Malaysia through its Constitution


August 8, 2017

Malaysia through its Constitution

Much can be told about a country’s character through its laws. Correspondingly, the transformation of a country’s legal regime over time can be said to be a reflection of the socio-political evolution of its society.

Take the Constitution of the United States of America. To date, there have been 27 amendments since its promulgation in 1789. The first ten amendments are collectively known as the Bill of Rights, and spells out the aspirations and desires of a fledgling nation in the form of a solemn promise of fundamental rights in relation to religion, speech, press, assembly, the right to bear arms and protections in the criminal justice system.

 

Tunku Abdul Rahman hailed the “Merdeka” cries during the country’s Independence Proclamation Ceremony on August 31, 1957.

 

Following the end of the Civil War in 1865, amendments were made to abolish slavery and further define the rights of its citizens. As the Twentieth century got underway, the Constitution was further amended to reflect the changing times – voting rights for women, tax concerns and that peculiar period in modern American history known as Prohibition.

In 1963 the assassination of President John F. Kennedy paved the way for the 25th amendment, which establishes clear procedures for filling the post in the case of an abrupt vacancy. In 1971, following nationwide student activism in protest of the Vietnam War, the Constitution was amended for the 26th time to lower the voting age from 21 to 18.

The Malaysian Story

In similar vein, the evolution of the Federal Constitution of Malaysia since Merdeka in 1957 also provides a picture of how our nation has progressed – or regressed, depending on perspective – throughout the 60 years of its existence.

Unlike the US, the Malaysian Parliament is not shy when it comes to tinkering with the supreme law of the land. To date, there have been 57 constitutional amendment acts, which correspond to an average of almost one a year. However, it would be disingenuous to compare the two charters like for like, as the US Constitution, which comprises only seven articles, is meant to provide a “frame of government”1 that sets out the broad scope and functions of the main branches of the Federal Government, viz. the Legislative (Congress), the Judiciary and the Executive (the office of the president).

On the other hand, the Malaysian document is 12 times longer comprising 15 parts, 230 articles and 13 schedules – all of which detail very specific provisions on numerous issues including revenue from toddy shops to capitation grants from the Federal government to the states. For practical purposes, many of these provisions naturally require updating every once in a while.

That said, a number of scholars have noted that the actual number of amendments that have been made to the Federal Constitution is closer to 700, if each individual change is counted.2 Be that as it may, it is the substance more than the quantity of the amendments that really matters, and on this score constitutional expert Shad Saleem Faruqi has opined that fundamental alterations to critical areas have resulted in the dilution of the spirit of the original Merdeka Constitution.3 In addition, legal scholar HP Lee even describes the changes as amounting to “a truncation of safeguards which had been considered by the Reid Commission as vital for the growth of a viable democratic nation”.4

Malayan delegates met with British officials in London in 1956 to discuss their country’s future relationship with Britain.1960: Ending the Emergency without Losing Emergency Powers

 

The first major amendment to the Constitution took place in 1960, three years after Merdeka. In tabling the Constitution (Amendment) Bill 1960, the government moved to amend 33 articles and insert two new ones, besides amending the second schedule. While it is not unusual for a fledgling country to amend its constitution after a few years of finding its feet, some of the changes that were undertaken had serious and far-reaching consequences.

It is perhaps important to first understand the context of the times. Malaya, as the country was called then, had gained independence in 1957 in the midst of a communist insurgency that began in 1948. By 1960, the war had begun to wind down as the communist objective of seeking independence by force from the British had, by virtue of Merdeka, been rendered moot.

However, instead of capitalising on the end of the war to usher in a new era of peace and greater freedom, it was a case of the government wanting to end the Emergency without losing emergency powers. This can be clearly seen from amendments made to Part XI of the Constitution, encompassing Articles 149 to 151, which deals with legislation against subversion and action prejudicial to public order.

Article 149 provides for the creation of Acts of Parliament that would, in the face of subversive threats to the Federation,5 cause the suspension of fundamental liberties enshrined in Articles 5, 9, 10 and 13 with regards to freedom of speech, association, movement and property, and freedom from unlawful detention. This is of course an understandable provision given the tumultuous security situation of the time. However, the same article also provided a sunset clause that stipulated that all such legislation would cease to have effect after one year. In other words, laws allowing preventive detention were meant to be temporary features.

Men of the Malay Police Field Force wade through a river during a jungle patrol in the Temenggor area of northern Malaya.

 

Unfortunately, this critical safeguard was repealed in the amendment, thus paving the way for the creation of the notorious Internal Security Act 1960, which remained in force until its repeal 52 years later, only to be succeeded by similarly powerful incarnations such as the Security Offences (Special Measures) Act 2012 and the Prevention of Terrorism Act 2015.

Meanwhile, Article 150, which governs the declaration of states of emergency, used to contain in its original version a clause that would necessitate, in the event of an emergency proclamation, its tabling in both Houses of Parliament at the soonest convenience. Once convened, Parliament must approve the resolution for the emergency, failing which it would automatically expire after two months from its date of issue. In the case that Parliament is not sitting at the time, then the Yang Di- Pertuan Agong6 could issue emergency ordinances that would expire 15 days after the reconvening of Parliament.

However, the provisions were amended to remove the need for parliamentary approval. Instead, any emergency proclamation or ordinance would now continue to be in force until such time that Parliament annuls it. The corollary had been reversed – where parliamentary approval was previously required to maintain a state of emergency, it was now only required to end one. These amendments were to set the scene for many long-term emergencies and ultimately the suspension of Parliament in 1969.

While most of the other constitutional amendments made in 1960 were mainly administrative in nature, there were still a few more that carried questionable overtones. Take, for example, the amendments to Articles 122, 125 and 138, which resulted in the repeal of the Judicial and Legal Service Commission ( JLSC), hitherto responsible for making all recommendations with regards to judicial appointments.

