‘New’ or ‘old’ Sabah in New Malaysia?


July 18, 2018

‘New’ or ‘old’ Sabah in New Malaysia?

by Dr. Bridget Welsh@www.malaysiakini.com

Image result for richard malanjum

Congratulations, Sir. May God Bless and Guide You

COMMENT | On the streets of Kota Kinabalu, there is open delight of the appointment of one of their own, Richard Malanjum, as the new chief justice. Across the diverse multiethnic mosaic of the state, many respond with the phrase “I feel Malaysian.”

Given the continued resentments of unfairness of the federal government that percolate, these sentiments highlight that inclusiveness and appointments based on merit do resonate, much more than the handful of narrow-minded, peninsula-based views featured in the media. Sabahans, in their open and optimistic style, celebrate the successes of their own across communities, as arguably the silent majority in the country does as a whole.

The question of the federal-state relationship and treatment of different ethnic communities were very much at the heart of why Sabah voted for Parti Warisan Sabah and Pakatan Harapan parties – and why they not only were critical for the coalition to form the numbers for their majority sworn into Parliament yesterday, but why there is a new Warisan coalition government in the state.

While acknowledging it is still early days, this article focuses on whether there are signs of change in Sabah, and suggests that the ‘old’ Sabah will constrain the ability of the new government to bring about meaningful changes in the short-term – but that in the longer-term, there are indications that a new political landscape is being formed with the emergence of a ‘new’ Sabah.

Local dynamics shaped GE14

The story of the electoral outcome and the new government in Sabah is quite different from the national picture. 1MDB and former prime minister Najib Abdul Razak, for example, were less central than the perceived corruption of the family of Musa Aman (photo) and their continued hold on power.

Image result for Musa Aman

Slating five members of the Aman family as candidates in GE14 did not go down well with many in the electorate. After 15 years in power, Musa and his cartel of interests still play a major role in the Sabah economy.

GST was an important issue, seen as a federally imposed tax that did not help the local economy. The tourist tax is seen the same way.

State rights and representation embedded in the Malaysia Agreement 1963 (MA63) were also mobilised and remain so, as Sabahans expect a meaningful review of the federal-state relationship with greater respect, inclusion, and political autonomy and control over their own resources and economy. A crucial element in the review is protections for religious freedom, as the impositions on freedom are seen to be driven by developments in the peninsula.

Local racial differences, particularly differences between the rights of immigrants and resentments of the indigenous Kadazandusun Murut communities, played out in many local contests. This made the results in a handful of seats quite close, and brought to the post-GE14 the reality that, like the Malay support deficit that Harapan faces at the national level, the Warisan government faces the same from many of the Kadazandusun Murut, especially in more rural and semi-rural areas.

This has been ameliorated somewhat by the addition of United Pasokmomogun Kadazandusun Murut Organisation (Upko) into the state coalition post-GE14, but it does not take away from the fact that most Kadazandusun Murut did not vote for Warisan or Harapan parties. The political swing that took place was largely one along the east coast of Sabah and in the urban areas, representing primarily a Bajau/Suluk victory supported by ethnic Chinese and urban-based Kadazans.

Nevertheless, a majority of Sabahans showed that they were open to change, as they had been in 1985 when they voted in the Parti Bersatu Sabah (PBS) government. Many of the same political demands for rights and representation were echoed, but the results reflect a different social base of mobilisation than in the past.

Legacies of the ‘old’ Sabah

Given Sabah’s mixed experience with a new state government in the past, expectation of change is relatively low. They place more hope in change coming about through a new federal government – namely, a new federal-state relationship that might emerge – and pressures for reform at the national level that will hopefully extend into the state.

The nexus between the federal and state is intertwined with the issues that make the management of the state so challenging. Three legacies in particular complicate the Sabah context.

First, the corruption in Sabah is deep, extending from business to the (mis)management of its borders. Decades of exploitation of the state’s resources by its political elites have bequeathed a governance mess. Early investigations of the state’s finances echo the financial mismanagement and indebtedness left by the Najib administration at the federal level, with allegedly millions missing and foundations and other state bodies plundered.

