Mahathirism lives on

October 27, 2013

Mahathirism lives on

by Josh Hong@

November 1, 2013 marks the 10th anniversary of the end of Mahathir Mohamad’s long and authoritarian rule. While the man did during his premiership bring much development to the nation and change the country’s profile beyond recognition, the dark sides of his administration – sustained by excessive and arbitrary powers – continues to plague Malaysia.

Mahathir began his extraordinary political career as a man for the commoners, often writing and speaking critically of British colonials, Malay aristocrats and ruling elites. His ostensibly egalitarian appeal won him much support within UMNO at a time when the rank and file of the Malay party were becoming disillusioned with the elitist, aloof leadership.

NONEHis popularity soared to new heights after he adopted a more chauvinistic, almost racist, stance vis-a-vis the non-Malays, in the form of a book entitled The Malay Dilemma. The late Abdul Razak Hussein, having edged out the Tunku in the aftermath of the May 13 tragedy, saw fit to bring Mahathir back in UMNO in 1973 in order to consolidate his own position.

Once in the cabinet, Mahathir ditched his ‘progressive’ image and started to put a tight grip on  student activism and other social movements. He rose perhaps quickest in UMNO’s history to become Prime Minister in 1981.

As Mariam Mokhtar, my fellow columnist, has rightly argued, the original UMNO was founded to champion the cause of the downtrodden and poor Malays, but it died with the political crisis in 1988 when UMNO was found by a brave Justice Harun Hashim to be an ‘unlawful society’ under the Societies Act 1966.

The subsequent UMNO Baru has now been proven to be a completely new species, with all the hallmarks of Mahathirism: rampant corruption, cronyism, arrogance, chauvinism, political oppression and dismantling Malaysia’s once proud and independent Judiciary along the way.

Mahathir also triggered one crisis after another, the severest being the sacking of Anwar Ibrahim in 1998 on the flimsy charges of abuse of power and sodomy. Obviously, he could not find solid evidence of corruption to finish off Anwar as he did with other political opponents or even partners.

To ensure Anwar remain in jail, Mahathir turned both the already emasculated Judiciary and the Police into his political instruments as never before. In return for their loyalty, he turned a blind eye to the pervasive corruption within these two public institutions.

Lingam scandal 2Hence, the VK Lingam tape scandal did not happen without reason, although the man who relishes in chastising the Malays for being forgetful (Melayu mudah lupa) suddenly found himself suffering from selective amnesia at the Royal Commission of Inquiry in 2008.

While Mahathir argues Malaysia experienced less street crime when he was Prime Minister, the fact is criminal activities were under-reported or even covered up by a docile press towards the latter part of his tenure.

The rapid and haphazard urbanisation – at the expense of agriculture – forced many young Malays to look for jobs in the cities, while Indian youths in the estates had their livelihoods uprooted when developers took over the plantations in the name of development. All this has contributed to the sharp rise in social crime when jobs become scarce or when a lack of qualifications becomes a hurdle.

Die-hard adherent of economic neoliberalism

Ironically, the man who had once aspired to save the underclass from exploitation in the 1960s mutated to become a die-hard adherent of economic neoliberalism although, strictly speaking, Mahathir is of no fixed abode when it comes to political ideology.

It is indeed true that Malaysia now boasts world-class highways, airports, seaports and the world-famous Twin Towers, but the picture is not complete without taking stock of the massive costs that went into them. After all, it was Mahathir who goaded UMNO to the path of extremism and intolerance, resulting in endless abuses of power and corruption.

No matter how much he pours scorn at Lee Kuan Yew and Lim Kit Siang over dynastic politics, Mahathir is no different from either of them. Contrary to what he had promised at ‘retirement’, he has always harboured the hope of exerting political influence from behind the scenes. Abdullah Ahmad Badawi, with the help of his son-in-law Khairy Jamaluddin, did a ‘splendid’ job of sidelining Mahathir, for which he eventually had to pay a heavy price.

Since Najib Abdul Razak came to power in 2009, Mahathir has been Mukhriz Mahathirplaying a role far bigger than just as a former Prime Minister. Although his ambition of being a ‘backseat driver’ may have been checked for now as his son Mukhriz failed to win an UMNO vice-presidency, one must not underestimate the scale of the havoc that a bitter Mahathir can wreak on the party!

Mukhriz, of course, would not have come thus far if not for his father’s name, but he is exemplary of the dearth of talent in UMNO, another sign of Mahathirism. But the ‘non-rising’ son is just one among the many.

I remember vividly how profusely Hishammuddin Hussein sang praises of Mahathir as being “the most energetic and inspiring leader worthy of emulation” at a Promuda event in 2003, just days before Mahathir was to step down.

The shameless flattery prompted one Praba Ganesan (latterly Parti Keadilan Rakyat social media strategist) to stand up and express his horror that the then UMNO Youth Chief did not count his own grandfather – the moderate Onn Jaafar – as a role model!

Now, juxtapose this to the way Hishammuddin rebuked Mahathir over the latter’s displeasure at the result of UMNO elections earlier this week, and one can clearly see how a mediocre minister changes his allegiance according to who is best to save his own skin.

Ling Liong Sik2Another such example is none other than Ling Liong Sik, once Mahathir’s right-hand man in Barisan Nasional whose ministerial career spanned over 17 years despite his glaring lack of competence.

He has just been acquitted of cheating over the Port Klang Free Zone scandal, but the verdict only confirms once again the collusion of business and politics remains alive and kicking even 10 years after Mahathir officially left the stage.  The court decision is also an expected outcome as a guilty verdict would have serious implications for Mahathir and other ministers at the time.

Mahathir may have vacated Seri Perdana exactly a decade ago, but the damage that he has done continues to haunt the country. Worse, UMNO under Najib’s leadership will likely carry on with political patronage and consolidate his position with more lucrative contracts and posts in order to fend off any onslaught from the vengeful man.

It is not at all exaggerating to say that, so long as UMNO remains in power, Mahathirism will lingers on.

JOSH HONG studied politics at London Metropolitan University and the School of Oriental and African Studies, University of London. A keen watcher of domestic and international politics, he longs for a day when Malaysians will learn and master the art of self-mockery, and enjoy life to the full in spite of politicians.

The Allah Issue Decision: A Political Law hatched in Putrajaya

October 18, 2013

The Allah Issue Decision: A Political Law hatched in Putrajaya

By Jennifer  Gomez and Elisabeth Zachariah

Putrajaya has come under heavy fire from church leaders and opposition MPs for saying that the controversial Court of Appeal decision barring the Catholic weekly Herald from using the word Allah will not affect Christians in Sabah and Sarawak.

Calling the stream of statements from Cabinet ministers Tan Sri Joseph Kurup and Datuk Seri Dr Maximus Ongkili  “hurtful, nonsensical and ridiculous”, they said it was an attempt by Putrajaya to divide Christians in the country.

Rev Dr Hermen ShastriCouncil of Churches Malaysia general secretary Rev Dr Herman Shastri said he was disappointed that the government was trying to divide the Christians in the country with such talk.

“How can there be one rule for Christians in East Malaysia and another for those of us in Peninsular Malaysia, it makes no sense,” he told The Malaysian Insider.

“For them to think that the Christian community would accept this arrangement is hurtful.”

In separate comments made over the past few days, Kurup, the Minister in the Prime Minister’s Department and Ongkili, Minister of Energy, Green Technology and Water, both insisted that the court ruling only applied to the Bahasa Malaysia section of the Herald.

They had further stated that there would be no restrictions on Christians in Sabah and Sarawak from using the word Allah in their worship and in the Bahasa Malaysia and native bibles.

Kurup (pic) had said that following a Cabinet meeting on Wednesday, it was decided that Putrajaya will stick to the 10-point solution, which allows the word Allah to be used in Al-Kitab, the Malay translation of the bible.

Another church leader, Datuk Reverend Ng Moon Hing, former chairman of the Christian Federation of Malaysia, labelled the statements from the two Sabah ministers as “ridiculous”.

“How can we as Christian leaders tell our people in Sabah and Sarawak it is alright for them to use the word, but tell the rest in West Malaysia they cannot do so?” he asked.

The churchman also pointed out the glaring reality that many Christians from East Malaysia had moved to the peninsula for various reasons, including to find employment.

“That means when they are back home they are free to use the word but when they are here they must remember not to?” he asked.

Rev Ng said that the two ministers had obviously “forgotten about the East Malaysians who live here”.

“They think they are giving assurance to their people, but they are just proving how short-sighted they are,” he added.

Earlier yesterday, several politicians had also weighed into the issue whenKota Belud MP, Datuk Abdul Rahman Dahlan, they criticised UMNO’s Kota Belud MP, Datuk Abdul Rahman Dahlan (right), who suggested that Putrajaya come up with two separate rules on the use of Allah for East and Peninsular Malaysia.

He said Putrajaya should revisit the proposal to have two laws, which was first brought up by the then de facto Law Minister Datuk Seri Nazri Aziz in 2010.

Sabah State Reform Party (STAR) chairman Datuk Dr Jeffrey Kitingan asked, “How are you going to prevent Sabah and Sarawak Christians now living in the peninsula from using the word Allah? It is ridiculous.”

Also calling Abdul Rahman’s proposal “ridiculous” was DAP’s Bandar Kuching MP, Chong Chieng Jen, who questioned the rationale behind the suggestion.

“Christians in Peninsular Malaysia and Christians in East Malaysia are the same. Why different laws for them?This is a political solution to rationalise a ridiculous decision,” Chong argued, referring to the court’s ban on the use of the word Allah in the Herald.

International Islamic University Malaysia academic Datuk Seri Dr Syed Arabi Idid concurred, adding that what is right in East Malaysia should also be right in Peninsular Malaysia.

“One country, one law. How can one country have different sets of national laws?” he questioned.

Political scientist Dr Jayum A. Jawan from Universiti Putra Malaysia was more biting in his comments.”We can’t have double standards. It is one law for the whole of Malaysia. He (Abdul Rahman) is speaking like a politician and trying to please all sides but it won’t work,” Jayum insisted.

Malaysia, he said, was formed with the fundamental principle that freedom of religion would be respected and this was what East Malaysians had been concerned about back then.

“The court’s decision went against the spirit of that promised freedom,” added Jayum. – The Malaysian Insider

The Allah Issue will not just go away,so get real

October 15, 2013

The Allah Issue will not just go away,so get real

by Zaid Ibrahim

COMMENT: The Court of Appeal (CoA), as expected, has reversed thezaid Kuala Lumpur High Court decision on the use of ‘Allah’ by Catholic weekly The Herald.

The CoA, however, took a long time to hear and decide on the appeal, and this has enabled the general election to be safely tucked away without anyone having to worry about any adverse effect the decision might have had, had it been delivered earlier.

Before my fellow-Muslims think that the decision is a great victory for them, I must urge them to think properly. The decision may be a big victory for some Muslim NGOs or Nasharuddin Mat Isa, Ibrahim Ali  and Hassan Ali, but for the rest of the Ummah it will matter very little.

The decision binds only The Herald. How many Muslims read it? How many are threatened by anything besides their own insecurities? Besides, someone can always produce another publication with a new name and the controversy will start all over again.

Loud Mouth Zahid HamidiThe Home Minister will issue yet another directive that the new publication is ‘against public order’ and lawyers will be busy, as will Ibrahim Ali and his gang. Yet another public quarrel will ensue, and this will go on and on.

The CoA decision is limited to The Herald alone. This does not, and should not, mean that Christians are prohibited from using ‘Allah’ in their prayers, or that they are prohibited at all in Sabah and Sarawak.