Following that, the power to initiate disciplinary proceedings against judges was transferred from the defunct JLSC to the Agong on the advice of the prime minister, thus severely curtailing the independence of the judiciary. Repercussions from this move did not become apparent until 28 years later (1988) when the provisions facilitated the sacking of the Lord President (now known as Chief Justice)Tun Salleh Abbas and two other judges of the Supreme Court, precipitating a judicial crisis from which the nation has never fully recovered.7

In addition to the Judiciary, an amendment to Article 145 also had the effect of changing the position of the attorney-general from a tenured one, much like a Supreme Court judge, to one that is held at the pleasure of the Agong. The intentions here were probably less sinister as it made the position a political appointment, which meant that the attorney-general could be a member of the government and therefore directly answerable to Parliament, as was the case from the 1960s to the early 1980s when the post was typically filled by members of parliament. However, it also meant that they could be unceremoniously sacked at any time, as Tan Sri Abdul Gani Patail was to discover in 2016 after running afoul of the Prime Minister Najib Razak.

1962: Consolidation of Power

The second major amendment to the Constitution took place just two years after the first. In 1962 a bill was moved to amend 29 articles, adding three more articles while repealing three others. Changes were also made to a number of schedules, including the introduction of the 13th schedule, which governs electoral rules.

By and large, the 1962 amendments saw the tightening up of laws and other minor administrative matters involving executive authority, legislative powers and financial matters including the assignment of revenue from minerals to states. Nonetheless, major changes were also made, particularly to Parts III and VIII concerning rules of citizenship and the electoral system respectively, both tied to the long-term survivability of the ruling Alliance government.

Citizenship had been one of the most contentious political issues leading to independence, and continued to dominate public discourse in the years following. The Reid Commission, drafters of the Constitution, had liberalised citizenship requirements so that many ethnically non-Malay residents could become citizens and, accordingly, gain electoral franchise.

The consequences of the more liberal citizenship policy would not be seen until 1959 when the first General Election of independent Malaya was held. The Alliance government saw its control over 99% of seats in the Federal Legislative Council reduced to only 71% in the newly constituted Parliament of Malaya. Besides losing control over Kelantan and Terengganu, two states in the Malay heartland, much of the Alliance’s losses were also due to low levels of support from the newly qualified non-Malay voters in urban areas.

Thus, faced with diminished influence, the Alliance moved to appease Malay voters through a massive rural development programme while they sought to contain the non-Malays by two means: firstly, citizenship was made more difficult to acquire, easier to lose and greater discretionary power in citizenship matters was placed in the hands of the executive.8 Secondly – and more effectively – fundamental changes were made to the electoral system in order to mitigate the potential threat of non-Malay electoral strength.9

However, tinkering with election rules was not an easy task, thanks to the Reid Commission’s foresight in embedding provisions to ensure that the Election Commission (EC) was not only independent but also accorded total authority over the delineation of constituencies without the need for parliamentary oversight. This meant that political parties, even if they were in power at federal or state level, would have little influence over the review and delimitation of constituencies.

In 1960 an electoral re-delimitation exercise was conducted by the EC in strict conformity with the letter of the Constitution. As constituencies became more fairly apportioned and voter disparity was reduced to a maximum deviation of 15% of the average constituency size within a state, it became apparent that urban non-Malay voters would gain an increased share of electoral influence at the expense of the Alliance’s traditional rural Malay vote base, which would lose its rural weightage advantage.

Alarmed by the outcome of the redelimitation exercise, the Alliance government passed a raft of changes to the Constitution in 1962 that effectively annulled the revised constituencies, added new rules for constituency delineation, increased the 15% deviation limit to 33%, and even more significantly, stripped the EC of its independence and role as final arbiter of constituency changes. As a result, the EC is now mandated only to conduct re-delimitation reviews before presenting its recommendations to the prime minister, who in turn will then table them “with or without modifications” to Parliament for approval by simple majority.

In the grand scheme of things, the constitutional amendments made in 1962, particularly with regards to election rules that provided Parliament with even greater control over the creation and boundaries of constituencies, can be seen to have been the greatest contributor to the longevity of the ruling regime’s hold on power, unbroken to this day.

1963-1969: A Nation in Transition

Just a year after the 1962 amendments, the Constitution underwent another major overhaul. The Malaysia Act 1963 was introduced to accommodate structural changes to the country with the addition of Sabah, Sarawak and Singapore into the expanded and renamed Federation of Malaysia.

KL in the 1960s.

 

As can be expected, minor changes had to be made to more than a hundred articles in order to include the new states. For the most part, the amendments were procedural in nature with a few exceptions such as the reinstatement of a watered-down version of the JLSC.10 In 1964 and 1965 the Constitution was amended twice for minor administrative matters involving the legislative, executive and judiciary, as well as further tidying up of laws following the expansion of the Federation.

Unfortunately, the new union was not to last. In protest of what Indonesian president Sukarno labelled the “neo-imperialist” creation of Malaysia,11 Indonesia declared a “confrontation” against the Federation, proceeding to wage violent conflict for the next three years.12 Besides military skirmishes in Borneo, a spate of bombings were also carried out in Singapore, the most famous of which was the bombing of Macdonald House on March 10, 1965, which killed three people and injured 33 others.

Adding to the pressure were racial tensions stirred up by various parties including Indonesian saboteurs, nationalist Malays as well as pro-communist leftist elements. During Singapore’s two-year period in Malaysia, numerous racial riots occurred, including the notorious July 21, 1964 riot that broke out during a procession to celebrate the Prophet Muhammad’s birthday, resulting in the deaths of 22 people. Further smaller scale riots took place later in the year, contributing to an immensely tense environment. These events had also taken place against the backdrop of a racially charged 1964 General Election, which served to strain the relationship between the Alliance and the People’s Action Party, which ruled Singapore.

With disagreements coming to a head over social, political and even economic and financial issues, the relationship became untenable. On August 9, 1965, Malaysian Prime Minister Tunku Abdul Rahman; Putra moved to enact the Constitution and Malaysia (Singapore Amendment) Act 1965 in order to legally separate Singapore from the Federation. With the removal of Singapore, the Constitution had to be amended again. This was conducted in 1966, affecting 45 articles and four schedules.

1966 saw further constitutional issues as it was Sarawak’s turn to face a crisis. In June 1966, following dissatisfaction over a native land reform law advocated by Sarawak Chief Minister Stephen Kalong Ningkan, 21 out of 42 members of the state legislature petitioned the Governor of Sarawak to remove Ningkan. With the backing of the Prime Minister, the Governor demanded Ningkan’s resignation, but the latter refused as he insisted that due process had not been followed as there had not been a motion of no confidence in the legislature.