Sadly, this pattern of graft has happened all too often in Sabah, but what distinguishes the current situation is the sheer amount of greed involved. Chief Minister Shafie Apdal (photo) has inherited limited state coffers and a bureaucracy seen as tainted. Graft in the state has been accentuated by its large resource economy and rapid land development.

‘Contributions’ and ‘payoffs’ are everyday practices. Much of what has happened in the past few months have focused on assessment and clean-up. There have been early efforts to address illegal logging, but these are slow-going, given the scope of the problem.

Corruption is also connected to the thorny and sensitive issue of illegal immigration. This problem has its roots in the 1970s, in the era of United Sabah National Organisation (Usno) and later Sabah People’s United Front (Berjaya), but came to a head in ‘Project IC’ during Dr Mahathir Mohamad’s first tenure as prime minister. The systematic granting of citizenship to foreigners in the state was the subject of the Royal Commission of Inquiry in 2013, which provided recognition but little in the way of solutions.

Today, illegal immigration directly involves an estimated quarter of Sabah’s 3.9 million population, with thousands of stateless people, especially children, lacking access to education and basic healthcare. The exact number involved is unknown, as there are persistent concerns of continued streams of undocumented immigrants who are seen to undercut wages and have transformed the social fabric. Resentments run as deep as the corruption, if not deeper. The issue affects the state as a whole, its social fabric, economy and security.

The Warisan government has promised to move toward ameliorating the problem, but will need meaningful cooperation from the federal government to address underlying concerns about immigration, citizenship and the financial and social costs.

Many of those tied to the Bajau/Suluk community are expecting the Warisan government to act, given their electoral support in GE14, while others are anxious that solutions will be exclusionary and inadequate.

Mahathir has an opportunity to address a serious problem he himself exacerbated in his first term by working with a Warisan partner that has its roots within the migrant community, to move towards a more just Sabah and improve its welfare. Now is perhaps the best time in decades.

Closely related to the two legacy issues above is the incidence of poverty and economic vulnerability. Of all the states in the country, Sabah has the highest rate and numbers living in poverty. Officially, 2.9 percent of citizens live in poverty, according to statistics published in 2016, but in practice this number is much larger, with sharp income disparities and relatively low wages.

The federal government is often blamed, but the responsibility should be shared by state leaders as well, who have not done enough to address inadequate roads to Pitas, isolation in Pensiangan, nutritional deficits in Keningau and insufficient water supply across the state.

The new state government has only two of its leaders with experience in government, but many of its ministers are sincere. Nevertheless, there are grouses among the public that there have been few deliverables to date.

Reducing economic disparities needs to be a priority, as should integrating social justice with a plan for the economy. There are ideas percolating regarding localisation, but to date it is not clear what the priorities of the new Sabah government are, and if the team as a whole is working together.

Special care will be needed in managing the area of infrastructure – historically one of the more lucrative areas of graft – to assure that this is not a vehicle for further wealth aggrandisement and party patronage.

The emerging ‘new’ Sabah

If what the Warisan-led government faces is indeed challenging, changes in political conditions offer promise.

A younger generation of Sabahans are open to embrace change, eager to build their state and embrace new ideas. Nearly a third – 31.3 percent – of the population is under 40, offering energy and momentum for change. Younger voters were an integral part of the Warisan-Harapan victory.

Civil society in Sabah has grown and is eager to be a partner in bringing about greater prosperity. There are a plethora of local civil-society partnerships in education and the environment that can be strengthened. The sense of state nationalism that put the new government into office is a strong foundation to build on, one that can be embraced. Capitalising on this goodwill is essential.

Musa’s flight abroad has also brought forward an inevitable development – the end of UMNO in Sabah. Warisan has taken over UMNO’s political base on the east coast, decimated the latter’s base throughout the state, and cut off its access to the main ingredient of its political survival – money.

While UMNO still holds support among some Sabahans – with some of this base tied to the old Usno and Berjaya days – its strength came from its ties to the federal and state governments, relationships that it no longer holds. Already, four leaders have moved and hundreds of ordinary members are flocking away from the party.