Christians beyond The Herald (and Catholics too), can still use that Name whenever they want to, and in any celebration they have. Of course, some Muslim NGOs will counter this new situation and go to court yet again to stop all Christians, regardless of denomination, from using ‘Allah’ on any occasion, religious or otherwise.

They will probably seek to widen the scope of the original government order to include prohibiting Christians and other non-Muslims from using ‘Allah’ at all under any circumstance. What about Sikhs? Sikhs can’t be bound by an order limited to a single Catholic newspaper.

The CoA has also ventured into new territory, although I shall let my colleagues who are more learned in this part of the law dissect the judgement.

All I can gather from the CoA decision is this: Islam has primacy over other faiths and, if Muslims are upset about some part of the practice of non-Muslims – and the Minister issues an order to stop non-Muslims from that practice – then the order is considered ‘valid’.  The CoA has also made it clear that it will never disagree with the Minister’s order.

How will this be enforced?

Religious people fear God more than the courts, whether they are Muslims or not. This judgment means nothing to the God-fearing Christians.

The court can declare whatever it wants and some Christians (and those of other faiths, and perhaps Muslims too) will do whatever religion requires of them, regardless of the cost to themselves or others.

Religion has that effect on some people. It can drive emotion beyond reason. But many regular Christians believe that ‘Allah’ is the right Name for God. They will continue to use that Name and the Courts will not be able to do anything about it. How can anyone initiate contempt proceedings against so many people?

The courts will then look stupid – how do will they enforce such orders? This is the scenario I foresee happening in the coming years of this so-called 1Malaysia. Silly things will continue.

Likewise, Muslims will fight this ‘battle’ for years to come, and they will be so preoccupied by this war over God’s Name against Christians and other infidels that no one will have little time left for education, their families and their  general economic improvement.

This is why I sometimes think that this is all part of the Jewish-Freemason-Communist-Illuminati-American-Martian (insert favourite bugbear here) conspiracy—to sidetrack the Muslims, Christians, and everyone else from focusing on what truly matters in life.

We are made to think that we need to continue to fight great battles and to seek great victories. Maybe we want to think it.

Get real.

ZAID IBRAHIM, a lawyer by training, was involved in politics for a time. This article is reproduced from his blog ‘The Zaidgeist’.

Court of Appeal Allah Decision is Wrong

October 15, 2013

Court of Appeal Allah Decision is Wrong

The Court of Appeal was wrong in its decision banning Christian weekly Herald from using the word ‘Allah’ to refer to God in Bahasa Malaysia, said a constitutional law expert.

“By linking religious rights under the chapter on fundamental liberties with Article 3(1) of the Federal Constitution which effectively makes Islam the benchmark for everybody, this runs counter to the general meaning of Article 3(1) of the Federal Constitution itself,” Dr Abdul Aziz Bari told Malaysiakini today.

“The plain meaning of Article 3(1) is simply this: that despite the fact that Islam has been made official religion, non-Muslims may go on practising their religions freely without restriction,” said the former Universiti Islam Antarabangsa (UIA) law lecturer.

NONEHe said that the implication of the decision is that it might make non-Muslims feel “unsafe” and this is contrary to the essence of the Article 3 in the constitution.

Abdul Aziz also noted that the court decision yesterday sounded like a “policy decision” – a decision that is not strictly based on law.

“Like in most countries, the judges – in critical cases – do not feel they have the strength to depart from the line taken by the executive. Not too different from what we have seen in cases involving preventive detention, election petition and Altantuya (Shaariibuu)’s murder,” he said.

“Like many, many other decisions which the Minister claimed ‘security and public order’, the judges just went along with them. In short, the judges were not willing to be proactive here.They obviously still live under the wartime decisions where the government has the absolute power to decide anything under the guise of security and public order,” he said.

No Evidence

Abdul Aziz said that with the court decision, the government has interfered with the way Christians practice their religion when there is no evidence that using the world ‘Allah’ can jeopardise national security and public order.

“I do not believe the use of ‘Allah’ among Christians would create problems for the Muslims. For one thing, the Christians have their own doctrine and they are not out to tell the Muslims about it.

“As for the Muslims, they have their own doctrine that has been developed by their ulama for ages. This is the guarantee that the use of ‘Allah’ by Herald – which is not circulated among Muslims anyway – will not affect Muslims,” he said.

Abdul Aziz also described the judges’ statement that fundamental liberties provision must be read along with Article 3 of the Federal Constitution as “startling”.

“The only provisions that is allowed by the Constitution to override provisions for fundamental liberties – or human rights – are Article 149 on power to deal with subversion and Article 150 which deals with emergency,” he said.

“The fundamental principle is that the court is there to protect and enhance the provisions for fundamental liberties, not to narrow them down. It is wrong for the Court of Appeal to do that.”

Link disturbing

According to Abdul Aziz, the alleged link asserted by the judges between Article 3(1), which declares Islam as “the religion of the federation”, and Article 11(4), which allows the legislatures to protect Muslims from being proselytised (converted) is disturbing.

“The most one could say about Article 3(1) is that the provision declares the federation’s character and perhaps, ideology.But Article 3(1) is not one to be used to judge or becoming benchmark for the non-Muslims. I think this is the reason why the phrase ‘other religions may be practiced in peace and harmony’ is being added towards the end of the provision.

“I find it strange as to why the Court of Appeal did not concentrate on the right to religious freedom and instead chose to highlight the link between Article 3(1) and Article 11(4), which has less relevant here.

“In fact, Article 11(4) could stand on its own without the support from Article 3(1).”

Borders bookstore manager fails to get charge against her dropped

Borders bookstore manager fails to get charge against her dropped

October 07, 2013

A customer in a Borders bookstore in Kuala Lumpur. – Reuters pic.

Nik Raina Nik Abdul Aziz, the manager of Borders bookstore, has failed in her attempt to get the charge against her for distributing a ‘banned’ book by Canadian author Irshad Manji dropped.

Syariah judge Abdul Walid Abu Hassan dismissed the application after ruling that the civil High Court’s judicial review decision in finding the charge groundless, should not be used to interfere in Syariah court proceedings.

He said Nik Raina has not been tried and it was up to the Syariah prosecutor to prove their case whether the book was against the Islamic law (Hukum Syarak).

The judge then stayed the trial pending appeal by the prosecutor in the judicial review.

Nik Raina, 36, was accused on June 19 last year of distributing Manji’s Bahasa Malaysia translation of the book titled “Allah, Liberty and Love”.

She was alleged to have committed the offence on May 23 last year at the Borders bookshop at Level 3, The Gardens Mall, in Mid Valley City.

On March this year, the High Court in Kuala Lumpur found the Federal Territory Islamic Affairs Department (JAWI) to have acted illegally in raiding the bookstore and seizing the books.

The High Court also found that it had acted illegally in charging Nik Raina in the syariah court. – October 7, 2013.


The Abdullah recrudescence

September 19, 2013

The Abdullah recrudescence

by Terence Netto (09-16-13)  @

badawi yearsAn upswing in the hitherto low ratings of the premiership of Abdullah Ahmad Badawi seems to be taking place.

The stock of Malaysia’s fifth Prime Minister was low when he was compelled to give up office in April 2009 in the face of electoral shocks to Umno-BN in Election 2008.

It was a vertiginous fall, after a mere 48 months, from the results of Election 2004 when Abdullah, cresting on the wave of national expectations of political reform and institutional revival after 22 years of the Dr Mahathir Mohamad imperium, led his coalition to an impressive 64 percent take of the popular vote.

Four years later, as a result of his backpedaling on critical areas, like reform of the Police force and the fight against graft, Abdullah saw his popularity nosedive from its heady electoral perch of 2004 to the doldrums of Election 2008.

A year on from that stinging setback – months spent in a forlorn bid to stave off the inevitable – Abdullah bowed and accepted the end of his season at the top.

Perhaps the only consolation of his retreat was the grace with which he brought if off, it being a mark of statesmanship that a leader yields gracefully what he has no longer the power to withhold.

Now, a little over four years from Abdullah’s valedictory graces, there is an uptick in his ratings.  For sure, a leader’s ratings on those fairly bogus scales of history can flicker around like a speedometer gone wrong.

This is because not only are leaders judged on what they have done and what they have failed to do there is also the question of the vagaries of history.

The forces that influence the historical standing of leaders – shifts in popular opinion, the emergence of consciousness of some ideal or necessity, demographic changes – operate on levels of complexity one can only perceive, and that too vaguely, some time after they have occurred.

Maintaining a certain restraint

Abetting the Abdullah recrudescence is his relative quiet in comparison with the noisily captious ways of his predecessor. It’s de rigueur for retired leaders to maintain a certain restraint when commenting on current affairs.

It’s not that they are debarred from commenting on current goings-on: awareness that vision is always 20/20 in hindsight properly restraints the impulse to hold forth archly on current affairs.

Abdullah has abided by this restraint and only commented when there was a need to or when such comments as he made did not obtrude on the prevailing debates.

The retired Mahathir, by contrast, was an albatross around Abdullah’s neck Dr Mand is a millstone around present Prime Minister Najib Abdul Razak’s.

[The] ‘Awakening’, a book of retrospectives and assessments of Abdullah’s tenure, published last month, has been well-timed to call attention to moves he made during his tenure –  checking fiscal irresponsibility, opening space for dissent, and attempting to restore judicial independence – which stand him in good stead compared to the track record of his predecessor and that of his successor.

Again here, the contrast with the memoirs of Mahathir, ‘A Doctor in the House’, a tawdry exercise in obfuscation, was stark. Mahathir is the more prolific writer, having written tracts early in his career and even during his time as Premier, but his aims in his memoir were abjectly self-serving. His book deserves the oblivion it quickly attained.

Which brings us to the factor that judicious observers would be apt to cite as the most likely to figure in the revised estimates of the premiership of Abdullah Badawi.

This was his attempt to restore independence to the judiciary, an institution that suffered the debilitation Mahathir visited it through the impeachment of Lord President Salleh Abbas in 1988 and promotion of mediocrities to the bench.

Mahadev Shankar,This plus point about Abdullah’s tenure was made by no less a judicial luminary than Mahadev Shankar, the retired Court of Appeal judge, who presided at the launch of ‘Awakening’ in Kuala Lumpur yesterday.

At the launch, Shankar cited the acquittal of Anwar Ibrahim on appeal of the guilty verdict in the first sodomy charge preferred against him in 1999 in validation of his opinion that Abdullah freed the judiciary to do the thing they were appointed to do.

Shankar deployed the inelegant term “scrotal gumption” to describe the decision of judges who sat on the acquitting panel.

It may have taken “scrotal gumption” for the judges to acquit Anwar on the charge which many felt at the time it was levelled – and more so in retrospect – to have been trumped up.  For Abdullah, however, it must have been plain decency that prompted his exercise in judicial restoration.

That exercise is by no means complete but that he commenced it at all is stupendous and explains the man’s reviving historical fortunes.

MALAYSIA: A Quasi Police State?

September 6, 2013

MALAYSIA: A Quasi Police State?

COMMENT by Terence Netto: Is ours a quasi police state? This question has returned to trouble us after the events of the past two weeks.

Samad SaidThe deaths of five criminals suspects, two of them unarmed, in a shootout with Police in Penang a fortnight ago; the questioning of schoolchildren by Police without the kids being chaperoned by their parents; and the midnight detention and questioning of an octogenarian literary laureate, Dato’ Samad Said (right), have all combined to suggest that the civil authority oversight of the Police Force, the norm in constitutional government, can be slack in Malaysia.

