The AF-A word


August 12, 2018

What is Affirmative Action?The AF-A word

http://discovery.economist.com/openfuture/what-is-affirmative-action?kw=all&csid=socialoffb&ref=openfuture

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Affirmative Action–Constructive Discrimination? In Malaysia, it is Bumiputraism by UMNO for political control of the Malays
 

As Harvard gets sued for discrimination, an idea popular in many countries comes under fire

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HARVARD UNIVERSITY is being sued for allegedly discriminating unlawfully against Asian applicants. America’s best-known university takes race into account when deciding whom to admit. It says this is one of many factors, and justified by the need to ensure a diverse student body. Plaintiffs contend that it has an unwritten quota to stop Asians from taking as many places as their stellar test scores would predict.

 

Racial discrimination is illegal in America, except when it isn’t. “Affirmative action” policies, which discriminate in favour of members of disadvantaged groups, are widespread in America and many other countries. Critics, including many supporters of the Harvard suit, argue that they should be illegal. Confusion abounds–America’s Supreme Court has offered contradictory guidance as to when affirmative action is and is not allowed.

The very phrase is vague. One of its early uses was in 1965, when President Lyndon Johnson of the United States signed an executive order requiring government employers to take “affirmative action” to “hire without regard to race, religion and national origin”. Since then, the phrase has come to mean more or less the opposite: giving preference to people because they belong to a particular race, religion, caste or sex.

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In many countries, the state gives a leg-up to members of certain groups because they have suffered discrimination in the past or continue to endure it today. America offers preferences to black people, whose ancestors were enslaved. India has quotas for dalits, formerly known as “untouchables”, who are at the bottom of the Hindu caste system. Some countries have affirmative action for members of groups that are on average poorer than their neighbours, even if those neighbours have not historically done them wrong. For example, Malaysia has positive discrimination for native Malays, who are poorer and do worse in school than their Chinese and Indian compatriots.

The details vary from place to place. In some countries, affirmative action applies only to areas under direct state control, such as public-works contracts or admission to public universities. In others, private firms are also required to take account of the race of their staff, contractors and even owners.

Advocates of positive discrimination often argue that such policies are necessary to correct historical injustice. Some quote another line of President Johnson: “You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying you are free to compete with all the others, and still justly believe you have been completely fair.” Another argument is that discrimination against some groups is so pervasive that it can only be corrected with reverse discrimination.

Critics of affirmative action argue that two wrongs do not make a right; that treating different racial groups differently will entrench racial antagonism and that societies should aim to be colour-blind.

 

Many of the groups favoured by affirmative action have grown more prosperous or done better educationally since these policies were introduced. But establishing how much credit affirmative action can take is hard. The world has grown dramatically richer in recent decades and far more of its people have gone to university. Ethnic Malays are three times richer in Singapore, where they do not get preferences, than in next-door Malaysia, where they do.

 

Thomas Sowell, the author of “Affirmative Action around the World”, observes that although affirmative action policies are typically introduced as temporary measures aimed at narrow groups, they often expand in scope as new groups demand privileges, and become permanent. In 1949 India’s constitution said quotas should be phased out in ten years. Today over 60% of the population is eligible. More than 95% of South Africans are covered by preferences of some kind.

Although the groups covered by affirmative action tend to be poorer than their neighbours, the individuals who benefit are often not. One American federal-contracting programme favours businesses owned by “socially and economically disadvantaged” people. Such people can be many times richer than the average American family and still be deemed “disadvantaged” if their skin is the right colour. One beneficiary of South Africa’s programme of “Black Economic Empowerment” is worth an estimated $500m; he is also now the president of South Africa.

In several countries, the most heated debates around positive discrimination concern education. Some American states, such as California, Michigan and Florida, ban the consideration of race in public university admissions. But others are doubling down. Universities that take race into account are typically reluctant to disclose how much weight they ascribe to it. Critics speculate that this is because they give it far more weight than most Americans would consider fair. One study found that at some colleges, black applicants who scored 450 points (out of 1,600) worse than Asians on entrance tests were equally likely to win a place. The plaintiffs in the Harvard suit hope that it will force the university to reveal exactly how it evaluates applications.

Some say it is reasonable to award university places to African American students with lower test scores, given that as recently as 1954 it was legal in America for states to run separate schools for blacks and whites. But critics argue that it is counter-productive. A study by Richard Sander and Stuart Taylor found that lowering the bar for black students lets them enter law schools for which they are ill-prepared, causing many to drop out. Strikingly, they estimate that positive discrimination results in fewer blacks successfully qualifying as lawyers than would have been the case under colour-blind policies.

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Some people argue that policies designed to uplift the disadvantaged should cater only for those who are actually poor, rather than using race as a proxy for disadvantage. Barack Obama, though he has generally supported affirmative action, said it would be wrong for his daughters to get “more favourable treatment than a poor white kid who has struggled more”. Some universities have adopted race-neutral policies such as trying harder to recruit poor students or admitting anyone who comes in the top 10% of his or her high-school class. Many could free up more spaces for deserving poor students by removing preferences for the children of alumni—but few do.

