Why is A-G Gani Patail afraid to go to trial against Rosli Dahlan?


April 1, 2015

Why is A-G Gani Patail afraid to go to trial against Rosli Dahlan?

by Din Merican

Rosli Dahlan (new)This morning the Court of Appeal dismissed the appeal by Attorney-General Gani Patail and 10 others  against Lawyer Rosli Dahlan. The Court of Appeal found that the A-G’s appeal had no merits. For full reports on this, see various links below:

http://m.utusan.com.my/berita/mahkamah/kes-saman-terhadap-ag-dan-pegawai-kerajaan-ke-mahkamah-tinggi-1.75957

http://m.themalaymailonline.com/malaysia/article/court-junks-a-gs-meritless-bid-to-dismiss-malicious-prosecution-suits

http://www.freemalaysiatoday.com/category/nation/2015/04/01/ags-appeal-to-strike-out-suit-by-ex-cop-dismissed/

http://www.bernama.com.my/bernama/v8/ge/newsgeneral.php?id=1122106

Previously, all the major newspapers  which were sued by Rosli had either apologised to him or were found liable by the Courts. The New Straits Times and Malaysian Anti-Corruption Commission (MACC) were found guilty for defamation and were ordered to pay RM300,000.

What the lay public may not be aware is that all these appeals by A-G Gani Patail are merely tactical moves‎ called interlocutory applications to stall the trial. In a connected case filed in 2009 where Rosli sued the MACC Chief Commissioner and its officers, the MACC represented by the A-G’s  Chambers also avoided going to trial by striking out Rosli’s suit twice. Rosli appealed and the case was restored.

Gani, Musa and Abu KassimThis time around when A-G Gani Patail himself is sued as the first Defendant followed by former IGP Tan Sri Musa Hassan, MACC Chief Commissioner Tan Sri Abu  Kassim, Dato Nordin Hassan  and Dato  Razak Musa (MACC’s Director of Prosecution), A-G Gani Patail did not want to take chances. He did not trust the A-G Chambers to defend him. He did not trust the government’s lawyers to act for him. So, Gani hired an external lawyer. He hired senior lawyer Tan Sri Cecil Abraham.

Tan Sri Cecil is a very expensive lawyer. He is the same lawyer implicated in the PI Bala Statutory Cecil AbrahamDeclaration case which the Bar Council is taking disciplinary action against. Another senior lawyer that the Bar Council is considering taking disciplinary action against is Tan Sri Shafee Abdullah who prosecuted Anwar Ibrahim’s appeal. It seems that A-G Gani Patail will appoint Shafee for difficult criminal cases and Cecil for difficult civil cases.

We the taxpayers can ask what is the point of having Gani as A-G then? But the more stark observation is why is the A-G, the MACC and the government being represented by lawyers who are the subject of disciplinary issues?

When a government agency like the MACC preaches about integrity, honesty and transparency, should not the government’s advisers and legal representatives also be of unquestionable character? That is an observation that most people have made and I am just voicing it out for our government leadership to ponder.

Coming back to the A-G’s  appeal that was dismissed this morning , the news reports also stated that cost of RM25,000 was ordered against the A-G. This seems like a strong rebuke by the Court of Appeal judges against the A-G for  hiring an external lawyer to defend him. What taxpayers want to know is  how much is Cecil being paid and whether A-G Gani Patail is footing the bill himself or whether the government, meaning us taxpayers, is underwriting the A-G’s legal cost?

If the AG-C had acted for them it would have been free, but I can’t imagine Cecil doing pro bono work for the government. Or is there some tradeoff where Cecil Abraham gets other government legal work at inflated fees. Is that not gratification? The MACC should investigate this.

The news reports also stated that Cecil asked the Court of Appeal to stay the proceedings and change the trial Judge at the High Court. Isn’t that an insult to the judicial system when the A-G himself is suggesting that the judge is not impartial?  We see private litigants saying that. But is it appropriate for the A-G to take that stand?

Against the accusation by Cecil Abraham against the trial judge, the Court of Appeal Judges namely Hamid  Sultan Abu Backer, George  Varghese and Vernon Ong  stated almost rebukingly to Cecil  that they had subjected the trial judge’s grounds of judgement to an acid test and found it to be reasonable.

I think it is terrible for Cecil to ask for a change of Judge just because the judge had ruled that A-G Gani Patail and other public authorities do not enjoy absolute immunity when they act maliciously against a private citizen. It seems to suggest that A-G Gani Patail will only accept if judges rule in his favor but will not accept when judges rule against him like in this case by Lawyer Rosli. I think the A-G being part of the judicial and legal service is undermining respect for the service by such actions. Not to mention he doesn’t trust the very department that he heads to defend him!