Sabah UMNO faces the same problem that the party is beset with nationally – a leader refusing to leave gracefully. The money is on Musa not returning to be sworn in as an assemblyperson before mid-August, which will trigger a by-election and render moot his electoral petition for state leadership.

Musa and his economic cartel remain powerful, however, and limit the ability for alternative patronage networks to form. He – and others in Sabah UMNO – have the shadow of scandals and potential MAAC questioning hanging over them. As things stand, it is likely that UMNO supporters will morph into a locally-based party, rather than hold onto the baggage that Musa left them.

The pattern of political engagement in Sabah is also shifting. Traditionally, the state has been governed by elites and party warlords, who have served to distribute patronage with ordinary citizens getting the raw end of the deal. This sort of political patronage has been failing and in the longer term will be difficult to sustain.

The Warisan government will be forced to perform and yield deliverables as it is not in the same financial position to follow the previous model of engagement – at least not to the same degree.

It will also be forced to meet the expectations of change, to address the increasing demands of a greater informed population. This offers pressure, but simultaneously opportunity – funds now can move less into the hands of politicians and into solving problems and improving the well-being of Sabahans.

A new social contract can evolve for Sabahans. The promise of a ‘new’ Sabah is real, despite the legacies of old.


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 the 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 titled Regime Resilience in Malaysia and Singapore. 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.

Trump and Thinking Dirty


July 12, 2018

Trump and Thinking Dirty

by Mike Minehan

 

The best show in town these days is the President Trump Circus. Full of tantrums, tirades and a trashy sort of political reality TV show.

But maybe the worst thing about this is that it’s encouraging others to do the same. Or even worse.

This was the idea behind a recent aticle in Politico magazine about Democrats being encouraged to think dirty because there are ‘no longer any unwritten rules in American politics’.

Image result for Brett Kavanaugh

 

The trigger for this is Trump’s nomination of Brett Kavanaugh for the Supreme Court of the USA. This nomination comes after Republicans blocked President Obama’s nomination of the Chief US Circuit Judge Merrick Garland for the vacancy that existed in the last six months of Obama’s office. The Republicans then rushed Justice Gorsuch into this position as soon as Trump became President, and now Trump is getting another early pick after the resignation of Justice Kennedy.

Concern amongst Democrats is that the Supreme Court, with a majority of Republican nominees, will now swing towards conservative decisions that will support pro-life (anti-abortion), the gun-rights lobby and, dare we mention it, will refuse to support a subpoena of President Trump or follow through an impeachement process. There’s also the question of whether or not Trump can pardon himself and whether he is above the law.

Trump’s voting base, Christian Evangelicals and the white working classes in the ‘Rust Belt’ are now, no doubt, a-hollerin’ and a-hootin’ their delight.

Although America’s late night talk show hosts are also having their say:

But back to this thing about thinking dirty.

According to the Politico article, Democrats should now fight fire with fire. Amongst the suggestions:

Grant statehood to D.C., break California in seven, with the goal of adding 16 Democrats to the Senate, expand the Supreme Court and the federal courts, packing them with liberal judges, and, grant citizenship to millions of undocumented immigrants, creating a host of new Democratic-leaning voters.

This last one is because “Republicans have always feared that immigration would change the character of American society. Democrats should reward them with their very worst nightmare.”

Wow. The Democrats will probably gain control of Congress after the coming mid-term elections. Will they be able to restrain themselves?

Malaysia: Richard Malanjum takes his oath as new Chief Justice


July 12, 2018

Malaysia: Richard Malanjum takes his oath as new Chief Justice

http://www.malaysiakini.com

Tan Sri Richard Malanjum receives his letter of appointment as the new Chief Justice from the Yang di-Pertuan Agong Sultan Muhammad V at Istana Negara July 11, 2018. — Bernama pic

Congratulations to new Chief Justice and his colleagues administer the Law without Favour. The Judiciary has been seen as subservient to the Executive Branch for far too long (since 1988 when the then Lord President Tun Salleh Abas by Prime Minister Dr. Mahathir Mohamad)–Din Merican

Chief Judge of Sabah and Sarawak Richard Malanjum (pic above) took his oath of office as the new Chief Justice on July 11.  He is the first person from the Borneo states to be appointed to the highest judicial post in the country.