 

Straight and crooked reporting in the new Malaysia


August 4, 2018

Straight and crooked reporting in the new Malaysia

by Cogito Ergo Sum
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COMMENT | At the start of each academic year in the Journalism 101 course, I ask my students if they want to be objective or fair in their reporting and writing. Inevitably, most, if not all, answer that they want to be objective.

But like everyone else, I point out, we are subjective. Our opinions are coloured by lenses stained by culture, religion, race and social prejudices, as we grow in an increasingly confusing world where the social order is being altered almost daily.

Some point out that being objective requires one to be ‘fair’ in our judgement calls. I ask them if they can ever be objective about their children, the faiths of others and the politics of the day. And there is a silence in the class.

Being fair needs work. To be fair requires an effort to treat people and stories appropriately and fairly. A lot of work has to go into attempting to be fair.

It means going out of the way to ensure that both sides are given an equal opportunity to give their version of the story. It also means that if you give 10 paragraphs to one side, you must give the same number of paragraphs of the story to the other side.

It also means diligent checking of facts given by both sides. You have to dig and search and countercheck. That is what old-timers in the profession used to do.

A senior editor once told me that in the old days, when there was a gap in the story, reporters were told to find out. Then came the era of the computer and the instructions were to let the computer find out. Now, the instructions are, leave it out.

As you read a story with vital facts left out, you get the distinct feeling that something is not right.

After a while, one becomes desensitised to that feeling. And the readers that have been fed these lopsided articles and stories are now ‘educated’ to think that that is the new ‘fair’ reporting.

Loyalty rewarded, not professionalism

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So often in the past, newspapers and television stations have only published and broadcasted one side of the story. The other side is left to sue for the truth, and the number of successful suits is testimony that fair reporting is no longer part of our journalistic culture.

For 60-odd years, save for a few just after independence, journalism in Malaysia has been about regurgitating and processing official pronouncements and making the speaker or writer look good.

Journalists were rewarded by the political masters of the day with titles, tenures, and wages that were simply outrageous.

As professionals, we seem to have forgotten that we have a code of ethics and rules of language that ensure the art of storytelling and reporting is fair, clear and leaves little confusion.

A doyen of the profession described the work of the reporter as shedding light on a subject without altering it. That description has been violated today by the fact that we can now shine multi-coloured lights on a subject and change its hues with language and latitude in our attitude to the facts.

I will cite an example of how the use of language can subtly alter the perception of readers from a pro-Israel media outlet.

“Defence forces fired on rioting crowds in Palestine today.”

The use of the word “rioting” immediately justifies action by the authorities. Because the crowds rioted, it was justified to fire at them.

But we do not know the reason for the riots as yet. A neutral way of telling the story is to remove the verb “rioting”. And now you have “Defence forces fired on crowds in Palestine today.’That leaves the story uncoloured.

We have become artists in colouring our stories in subtle and not-so-subtle ways.

The stunning victory by Pakatan Harapan in the 14th general election has given the media and its practitioners a hard jolt.

The mainstream media is now confused as to how to play this new game. After almost six decades of subservience and obsequious behaviour towards the BN and its components, journalists in these organisations have forgotten what it means to be a professional.

To think critically in the old days meant that you had a very short tenure and lifespan in the mainstream media.

Giving Najib too much space?

Now, the media seem to be attempting to report stories with a sense of fairness, without colour or clarity. Mainstream media outelts are still owned by political entities of the old BN. And fear that what they did to others may be done unto them keeps them in check, to a certain extent.

Utusan Malaysia – which to many was simply a rabid rabble-rouser that would not think twice about using race, religion and culture to further its masters’ bigoted cause – has merely been told that no one is subscribing to their thinking.

Subscriptions to the paper by public schools and varsities are being phased out by the Harapan government. Some reports say that the new government is reconsidering subscriptions to other newspapers as well.

Equally confused are some of the alternative media. From being an avenue for the opposition to air their views, they believe that by giving the BN leadership, in particular, former Prime Minister Najib Abdul Razak, a disproportionate amount of space in their publications, they are being fair.

It is still true that a man is innocent until proven guilty. Imagine if Ferdinand Marcos, the former Philippine dictator who was overthrown by a popular uprising, was given the same space as Najib in their papers?

GE-14 was a turning point in Malaysian history. Malaysia was at the point of becoming an Orwellian state, but against all odds, the people overthrew the grand old coalition of BN.

Najib, as head of BN, represented all that was wrong with the old regime. The rakyat had had enough of his autocratic way of getting things done by crushing the will of the people with debts and taxes.

He became the butt of jokes and the parody of cartoonists who were persecuted because they were the voice of public dissent.

Being fair means giving the other fellow an equal chance to rebut an allegation. Najib now has that chance in a court of law after being charged for various crimes against the law and the people.