That brings me to the point of this whole exercise by the A-G– why is Gani Patail  afraid to go to trial against Lawyer Rosli Dahlan?

Anwar Ibrahim Ops LeaderWhen the Sodomy 2 charges were made against Anwar Ibrahim, the governmeny accused Anwar of being afraid to go to trial to prove his innocence just because  Anwar filed interlocutory applications. The AG-C and UMNO accused Anwar of delaying tactics and then rationalised that to mean that Anwar is guilty. Such easy deductions.

Thus, by the same logic, can we now say that A-G Gani Patail is filing all these interlocutories because he is afraid to go to trial.  And he is afraid to go to trial because he knows that Rosli is telling the truth. That Rosli was innocent all along and was victimized just because he defended Dato Ramli Yusuff.  Or is there something more that the A-G is fearful about  that will be disclosed in the trial – for example, Rosli’s allegations that Musa Hassan was working with the gambling syndicate or that Gani had consorted with questionable characters like Shahidan Shafee during Haj trips like how former Eusofe Chin went on holiday in New Zealand with VK Linggam?

There may be explosive revelations during the trial beginning April 6 before Judge Su Geok Yam where Rosli has sued the MACC and its officers for conspiracy to injure him. Perhaps A-G Gani Patail is afraid that the conspiracy will be revealed especially since all the newspapers have admitted that they were fed information by sources within MACC. Perhaps that is the reason A-G Gani Patail has engaged Cecil Abraham to block the trial from proceeding. There are just too many possibilities merely because the delaying tactics by A-G Gani Patail is perplexing.

I say to Gani Patail – stop all these tricks! Go to trial and prove your innocence. Don’t hide behind the cloak of immunity. Be a gentleman, fight fair and square. After all what is there to fear? Rosli is just a private lawyer without any political patronage nor any godfather backing him. He has faithfully fought all his legal  battles within the system and therefore Gani should face him squarely in court.

I say to all Malaysians let us pray for Rosli that he will get the justice that he deserves. In the face of the might of the whole establishment, he has stood unwaveringly by his faith and he has given us hope by the small victories that he has achieved thus far. The machinations by men cannot overcome the will of God.  Man proposes but God disposes.  Let us pray for Rosli on April 6 until the conclusion of his trial

Time for Indonesia to play a bigger role in ASEAN


April 1, 2015

Time for Indonesia to play a bigger role in ASEAN

by Pattharapong Rattanasevee

http://www.asiasentinel.com/politics/indonesia-asean-role/

Jokowi 5ASEAN would benefit from stronger leadership. But Indonesia, best placed to take up that role, appears unwilling despite the fact that it could be the leader that ASEAN needs. However, it intentionally refrains from asserting its influence over the association.

This is due to Indonesia’s internal weaknesses, ASEAN’s norms of non-interference and equality among members, and the remaining antagonism among ASEAN member countries. While President Joko Widodo has shown an increasing willingness to play on the international stage with statements urging the country to become a maritime power, the situation leaves a power vacuum within the association and intensifies the academic debate about leadership in integrating regions.

There are three possible and intertwining explanations of leadership in ASEAN. Sectoral leadership refers to leadership exercised through areas or sectors of competence, or depending on which country is in a better position to take the lead at the time. Indonesia’s foreign-policy orientation is frequently concerned with political and security issues. For example, it greatly influenced ASEAN positions on the Cambodian conflict and the South China Sea dispute. Thailand, Malaysia and Singapore like to push economic issues. These countries played a vital role in moving onto the path of economic integration. All were notable proponents of the ASEAN Free Trade Area. The Philippines is often more concerned with social and cultural issues, demonstrated by its initiation of ASEAN Socio-Cultural Community (ASCC).

ASEAN-10Cooperative leadership is formed among a group of countries that share a common vision and wish to play a strategic role in the region. This is based on the notion that no single ASEAN country can fulfill the leading role, so it should be built on the basis of two or three countries that are able to forge solid cooperation among their leaders and consolidate their domestic politics. This form of leadership is perhaps similar to the case of the European Union where Germany and France appear as a coalition leader.

Periodical leadership assumes that leadership is attached to individuality or charisma. This notion is heavily centered on some notable leaders of ASEAN, such as Indonesia’s President Suharto, Singapore’s Prime Minister Lee Kuan Yew and Malaysia’s Prime Minister Mahathir Mohammad.

