Malaysia’s Najib Razak fans the flames of Religious Intolerance


October 20, 2017

Malaysia’s Najib Razak fans the flames of Religious Intolerance

by Mariam Mokhtar.

http://www.sentinel.com

Image result for Chicken Najib Razak

Chicken Najib Razak fans the flames of religious intolerance

Malaysia has been thrown into a royal shambles by a growing rivalry between the country’s nine religiously moderate sultans and its conservative mullahs, considered by many to be “nouveaux royals” vying for the attention of ethnic Malay Muslims.

Political and social observers believe that if the controversy is left unchecked, it could undermine the position of the corruption-scarred Prime Minister, Najib Abdul Razak.

Image result for Tough Sultan of Johor

 

Johor people are proud of Major General Sir Sultan Ibrahim Ibni Sultan Abu Bakar, who ruled Johor for 64 years from 1895 to 1959 and his successors. Born on September 17th 1873, he ascended the throne on June 4th 1895 following the death of his father Sultan Abu Bakar. He was proclaimed on September 7th 1895 and was crowned on November 2nd of the same year. He celebrated his diamond jubilee of his accession on his 82nd birthday, a world record at that time. Sultan Sir Ibrahim also declined to become the first Yang Di-Pertuan Agong of Malaysia in 1957 and so did the subsequent Sultan of Johor, Sultan Sir Ismail.Johor Mesti Sentiasa Jadi Johor

Image result for Tough Sultan of Johor

HRH Sultan Ibrahim Ismail Ibni Baginda Al Mutawakkil Alallah Sultan Iskandar Al-Haj, born on 22 November 1958 during the reign of his great grandfather Sultan Ibrahim, is widely admired and respected by all Malaysians

On October. 10, the Royals, who serve as the hereditary titular heads of nine of Malaysia’s 13 states and who even today have a deep reserve of loyalty from feudal rural Malays, called for unity and religious harmony after what they described as “excessive actions” in the name of Islam, a rare intervention into the public arena.

“It is feared that the excessive actions of certain individuals of late can undermine the harmonious relations among the people of various races and religions,” said the statement, signed by the Keeper of the Rulers’ Seal, Syed Danial Syed Ahmad, according to a report in the state-run news agency Bernama.  “The Rulers feel that the issue of harmony has deep implications if any action is associated with and undertaken in the name of Islam.”

Najib is normally swift to act against members of the Malaysian public who condemn the royal households, the Islamic institutions, or his administration. But last week, after the Malay rulers issued the royal rebuke, Najib was silent.

Leaders of the United Malays National Organization (UMNO), the country’s biggest ethic political party, understand the potency of conservative Islam to manipulate ethnic Malays, who make up about 60 percent of the population. The other 40 percent are comprised of Chinese, Hindus, East Malaysian ethnic Bumiputeras, and others.

The nine royal households, who by tradition and the Constitution are the guardians of Islam in their respective states, are believed to oppose the implementation of hudud, or harsh Islamic law, and a bill before the parliament to enlarge the power of the Syariah Courts. They are also said to be alarmed about recent events like the banning of certain books and the arrest and deportation of authors and speakers including the Turkish academic, Mustafa Akyol.

Image result for mustafa akyol

 

A series of religious-related incidents has pitted the mullahs and the government against the royal households. Last month, the Kuala Lumpur City Council cancelled the annual Oktoberfest event, a Germany-inspired celebration of the passing of the seasons and of beer-drinking, and told the organizers that the event was a sensitive issue. They did not say who considered it sensitive or how it would affect Muslim sensitivities.

Days later, a launderette in Johor issued a statement saying that its services were only for Muslim patrons. The owner deemed that items belonging to non-Muslims would “contaminate” items of clothing worn by Muslims and invalidate their prayer.

The public were outraged by this act and HRH Sultan of Johor Ibrahim Sultan Iskandar waded in, warning the owner that the business would face closure by him if it did not stop operating as if it was in the Taliban portion of Afghanistan. After the dressing-down, the launderette owner apologized for his action and offered his services to people of different faiths.

The Royals have thrown the ball into Najib’s court, but he has refused to play. His relationship with the Sultans is increasingly tenuous, but his reticence to make a stand is regarded as weakening his own position.

The nature of the Sultans’ intervention is regarded as an indication that the royals are fed up and irritated as in fact are many of the country’s urban Malays by the erosion of community integration, as are many professionals among the Malay population, who say they are at the end of their tether with Najib and fundamentalist Islam. At a recent wedding, some even said they wouldn’t mind if a Chinese were to become prime minister, an astonishing heresy in the country. Many said they are openly encouraging their children to migrate. Nonetheless, the opposition as a political force remains splintered and a long shot against Najib and UMNO in an expected general election which must be called before the middle of 2018.