A dangerous thing

Najib seems to have been somewhat abandoned by the former mainstream media outlets, some out of fear of repercussions, others from sheer embarrassment. He is a master of the game. He has skilfully portrayed himself as a victim of politics. No one really believes that drivel, save for some diehard fans.

The danger in giving Najib space, however little, is that he is quite capable of whipping up support for his lost cause at the expense of the ground Harapan has won among the people.

Now, it seems that Harapan is responding and reacting to Najib’s inane accusations and statements rather than being proactive and restrained in their responses. Restrained, because now they are the government and there is a pending case for them to show the evidence in a court of justice.

Giving Najib too much space is a dangerous thing. To do so is not being fair to the people who threw him out.

He seems to have found an unlikely ally in his former nemesis, the alternative media. And he is cunning enough to exploit the space given to the hilt.

And to my students who may ask if this article is fair? No. Because like everyone, I am subjective.


COGITO ERGO SUM is a Malaysiakini subscriber.

Economic Pragmatism and Regional Economic Integration: The Case of Cambodia


July 12, 2018

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Economic Pragmatism and Regional Economic Integration: The Case of Cambodia

by Chheang Vannarith

Chheang Vannarith, Visiting Fellow, ISEAS-Yusof Ishak Institute, explains that “International economic cooperation and regional integration are key principles of Cambodia’s foreign policy.”

Asia Pacific Bulletin, No. 429

Cambodia’s foreign policy strategy has been chiefly shaped and driven by “economic pragmatism,” meaning the alignment of foreign policy with economic development interests. The Cambodian government’s two main approaches to regional economic integration are (1) transforming the international environment into a source of national development and (2) diversifying strategic partnerships based on the calculation of economic interests. International economic cooperation and regional integration are key principles of Cambodia’s foreign policy, which emphasizes shared development and win-win cooperation.

As a less developed country in the region, Cambodia has a strong interest in promoting and realizing a more inclusive, fair, and just process of regional community-building that narrows the development gap and implements people-centered regional cooperation. Linking regional integration with national economic policies is critical to sustaining dynamic economic development.  Key tasks include improving regulatory harmonization and harnessing and synergizing various regional integration initiatives.  It is particularly important to link ASEAN community blueprints with sub-regional cooperation mechanisms such as the Greater Mekong Subregion (GMS) program and Mekong-Lancang Mekong Cooperation (MLC).

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Samdech Prime Minister Hun Sen–Father of Cambodia’s Socio-Economic Development

The Cambodian government perceives regional integration as a means to further advance its national development interests. ASEAN, GMS and MLC are the main gateways for Cambodia to reach out to the region and beyond. The ASEAN Economic Community Blueprint 2025 aims to achieve five goals: (1) an integrated and cohesive economy; (2) a competitive, innovative and dynamic ASEAN; (3) enhanced connectivity and sectoral cooperation; (4) a resilient, people-oriented, and people-centered ASEAN; and (5) a global ASEAN. GMS operates under the principles of non-interference, consultation and consensus, mutual interest and equality, win-win cooperation, shared development, and common destiny. GMS gives emphasis to practical or functional cooperation, aiming at achieving concrete results in poverty reduction. MLC promotes regional connectivity, production capacity, cross-border economic cooperation, trade and investment facilitation, customs and quality inspection, financial cooperation, water resource management, agriculture, forestry, environmental protection, and poverty reduction.

In the Rectangular Strategy Phase III, issued in 2013, a five-year strategic development plan, the Cambodian government set out a vision that states, “by the end of the first half of the 21st century, Cambodia is to reclaim full ownership of its own destiny, while becoming a real partner in regional and global affairs.” It further states that Cambodia is now “actively integrating itself into the regional and global architecture, and playing a dynamic role in all regional and global affairs on equal footing and with equal rights as other nations.”

The Cambodian government stresses several key benefits of regional integration, including regional peace and stability, the development of both hard and soft infrastructure, energy and digital connectivity, free and effective movement of trade and investment, human capital development, the expansion of regional production bases and networks, and stronger regional cooperation and coordination in agricultural development. Strengthening regional cooperation — especially in the Mekong region in rice production and trade facilitation — would contribute to improving farmers’ standard of living. Creating an association of rice-exporting countries will strengthen the global position of the Mekong countries.

Although there have been remarkable achievements over the last two decades in forging regional cooperation, integration, and connectivity, there are several challenges that Cambodia needs to overcome. Those challenges include socio-economic inequality within the country and the region, weak institutions and governance, and the lack of national capacity in implementing regional projects. Income disparity within the regions and localities contributes to political instability, trans-boundary crimes, illegal labor migration, and human trafficking.

Institution-building based on good governance remains a key challenge to the effective implementation of regional policies. The national capacity of each member country of the GMS in transforming and integrating its regional development agenda into a national development action plan is limited. The lack of resources in realizing regional development projects requires more investment and participation from the private sector.