Soeharto-LeeKuanYew-MahathirThe sectorial explanation of leadership may be prevalent because Indonesia still lacks competence, for example in socio-economic areas. The cooperative model may have emerged because ASEAN is actually a collection of weak and vulnerable countries domestically. The periodical leadership is also visible because ASEAN is arguably an elitist organization and very much attached to leader’s charisma. But, without a doubt, ASEAN requires the presence of undisputed leadership for which Indonesia seems to be the only candidate.

ASEAN requires a clear and dominant leader that can serve as an institutional focal point and regional paymaster to facilitate and drive regional projects. Most multi-lateral or regional organisations include a country with more power relative to its other members. In every international bargain with competing national interests, there is an influence of structural powers (derived from material and resource capacity such as the size of land, population and economy).

Even the European Union, which has much more solid and effective institutions to drive decision-making, is heavily influenced by French and German leadership. Regional integration is a scene of competing national interests and the position of leadership is normally taken by the governments of large, prosperous and powerful member states.

As the world’s fourth largest state in terms of population and the region’s largest country, which comprises about 40 percent of ASEAN’s total population, Indonesia is the elephant in the room. Indonesia initiated and proposed the foundation of ASEAN as a means to end regional conflict. As a consequence of a painful experience of colonization, it was the country that continued to stress non-alignment, with the hope of removing the exercise of external powers from the region. While the coercive action towards East Timor and the severe financial crisis in the late 1990s spelled the decline of Indonesia’s position in ASEAN, its recent democratic consolidation is bolstering its reputation in regional affairs.

The invisibility of leadership in ASEAN is a result of Indonesia trying to ensure regional unity. Without the low-posture politics of Indonesia, the association would not be able to create multilateralism and a neutral context in which smaller states could feel more comfortable when dealing with bigger countries. But, considering the remaining antagonism among members and its considerable institutional weaknesses, this raises the importance of leadership in ASEAN.

ASEAN’s future cannot rely wholly upon Indonesia’s structural leadership. It has to be invested with some sort of soft power that could help amplify international images and credibility, as well as tone down antagonism and resistance within the organisation. Indonesia should seek to play a more active leading role and exercise more of its power over the association.

In the foreseeable future, ASEAN will continue to be shaped by the politics of Indonesia. The recent political developments in Indonesia will provide a vital ingredient in building up confidence and credibility, as well as enhancing the pursuit of leadership in ASEAN.

Pattharapong Rattanasevee is a lecturer at Burapha University, Chonburi, Thailand.This originally appeared on the East Asia Forum, a platform for analysis and research at the Crawford School of Public Policy at the Australian National University.

The Political Risks in Malaysia are growing


April 1, 2015

This piece is a serious commentary on Malaysia by The Financial Times, NOT an April Fool joke.–Din Merican

The Political Risks in Malaysia are growing

The FT View (March 31, 2015)

Its reputation as a thriving Muslim democracy is under threat

Rosmah and Najib 1mdb

Malaysia has long been regarded as one of Southeast Asia’s success stories. With a population of 30m, it is the region’s third-largest economy with a relatively well-educated population. It is a rare example of a moderate and democratic Muslim state, one where the Islamic majority lives in reasonable harmony with the nation’s Chinese and Indian communities. But Malaysia’s delicate political and ethnic balance is starting to unravel as the country risks sliding into authoritarianism. This is a worrying development at a time when economic clouds are also darkening.

Ever since the British departed in 1957, Malaysia has been ruled without interruption by the United Malays National Organisation, or UMNO, which represents the Muslim Malay majority. In recent years, UMNO has been increasingly challenged by Anwar Ibrahim, leader of the three-party Pakatan Rakyat coalition. Often viewed as a maverick and a flawed figure, he has nevertheless said he wants to reform Malaysia’s ossified and corrupt political system.

At the 2013 general election, the Pakatan opposition won more of the popular vote than the UMNO-led coalition. Thanks to anomalies in the way constituency boundaries are drawn, it gained only 40 per cent of seats in the national parliament. Still, Mr Anwar’s performance at the polls was strong enough to trigger deep concern within UMNO about his chances of winning the next election to be called by 2018.

In February, the opposition was dealt a crippling blow when Mr Anwar was imprisoned for five years by a court on charges of sodomy. The case appeared at the very least politically motivated. This has now been followed by a sweeping series of arrests of opposition politicians and journalists. Human rights groups say that in the past week more than 90 people have been detained — many under a British colonial-era law that criminalises speech that has a “seditious tendency”.