Chief Judge of Malaya Ahmad Ma’arop has been elevated to the post of Court of Appeal President.

They were sworn in before the Yang di-Pertuan Agong Sultan Muhammad V.

Meanwhile, Justice Zaharah Ibrahim will replace Justice Ahmad as the Chief Judge of Malaya, and Justice David Wong Dak Wah will be the new Chief Judge of Sabah and Sarawak.

Chief Justice Md Raus Sharif and Court of Appeal President Zulkefli Ahmad Makinudin, who are supposed to retire on July 31, had been asked to vacate their post effective today, according to a source.

This came after as the Malay rulers had their conference beginning today.

Justice Malanjum, 65, is the first from the Kadazandusun community in Sabah to be appointed as the Chief Judge of Sabah and Sarawak and he was the youngest to be elevated to the Federal Court in 2005 at the age of 52.

Image result for Malaysia's Palace of Justice

He will reach the retirement age of 66 in October this year but his term can be extended for another six months, until April next year.

At present, Malanjum is the most senior Federal Court judge.Earlier today, he downplayed speculation of him being nominated as the next chief justice.

Second female judge as CJM

Justice Ahmad, 65, who hails from Malacca, was appointed a judicial commissioner in 2000. He was elevated to the Court of Appeal in 2007 and then promoted to the Federal Court in 2011. Last year, he became the Chief Judge of Malaya.

Justice Zaharah, 65, is the second woman to hold the post of Chief Judge of Malaya, after Siti Norma Yaakob.

She was appointed as judicial commissioner of the High Court in 2004, elevated to the Court of Appeal in 2010 and then to the apex court in 2015.

Wong, 64, from Sarawak, was appointed as a judicial commissioner at the Kuching High Court in 2005.He was then elevated to the Court of Appeal in 2013 and became a Federal Court judge earlier this year.

Altantuya Shaariibuu Murder: In the name of Justice, Najib Razak must be made to answer


June 19, 2018

Altantuya Shaariibuu Murder: In the name of Justice, Najib Razak must be made to answer

Shaaribuu Setev will be meeting AG Tommy Thomas later today, and PM Dr Mahathir Mohamad tomorrow to discuss the possibility of reopening investigations into his daughter’s murder.

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Shaaribuu Setev, the father of Mongolian model Altantuya Shaariibuu who was murdered in 2006. 

KUALA LUMPUR: The father of Mongolian model Altantuya Shaariibuu, who is seeking to reopen investigations into her murder, today asked why his daughter had not been deported to her home country.

“Why didn’t they just handcuff her and send her back? Why kill her? “I want justice for my daughter,” Shaaribuu Setev said in a press conference here.

Shaaribuu will be meeting Attorney-General Tommy Thomas at 3pm to discuss the possibility of reopening the probe into her murder.

His lawyer Ramkarpal Singh, who was also at the press conference, said his client would meet with Prime Minister Dr Mahathir Mohamad at 5pm tomorrow.

Image result for altantuya shaariibuu

Altantuya, 28, was killed between October 19 and 20, 2006 by Azilah Hadri and Sirul Azhar Umar who were part of an elite police commando unit that provided bodyguards for Malaysia’s top leaders.

She was shot twice in the head before being wrapped in military-grade C-4 explosives and blown to pieces. The motive for the crime as well as the source of the order for her death remains unknown.

Azilah and Sirul were convicted of her murder and sentenced to death. However, Sirul fled to Australia before the final court verdict and has been in detention in Sydney for nearly two years.

Altantuya’s murder also attracted attention due to the involvement of Abdul Razak Baginda, who was once an aide to former Prime Minister Najib Razak.

Razak was charged alongside Sirul and Azilah, but he was acquitted without his defence being called. He had also confessed to having an affair with Altantuya.

The case has been linked to Malaysia’s purchase of two French submarines, a deal which is still under investigation in France for alleged kickbacks involving a company linked to Razak Baginda.