Cops who are trigger-cavalier, who are unabashed about questioning adolescents lacking a guardian’s watching brief, and who can corral an elderly luminary in the dead of night to ask after a matter which by no stretch of the imagination can be construed as unpatriotic – are questions of distressing import to rights-conscious citizens.

A couple of years back, Malaysians had an intimation that ours may be a quasi police state when former prime minister Dr Mahathir Mohamad revealed that the infamous ISA arrests of 1987 were carried out by the Police despite his reservations about it.

Mahathir (right) was reminiscing about the arrests in which more than 100Dr M politicians, mainly from the Opposition, academics, and social activists were detained in October of that year amid rising tensions over racial and mother-tongue education issues.

It was a grim period of our country’s history and it marked an authoritarian turn in the premiership of Mahathir, then in the sixth year of a 22-year tenure, a span that in its later stages was characterised by the increasing centralisation of power in the office of the Prime Minister of the country.

Expatiating on the arrests to an American author of a compilation on Asian leaders who had made a big impact on their countries, Mahathir tried to distance himself from it, revealing that as the home minister in 1987, he was not in favour of the arrests but that the Inspector-General of Police, on the advice of the Special Branch Director, had maintained that the detentions were imperative to defuse sectarian tensions.

Nowhere in the wording of the Internal Security Act, a draconian holdover from the British colonial era (repealed last year), did it allow for the Police to override the elected civil authority on the question of political detentions.

The decision to detain under the ISA was solely the discretion of the Home Minister, on the advice, no doubt, of the Police. But in Mahathir’s extenuations to the American author, the former PM said he had opposed the arrests but he had to defer to the Plice advice on the matter.

In other words, the country in October 1987 was very nearly a police state because the police view on the internal security situation overrode the elected authority’s perception.

Muddled conception

Tun SuffianNuances are important in matters of democratic governance as muddled conceptions often lead to sorry realities.

Tragically, it was former Lord President Suffian Hashim (left) who gave voice to a muddled conception of where the balancing authority was when the executive authority overreached in a democratic polity.

The former Chief Judge was asked in an interview in December 1981 with Fajar, a newsletter for Malaysian students reading law in Britain, where the remedy lay when the executive arrogated to itself overweening powers.

Suffian said the remedy lay in electing more Karpal Singhs and Lim Kit Siangs to Parliament. The interviewer must have been expecting that Suffian would have argued for judicial review of transgressive actions of the executive as the remedy.

Cognizant as he must have been of our gerrymandered parliamentary constituencies in which one vote in Gua Musang can be worth three in Puchong, Suffian could not realistically have expected that the nostrum for executive transgression was in electing more opposition parliamentarians who would be for more checks on executive power.

Today, because of gerrymandered constituency delineations, not even a 51 percent take of the popular vote at Election 2013 has enabled the opposition to come within hailing distance of the winners who were almost four percentage points adrift in the popular stakes.

Years after he gave vent to his astonishing view of where the relief lay in Tun Salleh Abas the face of an imperial executive, Suffian would publicly wring his hands in frustration at the – in his own words – “shameful” spectacle of the judicial impeachment in 1988 of Salleh Abas (right), his successor by two removes as the country’s chief judge.

By that time, however, his laments were cries over split milk, but there was no revisionism about his opinion of where the remedy lay.

Today, of course, an imperial executive does not just encompass the actions stemming from the office of the prime minister, but also from the IGP and his force, not to mention the Registrar of Societies such that it may be idle to talk of the country being a quasi police state.

It more nearly is a coercive apparatus in the deceptive garb of a democracy.

Outsource the Altantuya Case to Us, says DAP Legal Bureau

August 25, 2013

DAP Legal Bureau to The Attorney-General: Outsource the Altantuya Case to Us (08-24-13)

The DAP legal bureau today offered its services to prosecutors in the high-profile murder of Mongolian Altantuya Shaariibuu, suggesting that an overworked Attorney-General’s Chambers (AGC) may have led to the acquittal of two former Policemen previously convicted of the killing.

The shocking outcome of the Altantuya murder appeal in the Court of Appeal has the effect of bringing further and total disrepute to the Malaysian criminal justice system.

The shocking outcome of the Altantuya murder appeal in the Court of Appeal has the effect of bringing further and total disrepute to the Malaysian criminal justice system.

This comes as Segambut MP and bureau member Lim Lip Eng lodged a police report in Jinjang here over the Court of Appeal’s decision to free ex-police commandos Azilah Hadri and Sirul Azhar Umar of their conviction in 2009 of the gruesome murder.

“Give DAP legal bureau the fiat (authorisation order), we will make sure the correct person is prosecuted and convicted,” Lim said in a statement here. Lim said the bureau was offering its help to the AG-C due to the high-profile nature of the case.

“Maybe the AGC is short-handed. We just want to offer our help; together we can solve the case,” he said.

Take a leaf from Appointment of Shafee in Sodomy II

He pointed out that the move was permissible by law, citing the recent appointment of lawyer Datuk Seri Muhammad Shafee Abdullah as public prosecutor in the appeal against Datuk Seri Anwar Ibrahim’s Sodomy II acquittal.

Datuk Seri Muhammad Shafee Abdullah as public prosecutor in the appeal against Datuk Seri Anwar Ibrahim’s Sodomy II acquittal.

Datuk Seri Muhammad Shafee Abdullah as public prosecutor in the appeal against Datuk Seri Anwar Ibrahim’s Sodomy II acquittal.

Muhammad Shafee was given the authority by the Attorney-General to lead the prosecution team in its appeal against Anwar’s acquittal on a charge of sodomising his former aide Mohd Saiful Bukhari Azlan.

Anwar’s defence team, however, filed a motion in the Court of Appeal in Putrajaya yesterday to disqualify the appointment.Earlier today, PKR’s R. Sivarasa criticised the Court of Appeal over the two former policemen’s acquittal, saying it should have ordered a retrial instead.

The Subang MP stressed that the appellate court was empowered to do so, especially when there were a number of key witnesses who were not called during the High Court trial that led to the duo’s conviction in 2009.

“There is ample power under the law in section 60 of the Courts Judicature Act 1964 to order a retrial which is regularly done in appeals,” Sivarasa said.

Acquitted instead of Retrial

In a decision that stirred controversy yesterday, a three-man panel of the appellate court unanimously allowed Azilah and Sirul’s appeal.

Azilah and Sirul, both formerly with the Police’s Special Action Unit (UTK), had been found guilty in 2009 of the murder of Altantuya in Mukim Bukit Raja in Klang between 10pm on October 19, 2006 and 1am on October 20, 2006.

The Mongolian model’s murder trial had been surrounded by political intrigue due to links drawn from the personalities involved in the case.

Azilah and Sirul had been part of a security detail for then-Defence Minister Datuk Seri Najib Razak while Abdul Razak Baginda, who was charged with and later acquitted of abetting the duo, was a former adviser to Najib.

During the course of their trial, it was revealed that Altantuya was shot and her body blown-up with explosives in a jungle clearing on the night of October 19.

The duo had been charged under section 149 of the Penal Code, which carries the mandatory death sentence upon conviction.

Sirul and Azilah were both released from Tapah Prison yesterday after the Court of Appeal overturned the decision.


Malaysia: Crisis in Political Leadership

August 14, 2013

Malaysia: Crisis in Political Leadership

by Mariam Mokhtar (08-12-13) @

Malaysian Prime Ministers display fascinating quirks and characteristics; Dr Mahathir Mohamad assumes the role of the Pied Piper of Hamelin who leads the children (Malays) to a catastrophic end; Abdullah Ahmad Badawi is like Rip van Winkle who slept when he should have been working to improve the nation; and Najib Abdul Razak appears to act like Nero who fiddled while Rome burned.

Mahathir with Najib and Badawi

Najib’s entry into politics is a lacklustre, predictable story which might explain his inability to inspire the nation. His role in undermining Malaysian democracy is pivotal.He places more emphasis on sound-bites and slogans, than on sound policies. Najib is English educated, and a well travelled man. Some consider him a roué but he comes from a family with an impeccable political pedigree. The reason he failed as PM is simple.

At the age of 23, Najib became a career politician, when he was elected unopposed as MP. The seat was vacated when his father, Abdul Razak Hussein died. Najib was propelled into politics during the psychedelic 70s when wine, women and song preoccupied the young men of that era.

What would these tender, youthful Malay men from the pampered classes know about the real world? Najib’s appointment was a stunt, contrived to capitalise on his father’s popularity. But he lacked experience.

What practical and useful advice could Najib give the people of a nation which had been independent for barely two decades? Two years before he became an MP, rural villagers were starving, because of falling rubber prices. How would he advise these communities when he was a greenhorn himself?

In the book, ‘The Awakening: The Abdullah Badawi Years in Malaysia’, Abdullah talked about reform. Despite being in agreement with him on the need for change, Najib’s inaction is probably caused by fear (of losing his job).

He is also hampered by his father’s reputation. It is alleged that in previous by-elections, posters of Abdul Razak were displayed, to remind the electorate that Najib is his son. Only an insecure person would trade on his father’s image to prop up his own.

What was GE13 all about, if not change? Before GE13, Najib claimed that he would accomplish all manner of things. Post-GE13, he and some of his cabinet members gave excuses that it would take another five years to tackle these same issues. If Najib felt that he was not up to the task, then he should have left the job of change to Pakatan Rakyat.

Today, Najib may have agreed with Abdullah about change, but claimed that it would take a long time. He hasn’t even started the process of change.

Steps toward change

This writer disagrees with Najib about change taking a few generations. In a previous article, I wrote that ‘Najib could be our Super Hero’, and said that the change which Najib dreams about could be almost instant.

The first 11 steps might be those listed below. I am sure you can think of many more. First. Detain Mahathir for treason. Remove him and put him in solitaryMahathir confinement before he faces trial. Najib may be surprised to see how the nation would be solidly behind him.

Second.The chairperson and deputy chairperson of the Election Commission (EC) should also be arrested for treason. It was the collusion of the EC which allowed cheating and bribery at elections.

Third. The Attorney-General, the Inspector-General of Police and the head honcho of the Malaysian Anti-Corruption Commission (MACC) are to be held for crimes against the state.

Not everyone in the civil service is corrupt. Many civil servants confide that they are disgusted by the orders they have to follow. Najib should promote senior staff members who are persons of principle and known to be free of corruption.

The Police, the Army, the judiciary or other institutions cannot simply be disbanded as this will lead to a state of anarchy, like after the invasion of Iraq. Good people with potential to lead will soon assume control. We have enough laws. They just need to be consistently enforced.

Fourth. Make the Police, Judiciary and media independent. With a free press, the people may learn the truth. An independent police and the formation of the Independent Police Complaints and Misconduct Commission will improve the performance of the police. True justice might finally be dispensed.

Fifth. Detain the warlords in UMNO-Baru (most are involved in money politics anyway) and immediately remove their sources of income, such as the taxi-permits which are allegedly awarded in bulk, to companies belonging to politicians and their cronies.

Without money, these people will have less opportunity to plot and scheme. UMNO-Baru politicians will learn the hard way, the truth of the saying, “No money, no talk”.

Sixth: Work with Bersih and the relevant NGOs which have compiled a dossier of corrupt politicians and BN cronies. They have slogged hard for the evidence. All Najib need do is to investigate, confirm and enforce.