This crackdown on civil society is dangerous for two reasons. First, it risks polarising Malaysian society, making the delicate balance between the country’s communities harder to sustain. Najib Razak, the Prime Minister, is a reformist figure who has declared himself to be committed to political liberalisation. But he himself is under pressure from a rightwing flank within UMNO that wants the opposition marginalised and is resistant to reforms that could erode the commercial privileges enjoyed by the country’s Malay majority.

The second concern is that if the political tension grows it could damage Malaysia’s economy. Malaysia had a robust 2014 with real GDP growth at a solid six per cent, the second-highest performance in Southeast Asia. But the country is a significant net exporter of energy, making it vulnerable to the fall in oil prices. Foreign bond ownership in Malaysia is high at more than 40 per cent — and bondholders could become jittery if there is any further deterioration in the country’s economic and political outlook.

This is a highly uncertain period politically for Southeast Asia. Indonesia has just completed a presidential election which saw a peaceful transfer of power. But Thailand has moved to military rule and in Myanmar there is uncertainty over whether and how the ruling junta will share power. Even in the Philippines, the region’s star performer, it is hard to predict the course of politics after President Benigno Aquino’s term expires. It is against this background that Malaysia will be keenly watched. If it is to retain the commitment of international investors it needs to provide reassurance about its future political stability.

Lee Kuan Yew and the Asian Model


March 31, 2015

Lee Kuan Yew and the Asian Model

by Martin Khor@www.thestar.com.my

Lee-Kuan-YewAn important legacy of Lee Kuan Yew was the formulation of one of the Asian models that have been driving successful Asian economies forward.

HUNDREDS of obituaries and articles have been written about Lee Kuan Yew, who was laid to rest last weekend.

The articles were overwhelmingly in tribute of the vision, leadership qualities and achievements of Singapore’s founding father, who left his imprint on so many aspects of the island state’s system and way of life.

The tributes were mixed with criticisms of the political authoritarianism that was mixed with the spectacular economic growth.

There will be many PhDs written, which would make judgments on his side of the story and that of the critics. As for Lee’s own assessment, he summed it up thus: “What did I achieve? A successful Singapore. What did I give up? My life.”

On the TV news of LKY’s passing, I was impressed by an interview with a young man who runs an Internet views service. He said this was the time to pay tribute to Lee and his achievements, after which would come a period of collective reflection on what happened in the past five decades and how Singapore should go forward.

The times have changed. Singapore too is changing and will doubtless change even more. One of LKY’s major achievements was to be a pioneer of combining the roles of the state and the market in a way that succeeded in generating and sustaining high economic growth, and with widespread social benefits. He did it in a way that was suitable, or that was adapted, to the situation of a nation with a small population, no natural resources and no significant market.

He opted for the model of being a “global city”, that used the world as a source of capital, technology and markets, with foreign companies providing the engine, the world’s population providing the market, and Singapore providing its geographical location and skills.

Singapore also diversified from trade to oil refinery and industry and to being also a global financial centre. It is the combining of state and market that made it part of the East Asian models of development.

This strategy is based on having the state play the leading role not only in setting the overall framework for development but also sometimes playing a direct role in it.

By also involving the private sector in an important role, this model is different from the old state socialism, and by being based on the manifold roles of the state; it is also different from laissez faire free market capitalism. While most manufacturing companies are private and foreign-owned, the state in Singapore has played important roles in selected industries, in banking, in transportation and a range of other services.

Public housing was based on a combination of the state being the developer, construction being undertaken by private contractors, and the ordinary people being the owners by paying the mortgage through their salaries, the whole enterprise organised by the Housing Development Board and the Central Provident Fund.

The state’s overwhelming role in the social sector was based partly on subsidies but also significantly on self-financing by individuals, through the CPF scheme that includes withdrawals for housing and medical needs.

The Economist magazine in 2012 credited Singapore for starting what it called “the new kind of state capitalism” which it said had become the fashion in emerging markets and had come to be a major challenge to Western liberal capitalism.

In fact, there are important variations of this so-called “state capitalism”.Singapore relied on foreign companies to lead its industrial revolution (while the state focused on providing services). Japan and South Korea built their own domestic industries, with eventually world-beating private companies that were egged on by a lot of state assistance and nurturing.