Last month, Shaariibuu pleaded with the Pakatan Harapan (PH) government to reopen investigations to uncover the identity of the person who ordered Altantuya’s murder.

In a letter to Ramkarpal, he said “a powerful person” must have sanctioned the crime.

Following PH’s electoral victory on May 9, Sirul said he was prepared to return to Malaysia and expose those he said were behind the murder. However, in an interview with The Guardian, he rejected Ramkarpal’s suggestion that his death sentence be commuted to life imprisonment.

He also claimed that he was a scapegoat “in an elaborate political crime” and denied he had ever confessed to killing Altantuya.

End the Constitutional Standoff –Make Tommy Thomas Malaysia’s Attorney-General


June 5, 2018

End the Constitutional Standoff –Make Tommy Thomas Malaysia’s Attorney-General

by P. Gunasegaram@www.malaysiakini.com

The current constitutional standoff over the appointment of prominent lawyer Tommy Thomas as Attorney-General is totally unnecessary and the concerns over it are utterly misplaced. There is no requirement under the law to appoint a Malay and it is a fallacy to imply that a non-Malay Attorney-General cannot protect the rights of all people including Malays.–P.Gunasegaram

Image result for tommy thomasTommy Thomas–A LSE trained and brilliant  Constitutional Expert and Passionate Malaysian

 

QUESTION TIME | The current constitutional standoff over the appointment of prominent lawyer Tommy Thomas as Attorney-General is totally unnecessary and the concerns over it are utterly misplaced. There is no requirement under the law to appoint a Malay and it is a fallacy to imply that a non-Malay Attorney-General cannot protect the rights of all people including Malays.

Any person who knows the law and who is capable will be able to protect and preserve the rights of all people as provided for in the Federal Constitution and any special privileges granted to the various communities aimed at safeguarding their livelihood and way of life. There are few available who are as qualified for this as Thomas.

As usual, those opposed to Thomas’ appointment have put a racial and religious spin on it which is irrelevant to the question as to whether he is suitable for the position of AG. If there are fears of any interference in the religious courts, there is a specific provision under the constitution.

Image result for The Agong  and Dr. Mahathir

The King says “Let us make a deal”. Dr Mahathir to the King, “I can be generous. What  do you want, King?”–A Parody

Section 145 (3) states that the Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a syariah court, a native court or a court-martial. It’s clear his jurisdiction does not extend to syariah courts.

Here are 10 reasons why Thomas should be accepted for the post of attorney-general when the rulers’ council meets today.

1. The Pakatan Harapan government unanimously picked him for the post, reports say. This is top of the list. According to Section 145 (1) of the Federal Constitution, the Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney-General for the Federation. That is as clear as can be. It is the Prime Minister who appoints the Attorney-General and the King sanctions the appointment accordingly. If the King has any reservations it is up to him to discuss with the Prime Minister, and if the prime minister stays firm on his choice, then the king needs to act accordingly. That is the law, as Prime Minister Dr Mahathir Mohamad has explained. And he has firmly indicated that he is not changing his mind about the appointment.

2. He is capable. Thomas, who holds an LLB Hons. and an MSc from the London School of Economics, has a reputation for being a very capable and competent lawyer and is highly respected in and out of the legal fraternity.

Here is an extract of his profile: “As a barrister of more than 40 years standing, Thomas has had the privilege of appearing as counsel in landmark cases in various branches of the law in all the courts of Malaysia, including the Privy Council in London, which was Malaysia’s highest court until 1985. Thomas has had more than 150 reported cases and countless unreported cases. He has been singled out consistently and regularly as one of Malaysia’s leading litigation lawyers by independent international publications such as The Asia Pacific Legal 500, Which Lawyer, Who’s Who Legal (The International Who’s Who of Business Lawyers), Commercial Litigation Lawyers of Asia and Chambers Asia.”

3. He is experienced. His forty years covers a lot of ground. His profile says he has acted in ground-breaking high profile litigation involving two state governments in relation to their offshore oil and gas claims. He has also acted for two other state governments in constitutional and judicial review disputes. He has represented regulatory authorities as lead counsel in their complicated civil litigation matters at the apex court. Thomas is regularly consulted by other law firms and appointed senior counsel in their litigation. He often appears as lead counsel for the Malaysian Bar in intricate and controversial cases.