Seventh: Provide a period of amnesty, so illegal immigrants can save themselves from being deported, but return home voluntarily. Most GLCs are run by cronies. The money trail should lead to their agencies which benefit from cheap labour on plantations, and deprive locals of jobs.

Eighth: Reduce the Prime Minister’s Department from 45,000 people to 450. This might focus people’s minds and make them concentrate on their jobs. A special unit should be set up to recover the money, lost because of corruption and illicit outflows. This money can be returned to the treasury.

Ninth: Abolish the NEP and ensure that needy people, regardless of race, religion and ethnicity are helped. Abolish quotas for university places and award scholarships to the best Malaysian students. Why should other nations profit from our brain-drain, whilst we collect the dregs of other countries?

Tenth: Provide a grace period for politicians and their cronies to ‘sing’ about their colleagues’ crimes. The first 20 people could be given immunity from prosecution, unless murder has been committed. Perhaps a reduced sentence in the most severe of criminal acts could be considered.

Eleventh: Replace the mullahs who serve only Mahathir and UMNO-Baru, with learned clerics who will foster good community relations and help the nation.

Malaysia is in a perilous state because one man, Mahathir, stands in the way of the Prime Minister. Mahathir wants to preserve his legacy. He claims ownership of Malaysia. He has succeeded because not even one Prime Minister has been courageous enough to stand up to him.

Mahathir triumphs because many UMNO-Baru politicians are unwilling to admit the severity of the Mahathir problem and are afraid of the dirt that he could reveal about them.

Najib-PM2013Once Najib has initiated the few steps necessary for change, he should call for fresh elections in a year’s time. If he knows he has been a good leader, then the electorate will vote for him.

Who knows, the rakyat might be thrilled to be liberated from Mahathir, and be willing to close one eye to his wrongdoings? Perhaps, the new independent judiciary could be lenient with him, if he is found guilty of criminal activities.

Malaysian history would take a different course if Najib were to start the process of change. Elections should not be bought by doling-out wads of cash or giving freebies. Elections should be won when voters respect a party and its convictions.

UMNO Baruputra Rule, Ok!!

July 17, 2013

UMNO Baruputra Rule, Ok!!

by Mariam Mokhtar@

Rowena Razak BagindaWhat Rowena Abdul Razak, daughter of one of Malaysia’s most infamous toadies, said that minorities were incapable of ruling, it is not just an affront to Malays, but an insult to all Malaysians.

Rowena should know that when you raise your head above the parapet, you can expect it to be shot. It is alarming to hear a woman with a sound education, who has enjoyed a privileged upbringing, and is currently pursuing her postgraduate studies, talk about the governance of a country in terms of majority rule, Malay rights, protection and race.

It is disheartening to hear educated Malays talk in such a shortsighted manner and act as if they learned nothing from their times spent in civilised countries. They have learnt nothing of the outside world, nor of the fallacy of Malay supremacy.

Students like Adam Adli Abdul Halim have had their education curtailed, whereas children of UMNO Baruputras enjoy the largesse of the taxpayer. Adam was trying to help all Malaysians, whereas Rowena appears to be selfishly championing UMNO Baruputras.

At a Bar Council Forum on electoral reforms Rowena queried the ability of the minority to protect the rights of the majority.

Has she not heard of Benjamin Disraeli, Barack Hussein Obama andBHObama Alberto Fujimori? One was Jewish but became Prime Minister of Great Britain, the man who was of African extraction now heads America and a Japanese once ruled Peru.

Rowena talks like an UMNO Baruputra. Most normal people want a country which is ruled by an able leader, who is prepared to look after its citizens with equality and fairness.

She said, “In Malaysia, you are proposing something where the minority would be empowered, how then do you protect the rights of the majority?”

How ironic that what she said is true. This illegitimate minority UMNO Baru government has already broken many of the promises it made before GE13. It does not champion the interests of the majority but it excels in protecting the rights of UMNO Baruputras.

By referring to “the majority”, Rowena presumably means the Malays. If the truth be known, the original Malays are a minority in Malaysia and it is the pseudo Malays, those who want to take advantage of the perks which were granted to the Malays, in the constitution, who form the majority in Malaysia.

Holding the rest of Malaysia to ransom

Think MahathirWe once had a PM, Mahathir Mohamad, who was of Indian extraction. He sought to confuse the Malay mind by creating a dilemma within the Malay world. What emerged was another Malay species – the UMNO Baruputra. In a sense, the minority UMNO Baruputras could be classed as a minority species and it is they who are holding the rest of Malaysia to ransom.

In Syria, the ruling minority Alawite sect, to which President Bashir Al-Assad belongs, punishes and kills the majority Sunnis for opposing his rule. Rowena is right but conversely, we have seen that Mahathir’s policies continue to wreak havoc on the Malay psyche. Rowena is therefore wrong when she said that “the minority cannot even protect themselves”. The UMNO Baruputras who govern, only think of themselves and jealously guard their turf.

If we allowed Rowena the benefit of the doubt, and assume that the Malay majority can protect others, why have we issues with forced conversions of children of another faith into Islam, why are Christians forbidden from using the word Allah, why is the Ambassador from the Vatican shown the door and why are certain people – Indians, Orang Asli and Penans having problems establishing their citizenship?

Why did Mahathir dilute the percentage of the true Sabahans with an influx of Muslim foreigners from the Philippines, Indonesian and Pakistan? The former majority Kadazan-Dusun population was cheated by a minority group.

tindak4Rowena criticised the NGO Tindak Malaysia for the low (10 percent) percentage of Malays in the organisation which she said was not representative of Malaysian demographics. Is this a fair criticism? Are Malays averse to volunteering? Do they avoid corporate social responsibilities?

It is wrong of Rowena to publicly admonish Wong Piang Yow, thepy wong Tindak Malaysia chief, for something beyond his control. Malays may form a majority in some other NGOs, like Perkasa, but this is not necessarily a good thing.

In November 2006, when Rowena’s father, Razak Baginda, was charged with abetting two police personnel in the murder of the Mongolian national Altantuya Shaaribuu, observers were shocked when Mazlinda Makhzan, Baginda’s wife, screamed, “Why charge my husband, he does not want to be the Prime Minister…”? What was Mazlinda insinuating?

After Baginda was acquitted in 2008, he held a press conference, and stressed throughout the 50-minute-long media briefing that Najib Abdul Razak, the Deputy Prime Minister at the time, and his wife, Rosmah Mansor, had nothing to do with Altantuya’s murder. Why did Baginda blame bloggers for misleading the public?

It is curious that Rowena and her mother, Mazlinda, attended this Bar Council forum on electoral reform and attracted attention with their remarks. One would think that a family, with a chequered past, such as theirs, would want to be as discreet as possible, especially as large sums of the taxpayers’ money were stolen under the guise of commission, a woman was murdered violently and a cover-up involving the Judiciary, Police and Immigration Department allegedly followed.

Stuff of spy-thrillers

The trail of sex, corruption and scandal which Baginda weaved with his alleged lover across Europe and Asia is the stuff of spy-thrillers. There was no romance involved, just plain deceit and lust. The rakyat demand answers and justice.

Mr and Mrs Razak BagindaWhy would the Baginda family be interested in electoral reform, especially as a change of government could trigger a re-trial of Altantuya’s alleged murderers and force Baginda to return the millions he sequestered? More importantly, Najib’s true role might be exposed.

Rowena should realise that the sins of her father have cast a shadow over her. Is the rakyat being misled by remarks made by her and her mother? Is this a distraction designed to dissuade people from attending Suaram’s Scorpene fund-raising dinner, to be held on July 19, at which new revelations about the progress of the French lawyers could be revealed?

Has Rowena been pressured into becoming the new “Ummi Hafilda”; another sexton charged with burying news that are detrimental to UMNO Baru?

Conversely, having been betrayed and having to endure the wrath of the public, there is a slight possibility that both mother and daughter want justice to be served. They must know this can only happen if Pakatan forms the next government of Malaysia.

Islamism, Institutions, and The Rule of Law

July 14, 2013

MY COMMENT: Having read Noah Feldman’s The Fall and Rise of the Islamic State (Princeton, NJ: Princeton University Press, 2003) in its entirety, I feel that I should share the concluding chapter of the book with you. If the pursuit of justice is the aim of Islamists, shari’a law is not intimidating after all,only if we have an open mind and keep  our prejudices in the closet. But as Noah argues, Islamic jurisprudence must be founded on respect for the rule of law with new institutions created to support the shari’a. Feldman quotes Edward Gibbon, the author of the classic, The Decline and Fall of the Roman Empire, as follows:

“The order, the discipline, the temporal and spiritual ambition of the clergy, are unknown to the Moslems; and the sages of the law are the guides of their conscience and the oracle of their faith. From the Atlantic to the Ganges the Koran is acknowledged as the fundamental code, not only of theology but of civil and criminal jurisprudence; and the laws  which regulate the actions and the property of mankind are guided by the infallible and immutable sanction of the will of God”–Chap 50 (5:325).

I recommend this book to those keen to understand the subject of shari’a and the rule of law. –Din Merican

Islamism, Institutions, and The Rule of Law

Noah Feldmanby Noah Feldman

All this brings us to the question of whether, in power. Islamists could in fact bring about the rule of law. As the case of Iran shows. a government organised in the name of Islam can be as constitutionally corrupt as a secular autocracy and so may find itself equally unpopular with its citizens. If the Islamists cannot deliver political justice, they will find themselves discredited like their predecessors. Yet if the Islamists can deliver on their promise of justice,  it seems more than possible that a return to some form of shari’a governance could spread throughout the Arab and Islamic worlds.

Whether this will happen depends ultimately upon the Islamists’ ability to develop new institutions that would find their own original and distinctive way of giving real life to ideals of Islamic law. This could be an Islamically oriented legislature, infused with the spirit of a democratised shar’a; or it could be a court exercising Islamic judicial review to shape and influence laws passed in its shadow. In either case. however, such an institution on its own would not be enough to deliver the rule of law.  Under the influence of the legislative branch, the judicial branch, or even both, the executive branch would have to develop a commitment to obeying legal and constitutional judgments.

How that happens–how an executive accustomed to overweening power comes to be subordinate to the rule of law–is one of the great mysteries of constitutional development worldwide. In some cases. total revolution is necessary. A new, weak executive may have little choice but to obey the law if it wants to establish its own constitutional legitimacy. It is tempting to imagine that such a revolution might be necessary to eliminate  the overly powerful executives who dominate Arab and Muslim states. But total revolution has an extremely bad track record in recent decades, at least in majority Muslim states. The revolution that replaced the Shah in Iran ended up just as top heavy from a constitutional standpoint. And the equally revolutionary dreams of Ahmed Chalabi and Paul Wolfowitz for Iraq have so far proven fruitless, as Saddam’s Ba’thist autocracy has been replaced by an anarchic situation that so far has not provided the stability necessary for effective new institutions to emerge.

Gradualist constitutional change therefore looks more attractive than ever.This in turn makes Islamism seem appealing, because of its willingness to adapt already existing political institutions by infusing them with Islamic values and some modicum of Islamic law. Perhaps it is even possible to imagine Islamist electoral success putting pressure on executives to satisfy the Islamist demand for political justice embodied in the call for adoption of the shari’a. This would then also require a transformation of judicial culture, akin to the one that has occurred recently in Pakistan. in which judges would come to think of themselves as agents of the law rather as servants of the state.