Local government plays a significant role in regional cooperation and integration. Recognizing the role of local government in socio-economic development, in 2008 the government adopted two Organic Laws and established a National Committee for the Democratic Development of Subnational Administrations. These measures are aimed at decentralizing power and creating a sub-national governance system. Delegating power and resources to local governments at the commune, district and provincial levels not only contributes to national development but also connects governments with neighboring countries, especially in the border areas.  For instance, the Cambodia-Laos-Vietnam Development Triangle was formed in 2002 to link 13 border provinces of the three countries.

A major challenge is that both the central government and local governments in Cambodia lack sufficient institutional capacity and resources to effectively implement the country’s regional cooperation and integration agenda which includes the budget infrastructure connectivity projects. It is therefore necessary to forge a closer partnership between the public and private sectors, especially in infrastructure development and connectivity.  Decentralization, delegating more authority to local governments, can facilitate public-private partnerships and stimulate national public administrative reform. Cambodia’s Ministry of Economy and Finance crafted a policy paper on public-private partnership for public investment project management, 2016-2020, which aims to “create an enabling environment for promoting the participation of the private sector and financial institutions in public investments.”

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Phnom Penh, Cambodia

To enhance Cambodia’s competitiveness, and thereby to improve the depth and quality of its participation in regional economic integration, Prime Minister Hun Sen said at the GMS Business Summit in Hanoi in March 2018 that it was necessary to strengthen efforts in regional economic integration and connectivity through prioritized areas of finance, economy, e-commerce and cross-border trade.

The seize the opportunities arising from fourth industrial revolution and digital integration in ASEAN the Cambodian government is focusing on four pillars.  According to a speech by Prime Minister Hun Sen at the 2018 Cambodia Outlook Conference in Phnom Penh, these are:

(1) Developing a skilled workforce by emphasizing education in science, technology, engineering, and mathematics (STEM) and technical and vocational training, supporting linkages between education and enterprises, and creating a national accreditation system.

(2) Promoting a research and development network, a high-quality physical infrastructure, and a public-private partnership mechanism to support the establishment of research and development, the facilitation of information sharing and technology transfer, and the penetration of foreign markets.

(3) Further strengthening institutional, policy and regulatory frameworks by bolstering the implementation of intellectual property law, related regulations, and other regulatory frameworks in order to encourage and support entrepreneurs and scientists to innovate and sell their technology products and services.

(4) Inspiring public participation in the science and technology sector, promoting public awareness of the importance of STEM, and nurturing the talents of its population.

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Young and Better Educated Cambodians

As a small and open economy, Cambodia has taken a proactive approach in promoting regional integration based on the principle of win-win cooperation.  The government has taken measures to diversify the sources of growth by investing in knowledge-based economy and strengthen public-private partnerships. However, the lack of institutional capacity at both national and local levels remains a key constraint.

Regional leadership needed to save trade regime


July 5,2018

Regional leadership needed to save trade regime

by Mari Pangestu, University of Indonesia, and Christopher Findlay, University of Adelaide

http://www.eastasiaforum.org/2018/06/24/regional-leadership-needed-to-save-trade-regime/

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The world in which Asia Pacific economies operate is changing. Two main forces are driving this change — one ‘top-down’, the other ‘bottom-up’.

The top-down force is the emergence of a world with a larger number of key economies. In recent decades, growth rates around the world have diverged. For much of Asia, this has meant dramatic improvements in incomes and a huge reduction in the number of people living in poverty. It has also meant a new order among countries — a multipolar world.

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Prof. Christopher Findlay, University of Adelaide

The bottom-up force is the change in the way production is organised, driven by progress in communications and information technology. Technological improvements have shifted the location of production, with production processes becoming increasingly fragmented across countries. The nature of work and the composition of skills within economies have changed.

Given the new order of production and trade, the Trump administration’s mercantilist focus on reducing merchandise trade deficits will end up hurting the United States, as well as disrupting global production networks.

As trade flows change, pressure for domestic structural change can arise. In the United States, a decline in support for international trade and openness has been exacerbated by a lack of adjustment support for geographically concentrated bearers of the burden. Their reaction via domestic political processes has shocked the international system.

In the United States and elsewhere, good macroeconomic outcomes no longer win elections. Much economic policy is now driven by nationalistic and protectionist politics. This is particularly evident in US initiatives to protect its domestic production and seek adjustments from China.

These political conditions were preceded by waning support for openness at a multilateral level. As multilateral negotiations stalled, the response has been the emergence of ‘mega-regional’ platforms such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP or TPP 11) and the East Asian Regional Comprehensive Economic Partnership (RCEP).

These initiatives sit atop a ‘noodle bowl’ of messy bilateral agreements. Before the current US America First regime, these mega-regional and bilateral agreements still operated under the lid of the World Trade Organization. The rules-based trading system was still an anchor for economic integration, especially the dispute settlement mechanism.