Ningkan was sacked anyway, leading him to file a suit at the High Court, which ruled in September that the governor did not have the power to dismiss a Chief Minister. Ningkan was then reinstated but before he could dissolve the legislature to seek a fresh mandate, the Federal government moved the Emergency (Federal Constitution and Constitution of Sarawak) Bill 1966 in order to declare a state of emergency in Sarawak, thus suspending elections in the state. Further to that, the state constitution of Sarawak was also amended by Parliament to authorise the Governor to convene the state legislature without going through the Chief Minister, leading to Ningkan’s ultimate dismissal.

The high-handed removal of the Sarawak Chief Minister in 1966 marked the first time that a power grab was facilitated by the Federal Government, though it would not be the last. In 1977 a coup by members of the Pan-Malaysian Islamic Party (PAS) against the Kelantan Chief Minister was foiled when an emergency was declared by the federal government, thus keeping the incumbent chief minister in place until elections were held the following year. In the event, Barisan Nasional (the renamed Alliance coalition) managed to gain power for the first time in the state.

More recently in 2009, the Perak Chief Minister from PAS, leading the Pakatan Rakyat (PR) coalition government, was removed by the Sultan of the state following defections of PR assemblymen who declared support for BN. Following an audience between the Prime Minister and the Sultan, the latter refused the Chief Minister’s request for dissolution of the state legislature, and instead appointed a new Chief Minister from BN. Although a successful challenge was made at the High Court, the verdict was later overturned by the Court of Appeal and Federal Court, which held that  the takeover was legal.

1969-1973: Aftermath of a Tragedy

Topping off what is probably the most eventful decade in Malaysian history is the infamous May 13, 1969 racial riots. Tensions had mounted in the years leading up to the 1969 general election, resulting in outbreaks of sectarian violence. In November 1967 a hartal organised by Maoist sympathisers in Penang turned bloody, although it was contained from spreading beyond the state. In June 1968 protests against death sentences meted out to 11 Chinese members of the Malayan Communist Party took a racial slant until their sentences were commuted.

Eventually, the official General Election campaign period, from nomination day on April 5 to polling day on May 10, saw sentiments coming to a boil as racial and religious politics were played up to the hilt. A fortnight before polling day, a Malay political worker was killed in Penang. But while this incident managed to be quelled, another incident in Selangor occurred 10 days later, in which a young Chinese man was shot, reportedly in self-defence, by Police officers.

Sensing political opportunity, leaders of the Labour Party, which had by then fallen under the control of far-left elements and had also boycotted the general election, somehow ended up hijacking the organisation of the funeral procession. Held just a day before polling, the procession turned out to be one of the largest ever seen in KL, and was by most accounts less a funeral than a mass political demonstration complete with banners carrying revolutionary Maoist slogans and the depiction of the deceased as a political martyr.

A day later, Malaysia went to the polls. By May 11, it became obvious that the Alliance would retain power with a drastically reduced majority. Not only did the coalition fail to attain 50% of the popular vote share, they also lost their two-thirds majority in Parliament for the first time. On top of that, they also lost their majorities in the Penang, Kelantan, Perak and Selangor state assemblies, the latter two ending up in a hung situation with no party having an absolute majority.

The bombing of Macdonald House on March 10, 1965. Pic.1

 

Elated by the unprecedented results, opposition parties in the capital celebrated their success by holding large processions. Naturally, sentiments were highly racialised and provocative. In response, the Malay daily Utusan Melayu’s editorial suggested that Malay political power was under threat, prompting members of UMNO Youth13 to respond by organising a victory parade in the capital.

What followed on May 13 will forever be etched in history as Malaysia’s day of disgrace, described by Tunku as a “social and political eruption of the first magnitude”,14 a dark moment when Malaysia was betrayed by Malaysians. Blood flowed through the streets of KL as hundreds were killed in sectarian rioting.

A state of emergency was soon declared and on May 16, Parliament was suspended – a sequence of events that would not have been possible were it not for the constitutional amendments of 1960. In the absence of parliamentary rule, a National Operations Council (NOC) was established to play the role of a caretaker government under the directorship of Deputy Prime Minister Abdul Razak Hussein. State and district operations councils were formed to govern the country at the different levels.

The level of premeditation and actual motivations behind the decisions and events precipitating the riots will forever be the subject of conspiracy theories. But what cannot be denied is the fact that the May 13 incident marked the end of the first epoch of Malaysian history, and the beginning of a new era under Razak, who ruled as head of the NOC and eventually as prime minister upon the retirement of Tunku on September 22, 1970.

The bombing of Macdonald House on March 10, 1965. Pic 2

 

From the ashes of the bloody riots, a new social compact was forged in the form of the New Economic Policy (NEP)15 which laid the ground for an assertion of Malay nationalism in various sectors including education and the economy through social re-engineering and affirmative action programmes. The national political landscape was also transformed with the creation of the BN grand coalition in 1973, which absorbed opposition parties including PAS, Parti Gerakan Rakyat Malaysia (Gerakan) and the People’s Progressive Party (PPP) in West Malaysia. This had the effect of restoring the two-thirds majority in Parliament and consolidating control over every state government in the country.

Armed with total control, Razak moved to enshrine the new social compromises through the controversial Constitution (Amendment) Act 1971. Dubbed the “sensitive matters amendment”,16 seven articles were changed including those governing freedom of speech, assembly and association, parliamentary privileges, the national language, and the expansion of the scope of Article 153 that deals with the protection of the “special position” of the Malays.

As a result of the amendments, fundamental liberties were proscribed so that “sensitive matters” – defined to include issues such as citizenship, language, the special position of the Malays and the natives of Borneo, and the rulers’ sovereignty – could not be discussed openly, even in Parliament. The Sedition Act, previously inapplicable within the confines of the august House and state legislatures, now applies throughout.

These amendments were further augmented by other proscriptive legislation, such as the University and University College Act 1971, which forbade university students from participating in political activities, and the Official Secrets Act 1972, which cast a wide net for deeming what is confidential and hence unlawful to disseminate.

Further to that, Article 159 was altered so that the consent of the Conference of Rulers’, previously required only for amendments to provisions affecting the special position of the Malays and the Rulers themselves, was now also required for those affecting the national language, parliamentary privilege and certain fundamental liberties. Meanwhile, Article 153 was modified to allow the creation of quotas for Malays and natives in institutions of higher education, in addition to existing quotas for public service, education and commercial permits and licenses.