We have seen that the shari’a, considered both as an actual set of historicalNoah's Book practices and as a contemporary ideology,can provide the necessary resources for such a rethinking of the judicial role. In its essence, the shari’a  aspires to be Law that applies equally to every human, great or small, ruler or ruled. No one is above it, and everyone at all times is bound by it. Though the constitutional structure that historically developed to implement the shar’a afforded the flexibility necessary for practical innovation and effective government, that structure also maintained the ideal of legality. Judges who are devoted to the shari’a in this sense are therefore devoted to the rule of law, and not the rule of the state. The legitimacy of a state in which officials adhere to this structure of beliefs would depend upon the state’s faithfulness to implementing the law.

But as we have seen, the ideals of the rule of law are not and cannot be implemented as a vaccum. For that a state needs  actually effective human institutions, reinforced by regular practice and the recognition of the actors within the system that they have more to gain by remaining faithful to its dictates tan by deviating from them. The new Islamic state, if it is to succeed, can learn from aspects of traditional practice, but it must do for itself the difficult and slow work of establishing new institutions with their own ways of operating that will gradually achieve legitimacy.

There are lessons here for those outside and inside majority-Muslim states who hope to see meaningful constitutional legal reform that will move governments away from autocracy without casting them into anarchy. Our best efforts must be devoted to building institutions that perceive themselves  and are perceived by the public as committed to the rule of law. Aid can be made contingent on respect for the rules of courts and legislatures. Executives can be pressured to adhere to the laws and judgments of coordinate branches of government–even (or especially) when no direct foreign interest is a stake. Exemplary institution builders can be recognised with carefully placed praise to enhance rather than detract from their domestic legitimacy.

In this undertaking, a healthy skepticism for mere symbols is a necessary tool. “Training” of judges and other legal elites by outside experts, even when it is sensitive to the particularities of local conditions, can strengthen legal and judicial institutions; but it takes much more overt political and financial support when their legitimacy is  challenged by the executive. Conferences and declarations on judicial independence have their place* but it takes sustained engagement to change the mind-set of judges, not to mention their real-world institutional power.

When new legal and constitutional institutions, Islamic or otherwise,  do manage to enter onto the scene and make their play for legitimacy, it is imperative to support them. If the United States acquiesces in the executive’s effort to repres s them, it sends a message that the United States does not care about the rule of law. By contrast, the Islamists continue to promise justice and the rule of law via shari’a. It may be tempting to block the Islamists by denying them institutional power. But this strategy is likely to back fire, since the public will see it for what it is, and will reconfirm the view that the Islamist aspiration to justice is opposed by the West and local autocrats.

The Islamists’ odds of success at the ambitious endeavour of creating and renewing institutions to deliver the rule of law can never be high. The reinvention of democracy in the modern era was an improbable–and partial–accomplishment, one that required its practitioners to meld old ideas with new practices, often without acknowledging the difference. One reason why so many states today are eager to adopt wholesale the constitutional  architecture of other places is the very great difficulty of creating such a system from scratch. Borrowing, with all its limitations, still seems easier than invention. Nevertheless, with all its risks and dangers, the aspiration to re-create a system of government that draws upon the best of the old while coming to terms with the new is as bold and noble a goal as can be imagined.

 *See, for example, the Cairo Declaration on Judicial Independence in the Arab Region, produced by the Second Arab Justice conferences, “Supporting and Promoting the Independence of the Judiciary”. February 21-24, 2003

A Pluralistic Legal System: the Malaysian Experience

June 9, 2013

A Pluralistic Legal System: the Malaysian Experience

by Zaid Ibrahim (05-17-2013)

zaid1As a former colony, Malaysia was at the time of its independence in 1957[1] the beneficiary of Westminster-style parliamentary democracy. Predicated on a written document, the Federal Constitution, which declared itself the supreme law of the land, the arrangement accommodated the establishment of Islamic, or Shariah, courts and the native courts.

The concept of law, as it was to be understood moving forward, was reflected in the definition of “law” under the constitution: “law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.

I would like to think that this all embracing definition of law was intended by the founders of the constitution to serve the “needs of all “and yet the many communities comprising Malaysia were to be bound by laws and values “common” to them.

This arrangement also serves as a means by which society would operate a system of “checks and balances” as it resolved its disputes or shaped its entitlements or obligations by reference to the normative standards of the sub-communities within the nation. The Federal Constitution cemented these sub-communities together in a way that would over time lead to the creation of a unique Malaysian common law system.

Laws are useful instruments in bringing about societal change. Newly developed countries feel compelled to introduce new laws to replace those left behind by the colonial masters. These newly independent states do not always produce good laws but even when they are ineffective, they are harmless if left to the devices of lawyers, judges and competent legislators. The problem starts when over-zealous or self-serving politicians join the fray and try using laws to effect social change by force.

The compulsion imposed by these legislators often gives rise to conflicts and distorts the balance and harmony between the different   communities. In Pakistan, for example, such harmony had existed between civil and Islamic laws for many years until President Zia-ul-Haq upset the balance in 1976 by pushing for an Islamisation programme. Sudan’s break-up can be attributed partly to the attempt by its  leaders to impose religious laws on non-Muslims in that country.

Still, it would be unfair to Muslims if they are denied the right to live their lives in accordance with Islamic laws and values where they desire to do so. Their community identifies itself by certain practices which flow from such laws and values. Their value systems have to be accommodated at least in areas where those value systems would not  infringe on the public sphere or affect the rights of others. That is why in Malaysia personal laws for Muslims have been accorded a special place in the country’s legal system.

Things have, however, changed. Due to the harnessing of Islam for political purposes and an undue and dangerous emphasis of race and religion in politics that began in the late 1980s and gained traction in the 1990s, the role of Islam in Malaysian society has become more pronounced and so increasingly contentious as to threaten to undermine this multicultural and multi religious nation. To a large extent this has been made possible by a collapse of the Rule of Law which is the result of a style of government that was contemptuous of the essential checks and balances of democracy.

In the two plus decades since Dr Mahathir precipitated a constitutional crisis that resulted in, amongst other things, the sacking of the then Chief Justice and the creation of a subservient Judiciary, we have gone from being one of the more promising young democracies of the post-War era to a nation deeply undermined by corruption and the retrograde politics that perpetuates it.

In the process, a personal law system (the Shariah) that was aimed at allowing Muslims to regulate such personal matters as marriage, divorce, custody of children and inheritance has now threatened to become the general law of the land.  Islamists no longer feel satisfied that there are laws already in existence which can enrich their spiritual experience; they now want Islamic laws to reshape the way of life of all Malaysians; and to regulate the way in which things are done in Malaysia. As a result, the guarantees of fundamental liberties, equality and the equal protection of the law promised under the Constitution are threatened in very fundamental ways.

In the early years, this carefully-crafted system that had been put in place by the founding fathers served us well. The Islamic legal system, was limited in its scope purely to matters of personal law, matters that primarily pertained to the personal faith of the Muslim majority population. The law in the public sphere was for all purposes and intents secular, or religiously-neutral, law. A decision of the apex court in 1988 made this clear, explaining its decision by reference to the constitution being the supreme law.[2]

This dual system of Islamic and civil laws worked well in Malaysia because the civil courts and the secular Constitution were respected and they held sway in cases of conflicts. This was because the High Courts always had the power to review the decisions of the inferior courts, including the religious (Shariah) courts.  Under the then Constitution the High Courts had broad judicial powers vested in them and such powers enabled them to resolve conflicts emanating from the religious courts.   But in 2002, the then Prime Minister unilaterally and controversially declared Malaysia to be an Islamic state .

In 1988 he had amended the Constitution to remove any possibility of judicial review by the civil courts of any decision of the Shariah courts . This was done by removing any judicial power bestowed by the Constitution on  the High court. When Dr Mahathir made this declaration that Malaysia was an Islamic state  he did so knowing that there was a clear ruling by the nation’s highest court that Malaysia was a secular state, and that the Constitution reigned supreme. The Constitutional amendment  giving equal status to the Shariah Court and the civil court, and enjoining that the the High Courts are precluded from reviewing any cases or matter that fall within the jurisdiction of the Shariah court completed the dismantling of the checks and balance  we had since independence.

This so called ‘clear separation’ has resulted in severe injustice and hardship to many people. There have been many cases where a husband who is estranged from his wife has converted to Islam simply so that he can get custody of his children because, by doing so, he can ensure that the civil courts are  unable to touch him. As a Muslim he is entitled to come to the Shariah court for his entitlements, but his non-Muslim wife (or ex-wife) has no such recourse. She has to go to the civil court. In cases of this nature one of the parties will be left without remedy,  especially given that the judges in the civil courts will be reluctant to interfere contradict  or intervene with the decision of the Shariah court. They would not want to be  accused of not being sympathetic to the official religion. They will use the lack of jurisdiction as their excuse for not interfering.

In my book Ampun Tuanku I have tried to explain these cases in greater detail. In any case, it is not possible to regulate human affairs in tight compartments as mandated by the Malaysian legal system. It can only result in injustices and conflicts.

The extent to which religion has been used perversely by over-zealous politicians can be seen from an attempt made sometime back to prevent non-Muslims from using the word ‘Allah’.  In a challenge mounted against that attempt, the High Court, in a judgment delivered three years ago, decided that Christians can indeed use the word Allah in their bibles and their prayers.  This, said the court, is part of the freedom to practise their faith as guaranteed by the Constitution. The government refused to accept this decision as they felt they would lose the Muslim votes in the ensuing general election. What did they do?  They got the Christians who filed the suit to agree to a stay of that the decision for 30 days and stopped the appellate proceedings that  would have  followed the decision.  The 30 days have become three years and there is no appeal in sight.

Muslims in Malaysia believe that the word Allah belongs to them.  So no one else can use it regardless of the fact that the word was used by pre-Islamic Arabs even before Prophet Muhammad. The Coptic Christians  and   the Sikh religion have the word Allah appearing in their holy books.  The subject is undoubtedly sensitive  and certainly not a matter that can be taken lightly by any quarters. However in a  modern democracy; there are enough laws that cater for all situations and circumstances. Any responsible government should be confident of allowing the court to decide contentious and delicate issues  based on the laws;  and  to trust the court to do justice by balancing the rights  of the community.

Unfortunately in Malaysia we are still in  that stage in  our development  where  the  Muslim public are still unsure if man made laws are adequate to cater for their needs. This is what happens when the laws and the courts are, in effect, rendered irrelevant by politicians and religious extremists  in determining disputes and conflicts.

Malaysia is a federation of states. The Constitution is clear about the division of powers between the federal government and the states. The federal government has authority over commercial, criminal and constitutional laws, and only Parliament can legislate on these matters. The States, on the other hand, have authority over the personal laws of Muslims, and have limited power to create offences against the precepts of Islam and the Shariah Courts.

When, however, Islamisation became a battle cry, the proponents of Islamic laws were not interested in the so-called separation between civil and religious laws. They wanted the all-consuming Islamic laws to be the main body of laws for the country. Islam, after all, is all about a way of life, so in their minds only Islamic laws and the Shariah must prevail. As a result, the balance that existed in Malaysia since our independence in 1957 can no longer be found.

Allow me to illustrate the conflicts and injustices caused by this imposition by citing a few examples. The Constitution explicitly provides for freedom of religion, but if you are a Muslim, you do not have that right. Apostasy is not a crime under federal law yet a crime punishable by death in Islam, so no Malaysian judge (the majority of whom are Muslims) will make a ruling to defend this fundamental right to religious belief. Those who are interested in seeing how such cases play out in Malaysian courts can read the case of Lina Joy.[3]

The Constitution explicitly provides that criminal laws are within the exclusive purview of the federal Parliament and yet the state governments in Malaysia continue to defy this arrangement by passing criminal laws of their own – criminal laws and punishment in accordance with Islamic law. A multitude of criminal offences have been created by the state legislators based on Islamic law in defiance of federal legislation dealing with the same matter. Not only are the punishments different, the evidential rules required to prove these cases are also not the same. For example adultery is not a criminal offence under federal law but is an offence for Muslims under state law.