4. He knows the constitution. Much of his cases involve constitutional issues and his interests in the rights of people and organisations has meant that he is up to date with the many changes in the constitution that has taken place over the years. Given the reform agenda of the Harapan government, he will be strongly positioned to give appropriate advice and help initiate legal reform of which there will be many.

5. He knows corporate law. If prosecution of 1MDB offences is to be efficient, thorough, fair, and effective there has to be clear understanding of how the money was embezzled and stolen. Here are his corporate credentials: “In the corporate field, he has appeared in company, liquidation, receivership and insolvency matters. In the commercial sphere, he has acted in banking, hire purchase, contract, intellectual property, sale of goods, wills, trusts and land law cases. Thomas has appeared in complex litigation involving bonds and other sophisticated financial instruments. In public law, Thomas specialises in constitutional and administrative law cases. He has also been very active in statutory interpretation disputes ranging from petroleum, asset management, securities law and local government.” This experience in corporate law is vital to effectively prosecute cases involving 1MDB where transactions are multi-layered and complex.

6. He is smart. Thomas also knows when he is out of his depth and is smart enough to get the help he needs to understand issues better. He grasps things very quickly and his wide interests, as well as a strong reading habit, ensures that little that is important escapes his scrutiny – a very necessary quality for a good Attorney-General. I once read a long article he wrote on the world financial crisis and was quite impressed by the grasp this non-finance professional had on the subject matter.

7. He is independent. Everybody knows that Thomas has an independent, original mind and is not afraid to speak up. More importantly, he is not the type of person who is going to be influenced by anyone, including the person who appointed him, when he decides on his cases. One can be sure that if a person is charged, there is a reason to charge him and if he is not there is a good legal reason for that as well.

8. He can suggest ways how the Attorney General’s post can be kept independent. After having seen the abuse of the attorney general’s position over years and decades, Thomas will have suggestions of how this post can be kept independent. He is the type of person who will want the post to remain independent for eternity.

9. He is fair, fearless, straight and incorruptible all of which are great qualities to have in an A-G which we have lacked terribly in the past few decades.

10. Finally, he cares about the country. We need an attorney general who will care deeply and passionately about the consequences of his actions on the well-being, future and direction of the country and will at all times act in the nation’s best interest but according to the law. We can’t have attorneys- general, of all people, continue to frustrate the rule and application of the law equally to everyone.

I am sure there are other reasons. Personally, in this current environment, I believe there is no better choice than Thomas for Attorney-General but I never thought that the Prime Minister will actually propose him for the post. Now that he has, there is no reason why Thomas should not be appointed forthwith as all “reasons” for not wanting him are extremely frivolous, and should I say, vexatious too.


Disclosure: P Gunasegaram considers Tommy Thomas to be a good friend of his. E-mail: t.p.guna@gmail.com

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

Malaysia: An Agenda for Law Reform after GE-14


May 18, 2018

Malaysia: An Agenda for Law Reform after GE-14

 

http://www.newmandala.org/agenda-law-reform-ge14/

Image result for palace of justice putrajaya

Palace of Justice, Istana Kehakiman II | by Firdaus Mahadi Putrajaya, Malaysia

When Malaysia’s unexpected new Pakatan Harapan government seeks advice about law reform, it will surely consult the many capable Malaysians with expertise in this area: current and former judges; members of the Bar; legal academics, and scholars of the Malaysian constitution and its history; the Human Rights Commission of Malaysia (SUHAKAM); and the many civil society groups and social movements that now share an accumulated wealth of experience and wisdom.

Malaysians certainly do not need well-meaning foreigners to tell them what is wrong with their legal system, or how to fix it. That is why these suggestions are addressed to inform an Australian and international audience interested in these matters.

Making it safe to offer advice

As a preliminary measure, in order to ensure that experts and the public can openly discuss law reform proposals without fear of reprisal, the government will need to announce a firm commitment to repeal the Sedition Act, and then follow through once Parliament is summoned. Sedition law has no place in a properly functioning democracy, and for too long Malaysians who disagree with the government, state agencies, or political pressure groups have been the subject of vexatious police reports, investigations and prosecutions.