In 1973 another major constitutional amendment bill was moved that carried major electoral impact. Constitutional limits to rural weightage, which had been loosened in 1962 when the maximum deviation was increased from 15% to 33%, were abolished altogether. In the absence of the safeguards that were put in place by the Reid Commission, seats could now be created that are up to four or five times the size of other seats within the same state, as is the case today.17

In addition, the power of the EC to apportion constituencies was abrogated and instead specified in the constitution, hence amendable only by a two-thirds majority vote in Parliament. With deviation limits removed, the government of the day had practically awarded themselves carte blanche powers to delineate and apportion constituencies in any manner that was convenient to them.

Finally, the amendments also saw the carving out of KL as a federal territory, thereby removing it from the state of Selangor. As the majority Chinese population of KL was seen to have played a key part in the defeat of the Alliance in Selangor in 1969, excising the city also meant ridding the state of most of its opposition-leaning voters.18 Not only did it secure Selangor for BN, it also essentially robbed the voters of KL of their right to representation at the local level, as the federal territory has no elected legislature.

1973-1994: The Mahathir Era

Between 1973 and 1985, the Constitution was amended 11 more times, including numerous modifications to the capitation grants to the states, the creation of the federal territory of Labuan, further tightening up of election laws which gave the government even more discretionary powers, and the introduction of the ringgit as the national currency.

Of particular note were amendments made in 1983 and 1984 with regards to the legislative role of the rulers. In 1981 Mahathir Mohamad took over the job that he would go on to hold for the next 22 years. Never shy to challenge the orthodoxy, having been responsible for an infamous open letter to then-Prime Minister Tunku Abdul Rahman Putra in 1969 that blamed the latter for the May 13 riots, Mahathir began the first of numerous confrontations with the Malay Royalty in 1983.

Prior to this, the Rulers enjoyed legal immunity, a provision that had been abused on more than one occasion.19 By the early 1980s, the behaviour of the rulers was increasingly questioned in public discourse, particularly with regards to their perceived extravagance, financial misdeeds, wastage of public funds, involvement in business and active interference in political matters.20 Naturally disinclined towards feudalism and fueled by the prospect of an incoming activist Agong, Mahathir decided to pre-empt the situation by introducing the Constitution (Amendment) Bill 1983.21

Among the 43 articles amended were provisions that essentially made royal assent to a bill passed by Parliament a rubber-stamp procedure that could not be denied by the Agong. This applied to state laws as well. In addition, Mahathir also proposed to transfer the power to declare a state of emergency from the Agong to the hands of the prime minister. Although the amendments were passed by both Houses of Parliament, an impasse occurred when the sitting Agong, having consulted his fellow rulers, objected to the Bill.

A stand-off ensued as Mahathir went all guns blazing, rallying his party machinery in demonstrations up and down the country while the press played along to his tune, explaining the necessity for the amendments. Not to be outdone, the rulers also held counter-rallies with the support of veteran UMNO leaders.

Finally, a compromise was achieved. The right to declare emergencies remained with the Agong and the rulers retained their right to withhold assent to state laws. For federal laws passed by Parliament, the Agong could now reject a bill by sending it back to the legislature. If the said bill was passed again, then it would automatically become law after 30 days, with or without royal assent. The only exception to this was in the case of money bills, which could not be rejected in the first instance.22

Mahathir Mohamad.

 

The next major constitutional amendment would occur in 1988 amid portentous circumstances. A year earlier, Mahathir barely survived a leadership challenge from within his party, the result of which left Umno divided down the line. The losing faction undertook legal proceedings and in February 1988, the courts ruled Umno to be an unlawful society due to irregularities with some of its branches. In the wake of the deregistration of UMNO and other court decisions that the government found unfavourable, Mahathir moved to curtail the judiciary.

Article 121 was a specific target of the constitutional amendments of 1988. Previously ascribing plenary authority over the judicial power of the Federation to the courts, the article was amended to bind the courts to “such jurisdiction and powers as might be conferred by or under federal law”,23 thus subordinating the judiciary to the legislative. Other amendments included the removal of the general power of the High Court to conduct judicial reviews,the empowerment of the attorney-general to determine the courts for cases to be heard, and, significantly, the insertion of Article 121(1A), which not only drew a line of separation between the civil and syariah courts, also elevated the status of the syariah courts to be on par with the civil courts, thus creating a parallel legal system that has seen many complications arise, especially in cross-jurisdictional cases involving Muslims and non-Muslims.

In response to the government’s hastily introduced changes, the Lord President of the Supreme Court, Salleh Abas convened a meeting of judges which unanimously approved a letter to be sent to the Agong to convey their disappointment at the actions of the prime minister to undermine the judiciary.

However, thanks to amendments made in 1960, Mahathir was able to initiate disciplinary proceedings against the Lord President, resulting in his eventual removal along with two other Supreme Court judges. This dark episode remains a blight in the history of the Malaysian Judiciary, and it was not until 2008 that the government made reparations to the sacked judges. In 2017 the Federal Court (previously Supreme Court) ruled that the 1988 amendments that subordinated the judiciary to Parliament were unconstitutional, although it fell short of striking down the Act in question.24

Mahathir’s second bout with Royalty took place in 1993. Despite the previous standoff, a number of rulers continued to behave with impunity, regularly interfering in state politics, flouting tax laws and even indulging in criminal activity. Following a motion of censure by Parliament against the Sultan of Johor who had physically abused a hockey coach, the Constitution was amended to strip the Rulers of their immunity from prosecution, although they would be subjected to a special court of their peers rather than the normal civil courts.

Malaysia Day celebrations.

 

In 1994 Mahathir made further amendments to the Constitution to tie up loose ends, including abolishing the power of the Agong to delay a bill by returning it to Parliament. This time, the same provision was extended for state legislatures as well, hence all but eliminating the role of the Malay royalty as a checks and balances mechanism.

At the same time, the downgrading of the Judiciary was completed through symbolic changes such as the renaming of the Lord President as Chief Justice and the Supreme Court as the Federal Court, as well as the introduction of a code of ethics for judges.

The Constitution would be amended 16 more times, with the last being in 2009. Most of the changes during this period were minor and administrative in nature, with the exception of the creation of a third federal territory in 2001, viz. the new federal administrative capital of Putrajaya.