Homosexuality is still a crime punishable by imprisonment for up to twenty years under federal law but  the same offence  also exists under state law, except that state law requires  four witnesses for the prosecution to succeed (this is not so under federal law). Theft is an offence under federal law: the punishment varies from fines to imprisonment yet under one  state law Islamic principles are applied for the same offence and the punishment would involve amputation of limbs.

In Malaysia, freedom of expression is guaranteed under the federal constitution but some state laws provide otherwise For example , Islam can only be taught or propagated by those who have the written permission of the religious authorities. The highest court has ruled that the sanctity of the religion requires such stringent control. So Muslims have been imprisoned or fined for expressing their views on their own religion, when those views were contrary to the views and the understanding of the religious authorities.  This ruling from the highest Court came in the face of a clear provision , in the  Constitution which  provides for freedom of speech and expression for all citizens, including Muslims.

Under the Penal Code (which is a federal law), you can be charged for having sex with a girl below the age of 16. Under another federal law, the age of majority is stipulated as 18 years. But these laws mean nothing to the Shariah Courts. They have given permission to girls as young as 12 and 14 years old to be married, because Islam permits such marriages. They do not, in my view, have the powers to sanction “child marriages”, but who will stop them?

In Malaysia, the pluralist legal system is breaking down. Unless the Federal Court reversed the trend;  and it is only a matter of time before the Shariah laws and Shariah courts will reign supreme.  For a long time, criminal laws were accepted to be within the purview of the civil (read: secular) courts, but now the Shariah courts are widening their powers.

My son is a book publisher who translated into Malay and published the book Allah, Liberty and Love by the Canadian writer Irshad Manji.  Until 2003, the authority to ban books and to limit freedom of expression could only be exercised on the grounds of violation of public order or morality. This power was in the hands of the federal government. Now, state laws have been enacted to prosecute those publishing and disseminating materials which are deemed to be prejudicial to, or against, religious laws (as defined by the authorities). These state laws are clearly unconstitutional as they violate the freedom of speech and expression under the Constitution. My son, against whom a prosecution has been brought, is not being charged for offences against public order or morality, as he should be if at all.  Instead, the Shariah courts have now devised their own laws, regardless of what the Constitution provides.

Human rights have taken a back seat in the face of relentless religious onslaughts. Many Malaysian school boys who have exhibited effeminate traits and tendencies are taken to what is known as a ‘gay camp’ to change their personality. These camps seek to make the boys more “masculine” and to remind them of the evils that befall those who are gays or lesbians. Effeminate personalities are considered a curse: people need to be reoriented and changed.  Our national theatre is now currently showing a musical which depicts gays and lesbians as people who are forever engaging in sex and drugs and who ultimately get punished when lightning strikes them down.

I am aware that in this day and age, there is a growing demand for pluralist legal systems as societies are no longer as homogenous as they were, say, 100 years ago. Those calling for change say that truth and fundamental rights have to be redefined. In Britain today, Islamic arbitration courts are accepted as part of the legal system, although I understand that these are enforceable only if they are not inconsistent with the provisions of the Arbitration Act.  Similarly, Jews in Britain have their own rabbinical courts whose settlements have gained recognition. Allowing for religious and customary laws to exist within the larger unitary legal system may not be problematic if that larger unitary system holds sway in cases of conflict.

The fundamental legal principles and rights that affect people in the most basic way must remain inviolable; otherwise, societies will break down. No cohesive community can exist if ethnic groups are allowed to preserve unchanged all the elements of their religious beliefs. Religious beliefs and laws by their nature do not permit discussion and compromise. In such a situation, how do we inculcate and nurture shared values for the wider society?

I am all in favour of being progressive and allowing for respect for the laws and traditions of all communities. In other words a limited form of pluralist legal systems is acceptable. This however must not be at the expense of stability and social cohesion . Human rights are important and sacrosanct, but only when they serve the common good of the community, not otherwise.

A former Chief Justice of Australia, Sir Francis Gerard Brennan, suggested that there is no room in Australia for Shariah law to operate in parallel with the existing legal system. He said: A parallel system would undermine the cohesiveness of Australia’s multicultural society. No court could apply and no government could administer two parallel systems of law; especially if they reflect, as they would inevitably reflect, different fundamental standards and values”.[4] Sir Gerard said that in a democracy, the majority determined a country’s legal structure. Minority practices that offended the fundamental moral standards of the majority had to be abandoned.

I agree completely with his observations, except for the part about the majority’s right to determine the legal structure.  It is not about doing what is required by the majority – it is about having a legal system that will do justice to mankind as a whole.  If the majority advocates the rights of child marriages then we as lawyers must oppose this, for it is cruel and unacceptable by the moral standards of most people.

Practices and beliefs based on a particular community, no matter how large, which offend the fundamental moral norms, have to be rejected. Where there are insurmountable differences in moral standards, we will not have a peaceful community. We will always be in conflict. If we value freedom and liberty, then laws must allow for society to operate consistently with those values.

Malaysia’s rich heritage as a tolerant, multicultural society is now under severe threat because some politicians want to create an Islamic state, one that has its own legal system that is at odds with the essential values of tolerance, freedom and mutual accommodation. Muslims already have sufficient laws and a court system that caters to their personal needs and beliefs. Yet this is not enough for some. The plural system we have now is being undermined, and that is why those who advocate an acceptance of a parallel legal system must think again and re-examine their position. It is time such people looked at Malaysia more closely.

Of course, customary and traditional rights have their place in our system and they should be protected and enforced, but only as long as such rights do not violate the moral values common to the people  in that country ; and at the same time do not violate rights of other citizens. Laws and precepts that offend common morality have no place in any legal system.


[1] The country was then merely the Federation of Malaya, but it became the Federation of Malaysia in 1965 with the accession of the former colonies of Sabah and Sarawak.

[2] Che Omar bin Che Soh v. Public Prosecutor [1988] 2 MLJ 55.

[3] Lina Joy v Majlis Agama Islam Wilayah Persekutuan & 2 Ors [2005] 4 CLJ 666.

[4] See, ‘Brennan dismisses idea of plural legal system’, Lawyers’ Weekly, 24 Aug 2012, accessible here.,cntnt01,detail,0&cntnt01articleid=384&cntnt01origid=15&cntnt01returnid=80

Zaid Ib's Golf

Zaid Ibrahim’s latest book,Far & Sure; For Golf and Country, is a recommended read. It is about golf and more.

For Golf and Country is a view of our nation from the green, the quiet considerations of a man with Malaysia forever on his mind, irrespective of where he chooses to lay his clubs.

Jumping back and forth through his retirement, Zaid Ibrahim traverses the globe one golf course at a time, from Bukit Besi to Black Mountain, from Saujana to St. Andrews, in this collection of essays that are one part reflection, one part confession, and one part meditation.These 67 short vignettes make for quite the magnificent mishmash.

Whether he is contemplating the spiritual underpinnings of the sport or the complex relationship between mosque and state, Zaid Ibrahim brings his unique blend of irreverence, wit, and perceptive analysis to bear on the marvellous mania that is both golf and Malaysia.

Datuk Zaid Ibrahim’s New Book

[ Programme Segment: Bookmark ] This week’s Bookmark sees Umapagan Ampikaipakan explore ‘Far & Sure: For Golf and Country Guests’ with Datuk Zaid Ibrahim’s on the latter’s new book. Copy & paste code to embed…

GE-13: Shifting Balance of Power requires Cooperation in Governance

May 31, 2013

GE-13: Shifting Balance of Power requires Cooperation in Governance

by CT Ali@

UMNOAfter half a century of greed, will UMNO now lead or will the need for greed overcome all other considerations? UMNO feeds the greed of its political elites for wealth and political power, and it’s political dominance allows little accountability for the things they do.

What UMNO takes for themselves from the wealth and resources of our country, how they lie and manipulate our people to believe that what they do is in the interest of our common good when it is certainly not, and how they “manage” the opposition and any “national threat” are nothing out of the ordinary for UMNO.

Corruption, money politics, unlawful detention – all the evils of a repressive regime that does not allow social justice and basic human and civil rights upon its own people.

A tainted Judiciary, a Police force that does its bidding, submissive civil servants and, amongst others, a compliant Election Commission are some of the evil tools of trade that UMNO uses to keep its hold on political power. This “banality of evil” permeates UMNO at all levels.

Banality of evil is a phrase used by Hannah Arendt in the title of her 1963 work “Eichmann in Jerusalem: A Report on the Banality of Evil”. Her thesis was that the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths, but by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal.

Thank God for us that all this has started to change after the 12th and 13th general elections.The balance of power in Malaysia has shifted. What was once UMNO’s unchallenged political dominance in Malaysian politics is now no more.

CooperationThere is now a potentially formidable, effective and hopefully robust Opposition in parliament. Also the rakyat’s ability to question the commission and omission of any act or deeds perpetrated by those in high public office is in its ascendancy.

Our political elite can no longer pillage and plunder our nation’s resources with impunity. Whatever they do now can be effectively challenged in Parliament, by the social media, street demonstrations and tentatively through the Judiciary.

These politicians have been served notice that when conferred with the privilege of high public office and the power that goes with it, they should concern themselves with the responsibilities that come with the office rather than the spoils that political power makes possible.

And so for UMNO, it will no longer be “business as usual”. The responsibility of the Opposition now is to ensure that political change will keep pace with changing realities.

Compromise on all sides

How will we define the modalities of the Malaysia that we all aspire to? What are the certainties that we must have? The protection of human rights, social justice and quality of life? How shall the Malays and non- Malays now base their political and social relationship?

What do we replace Ketuanan Melayu with if the majority of Malays are to be placated? How will the traditional role of the Chinese in commerce be handled so that a more equitable distribution of wealth is made possible? How will the underprivileged, the poor and the aged be treated? How do we protect the interest of the minorities?

These are but just a few of the tasks that await the leaders that will take us into the post 13th general election era that is already upon us. For now our country is in a flux.

Pakatan won all the battle that was to be PR Cartoonwon in this 13th general election but it lost the war.That notwithstanding Pakatan must continue to be the party for reform and change.Malaysians are angry and more so now with the manner in which the 13th general election has been conducted.

What Pakatan must not do is to talk about change and reform and avoid doing anything about it. Pakatan must become responsible, open and accountable in the states that they govern while taking upon itself the responsibility of being an effective Opposition in parliament.

UMNO must realise that Pakatan – and the people of Malaysia – is a side they cannot defeat nor unilaterally impose its will upon. They must understand that the sharing of power with Pakatan through some consensual process is preferable to the flux that our country is now in after this 13th general election.

Invariably it would require a compromise on all sides but the outlines of a settlement is already apparent. UMNO must share political power with an Opposition that holds the popular mandate from the electorates while Pakatan must accept that UMNO still holds a majority in Parliament.

This is the constrain imposed by the electorates upon them. It would take the wisdom of Solomon, the patience of Job and the sincerity of our beloved Tunku to make Malaysia the nation all good Malaysian aspire to!

And so I ask that we pause to think what we should do to support BN and Pakatan as they start the process of reconciliation as reconcile they must for we are now, to all intents and purposes, a two party nation.