Today, the principles of openness, non-discrimination, transparency and open regionalism — which have helped generate prosperity in the region, especially for developing economies in Asia — are being severely challenged. When the United States leaves the TPP, undertakes unilateral action and declares that the multilateral rules have not served US interests, the anchor of the trading system is challenged. At most international forums like the G20, policymakers’ time is being wasted on phrasing defensive communiques instead of cooperating on the substantive trade and investment issues of the day.

At the same time, new issues are emerging in relation to trade and investment, such as the taxation of international income flows, the treatment of data flows and the management of intellectual property. Responding to climate change and finding appropriate policies to deal with inequality are also among the challenges.

Progress will be difficult in the multipolar world without clear leadership from the major economies.

Waiting for a consensus to emerge among key economies about the importance of maintaining these anchor principles — while at the same time dealing with the new issues that have emerged — is not an option. There are no obvious forces now at work to resolve this lack of consensus within a reasonable timeframe. Lower-income people in rural ASEAN areas, for example, should not have to wait for the rest of the world to figure out how to shift their own economies and communities to new sources of growth.

In the absence of leadership from the advanced economies, a shared leadership model in the region should be the answer. The key then is the response of the increasingly influential ‘second-tier’ economies. No actors are more important than Indonesia and Southeast Asia, operating through ASEAN and the ASEAN-plus regional agreements that are already in place and being consolidated under RCEP.

Recent statements by leaders in Indonesia indicate recognition of the role it can play and wants to play. But Indonesia’s contribution will be so much greater and more effective if it acts in concert with others. Concerted action could take multiple forms. It might include unilateral reforms, or working on sustainability initiatives that are in both local and global interests.

Effective concerted action depends on a few factors. Foremost, it depends on shared principles. Part of this is agreeing on a purpose, such as the basic principles of non-discrimination, transparency and support for the rules-based trading system. Other principles can relate to specifics, such as the management of open data flows. These principles provide important reference points as countries take their own actions. There is value in sharing experience and aligning countries’ expectations about each other’s reform programs.

These are not new approaches. Readers with long memories will recall efforts like the APEC non-binding investment principles and Individual Action Plans. But this is the point — we already have relevant structures for mobilising this cooperation that can be rejuvenated.

APEC is the most relevant example. Putting weight on APEC does carry a risk. But APEC has a well-developed network of second-track structures that can be engaged more deeply. Given the complexities of the new issues facing the regional economic order, it is even more imperative that there be wide, multi-stakeholder participation and input.

Even more importantly, APEC remains a forum in our region where key economies in the multipolar world and the leading second-tier countries can interact effectively, and where the major protagonist, the United States, can still be engaged.

Mari Pangestu is former Indonesian trade minister and Professor at the University of Indonesia. Christopher Findlay is Professor and Executive Dean of the Faculty of the Professions at the University of Adelaide.

This article appeared in the most recent edition of East Asia Forum Quarterly, ‘Trade Wars in Asia’.

 

 

 

Diplomacy and Foreign Judges


June 13, 2018

Diplomacy and Foreign Judges

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http://www.dailymirror.lk/article/Diplomacy-and-Foreign-Judges-151200.html

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Justice Dalveer Bhandari was re-elected to the Hague – based International Court of Justice (ICJ) on November 20, 2017, as the UN General Assembly overwhelmingly supported his case forcing the UK to accept the will of the majority and withdraw its candidate Christopher Greenwood for the post.Justice Bhandari is recipient of a Doctorate (h.c) from The University of Cambodia, Phnom Penh in 2018.

Could there be a keener pleasure than to sit around a fire and discuss diplomacy with a diplomat? Of course, there is no fire; just coffee, and that only in plastic cups, which nevertheless provides the fire, inside, instead of outside, but with the same cheering and relaxing power.

It’s after the coffee break at the ‘Education Institute’ and Ambassador Palihakkara has invited questions. “You said we cannot operate in isolation. But we have opposed the intervention of foreign judges in HR issues. As a diplomat how do you view this?” a student asks. Palihakkara makes it clear that he views it with disfavour, and concern and has no doubts that the same degree of disfavour would be forthcoming from every country, were such a thing suggested to them.

“I have probably spent around 20, 25 years at the HR Commission and the UN and Council and I have not seen a single country who wants foreign judges to come. I think the foreign judges are being suggested on the basis that the judiciary of that country is not independent. So if you show that your judiciary is independent, no one can ask foreign judges to come. Personally, I think having foreign judges will create more problems than solutions.”

If we are up to showing that our judiciary is independent, we can take a firm stand that our judiciary meets international standards. So we don’t need foreign Judges

Not everyone feels this way. I have met Sri Lankan patriots who feel differently. “I have always argued; how do we set up a credible mechanism to inquire into this, credible to the Tamils, credible to the rest of the world, and credible to ourselves? I don’t think you can do that exclusively with a local system. You need to bring credibility to the system you are setting up by bringing in an international panel of experts to preside over, but don’t lose control over the process. I think it can be done. Foreign judges are basically judges who will apply the law,” Godfrey Gunatilleke, Chairman Emeritus, Marga Institute said to me in 2015, when I interviewed him for Sunday Island.