In Malaysia, we have our own model, with the state taking over ownership of the once foreign-owned plantations and tin mines, through state-owned commercially run companies. It has its own national oil company and a production and benefit-sharing arrangement with the global oil multinationals and foreign companies predominant in several industrial sectors; while the state also has its own enterprises in banking, real estate development, telecommunications, utilities, agriculture and manufacturing, usually in competition with local and foreign private firms. The Malaysian model is a hybrid of state and private enterprises, often having both co-existing and competing in commercial activities.

China is said to have been inspired by the Singapore model. After Deng Xiao Ping’s visit to Singapore in 1978, he began the change in the old China model, which through many metamorphoses is now an evolving system of its own – a confusing and complex mixture of state and private enterprises, but always with the leading role of the state.

It has become its own unique hybrid model, combining the Singapore model of attracting foreign investors with the Japan-Korea model of establishing domestic enterprises and industries which dominate the local market and then increasingly penetrate the world market in trade and investment.

The Western countries which now espouse “free market economics” grew on the basis of “state capitalism” in their formative years. Indeed, often a much cruder form of it. Example: the East India Company owning economic sectors in many Asian colonies, supported by military colonial rule and massive economic subsidies.

Having helped their companies to grow into giants, it appears they now want to forbid others from taking policy measures to do so.Even now, the Western countries give massive financial and other forms of support to their agriculture sector. Free market economics is rejected by their states in sectors where they are unable to freely compete.

The East Asian models are now being challenged by Western attempts to de-legitimise the economic role of the state, the latest being free trade agreements such as the Trans Pacific Partnership Agreement, in which the state’s policy space to set the rules in investment policies, government procurement and key services such as finance and telecommunications is being narrowed.

The TPPA also has a section not present in previous FTAs, which seeks to discipline how governments treat their state-owned enterprises (SOEs). It forbids the state from giving any advantages to these enterprises, and the SOEs are not allowed to give an advantage to locals when they buy or sell services and products.

The concept that the “free economy” is best and the state has no role except to enable it has been promoted in developed countries for export to developing countries as the recipe for development. But they did not practise it when they were developing and still do not practise it in areas where they cannot compete.

Martin Khor is Executive Director of the South Centre, a research centre of 51 developing countries, based in Geneva. You can e-mail him at director@southcentre.org. The views expressed here are entirely his own.

Lee Kuan Yew was sui generis


March 29, 2015

Lee Kuan Yew was sui generis

by Terence Netto@www.malaysiakini.com

Asia’s generation of independence-gaining leaders knew little or nothing of how to get the economies of their countries going.

Lee-Kuan-Yew India’s Jawarharlal Nehru, Indonesia’s Sukarno, and Vietnam’s Ho Chi Minh succeeded in freeing their countries from the colonial powers, but their triumphs were Pyrrhic. The euphoria of independence turned out to as evanescent as morning dew, their countries falling away after gaining freedom, stymied either by the ethnic and religious hatreds that had long bedeviled them, or hobbled by the choice of growth-stifling economic systems, or worse, caught up as proxies in the Cold War rivalry between the West and the communist bloc.

Lee Kuan Yew and Singapore – the names are interchangeable as no founding leader has stamped his mark on his country like Lee did – avoided the fate of these countries and their larger-than-life progenitors.

From scratch in 1959 when Singapore became self-governing, Lee built up the city-state to become an an economic and technological cynosure. He did this through the practice of a capitalism that emphasised no corruption, hard work, meritocracy, low taxes and high savings. And he held the line on the utility of the English language for upward mobility.

The upshot was phenomenal: Singapore rose from an economy whose gross domestic product (GDP) was US$427 per capita in 1960 to US$55,000 in 2013. This increase is stupendous by any measure, more so considering Singapore is without natural resources save a good harbour.

Lee achieved this transformation via methods that scorned the Western view that democracy was the last word in human political development. He was harsh on opponents, jailing them without trial if not bankrupting them with libel suits, and his view of the press was that they should not presume to tell him how Singapore should be governed.

After the fall of the Berlin Wall in 1989, the historian Francis Fukuyama espoused the theory of the “end of history” owing to the triumph of “liberal democracy”. Fukuyama said that the natural wish of humans to be free from repression would eventuate in their choice of a liberal democratic system of governance.

Fukuyama saw that communism’s fall cleared the way for the flowering of a system that believed in limited government, respected individual rights, allowed for free and fair elections, and encouraged governance by informed consent of the governed.

That this theory does not enjoy traction in Confucian societies was suggested, first, by Park Chung-hee in South Korea and, then, by Lee Kuan Yew in Singapore, and, later still, by Deng Xiaoping in China.