We do not want BN trying to govern Malaysia without the consensus of over half its electorates who have put their trust in Pakatan.Nor do we want Pakatan to talk of being a responsible political coalition while it goes about inciting hundreds and thousands of Malaysians to take government from a duly elected government of Malaysia.

CT Ali is a reformist who believes in Pakatan Rakyat’s ideologies. He is a FMT columnist.

Winner of seats, not votes

May 15, 2013

Winner of seats, not votes 

Azmi-Sharom-Brave-New-World-1by Azmi Sharom@

WHEN criticising laws and policies in this country, one of the stock answers that one is faced with is that the majority voted for the government in power, therefore, they are obviously happy with those said laws and policies. The majority rules after all.

Since 1969 has Malaysia had a government whom the majority of voters did not choose.

Since 1969 Malaysia has a government whom the majority of voters did not choose.

I’d like to see anyone try that line of argument with me now. Not since 1969 has Malaysia had a government whom the majority of voters did not choose.

The popular vote in the 13th general election had 47% voting for Ba­risan Nasional, 51% for Pakatan Rak­yat and the remainder to Indepen­dents. The difference in numerical terms shows Pakatan with almost 390,000 more votes than Barisan.

These numbers are almost the mirror image of figures during the 12th General Election when BN won, so theoretically it should now be Pa­k­atan’s turn to govern.

Yet in GE-13, Barisan lost only se­v­en seats (my calculations are based on results of the 2008 elections before the frog-like behaviour of a handful of MPs) and are thus still holding the majority of seats in Parliament.

This is a weird situation of course and one that a teacher would be h­a­r­d pressed to explain to a class of nine-year-olds. Odd as it is, this is a possible outcome when one uses the first past the post system. However, such abnormalities are usually found in political systems where there are more than two political parties or coalitions.

In those situations the possibility of votes being split are more numerous thus leading to the possibility of a government with less than 50% of the popular votes but more seats in the legislature.

In our situation, because by and large there are only two major players (the Independents and smaller parties had a minimal impact in terms of vote splitting), the popular vote should reflect the number of seats in Parliament. Yet it did not.

So the question here is how can the system that we use (one used all over the world) lead to what on the face of it is an unfair result.

The answer is that although in the first past the post system the risk of a party having a majority of seats with a minority of popular votes is always there, the way to avoid such absurdities is to ensure that all the constituencies are appro­ximately t­h­­e sa­me size in terms of voter numbers. This is obviously not the case in Malaysia.

The discrepancies of voter numbers can be huge; this is particularly so when comparing the rural and urban areas with the latter having far more registered voters (although this is not necessarily the case all the time; urban Putrajaya is tiny in terms of voter numbers).

Naturally, rural areas are more sparsely populated than urban areas and therefore a certain degree of flexibility is required when delineating constituency lines. Rural areas will by sheer demographic and geographic realities have fewer voters in them.

However, the difference must not be ridiculously high. The general guideline is that a discrepancy must not be more than 15% and thus when drawing the boundaries of the constituencies, this factor ought to be considered.

This is clearly not the case. To give you an idea as to how big the discrepancies can get; the difference between Kapar (144,159 voters) and Putrajaya (15,791 voters) is just over 900%.

In effect, in the smaller constituencies, a person’s vote carries more weight than in the larger ones and it is no coincidence that the ruling coalition finds its support largely in small constituencies. This is not a satisfactory situation but it is one that can be fixed because the moment has come for a re-delineation exercise in this country. What perfect timing.

The Election Commission (EC) is charged with the exercise although the final acceptance of their recommendations lies in the hands of parliament (and the state legislatures in the case of state seats).

Why is it difficult for the EC to do the right thing?

Why is it so difficult for the EC to do the right thing?

This is an opportunity for the EC to do the right thing and make good recommendations. They must if they are to recover any shred of dignity following their performance in the GE13. The fiasco with the so-called indelible ink is one example of how poorly handled things were.

The fact that the ink can be was­hed off (due to the “diluted” version used) has been attributed to the non-shaking of bottles (yes, seriously); Islamic teaching (although in India and Pakistan there appears to be no complaints about using the ink from the hundreds of millions of M­u­s­lims there); in the interest of health, apparently the ink can mess up your kidneys or give you cancer or something equally horrible (which is jolly thoughtful of the EC, but perhaps a tad paranoid and over-protective).

It was ludicrous to say that it does not matter if the ink is washable because you can only vote once with your identity card. What if someone has phantom like tendencies and has more than one identity card?

Which leads us to the EC’s terribly blasé treatment of genuine fears that phan­tom voters existed; another e­x­am­ple of them behaving in a manner that does not engender public confidence.

I am unsure if the EC will redraw the constituency boundaries in a fai­rer manner, and I am even more un­s­ure if the ruling party will accept any­thing that in their minds will be a disadvantage to their grasp on power.

What I am sure about is this country runs the risk of being a joke if something is not done to fix this. Unfortunately, it w­o­n’t be a funny joke and there is the probability of an un-amused and furious populace.

Democratic practices done properly are what ensure peace, not façade democracies which do not ultimately respect the peoples’ choice. When will those with the responsibility and the power stop t­h­i­n­king in petty terms and realise this? When will they show that they truly care about the nation?

Post GE13: What Malaysians want

May 14, 2013

Post GE13: What Malaysians want

by Dr Kua Kia Soong (05-13-13)@

COMMENT: In the aftermath of GE13, UMNO wants to know what BN detractors want. Malaysians have felt frustrated and sidetracked by their attempt at communalising the election results, something they have been doing even before Independence.

BN did their worst – did we do our best? Have dissident Malaysian voters been asking what they want in this election apart from “Ubah (Change)” and lowering the price of petrol? Anything But UMNO (ABU) is an ‘away from’ response. Have we listed out ‘towards’ demands?

With all the visible injustice and foul play in the GE13, there is understandably plenty of pent-up frustration and anger among those who have experienced being wronged. And we know that that the roots of that injustice are to be found in an electoral system that has for years been inherently flawed.

Having seen the videos of violence against migrant ‘voters’ during this election makes me wonder if such a reaction is at least in part, the result of misplaced expectations. If the BN government had listened to the demands by Malaysian civil society, they would not be asking us what we want after the election.

Ambiga's Bersih

The following are some of our fundamental demands which call for an end to corruption, oppression and racism, and the reinstatement of justice, democracy and human rights:

1. One person, one vote

We have known about gerrymandering in the country for decades and yet there was the false hope that GE13 was going to overcome this major impediment to electoral fair play.

azlanNotice that BERSIH’s eight demands are short-term and do not include this mother of all unfree and unfair aspects of Malaysian elections, namely, undemocratic constituency delineation.

The original Merdeka constitution provided that in drawing up constituencies, “there shall not be more than a difference of 15 percent in the number of electors of any constituency to the electoral quota.”

The “electoral quota” or national average, was defined as the number obtained by dividing the number of electors in the federation by the total number of constituencies. Section 2(c) of the Thirteenth Schedule had stipulated that “the number of electors within each constituency ought to be approximately equal throughout the unit of review.”

The constitution was amended in 1962 transferring the power to delimit parliamentary constituencies from the Election Commission (EC) to a bare majority of parliament.

A new Thirteenth Schedule sets out certain new features permitting a weightage of up to 2:1 in favour of rural constituencies, thus enabling differences of 100 percent between urban and rural seats.

A further constitutional amendment in 1973 took away altogether the original check in the Thirteenth Schedule on there being too great a disparity between urban and rural seats.

Today, the absurdity of constituency delineation in Malaysia is exemplified by the contrast between 10,000 voters at Putrajaya federal constituency and more than 100,000 at Kapar, a disparity of more than 10:1.

The Malaysian Chinese organisations, which endorsed the joint declaration before the 1986 general election, focused on this demand for fair constituency delineation as one of the main objectives for their civil rights committee. But they have not followed up on this demand since then.

Thus, this reform to the Malaysian electoral system should take top priority and not creating false hopes that lead to mobs beating up migrants.

2. End racism and racial discrimination

Racism in the form of Malay-centric ideology has been the main instrument of rule by the UMNOputras ever since they have been in power. Their “1 Malaysia” exists only as a slogan – how else can they justify blatant racial discrimination in the economic, educational and social sectors?

Thus, as soon as dissident voters show them what they think of the charade, the same trite rhetorical question is posed by their propaganda machines: “What more do they want?”

HindrafOne would have thought that the leaders of Hindu Rights Action Force (Hindraf) knew that.Furthermore, I have shared the same rostrum with some of these Hindraf leaders at forums where I have pointed out that state racism in Malaysia has taken a morbid turn toward victimising ethnic Indians, especially the poor and marginalised.

This is seen in the disproportionate number of Indians among the victims of Police shootings and deaths in custody. The implementation of the Independent Police Complaints and Misconduct Commission (IPCMC) should have been Hindraf’s non-negotiable demand to the BN government.

I had assumed that the Hindraf leaders would understand this analysis of state racism in Malaysia and the requisite political practice that logically followed from that analysis.

Unfortunately, their theory and practice has followed the same backward example of “racial bargaining” typical of the MIC and the MCA. They have chosen to back the hegemonic oppressor and exploiter of the masses on the eve of the election by using the flimsiest excuse about being rebuffed by Pakatan Rakyat. But then such opportunism has been seen ever since careerist politics came into existence.

I stand to be proven wrong and will render an unreserved apology to these Hindraf leaders if they prove to be dedicated and selfless activists who refuse to accept any government or bureaucratic posts in this administration but operate as an NGO to monitor the implementation of their “blueprint”.

One would have thought that the abolition of the New Economic Policy (NEP) should have been the sine qua non for Hindraf in any tryst with the two coalitions since the NEP is the main perpetrator of racial discrimination in Malaysian society and the main obstacle to progress.

The actions of the Hindraf leaders seem to suggest that they condone the NEP as long as the Indians also get a slice of the cake –regardless of whether any slice is apportioned to the Orang Asli, the poor Chinese and others.

I might add that in their exuberance for “Ubah”, the dissident voters neglected to call for the abolition of the NEP which had a sell-by date of 1990.

Consequently, Pakatan got off easy with a manifesto that did not have to promise abolishing the NEP if they got into power. We have since been promised a mythical “withering away of the NEP” if Pakatan comes into power.

These are the nuts and bolts of racism and racial discrimination in Malaysia that reforming Malaysians should respond to instead of the knee-jerk reaction to the racism that underpins UMNO and that has not changed ever since the umnosaurus had spots.

3. Elected local government

We want this third tier of government to be elected by the people and not appointed by the state governments as prizes for toadies. Again, this vital democratic demand was not in the Pakatan manifesto and negligent “democrats” must take some of the blame for this oversight.

An elected local government should go hand-in-hand with the reform to decentralise government and empower people at the local level to take charge of education, transport, housing and even community policing.

4. End corruption

Corruption in Malaysia needs to be curbed effectively through:

  • The setting up an Independent Anti-Corruption Commission answerable to parliament with the power to recommend prosecutions for all offences of corrupt practice;
  • A Public Accounts Committee in parliament that is chaired by an opposition member of parliament and not by the ruling coalition;
  • Tighter regulation to prevent money laundering and the outflow of illicit money;
  • Eliminating opportunities for corruption by proscribing the “revolving door” opportunities between the civil and armed services and the private sector;
  • Ensuring the government ministry or department head accounts for every discrepancy in the annual auditor-general’s report and pays for any negligence or corruption involved;
  • Open tendering all privatised projects;
  • For all wakil rakyat and heads of civil and armed services to declare their assets and those of their family’s.