Pending the repeal, it would be improper to commence new investigations and prosecutions, or to continue any currently in the system. The same applies to other laws that intimidate Malaysians from speaking freely on matters of public importance.

Making law reform processes expert and independent

At present there is no independent and expert statutory body that can investigate whether current laws should be repealed or amended, and make recommendations based on those findings.

That work has instead been done by civil society organisations such as Bersih (the Coalition for Clean and Fair Elections), JAG (The Joint Action Group for Gender Equality), HAKAM and the Malaysian Bar. In the past, SUHAKAM, which has a mandate to advise the government on legal changes necessary to make Malaysia compliant with its human rights obligations, has also made many recommendations but has usually been ignored by the government of the day.

Establishing an independent law reform commission that could investigate the need for legal change, invite public submissions (including from civil society groups like those just mentioned), circulate discussion papers and draft reports for public comment and then make an informed recommendation to government, could only assist the systematic and thorough renovation of Malaysia’s legal system.

Importantly, such a body could measure how far existing laws comply with the constitution, and make recommendations accordingly. It should examine the constitution as well. Crucially, it could investigate and facilitate informed public debate about the advisability of retaining the constitutional provisions that allow government to proclaim a State of Emergency (article 150) or legislate to combat subversion (article 149). Much mischief has been done under cover of these two provisions—laws permitting detention without trial, for example—and it is surely time for a mature discussion about their continued existence.

Furthermore, some of the most divisive issues in Malaysian public life have involved interpretation of the meaning of constitutional rights and freedoms, and the intersection of civil and Syariah law. Allowing these debates to be ventilated in a civil and reasoned manner through a Law Reform Commission could be an important step towards solutions.

The way that Parliament makes law is also crying out for reform. Parliamentary scrutiny of legislation has been inadequate. The opposition parties usually do not see a bill until it is tabled, which hobbles their ability to make meaningful proposals for amendment. Now the boot will be on the other foot and the Pakatan Harapan government will have the advantage over what is left of the BN coalition in the Dewan Rakyat.

If it is committed to meaningful reform, the entire process of introducing and debating bills will be revised. In Westminster-style legislatures the elaborate system of standing and special select parliamentary committees can, with the aid of expert testimony and public submissions, subject proposed legislation to thorough investigation and analysis. This process has long broken down in Malaysia, but it could be restored.

Making law publicly accessible

An essential element of the Rule of Law is that law is public. People and entities subject to the law should be able to find it and read it, even if they require assistance to interpret and apply it.

At present, Malaysian laws are not all freely available. True, the Federal Constitution and many principal statutes can be accessed without charge on the Laws of Malaysia pages of the Attorney General’s Chambers’ website, but there is room for improvement. The site is not up to date and only the most recent version of an Act can be accessed. This means it is impossible to tell whether, and if so, how, the Act has been amended because amendments are not noted, and historic versions of the law are not kept on the site for cross reference.

Being able to keep track of amendments can be important for a whole range of reasons, including working out the best interpretation of the current law by comparison with the old version. The PDF version of the Federal Constitution does contain some notes and references to amendments, but non-lawyers will have difficulty working out what these mean and how to access the amending laws and previous versions of the constitution (there are many, because the constitution has been amended frequently). The e-Federal Gazette (on a different section of the AG’s Chambers’ website) carries more current information, but it is difficult to use.

Subordinate legislation (also known as subsidiary or delegated legislation) includes the rules, regulations, notices and so forth made by the government agencies by under delegation from an Act of Parliament. These sorts of legal instruments are difficult to find on the AG’s website too—perhaps intentionally.

Lawyers, government departments and law schools that subscribe to legal databases can access more current versions of Malaysian statutes, see how amendments have been made, search for rules and regulations made by authority of the statute (although database coverage is patchy here), and follow the hyperlinks to legal cases decided under those laws. But the cost of these services makes the law beyond the reach of the public.