A Preference for order over disorder

The reason why an authoritarianism that was not draconian fostered growth and order in these Confucian societies was because of the ethos inculcated by the ancient Chinese sage which instilled a preference for order over the disorder of uninhibited political competition, placed family and social obligations to the kin group above individual rights, and encouraged respect for authority if it was reasonably exercised.

In Confucian societies, a quasi-authoritarianism is no reason for resistance, provided there are opportunities for people to become rich, educated and industrious. Rights are secondary to obligations and order is valued more than individual fulfillment.

Lee Kuan Yew understood this ethos which was why he always maintained, in the face of criticism of his heavy-handedness, that he knew his society better than the critics of his methods. Implicit in Lee’s approach was his confidence that Singaporeans would  applaud his quasi-authoritarianism when they see its economic outcome: the transformation of a resource-bereft and vulnerable geographic crossroads into a world hub of transport and trade. Singapore’s GDP was US$1 billion in 1960; in 2013 it was US$298 billion.

SingaporeSingapore’s spectacular economic growth has made Lee’s advice on how to govern much sought after, especially among leaders of countries keen to transform their backward economies.

India has declared a day of national mourning and its Prime Minister, Narendra Modi, a devotee of the economic-growth-as-panacea school, will attend Lee’s funeral in the island-state today, surely a mark of his determination to emulate the Singaporean model of development.

Singapore’s phenomenal economic progress gave Lee the platform to advice even the big powers on matters of geopolitical and strategic interest, with the former US President Richard Nixon an admirer who wryly observed that the “engine was too big for the boat”, by which he meant Lee’s intelligence and ability ought to have had an impact on a widely beneficial scale than just the tiny island he led from obscurity to economic powerhouse.

This brings us to the inevitable question of the what-might-have-been had Lee and Singapore not been, in his words, “turfed out” of Malaysia in 1965. The whole question of Singapore’s merger and separation from its 1963 federation with Malaya and Borneo is so vexed a matter that even after a half-century the subject is suffused with emotion that hinders objective assessment.

It will require a historian of Olympian detachment to unpack the tangled strands and allow the judgmental chips to fall where they may. If history is the record of what one age finds worthy of note in another, that definition implies a changing standard which may not be as impressed with Lee’s achievements as they presently rate on history’s scales.

Late 20th century and early 21st century truisms about economic-growth-as-panacea may not hold for long as the idea of progress takes in a more comprehensive view of human beings finding fulfillment in civil society, unhindered by any idea that the state knows best.

If standards come to that, Lee Kuan Yew’s ratings will waver from its present lofty levels, but then he may contend that history’s scales are fairly bogus in any case and that what matters are the here and now.

READ THIS:

http://www.themalaymailonline.com/what-you-think/article/lee-kuan-yew-an-appreciation.-he-broke-the-model-danny-quah

http://www.themalaymailonline.com/malaysia/article/obituary-lee-kuan-yew-the-benevolent-dictator

Malaysia after Hudud: A Nation Divided


March 29, 2015

Malaysia after Hudud: A Nation Divided

By Zurairi AR and Boo Su-Lyn

No Hudud in MalaysiaTHIS?

Hudud has for the past two decades largely been treated as a mere fringe topic among Malaysians, a political hot potato tossed back and forth between local parties as they canvassed for Muslim votes during elections.

But last week, when the Kelantan legislative assembly passed amendments to its Shariah Criminal Code II enactment — dubbed the hudud Bill — the controversial Islamic penal code quickly became a legitimate public concern.

Now, if PAS, the Islamist party that governs Kelantan, next succeeds at the federal level in getting more legislative amendments approved, hudud, an Islamic punishment system under Shariah law, will be implemented for the first time in a Malaysian state.

Although the law would only be confined to Kelantan, it must be noted that PAS’s manoeuvre in Kelantan has already roused the ambitions of other Islamist groups and scholars who wish to see hudud sweep the country. All eyes are also on Terengganu, which had also passed a similar but still ungazetted enactment with hudud elements in 2002.

The ball is now in Parliament’s court, but analysts and observers are already warning that should hudud get implemented in other states, the Malaysia we know today will head towards an irreparable divide.

A legal system divided

Malaysia has always practised a dual-track legal system, although for the Muslims, legal disputes on family matters like marriage, divorce and inheritance, and the precepts of Islam, are dealt with under the Shariah law.