5. Uphold the Rule of Law

The Rule of Law ensures that laws are enforced impartially and there is full protection of human rights, especially for minorities. This requires the existence of an independent judiciary, an impartial civil service, and an incorruptible police force.

The BN government has often confused the rule of law with rule by law, in which the law is a mere tool for the government that suppresses in a legalistic fashion.

Good governance to uphold the Rule of Law requires:

  • Repealing all laws that allow torture, whipping, detention-without-trial and incommunicado detention;
  • Abolishing the death penalty in Malaysia;
  • Ratifying the International Covenants on Civil and Political Rights and on Economic, Social & Cultural Rights, the Convention against Torture and the Convention on Refugees;
  • Implementing the IPCMC;
  • Establishing a law reform commission to restore the independence of the judiciary;
  • Reviewing the federal constitution and all laws that are unjust and violate human rights, and resolve the conflict of jurisdiction between civil and syariah laws;
  • Establishing a royal commission of inquiry (RCI) to solve once and for all the problem of citizenship for Malaysians, their foreign spouses as well as the problem of undocumented migrants in the country;
  • Ensuring social justice for lesbians, gays, bisexuals and transgenders (LGBT).

6. Human rights of women, workers and indigenous peoples

Good governance requires:

  • Respect for women’s human rights and dignity including incorporating the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) and its provisions into national law;
  • Reviewing and amending all laws and constitutional provisions that discriminate on the basis of gender;
  • Confronting sexism and prejudice based on gender stereotypes;
  • Equal pay for women holding similar posts as men;
  • Ensuring through competent national tribunals and other public institutions the effective protection of women against any act of discrimination.

Workers’ rights must be recognised by:

  • Ensuring labour laws are compatible with the International Labour Organisation (ILO) Convention;
  • Encouraging and promoting workers’ unionisation;
  • Legislating a progressive guaranteed minimum wage for all workers, including foreign workers;
  • Abolishing the contractor for labour system and restoring direct two-party employment relationship between principal and owners of workplaces and the workers that work therein;
  • Ensuring all workers are employed as permanent employees who enjoy all benefits, including maternity rights and an extended retirement age.

Recognise the right of the Orang Asal to self-determination, sustainable development and protect the native customary rights of the Orang Asal to their traditional lands and territories.

7. Freedoms of expression, assembly and association

Full participation in a democratic society requires the freedoms of expression, assembly and association to prevail.

The freedom of expression and information cannot prevail until we:

  • Abolish the Sedition Act, the Official Secrets Act and the Film Censorship Act;
  • Enact a Freedom of Information (FOI) Act at federal and state levels which is reflective of the peoples’ right to know, with the public interest as the overriding principle;
  • Prevent the monopoly of ownership and control of the press and broadcasting stations by political parties or corporate bodies.

Media organs paid for by tax payers – including RTM and Selangor Times – must be independent and not be used as propaganda organs of the ruling coalitions.

Malaysians want a competent and efficient institutions.

Malaysians want a competent and efficient institutions.

Good governance relating to the freedoms of assembly and association entails repealing the Police Act, the Societies Act, the Universities and University Colleges Act (UUCA), Peaceful Assembly Act 2011 and other relevant laws which restrict these fundamental freedoms, and granting students of voting age the full freedoms enjoyed by other Malaysian citizens.

These were some of the fundamental demands of the Malaysian civil society in the GE13 together with those for a progressive economic, fiscal, defence, energy, environmental, educational, social and cultural policies.

The BN and Pakatan coalitions would do well to note what Malaysians want in the 13th general election.

Law 101: The Rule of Law

April 5, 2013

Law 101: The Rule of Law

by Dr Azmi Sharom (04-03-13)@

azmi-sharomWhen the law is seen as being used in a discretionary manner, that is to say it is being applied to some and not to others, not only is this clearly wrong, but it will also lead to extreme anger.

AS a concept, the Rule of Law is like the “Stairway to Heaven” of jurisprudence.Everyone knows it, but everyone seems to have their own understanding as to what it means.

One thing that the informed have agreed upon is that the Rule of Law does not mean rule by law.The latter implies that any law, be it wicked or good, is valid and will be enforced.

The former is a more complex proposition, for it means that we are ruled by laws and not the discretion of man (or woman) and, furthermore, that law has to guarantee certain principles.

When A.V Dicey formulated his version (and this is now considered the classic version) of the Rule of Law, his primary concern was for the avoidance of arbitrary, and thus unjust, power.

To this end, he identified three main principles of the Rule of Law and these The Rule of Lawwere: a person can only be punished after a fair trial, the law is to treat everyone equally and the rights of individuals are to be protected by law.

Dicey’s work has of course been discussed and refined many times since its publication in the 19th century.

One of the issues is the concept of “equality”. Taken at face value, Dicey’s “equality” sounds very much like the Aristotelian concept of “formal equality”, where the government treats all persons the same.

Of course this is not pragmatic nor is it desirable.For example, a child caught for stealing should not be given the same punishment as an adult caught for stealing.

However, the ideal is a strong one and it can be understood to mean that like should be treated as like.

So a 26-year-old thief should face roughly the same consequences as another adult thief, and a 12-year-old wannabe Artful Dodger should face the same consequence of another pickpocket in his age group.

When speaking to people with regard to concepts of justice, equality almost always comes up.

People are not stupid, they understand the subtleties and the sophistication of this concept, but nonetheless, the ideal of equality is a powerful one.The reason for this is obvious, equality, or the closest approximation to it is considered fair, and conversely unequal treatment is deemed a tremendous injustice.

It is so basic, so primal and so fundamental to the human concept of justice that it is instinctive even in children.To test this, just try giving one sibling a larger piece of chocolate than the other.

Due to the power of this concept, it is of vital importance that those in power understand and respect it.

When the law is seen as being used in a discretionary manner, that is to say it is being applied to some and not to others, not only is this clearly wrong, but it will also lead to extreme anger.

If a thug destroys my enemy’s property, and if I am in power, that thug must be apprehended and punished even if his actions may give me personal pleasure.

That is the burden of power and that is what anyone who deems himself worthy of holding office must bear. Any less and you are nothing more than a tyrant.

The need to use the law equally on all becomes even more important when the law itself is flawed. For nothing sticks in the craw more than an unjust law applied unequally.

The hypocrisy of such actions only goes to show that the wielders of the law are only using it for their own nefarious purposes, whatever that might be.

Interestingly enough, these are two deeply philosophical legal concepts in our Rukun Negara – Constitutionalism and the Rule of Law.I am glad they are there; I only wonder whether they matter today.

Dr Azmi Sharom ( is a law teacher. The views expressed here are entirely his own.

‘Out of Order,’ by Sandra Day O’Connor

April 1, 2013

Summary Judgment

‘Out of Order,’ by Sandra Day O’Connor

by Adam Liptak (03-29-13)

Sandra Day O’Connor retired from the Supreme Court in 2006, but she still turns up for the occasional argument, sitting off to the side in one of the seats reserved for important guests. She can look a little grim, and with reason. The court has been busy disassembling her work.

In its 2010 decision in Citizens United, for instance, the court struck down limits on political spending by corporations and unions, overturning a 2003 decision that had been one of O’Connor’s major achievements. “Gosh,” she said a few days later, “I step away for a couple of years and there’s no telling what’s going to happen.”

O’Connor is 83, but she still hears cases in the federal appeals courts. In her frequent public appearances, she talks about her service as the first woman on the Supreme Court, encourages students to learn about their government and worries about the consequences of the distinctively American practice of electing judges.

She has a lot to say. But, the provocative title of her new bookOut of Order by Sandra Day O'Conner notwithstanding, she is not saying it here. Instead, she has delivered a disjointed collection of anodyne anecdotes and bar-association bromides about the history of the Supreme Court. “Out of Order” is a gift shop bauble, and its title might as well refer to how disorganized and meandering it is.

This is particularly disappointing in light of the recent string of quite good books from other justices. Antonin Scalia and Stephen G. Breyer have published competing accounts of their judicial philosophies; Sonia Sotomayor a vivid and moving memoir; and John Paul Stevens, who retired in 2010, a candid account of his 35 years on the court.

O’Connor says she wrote the book in response to requests from “people across the country and across the world for my ‘insider’ perspective on the court and its goings-on.” What she has given them is institutional hagiography.

The book is short and padded. The main part, only 165 pages long, is interrupted by stock photographs and curious, unexplained editorial cartoons. The Declaration of Independence and the Constitution are included in an appendix. They are surely worth rereading from time to time, but their main purpose here seems to be to add some bulk to a very skimpy effort.

The illustrations are particularly infuriating markers of missed opportunities. In one cartoon from 1981, the year O’Connor joined the court, the Rev. Jerry Falwell is seen on his knees, praying and crying, as she swings in what looks like one of the scales of justice. He is not mentioned in the text, and the reader is left to guess at what he is so worked up about. That he wants O’Connor to vote to strike down Roe v. Wade? (She was, as it turned out, an author of a 1992 joint opinion reaffirming its core, also not discussed in the book.)

There is, similarly, a courtroom artist’s sketch of the argument in Grutter v. Bollinger, a 2003 decision upholding affirmative action in admissions decisions at public universities. Grutter is very likely to be weakened or reversed before the end of the current term in June. But the picture just floats there, unmoored to the text, which does not mention O’Connor’s majority opinion in the case.

O’Connor is fond of the stock phrase and profligate with the exclamation point. She will tell you the same story twice. And she will recount a joke but withhold its meaning. We hear that the court works “in an atmosphere insulated as far as possible from political pressures” and then, some 60 pages later, that it works “in an atmosphere insulated, as far as possible, from political pressures.” Same phrase — but now with commas. We are told three times that Justice John Rutledge resigned from the Supreme Court in order to become Chief Justice of South Carolina.

On Page 26, Justice O’Connor lists the original members of the Supreme Court, noting that Robert Hanson Harrison “resigned soon after his confirmation as an associate justice to become chancellor of Maryland, an important judicial post.” She repeats the list on Page 52, but now “Justice Harrison resigned for health reasons before the first session even took place!”

A more careful editor would have saved the author from these fumbles. But O’Connor herself is to blame for missing the point of some of her own stories. In one, she quotes from an internal memo that Chief Justice William H. Rehnquist sent to his colleagues about a draft opinion in a 1991 decision upholding a ban on nude dancing. “Accentuate the positive,” Rehnquist wrote, reciting the lyrics to a Johnny Mercer song. “Eliminate the negative / Latch on to the affirmative / Don’t mess with Mr. In Between.”

st/preview31The memo demonstrated, O’Connor writes, Rehnquist’s “penchant for music.” But what it really showed, as scholars and journalists noted when the memo emerged in the papers of Justice Thurgood Marshall and as John A. Jenkins wrote in his recent biography of Rehnquist, was a lighthearted acknowledgment that the opinion could not be reconciled with First Amendment precedents.

The larger problem is not that Justice O’Connor’s little sketches and lessons are wrong. Quite the contrary. The problem is that they are empty. She writes, correctly, that “the court’s only weapon is its moral authority.” But she refuses to give this and similar sentiments substance.

In retirement, she writes, she has “taken up the cause of promoting civics education in our nation’s schools.” But civics are just a skeleton. They need the flesh of argument to come to life, to have bite, to matter.

Adam Liptak covers the Supreme Court for The Times.

A version of this review appeared in print on March 31, 2013, on page BR8 of the Sunday Book Review with the headline: Summary Judgment.


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