Whither Do We Go?

Unlike the US, whose 27 constitutional amendments, from the Bill of Rights to the abolition of slavery to universal adult suffrage, paint a narrative of a nation’s journey towards building a more inclusive, progressive and emancipated society, the story of the Federal Constitution of Malaysia reveals a nation that is heading the other way – towards more exclusivism, regression and repression.

Critical amendments made over 60 years have altered the fundamental nature and spirit of the original Reid Constitution of 1957 by concentrating power in the hands of the executive, dismantling various constitutional safeguards with regards to fundamental liberties and the use of emergency powers, overhauling the electoral system in order to ensure the longevity of the incumbent government, and suppressing rival centres of power, including institutions such as the Malay royalty and the judiciary.

As a result, the Constitution today no longer embodies the spirit and intentions of the founders of the country. This is perhaps an appropriate reflection of the Malaysian polity today. Although the same party that ruled at independence continues to rule, there are few who would agree that the current leadership even remotely adheres to the same ideals and principles as its pioneers.

Ultimately, fixing Malaysia requires fixing its laws. If our country is to find its place in the sun as an inclusive and progressive nation of the twenty-first century, then the political will to rewrite our laws to make for a more inclusive, open and fair society has to be found.

1 In its draft form, the US Constitution was given the working title, ‘A frame of Government’.

2 Cindy Tham, “Major Changes to the Constitution,” The Malaysian Bar, 17 July 2007, http://www.malaysianbar.org.my/echoes_of_the_past/major_changes_to_the_constitution.html.

3 The Sun Daily,“The All-Powerful Executive,” The Sun Daily, 1 October 2005, http://www.thesundaily.my/node/176393.

4 Cindy Tham, ibid.

5 These ‘threats’ were originally confined to conditions of organised violence, but were in the same amendment expanded to include attempts to incite communal hostility and acts ‘prejudicial to the security of the Federation’.

6 The Yang di-Pertuan Agong, usually shortened to Agong, is the paramount ruler and head of state of Malaysia. The position is elected by rotation from among nine hereditary Malay rulers every five years.

7 The Malay Mail Online, “Ex-Judge: Judiciary Never Fully Recovered from 1988 Crisis,” The Malay Mail Online, 20 September 2015, http://www.themalaymailonline.com/malaysia/article/ex-judge-judiciarynever- fully-recovered-from-1988-crisis.

8 LA Sheridan and Harry E Groves quoted in Lim Hong Hai, “Electoral Politics in Malaysia: ‘Managing’ Elections in a Plural Society” in Aurel Croissant (ed.), Electoral Politics in Southeast & East Asia (Singapore: Friedrich-Ebert-Stiftung, 2002), p. 108.

9 Lim Hong Hai, ibid., p. 107.

10 In 1963, the Judicial and Legal Service Commission (JLSC) was reinstated albeit in a watered down form. No longer chaired by the Lord President, the reincarnated JLSC’s remit also does not extend beyond the subordinate courts.

11 Marshall Clark and Juliet Pietsch, Indonesia- Malaysia Relations: Cultural Heritage, Politics and Labour Migration, (Abingdon: Routledge, 2014),p. 25.

12 The confrontation with Indonesia also provided the pretext for the Alliance federal government to suspend local government elections in 1965. The third vote has since been abolished.

13 Umno Youth is the youth wing of the United Malays National Organisation (Umno), the leading component party of the Barisan Nasional and the Alliance before it.

14 Tunku Abdul Rahman Putra, May 13: Before and After (Kuala Lumpur: Utusan Melayu Press), p. 7.

15 Formulated by the NOC, the NEP was conceived to achieve the two-pronged objectives of eradicating poverty as well as reducing and subsequently eliminating the identification of race by economic function and geographical location.

16 The Sun Daily, ibid.

17 See, for example, Wong Chin Huat, Yeong Pey Jung, Nidhal Mujahid and Ooi Kok Hin, “The Effects of the 2016 Delimitation Exercise on the State of Penang”, 13 October 2016, http:// penanginstitute.org/v3/files/malapportionment/ Penang-Report_20161013_Final.pdf, Susan Loone, “Penang study shows ‘hard evidence’ on EC’s malapportionment of seats,” Malaysiakini, 18 January 2017, http://www. malaysiakini.com/news/369671 and Free Malaysia Today, “Pua Claims EC Conducting Single-Biggest Gerrymandering Exercise,” Free Malaysia Today, 15 September 2016, http://www.freemalaysiatoday.com/category/ nation/2016/09/15/pua-claims-ec-conductingsingle- biggest-gerrymandering-exercise/.

18 Lim Hong Hai, ibid., pp. 111–112.

19 Barry Wain, Malaysian Maverick: Mahathir Mohamad in Turbulent Times (London: Palgrave Macmillan, 2012), p. 175.

20 Barry Wain, ibid., pp. 179–180.

21 Barry Wain, ibid., pp. 181.

22 Barry Wain, ibid., pp. 185.

23 See Article 121 of the Federal Constitution of Malaysia.

24 Free Malaysia Today, “MP: Parliament Must Now Restore Judicial Power to the Judiciary,” Free Malaysia Today, 4 May 2017, http:// http://www.freemalaysiatoday.com/category/ nation/2017/05/04/mp-parliament-must-nowrestore- judicial-power-to-the-judiciary/.

Zairil Khir Johari is MP for Bukit Bendera, Penang.

 

Reactions to DOJ Lawsuits reflect Ignorance of Malaysian Officialdom


June 27, 2017

Reactions to DOJ Lawsuits reflect Ignorance of Malaysian Officialdom

by Dr. M. Bakri Musa, Morgan-Hill, California

Image result for Najib Razak, Riza Aziz and Rosmah Mansor

Najib Razak, Rosmah Mansor and Riza Aziz (inset): Their Day will come,only a matter of time

America is a Rorschach Test to most foreigners. What they view as America reveals more of themselves than of America; likewise, how they react to events in America.

One visitor to Washington, DC, would see only the homeless under the bridges, potholes on the streets, and “adult” stores at very corner; others, The Smithsonian, Georgetown University, and the National Institutes of Health. The contrasting observations reflect volumes on the observers.