The new government could cooperate with the Free Access to Law Movement and the ASEAN Legal Information Portal to make all current and historic law—statutes, case law and subordinate instruments—easily accessible to the Malaysian public.

Depoliticising investigations and prosecutions

It is beyond doubt that Malaysians have lost faith in the impartiality and professionalism of public bodies responsible for investigation and prosecution of criminal misconduct—such as the Attorney General’s Chambers and the Malaysian Anti-Corruption Commission—and the regulation of the media and of elections—the Malaysian Communications and Multimedia Commission and the Election Commission, respectively. The impartiality and judgment of the police has been questioned.

When the courts hand down irrational or poorly reasoned judgments at the end of a tainted investigation and prosecution, then they, too, lose credibility. Internationally, the best-known instances are perhaps the repeated criminal prosecutions of Anwar Ibrahim for corruption and sodomy, and, alternatively, the failure of Malaysian authorities to properly investigate former prime minister Najib Razak (and those associated with him) over the millions missing from the sovereign wealth fund (the “1MDB scandal”). But there are many more instances.

The story of Malaysia through its constitution

Malaysia’s Federal Constitution no longer embodies the spirit and intentions of the country’s founders. 22 August, 2017

There have been too many police reports of sedition that should never have been entertained, lodged by attention-seeking right-wing ratbags out to harass people whose views they cannot tolerate; too many times when the Public Prosecutor (the alter-ego of the Attorney-General) has appealed an acquittal on specious grounds, or sought an increased penalty, because the defendant is a critic of the government. And the blatant misconduct of the Election Commission is too recent to need describing here.

In the Westminster system of government, it is difficult to avoid the political nature of the Attorney General’s office. Requiring the A-G to be a Member of Parliament—as Pakatan Harapan’s election manifesto promises—does not solve that problem. But separating out the function of the AG from the Public Prosecutor is necessary to remove the appearance of political bias in prosecutions, and that too is in the manifesto (Promise 15). Similarly, more thought should be given to ensuring the independence of the Solicitor General, whose office is currently enmeshed with prosecutorial functions too.

In civil litigation, the Attorney-General—and the Solicitor General—could consider how to teach the government to act as a “model litigant”. Essentially, this means that when the government or a state agency sues or is sued by a citizen or entity, the state does not act oppressively by relying on technical defences, taking advantage of the comparative lack of resources between the parties, denying and contesting issues of fact that it knows to be true, denying legitimate claims or prolonging litigation. (Some Australian guidelines are here and here). If state governments adopted this practice, then it would apply to the way the various State Islamic Departments conducted litigation too.

Moving forward…?

Perhaps proposals like these are already being considered by the newly constituted Committee on Institutional Reform, established by the also newly convened Council of Elders. Given the expertise and deep experience of the Committee members, they will doubtless offer wise and pertinent counsel.

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What is open to doubt, however, is the willingness of the new government to heed the voice of law reform, given that after just a few days there is already public disagreement between Prime Minister Mahathir and two key government MPs (Nurul Izzah of PKR and Lim Guan Eng of the DAP) over repeal of the draconian Anti-Fake News Act, even though abolishing it was one of Pakatan Harapan’s campaign undertakings. Predictably, Mahathir is not so sure this is a good idea any more. But whatever he thinks, it seems clear the Malaysian electorate plainly expects the new government to carry out fundamental reforms. It would be tragic to see those hopes dashed by a government that calls itself the Alliance of Hope.

 

  • Associate Professor Amanda Whiting is Associate Director (Malaysia) at the Asian Law Centre, University of Melbourne. Her research is principally in the area of Malaysian legal and political history; human rights institutions and practices in the Asia-Pacific region; and the intersection of gender, society, religion and the law, with particular reference to Malaysia.

    She is the co-editor (with Carolyn Evans) of “Mixed Blessings: Laws, Religions and Women’s Rights in the Asia Pacific Region” (Martunus Nijhoff, 2006); and (with Andrew Kenyon and Tim Marjoribanks) of “Democracy, Media and Law in Malaysia and Singapore: A Space for Speech” (Routledge, 2014). She is currently writing a history of the Malaysian Bar.