The implementation of hudud, however, will see the Shariah courts encroaching on offences already covered in the civil justice system, specifically the Penal Code. These include crimes like sariqah (theft) and hirabah (robbery). Hudud’s companion qisas, meanwhile will legislate the offence of murder, which is also already covered by civil law.

According to amendments in Kelantan’s hudud Bill, however, once enforced, hudud will only apply to Muslims. For example, a Muslim guilty of theft in Kelantan can be punished by amputation of his limbs, under Section 7 of the state’s hudud law.

But in the Penal Code, the same crime committed by a non-Muslim prescribes a maximum seven-year jail term or fine or both, according to Section 379 of the legislation.

The prospect of subjecting criminals to two different punishments for the same crime by virtue of their religious backgrounds, however, could prove complicated in a diverse nation like Malaysia, analysts said.

Hudud2OR THIS?

“How do you enforce this in a plural society? Of course it would lead to injustice between Muslims and non-Muslims, especially if the crime involves perpetrators of different religions,” political analyst Nik Abdul Aziz Nik Hassan said in a recent phone interview.

“I think this contradicts the principles of Islam, where there exists variations and injustice in the punishment for the same crime.” At the crux of the argument is the Federal Constitution, the supreme law of the country that is the bedrock of Malaysia’s foundation.

If hudud is to be implemented, it would mean that the Federal Constitution will have to be amended to legislate against crimes already under the Penal Code, said Nizam Bashir, who is both a constitutional and Shariah lawyer.

“What seems to be missing from the conversation at this point of time is what the framers of the Constitution has envisaged as the appropriate balance of powers in a federal system of government like Malaysia. Simply put, we were always meant to have a strong central government,” Nizam told Malay Mail Online.

“Having said that, this does not mean that states have no power or the monarchs’ role are trivialised in some way in the Constitution. It is far from that.

“But it is very clear that the central government was always meant to take centre stage on matters like crime, and one can see why as it would promote public order,” the lawyer added.

The same sentiment was expressed by Malaysian Bar President Steven Thiru, who in a statement on March 20, said implementing hudud laws would fundamentally alter Malaysia’s secular Federal Constitution in ways never intended.

“If hudud were brought into the criminal justice system, it would result in the importation of Islamic penal law into a secular system. This would result in a rewriting of the Federal Constitution,” Steven warned.

Lawyers have also claimed that the implementation of hudud in Kelantan will lead to more constitutional challenges being filed in court against the Islamic penal code.Constitutional lawyer New Sin Yew pointed out that the civil courts were forced to intervene in previous cases of Shariah courts overstepping their jurisdiction, such as M. Indira Gandhi’s child custody dispute with her ex-husband who is a Muslim convert.

“Certain aspects of the state enactment like sariqah or hirabah will be challenged in the civil courts because only the civil courts have the power to decide on constitutional issues,” New told Malay Mail Online, referring to the hudud Bill.

“And certain punishments like the death penalty and amputation will be challenged for violating federal law,” he added, noting that the Shariah Courts (Criminal Jurisdiction) Act 1965 limits the punishments Islamic courts can impose to three years’ jail, RM5,000 fines or six strokes of whipping.

These challenges are bound to widen the chasm between the two legal systems, especially with minister in charge of religious affairs Datuk Seri Jamil Khir Baharom alleging last year of a “new wave” of assault on Islam here, and accusing rights groups of colluding with enemies of Islam to put its religious institutions on trial in a secular court.

A society divided

The discrimination in punishment among Muslims and non-Muslims will also lead to bigger problems in society as Malaysians would be treated differently in the eyes of the law, Nik Abdul Aziz suggested.

Already, clear divisions have appeared between those in support of Kelantan’s hudud and those who do not, as demonstrated in the recent case of BFM presenter Aisyah Tajuddin.

The young Muslim journalist earned heavy criticism over a satirical video produced by the popular business radio station where she was seen criticising the PAS government’s bid to introduce the law in Kelantan.

“This phenomenon will bring about clashes, discontent, and other problems … When the public is not being managed fairly, it will bring towards a discriminatory pattern,” warned the analyst, who is also a retired former head of Dakwah Studies Department in Universiti Kebangsaan Malaysia.

“Islam emphasises fairness. Under the roof of fairness, only then can you guarantee economic and social stability.”

RATNA_OSMANRatna Osman and Zainah Anwar

Meanwhile, the dismissal of women’s role in hudud also has women rights group Sister in Islam (SIS) worried over the treatment of women in the future, especially Muslim women. SIS’s Executive Director Ratna Osman pointed to Section 41 of Kelantan’s hudud Bill, which specifies that only an adolescent and fair male Muslim can stand as a witness in the cases of zina (illicit sex) and liwat (sodomy).