Under the influence of that memory, I question Mr. Palihakkara. “I think this whole issue of being against foreign judges goes against the grain because there’s a huge credibility issue in countries like SL, third world countries. Credibility is only achieved when foreign assistance is obtained,” I begin coherently enough but muddy the waters somewhat by mentioning, Scotland Yard assistance, foreign coaches, foreign technical assistance as fait accompli arguments in favour of foreign judges.

“There is a distinction between technical assistance and judges,” Mr. Palihakkara asserts gently. He is all for getting foreign technical assistance for forensic and investigative activity and think it will enhance credibility and efficiency. “Getting foreign judges for judicial verdict is different.” Obviously, the former commissioner of the Lessons Learnt and Reconciliation Commission feels strongly about this. Perhaps it’s a matter of national pride and honour, though the ambassador never puts it in such emotional terms. “There have been a lot of complaints about the judiciary, I agree with you. But we must rectify it here. We must allow the judges to work independently, not intimidate them. Politicians should stop telephoning them. Those are the things we must do. You can’t ask white gentlemen or ladies to come here and tell the judges that. You know our judges are literate people, educated, if they are allowed to work without telephone calls, intimidation and various other methods, they will work.”

Yes definitely national pride is an issue here. But not the only issue which plagues Mr. Palihakkara’s mind “If you have foreign judges, there will be conflict,” says this foreign service mandarin who became Foreign Secretary, Permanent Representative of Sri Lanka to the United Nations and retired as Governor of Northern Province. The idea of foreign judges according to Mr. Palihakkara generates too many open questions “Personally, I think having foreign judges will create more problems than solutions. How are the foreign judges going to operate? In conjunction with local judges or sitting in judgement of judgements delivered by local judges. Does our legal framework permit such things? Do we have to enact new legislation or is it possible to get the legislation through parliament? I remember in Cambodia they had foreign tribunals that was a failure. Some people criticized this for being a waste of UN money.”

You know our judges are literate people, educated, if they are allowed to work without telephone calls, intimidation and various other methods, they will work

Again, I have sat around a different fire and heard a different reaction to foreign judges, treating all anticipated problems as so much gristle to be cut away to reach the metaphorical meat- a solution to the credibility issues which would plague a purely domestic judicial process.

 “Hybrid as given in the OHCHR report suggests something in which foreign judges will be nominated by them like in Cambodia and Lebanon. We won’t have that. We won’t have UNHRC nominating our judges. The choice is ours. It won’t be hybrid in that sense. It will be hybrid in the sense that we will be bringing in international expertise to give credibility to this mechanism. I am with it,” Godfrey Gunatilleke had said sitting around our interview fire.

We won’t have UNHRC nominating our Judges. The choice is ours. It won’t be hybrid in that sense. It will be hybrid in the sense that we will be bringing in international expertise to give credibility to this mechanism

As I sit around this current fire and listen to Mr. Palihakkara, I am conflicted. How to break the deadlock between these two stances? What’s the clinching argument? What’s so wrong with foreign judges? If they will help bridge the trust deficit why not have them? What harm can they do, what danger do they inherently carry that no country will have them voluntarily? Can the trust deficit be addressed without incurring this sort of danger?

Yes, according to Mr. Palihakkara, if we are up to showing that our judiciary is independent, “we can take a firm stand that our judiciary meets international standards. So we don’t need foreign judges” If we don’t take this sort of firm stand, the ambassador cautions, “our local human rights problems get internationalised. Foreign judges mean you are internationalizing it.”

Yet resolution A/HRC/RES/30/1 co-sponsored and presumably containing text pre-negotiated and agreed upon by Sri Lanka, “Welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system, notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators;”

 According to Mr. Palihakkara however, this resolution does not render us optionless by “mandating” foreign judges. “It’s not obligatory. It says having foreign assistance and judges would be important. So the option is left here”

The resolution being co-sponsored, doesn’t it mean that Sri Lanka too has affirmed the importance of the participation in a Sri Lankan judicial mechanism of foreign judges? It would appear not, to judge by the curt repudiation of the idea by the President of Sri Lanka in his  January 21, 2016 interview with BBC Sinhala service, just months after Resolution 30/1. Displaying decisive body language and barely concealed impatience with even the suggestion of international participation or foreign judges in investigating HR violation allegations, the President stated that of the proposed measures by the UN HR Commission, they have to consider which would be in the government’s power to adopt and which they wouldn’t be able to implement. Admitting the government’s clear acceptance of investigations into allegations of HR violations, the SL Head of State was categorical that ensuring fairness in such investigations should be done within a domestic judicial process, in accordance with SL constitution and without the participation of foreign judges, because they had no intention of importing foreign judges to ensure fairness. He will never agree to such a thing. He has faith in the Sri Lankan judiciary and the investigating bodies and officers within the terms of the constitution and a domestic mechanism. Even seeming to reject foreign investigative and forensic assistance, the President denied the need to import anyone from anywhere else.

