next phase of the leaders’ trial. That section of the case includes forced marriage, among other charges. Several NGOs had already done pioneering work to gather evidence of sexual crimes during the Khmer Rouge regime. But it is the civil-party applications and victims’ complaints collected by the E.C.C.C. that make clear just how often rape was committed as a result of the Khmer Rouge’s policy of compelling people to marry and forcing them to consummate the unions.

And then there are insights not of direct relevance to the leaders’ trial but invaluable to understanding both the Khmer Rouge regime and contemporary Cambodia. For example, a review of the minutes of meetings of the Standing Committee — the Khmer Rouge’s ultimate decision-making body — and telegrams between the military leadership and division commanders has revealed the astonishing scope of China’s military assistance to the Khmer Rouge, in terms of matériel, logistics and personnel. And the E.C.C.C. archives contain extensive information about the operation of the so-called Eastern Zone under the Khmer Rouge regime, from which emerged some senior leaders in the government today.

Hun SenPrime Minister Hun Sen, Kingdom of Cambodia

These matters are controversial, however. The ruling party of Prime Minister Hun Sen, which has been in power since the Khmer Rouge were deposed in early 1979, has long been touchy about its exact connections to the Pol Pot regime. Some senior party members have published autobiographies claiming that they joined the Khmer Rouge movement only in 1970 and in response to a call from the former king to rally against the military dictatorship that had just overthrown him — assertions that are contradicted by material in the E.C.C.C. archives. And in 2009 some party leaders — the president of the national assembly, the finance minister and the foreign minister at the time — failed to answer an E.C.C.C. summons to answer questions during the investigation.

Such sensitivities are the reason that the court’s archives may be vulnerable to tampering or being sealed after its work is completed. The risk is all the greater because the United Nations, the court’s donors and the Cambodian government have agreed that once the trials are over the E.C.C.C.’s database should remain in Cambodia and under the control of the Cambodian government.

The United Nations and the donors must persuade the government to ensure that the court’s archives in their entirety are opened to historians. Anything less would be to squander the E.C.C.C.’s legacy and an incalculable loss to the historical record.

Craig Etcheson, a former investigator in the Office of the Co-Prosecutors at the Extraordinary Chambers in the Courts of Cambodia, is a visiting scholar at George Mason University.

A version of this op-ed appears in print on August 27, 2014, in The International New York Times.

http://www.nytimes.com/2014/08/27/opinion/cambodia-shouldnt-censor-the-khmer-rouge-courts-files.html?ref=opinion