“This disqualified non-Muslims overall and Muslim women, and this contradicts with equality that is promised under Article 8 of the Constitution, that guarantees equality for all regardless of race and gender,” Ratna told Malay Mail Online.

“The fact that women are disqualified as witnesses in the code, is against the practise of Islamic laws on evidence,” she added, citing several hadith—collections of Prophet Muhammad’s sayings and deeds—where women’s testimonies were accepted in criminal cases.

She also took issue with the provisions in Kelantan’s bill governing qazaf (false accusation of zina), which puts the burden of proof on women in cases of rape, and the li’an provision, which allows a husband to accuse his wife of adultery under a sacred oath.

“You will find because of this gender inequality, a lot of cases, in Iran particularly, where husbands are always using li’an as a means to put their wives in jail. It is an easy way out of marriage,” Ratna claimed.

She also pointed to how in other countries like Pakistan, it is always the women who are convicted of zina while their male partners escape prosecution.Apart from that, Ratna also noted the difficulty in criticising the implementation of hudud after Kelantan passed its hudud Bill.

The space of discourse, even among Muslims, is rapidly shrinking with the authorities now warning laymen against discussing hudud and religion in general, as the voice of discontent continues to grow unfettered online.

Against their critics, PAS has so far resorted to labels from “immorals” and “liars”, which Kelantan Mentri Besar Datuk Ahmad Yaakob uttered when tabling the bill, to “parrots” and “unforgivable ignorants” in PAS president Datuk Seri Abdul Hadi Awang’s open letter a week after.

A country divided

In its video, BFM and Aisyah had asked how exactly hudud would fill the rice bowls of Kelantan folks, especially as the state remains one of the poorest in the country. The question has still remained unanswered, but critics told Malay Mail Online that the trickle down effect of hudud’s implementation in plural Malaysia will inevitably impact even bread and butter issues.

“Why must we rush in hudud, when the priority should be on social justice, eradicating poverty, access to health services, urban cleanliness? There are a lot of things in Islam we can implement,” Nik Abdul Aziz suggested.

“This hudud punishments will lead to bigger implications. If there is a huge case of theft, wouldn’t you have one race with fewer hands than the others? That is why we have to think this out thoroughly.”

There is already global fear that Malaysia risks losing its identity as a model of religious moderation and multiracialism if hudud goes ahead, as expressed by an influential group of retired Malay senior civil servants dubbed G25 on March 25.

Prime Minister Datuk Seri Najib Razak invariably touts Malaysia’s reputation to the international community and investors as a so-called moderate Muslim country, especially in his address to the United Nations as recent as September last year. But this image has continued to take a beating with recent actions taken by religious authorities, especially in the case of the use of the word “Allah” by non-Muslims.

Having hudud nationwide might be the nail on the coffin for his campaign, according to some. “If hudud were ever to see the light of day in Malaysia we can be sure that there will be a massive outflow of investment, wealth and people from Malaysia,” tycoon and philanthropist Koon Yew Yin wrote in his blog on March 22.

“It is not only the locals who will leave. The international community—including foreign investors—has been more loud and vociferous in expressing concern about the growing Islamisation in the country.”

“Adoption by Parliament — even if a two-thirds majority is not obtained — will be the beginning of the end for moderate and inclusive Islam in the country. Is the Middle East model of fundamentalist Islam which has brought destruction and disaster the model that Malaysian Muslims want to follow? I do not think so,” he added.

On March 19, the Kelantan state assembly approved the Shariah Criminal Code (II) (1993) 2015 Enactment with 31 votes from PAS lawmakers supported by 12 from UMNO.

PAS now plans to put forward two private members’ bills in Parliament to enable Kelantan to enforce hudud ― one will seek approval for the state to legislate punishment for crimes under the Penal Code.

The other seeks to amend the Shariah Courts (Criminal) Jurisdiction Act 1965 to enable Islamic courts to mete out punishments like the death penalty for apostasy and amputation of limbs for theft. PAS has said it only needs a simple majority in Parliament, or 112 MPs in the Dewan Rakyat, to amend the Shariah Courts (Criminal) Jurisdiction Act.

http://www.themalaymailonline.com/malaysia/article/snapshot-of-malaysia-after-hudud-a-nation-divided#sthash.dOTRpc39.UE8fsUth.dpuf