Consider the Malaysian responses to the US Department of Justice (DOJ) lawsuits relating to alleged illicit siphoning of funds from 1MDB. I am not referring to the kopi-o babbling in the echo chamber of UMNO-paid “cyber-troopers” that pollutes the social media. They are pet parrots; babbling whatever is coached to them. With a different master offering more leftovers they could be made to change their tune.

Image result for 1mdb

Where is Mr. Lodin Wok Kamaruddin now?

What interests me instead are the responses of ministers and commentators. Their utterances expose their appalling ignorance of the American justice system. They also reveal much of themselves, as per Rorschach’s insight.

One Minister, eager to be seen as his master’s favorite lapdog, asserted that DOJ is being influenced by the Malaysian opposition. On cue, the other hounds and bitches piled on. A hitherto severe critic of the establishment pontificated that a former champion college debater together with Mahathir and Daim Zainuddin were involved.

Heady stuff for a young man! Though flattered, Syed Saddiq went ahead and filed a police report against that blogger! Mahathir described best those who believed such canards: “Bodoh luar biasa!” (Extraordinarily stupid!)

Those characters must also believe that the American judicial system is like Malaysia’s, where prosecutors could be influenced or paid off a la one Shafee Abdullah. Sarawak Report alleged that he was paid RM9.5 million from Najib’s slush fund before being appointed special prosecutor in Anwar Ibrahim’s case. Shafee has not denied that.

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The RM9.5 million Shafee Abdullah–who else are the beneficiaries of the bounty?

Another Minister declared DOJ’s charges ‘mere’ allegations. Sorry, no marks for stating the obvious. A former journalist-turn-blogger echoed that, and proceeded, for emphasis, to reprint in bold the DOJ’s caution.

Of course DOJ’s accusations, like all court complaints, are “alleged” until adjudicated by the court. DOJ must have credible evidence to not waste taxpayers’ money on frivolous lawsuits. The jury would not buy it. DOJ does not allege any Joe on the street of corruption.

Those who believe otherwise must think that DOJ and American courts are like Malaysia’s where prosecutors could be bought to bring on cases with the flimsiest of evidences and still find judges to convict, as with Anwar’s case.

That is not a far stretch. A few years ago, a defense lawyer V.K. Lingam known for his amazing ‘skills’ in getting his clients acquitted was caught on videotape assuring his listener that he had the judge in his pocket. The lawyer’s utterance, “Correct! Correct! Correct!” would forever be embedded in the annals of shame in the Malaysian Judiciary.

Then there was the character who insinuated that the ‘inactivity’ of DOJ since its first filing a year earlier reveals its sinister political motive. Had he followed the court’s calendar he would have noted the flurry of activities. Among them, the successful challenge by the new trustee of some of the seized properties to be represented.

This character went on to opine that since her initial filing in July 2016, US Attorney-General Loretta Lynch had been “fired,” implying that the lawsuit was without merit. Such willful ignorance reveals a deliberate attempt to mislead. Lynch was a political appointee, and with President Trump’s election all such appointees were replaced. Further, the second filing was by her successor.

Deputy Prime Minister Ahmad Zahid, a local PhD, implied that all the furor over 1MDB were fake news, the concoctions of hostile foreign media! It is instructive that this character did his dissertation on the local media. To him, the likes of The Wall Street Journal are like Utusan Melayu. His response reveals as much about him as the institution that awarded him his doctorate.

A junior minister accused the Americans of trying to topple Najib, in cahoots with the opposition. Not too long ago he and others were lapping at pictures of Najib golfing with President Obama. That minister however, did not see fit to lead a demonstration at the embassy in defense of Malaysia.

It is unfortunate that this non-too bright character’s remarks resonated with simple villagers. A senior Minister, a little brighter being that he was a London-trained lawyer, dismissed the whole DOJ affair. Malaysia had other far more important issues to attend to, he sniffed. If the staggering sums of the loot did not impress him, what about the charges of corruption levelled at the highest government official, cryptically referred to as “Malaysian Official 1.” That should be his and all Malaysians’ top priority.

Yet another minister advised everyone not to panic. The lady doth protest too much, methinks. Nobody was panicking except her crowd.

Attorney-General Apandi was miffed that DOJ did not consult him. DOJ’s lawsuits were prompted to protect American financial institutions from the corrupting influences of dirty foreign funds. It does not need Malaysia’s ‘help,’ more so considering that Apandi had declared no wrongdoing.

Apandi was also upset at the criminal insinuations against the Prime Minister. His comment unwittingly revealed what he thinks of his job, less as chief prosecutor, more as Najib’s private attorney. No wonder his “investigations” exonerated Najib! Apandi also unwittingly confirmed that MO1 is, in fact, Najib and that the activities he was alleged to have been engaged in were criminal in nature.

If the responses were revealing, the non-response or silence was even more so. The lawsuits allege that billions were illicitly siphoned from the company, and it is mentioned umpteen times in the complaints. Yet 1MDB did not seek to be represented as a party of interest. This reflects its management’s inability to separate the company’s interests from those of its officers’. Najib is 1MDB’s chairman. The management confuses Najib with the company. Management is not looking after the company’s interest in not seeking representation, which was how the mess started in the first place.

Malaysian officials’ responses to DOJ’s lawsuits did not reflect well on them or Malaysia. I can hardly wait for their reactions or “spin” when this DOJ investigation goes on to its next inevitable phase, the filing of criminal charges and or when one of the defendants becomes a prosecution witness.

Meanwhile, fake news or not and collusion or not, MO1, his spouse, or stepson will not be stepping foot in America any time soon, if ever. That is revealing.

Malaysia–Rule of Law is a Joke


April 10, 2017

MalaysiaRule of Law is a Joke

by Nawar Fardaws

http://www.freemalaysiatoday.com

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Award Winning HAKAM President, Dato’ S. Ambiga. Read this–http://www.themalaymailonline.com/malaysia/article/10-things-about-ambiga-human-rights-defender

No man or woman should be above the law but in Malaysia, this principle of justice appears to have been neglected, said human rights lawyer Dato’ S Ambiga.

“We saw several people assaulting an MP and they might get away with just a RM100 fine.Then we saw Lena Hendry fined RM10,000 for airing a documentary that is already in the public domain. And the prosecutors are appealing for a higher sentence.The higher you go, the less accountability, the less (chances that) you will be charged,” she said at the third annual Day of Solidarity talk held here today.