There are three things to remember about Resolution 30/1. It resulted from a collaborative approach; its text was worked out between USA, new government of Sri Lanka and other stakeholders, from a first draft by USA; and it was co-sponsored by SL.

SL seems to say, we are within our rights to reject those few recommendations that we were unhappy about at the time of the collaboration. As a resolution is not a treaty, we didn’t feel it was necessary to make a ‘delete-or else’ fuss about every point in the collaborated text

The SL interpretation of ‘collaboration and co-sponsoring’ seems to be that there is no need for a collaborator to endorse and take responsibility for every point in the final collaborative/co-authored text. As long as the majority of the points are endorsed and complied with by the co-sponsoring, collaborating party, a collaborator’s/co-sponsor’s obligations can be considered fulfilled. As all collaborated texts are essentially compromises, SL seems to say, we are within our rights to reject those few recommendations that we were unhappy about at the time of the collaboration. As a resolution is not a treaty, we didn’t feel it was necessary to make a ‘delete-or else’ fuss about every point in the collaborated text. What we meant by affirming our collaboration as a co-sponsor is simply that overall, on the whole, for the most part, we are with Resolution 30/1, while retaining the right to disassociate ourselves from the unacceptable bits.

Evidently, countries have their ways of working within the UN system. Palihakkara tells us about Cuba, “USA was trying to harass Cuba on the human rights count but they fought successfully against the UN resolutions because they put in place in their own country, very efficient judicial and law enforcement measures. And eventually the USA had to withdraw those resolutions from the Human Rights Council.”

Sri Lanka’s difference I think to myself, seems to be that we don’t fight against the USA led UN resolutions. We collaborate with them and co-sponsor them so that when and if, we, like Cuba, put in place in our own country, very efficient judicial and law enforcement measures, USA can feel a warm glow that it was a partner, a stakeholder in that positive transformation. But then, didn’t USA feel a warm glow when Cuba was doing that, that it was USA resolutions that were driving positive change in Cuba? Apparently not. They would just have felt defeated with every resolution they had to withdraw.

Ambassador Palihakkara tells us that when he left New York in 2009, there was a USA sponsored resolution in the UN General Assembly, proposing an embargo against Cuba that only four out of the 193 UN member states supported. Cuba achieved this according to Mr. Palihakkara through the stance: “In our country, we may be poor but we don’t have torture, people don’t disappear. You can come and see.”

If we are ever able to take up such a stance, we won’t have defeated Resolution 30/1, we wouldn’t have defeated USA. But what will such ‘no defeating’ entail? The simplest way to make USA feel a warm glow could be to just do as it wishes. Is asserting our sovereignty within a collaborative approach harder than in a confrontational approach, where SL like Cuba would seek to defeat a UN resolution by proving positive things? These are things I don’t ask Mr. Palihakkara because it’s time to go home.

A new coalition politics? Harapan Government one month on


June 10, 2018

A new coalition politics? Harapan Government one month on

by Dr. Bridget Welsh@www,malaysiakini.com

COMMENT | Today (June 9) marks one month after the historic GE14. It is early days yet for the new Pakatan Harapan government with only a core minimalist cabinet in place. Yet, in the past month, there have been important messages that illustrate a commitment to a genuinely different form of governance.

At the same time, the cautious and more constrained manner Prime Minister Dr Mahathir Mohamad has gone about making important decisions show cases the different style of coalition politics that now operates in an arguably more challenging political environment than that faced by BN in the past.

Despite serious obstacles, Malaysia is embracing a ‘new politics’.

Meeting promises

To date, Harapan can point to four important areas where it has fulfilled its campaign promises.

The first is the zero rating for the GST, reducing the tax burden of ordinary Malaysians. This is the first step needed to remove the tax altogether when Parliament meets in July. This policy change has been carried out with minimal impact on financial markets, thanks in part to higher oil prices and an open recognition of the need for alternative revenue sources.

Second is securing the release and pardon of Harapan de facto leader Anwar Ibrahim. This took place in record time. While one might interpret the speed of the release on the part of authorities as an effort to fuel division and competition within Harapan, this move on the part of Mahathir showed a strong commitment to reform and the partnership within Harapan itself.

Third is the increased transparency of the new government, with many ministers regularly meeting the press and engaging the public and stakeholders. This has indicated greater responsiveness and accountability on the part of the new government from the starting gate. It is especially promising given the inward orientation for fact-finding and learning that is going on.

The greater transparency has revealed some of the problems the government has inherited and can be seen as a needed corrective action to reduce expectations. Key will be whether this pattern of engagement is maintained and how the government offers solutions to the exposed problems.