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The Pampered Son of an UMNO Minister–Firdaus Tajuddin

Ambiga was referring to two cases that have made national headlines.The first involved Firdaus Tajuddin and seven others, who were charged under Section 14 of the Minor Offences Act 195 for allegedly assaulting Shah Alam MP Khalid Samad on Parliament grounds last year.

Firdaus is the son of Deputy Agri­culture and Agro-based Industry Minister and Najib Razak’s sycophant Tajuddin Abdul Rahman.

The second saw Pusat Komas programme manager Hendry fined RM10,000 after she was found guilty of the charge under Section 6(1)(b) of the Film Censorship Act for showing “No Fire Zone: The Killing Fields of Sri Lanka”.

It was a documentary on the Sri Lankan civil war that lasted 26 years.“That’s where we have a problem and we all can see it. There is a lack of justice,” added Ambiga.

“They (those above the law) think they can get away with it. They think we are not watching or listening, but we are. We see the erosion of justice that is happening here.”

The talk, themed “Pilgrimage Towards Justice and Peace”, was organised by the Malaysian Council of Churches and the Conference of Religious Major Superiors (Roman Catholic Church).

Present was social activist Marina Mahathir and former law minister Zaid Ibrahim. Dato’Ambiga, who is the President of the national human rights society, HAKAM, said the country’s institutions have failed the public who looked up to them to act in a fair and just manner.

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Tun Dr. Mahathir, the new born Democrat and Malaysia’s Dewan Rakyat Speaker Amin (Not) Mulia

She also slammed Dewan Rakyat Speaker Pandikar Amin Mulia who, on April 6 , made the surprise decision to defer debates on PAS President Abdul Hadi Awang’s motion to table his private member’s bill.

The bill seeks to increase the shariah courts’ punitive powers.“There can only be political reasons for his actions. And it is so irresponsible for a leader to act like that,” said Ambiga.

Malaysian Parliament is DEAD, says Tawfik Ismail


April 6, 2017

Malaysian Parliament is DEAD, says Tawfik Ismail

Tawfik Ismail

The Parliament is dead, and the nation is being driven down a dangerous path, Tawfik Ismail, son of former Deputy Prime Minister Tun Dr. Ismail Abdul Rahman lamented today following the tabling of the amendment to Act 355.

Mohamed Tawfik Ismail said today was a sad day for Malaysia as Dewan Rakyat Speaker Pandikar Amin Mulia had pressed on with the tabling of the motion, despite him having served an originating summons to Pandikar yesterday to deter the amendments being tabled in Parliament today.

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Pandikar Amin Tak Mulia: What Rules are you talking about when you do not respect our Courts?

Tawfik, who had filed the summons at the Kuala Lumpur High Court last Friday, told reporters yesterday after serving it on Pandikar, that he does not expect to see the amendments to Act 355 being in the Parliament order paper today.

“Parliament is dead when the speaker who took an oath to protect preserve and defend the Federal Constitution betrays the very oath he has taken as a member of Parliament.

“The speaker plays politics disregarding the constitution and commits treason in ignoring the Conference of Rulers’ right to be consulted before promulgation of any laws that will divide us as a nation,” he added further in the statement.

Tawfik said that for the speaker to jump to PAS president Abdul Hadi Awang’s motion and place the amendment as number one in the order paper is arrogance of the highest order. He alleged Pandikar of wanting to show power.

 

“He wants to show he can abuse power and there is nothing anyone can do about it. That much is clear,” he said, adding that the dream of one united nation is being subverted by the very people voted by the rakyat and trusted to wisely make laws to unite us as a nation.

“Today the people must rise to condemn the Speaker if elected MPs cannot do that. Today we must stand together to protect the nation from the mischief of one man. Today the people must rise to protect Parliament,” he urged.

It was reported that in the court papers that Tawfik filed, he had sought a declaration that the proposed amendments were unconstitutional.

When Facts don’t matter in America


March 13, 2017

When Facts don’t matter, Trump’s White House is the sole arbiter of truth.

by Paul Krugman@www.nytimes.com

Image result for Paul KrugmanDr. Paul Krugman-The Nobel Laureate in Economics

The U.S. economy added 10.3 million jobs during President Obama’s second term, or 214,000 a month. This brought the official unemployment rate below 5 percent, and a number of indicators suggested that by late last year we were fairly close to full employment. But Donald Trump insisted that the good news on jobs was “phony,” that America was actually suffering from mass unemployment.

Then came the first employment report of the Trump administration, which at 235,000 jobs added looked very much like a continuation of the previous trend. And the administration claimed credit: Job numbers, Mr. Trump’s press secretary declared, “may have been phony in the past, but it’s very real now.”

Image result for When Facts don't under TrumpTrump’s American Supporters are factually challenged

Reporters laughed — and should be ashamed of themselves for doing so. For it really wasn’t a joke. America is now governed by a president and party that fundamentally don’t accept the idea that there are objective facts. Instead, they want everyone to accept that reality is whatever they say it is.

So we’re just supposed to believe the president if he says, falsely, that his inauguration crowd was the biggest ever; if he claims, ludicrously, that millions of votes were cast illegally for his opponent; if he insists, with no evidence, that his predecessor tapped his phones.

And it’s not just about serving one man’s vanity. If you want to see how this attitude can hurt millions of people, consider the state of play on health care reform.

Obamacare has led to a sharp decline in the number of Americans without health insurance. You can argue that the decline should have been even sharper, that there may be troubles ahead, or that we should have done better. But the reality of the law’s achievement shouldn’t be in question, and you should worry about the consequences of Trumpcare, which would drastically weaken key provisions.

Republicans, however, are in denial about recent gains. The president of the Heritage Foundation dismisses the positive effects of the Affordable Care Act as “fake news.” In Louisville over the weekend, Vice President Mike Pence declared that “Obamacare has failed the people of Kentucky” — this in a state where the percentage of people without insurance fell from 16.6 to 7 percent when the law went into effect. And as for the likely impacts of Trumpcare — well, they literally don’t want to know.

When Congress is considering major legislation, it normally waits for the Congressional Budget Office to “score” the proposal — to estimate its effects on revenues, outlays and other key targets. The budget office isn’t always right, but it has a very good track record compared with other forecasters; even more important, it has always been scrupulous about avoiding partisanship, and therefore acts as an important check on politically motivated wishful thinking.

But Republicans rammed Trumpcare through key committees, literally in the dead of night, without waiting for the C.B.O. score — and they have been pre-emptively denouncing the budget office, which is likely to find that the bill would cause millions to lose health coverage.

The truth is that while the office got some things wrong about health reform, on the whole it did pretty well at projecting the effects of a major new bill — and far better than the people now attacking it, who predicted disasters that never happened. And whatever criticisms one may have of its forthcoming score, it will surely be better than the ludicrous claim of Tom Price, the secretary of health and human services, that “nobody will be worse off financially” as a result of a plan that drastically cuts subsidies and raises premiums for millions of Americans.

But this isn’t really about whose analyses of health policy are most likely to get it right. It’s about Trump and company attacking the legitimacy of anyone who might question their assertions.

The C.B.O., in other words, is in the same position as the news media, which Mr. Trump has declared “enemies of the people” — not, whatever he may say, because they get things wrong, but because they dare to challenge him on anything.

“Enemy of the people” is, of course, a phrase historically associated with Stalin and other tyrants. This is no accident. Mr. Trump isn’t a dictator — not yet, anyway — but he clearly has totalitarian instincts.

And much, perhaps most, of his party is happy to go along, accepting even the most bizarre conspiracy theories. For example, a huge majority of Republicans believe Mr. Trump’s basically insane charges about being wiretapped by President Obama.

So don’t make the mistake of dismissing the assault on the Congressional Budget Office as some kind of technical dispute. It’s part of a much bigger struggle, in which what’s really at stake is whether ignorance is strength, whether the man in the White House is the sole arbiter of truth.

Zakir Naik: Peace Preacher or Hate Monger


April 20, 2016

(@KLIA on the way back to Phnom Penh)

Zakir Naik: Peace Preacher or Hate Monger

by Dr. Lim Teck Ghee

Dr. Zakir Naik, the controversial Muslim televangalist, is no stranger to Malaysia. He was here first in 2012 to deliver lectures in Johor Baru, Shah Alam, Kuantan and Kuala Lumpur. According to the organizers of the first lecture series, their objective was to promote harmony among people of various religions.

He is now into his second lecture tour series here. Presumably his objective to spread the message of peace, love and brotherhood among the various religions and Islam remains unchanged.

But perhaps his presence is also to emphasise the superiority of Islam over other religions; and as stated in the website of the Islamic Research Foundation of which he is President and founder, “about the truth and excellence of Islamic teachings – based on the glorious Qur’an and authentic Hadith, as well as adhering to reasons, logic and scientific facts”?

His main claim to fame (and contrariety)  in Malaysia comes from being recipient of the Ma’al Hijrah Distinguished Personality award by Yang di-Pertuan Agong Tuanku Abdul Halim Mu’adzam Shah in 2013 for his significant service and contribution to the development of Islam. He has also received various other awards and honours – all from Islamic governments or organizations.

That said, his standing with some non-Muslim governments and organizations is less creditable and more controversial. The religious television channel, Peace TV, which acknowledges him as its main ideologue as well as driving force, has been banned by his own government, the Indian government, for its anti-Indian malicious content.

This is a reasonable statement

The station has also been in trouble with various broadcasting authorities for some of its content and Dr. Zakir himself has been banned from entry to the United Kingdom, Canada and Singapore – in the UK, for allegedly “engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred.”

It could be that Dr. Zakir has been unfairly targeted and victimized for his religious zealotry and popularity with the Muslim community. He has claimed, for example, that he has been quoted out of context for his views on terrorism.

But if he has been misquoted or has recanted for his earlier views on Al Queda and his support of Islamic terrorism, what are his perspectives on Islam and other religions which have enabled him to gain such a huge following among Muslims all over the world, and have him placed so high up on the pedestal?

Peace Preacher or Hate Monger.

Critics who have followed his lectures and preaching – Dr. Zakir, following the example of Christian telemarketers, describes himself as “a dynamic international orator of Islam and comparative religion – have expressed concern over his conservative and extremist views on a wide range of subjects, including apostasy and the propagation of other faiths in Islamic states, both of them major issues in Malaysia.

On the former, he is said to have argued that Muslims who convert from Islam should not necessarily receive death sentences, but that under Islamic rule those who leave Islam and then “propagate the non-Islamic faith and speak against Islam” should be put to death. Another source states that according to Dr. Zakir “there is no death penalty for apostates in Islam, until the apostate starts to preach his new religion; then he can be put to death.”

On the latter, Dr. Zakir has noted that while he appreciates that people of other religions allow Muslims to freely propagate Islam in their country, “the dissemination of other religions within an Islamic state must be forbidden because (he believes) other faiths are incorrect, so their propagation is as wrong as it would be for an arithmetic teacher to teach that 2+2=3 or 6 instead of 2+2=4.”

Similarly Dr. Zakir has argued, “regarding building of churches or temples, how can we allow this when their religion is wrong and when their worship-ping is wrong?”

Similarly, The Times of India in a profile piece on Dr. Zakir has argued that “the Wahabi-Salafist brand of Islam, bankrolled by petro-rich Saudi Arabia and propagated by preachers like Naik, does not appreciate the idea of pluralism.”

The article quotes Muslim scholar Wahiduddin Khan: “Dawah, which Naik also claims to be engaged in, is to make people aware of the creation plan of God, not to peddle some provocative, dubious ideas as Naik does.”

He adds: “The wave of Islamophobia in the aftermath of 9/11 and the occupation of Iraq and Afghanistan have only added to the Muslims’ sense of injury. In such a situation, when a debater like Zakir Naik, in eloquent English, takes on preachers of other faiths and defeats them during debates, the Muslims’ chests puff with pride. A community nursing a huge sense of betrayal and injustice naturally lionises anyone who gives

A community nursing a huge sense of betrayal and injustice naturally lionises anyone who gives it a sense of pride. Never mind if it’s false pride.”

Whether Dr. Zakir should have the right to be in Malaysia and to speak on comparative religions may be controversial but in our part of the world apparently lacking appropriate Islamic “wise” men and leaders to look up to, hopefully it is not false pride that Dr. Zakir is peddling but the doctrinal and institutional re-caliberation of the religion so that Malaysians can be reassured of its contribution to our religious and racial peace and harmony.