Fourth are the measures introduced to tackle corruption and abuse of power of the past. From the new attorney-general and police raids to the questioning sessions of a more active MACC, these measures highlight a commitment to dealing with the excesses of the previous government.

This guy and his wife have yet to be arrested

Malaysians are awaiting the arrest of Najib Razak and his wife, as revelations post GE14 a.k.a. Pavilion Residences have shown even more abuse to ordinary Malaysians than had been believed before the election. Sadly, more is likely to come as the investigations appear to show that the former Prime Minister betrayed not only his country but his own party as well.

Making appeals

Harapan has combined these actions by building on four important political narratives.

The first is the continued use of nationalism post-election, as the government has appealed to national pride and reached out directly to citizens. The most obvious example of this is the creation of the Tabung Harapan Malaysia – the crowd-funded initiative to address the public debt. It has reached over RM50 million in less than two weeks. This has tapped into the deep patriotism of Malaysians and has reinforced the view that the government is addressing the serious problems it inherited from the previous government.

A second important narrative is that of inclusiveness. Harapan has repeatedly sent the message that it is a ‘Malaysian’ government. From remarks about a minister’s ethnic identity to the appointments across races, Harapan has aimed for greater representation. This has extended to the inclusion of perceived Islamists within the government in key appointments in education.

There have simultaneously been repeated reassurances that Malay interests will be protected as the aim appears to move the discussion away from division and displacement. Many are awaiting the further 15 cabinet appointments, in particular with regard to East Malaysia, which to date has not adequately been included in the national government, especially given its numerical importance in the composition of the Harapan government.

Building on the anti-corruption measures noted above, Harapan has repeatedly emphasised that it will operate with the rule of law. The perceived lawlessness of the previous government and the arbitrariness of decisions of the past make this a stark difference in governance. It is not easy to change practices and norms, but proper processes and procedures have been given more of a place. The rule of law is now moving away from the practice of using the law to rule.

Perhaps the least touted narrative pre-GE14 is the introduction of greater austerity. Mahathir appears to be introducing more fiscally prudent practices, whether it in salaries or in international trips. This is in keeping with the revelations of serious and significant government debts, but also suggests a more measured approach to governance. There has been less patronage distributed through the use of positions so far.

The message has been sent that the cuts in spending are necessary, not to cover up for lavish spending and scandals such as 1MDB but to address them.

Resistance and resignations

Collectively, these changes in governance speak to a different form of governance. Public expectations remain high and vary sharply, with many of these expectations in contradiction to one another. Choices and priorities are being contested, with some understandably expressing dissatisfaction with the pace of change.

Unlike the BN government, Harapan is operating in an environment where it does not control the mainstream media outlets. It has yet to have a clear media strategy to deliver its messages, opting for less centralisation than the past and more diversity. It has inherited a climate of considerable political polarisation and routinised practices of disinformation.

Harapan also is facing considerable resistance inside, from elites who oppose appointees to more entrenched conservative forces in the system. While it is important to acknowledge considerable goodwill in the public at large, many are suspicious and some are outright hostile and defiant inside the system as they protect their own interests and welfare. Given that this norm of self-interest has been deeply socialised, it is hard to change attitudes overnight.

Many uncooperative senior officials will need to go, with the resignations to date only the tip of what is likely needed. A key challenge will involve winning needed allies and implementing policies, given that the previous government relied on consultants to a greater extent than the civil service. This will require wisdom and balance. The choices of bringing back those with experience in government, such as the former auditor-general, speaks to a recognition of the urgency of gaining control of government inside the government itself.

Some of the resistance is coming from rivalries within the Harapan coalition itself, as the differences over reform, personal positioning and policy priorities have stymied cooperation and slowed decisions. On the whole, these conflicts have been kept out of the public limelight, given the public pressure on Harapan to meet the expectations of its supporters and fulfil the responsibility it has been given.

The realities of Malaysia’s new politics are coalition politics never seen before. This model is based on equality, mutual respect and mutual dependence. This political model will continually need compromise and confidence in each other, not always viable given political histories.

Addressing trust deficits

Building trust is not easy. The trust deficit for the new government is on multiple fronts. It is with the general public socialised in suspicion of government and with half of the population that did not vote for Harapan are watching it carefully. It also extends to the coalition actors themselves within Harapan that are finding their way to work together.

Given the ideological and personality differences within the Harapan government, the outcomes and common narratives so far show that, even with rivalries and uncertainties, the coalition is coming together and a new form of coalition politics is emerging.


BRIDGET WELSH is an Associate Professor of Political Science at John Cabot University in Rome. She also continues to be a Senior Associate Research Fellow at National Taiwan University’s Center for East Asia Democratic Studies and The Habibie Center, as well as a University Fellow of Charles Darwin University. Her latest book (with co-author Greg Lopez) is entitled Regime Resilience in Malaysia and Singapore. She is following the Malaysian GE14 2018 campaign on the ground and providing her analyses exclusively to Malaysiakini readers. She can be reached at bridgetwelsh1@gmail.com.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.