“The royals, too, feel their position is threatened. They may be Malay and act as the guardians of Islam, but many, when away from prying eyes, lead a very western lifestyle,” a political analyst told Asia Sentinel. “Some royals spend an appreciable amount of time in the west and enjoy a lifestyle that many of their Malay subjects can only envy. With rising Islamic conservatism, the ordinary Malays cannot emulate this western lifestyle in Malaysia.”

The Royals are compelled to speak out before extremism takes root and undermines their royal status, another social critic said. “In Islam everyone is considered equal, and only in Saudi Arabia are kings above the law. The Malaysian royals are taking the initiative and acting before their own existence is questioned by the extremists.”

As an example, he said, in April 2016, the Sultan of Terengganu, Sultan Mizan Zainal Abidin stripped the state’s chief minister Ahmad Razif of all state-awarded titles because Razif had presented a controversial Indian zealot, Zakir Naik, with three islands.

Najib is not known for issuing retractions, denials or affirmations, as he has normally depended on a coterie of loyal supporters, most of whom belong to his inner circle, to lash out on his behalf.

However, the Royal dressing down has thrown Putrajaya, the seat of government, into disarray and political observers wonder if Najib will order an immediate shakeup of the Department for the Development of Islam in Malaysia, known by its Malay-language initials JAKIM.

Image result for harussani zakaria

It takes a Siti Kassim to put Perak’s Chief Mullah Harussani Zakaria in his proper place

Several other religious experts including two influential muftis, Asri Zainul Abidin of Perlis and Zulkifli Mohamad Al-Bakri of the Federal Territory also admonished the launderette owner in Muar and another “Muslim-only” launderette operating in Perlis.

The Royals are compelled to speak out before extremism takes root and undermines their royal status, another social critic said. “In Islam everyone is considered equal, and only in Saudi Arabia are kings above the law. The Malaysian royals are taking the initiative and acting before their own existence is questioned by the extremists.”

As an example, he said, in April 2016, the Sultan of Terengganu, Sultan Mizan Zainal Abidin stripped the state’s chief minister Ahmad Razif of all state-awarded titles because Razif had presented a controversial Indian zealot, Zakir Naik, with three islands.

Najib is not known for issuing retractions, denials or affirmations, as he has normally depended on a coterie of loyal supporters, most of whom belong to his inner circle, to lash out on his behalf.

However, the royal dressing down has thrown Putrajaya, the seat of government, into disarray and political observers wonder if Najib will order an immediate shakeup of the Department for the Development of Islam in Malaysia, known by its Malay-language initials JAKIM.

Several other religious experts including two influential muftis, Asri Zainul Abidin of Perlis and Zulkifli Mohamad Al-Bakri of the Federal Territory also admonished the launderette owner in Muar and another “Muslim-only” launderette operating in Perlis.

In an unprecedented move, however, an Islamic preacher, Zamihan Mat Zain, fired back at the Johore Sultan and the Perlis and FT muftis for their stance, claiming that Muslims were only trying to lead good lives.

In a YouTube video, Zamihan termed Malaysia an “Islamic state” and said that being clean was Islamic. He was shocked, he said, that the small issue of the Muslim-only laundrette had been blown out of proportion, and become a worldwide sensation.

At a graduation ceremony at the Tun Hussein Onn University, the Johor Sultan called Zamihan “an empty tin with no brains,” adding that he was “very arrogant,” “haughty” and someone who believed he was the only one who had the right to scorn people of other races.

The Sultan of Johor’s criticism was swiftly followed by a similarly worded statement from the Perlis Crown Prince, Tuanku Syed Faizuddin Putra Jamalullail. The other Sultans delivered the October 10 Royal rebuke, saying Malaysians should focus on tolerance, moderation, and inclusivity for life in a diverse, multicultural Malaysia.

The statement, signed by the keeper of the ruler’s seal, Syed Danial Syed Ahmad, said, “The rulers are of the opinion that the damaging implications of such actions are more severe, when they are erroneously associated with, or committed in the name of Islam.”

In a further development, the royal rebuke has finally forced Jamil Khir Baharom, the Minister in the Prime Minister’s Department (PMD), who also heads JAKIM, into the open. JAKIM is under the control of the Prime Minister’s department, with an annual budget of RM1 billion (US$236.7 million). Calls for the accounts to be audited and made transparent have been ignored.

Jamil was silent when the issue of safety, teaching quality and the mushrooming of illegal tahfiz, or religious schools cropped up, but Zamihan, who took potshots at the Sultan, has forced Jamil to seek an audience with the Johor Sultan, who in turn ordered the state religious authority, JAIJ, to sever ties with JAKIM.

Zamihan initially denied he was attached to JAKIM, but it was revealed that he is an “Islamic affairs officer” who has been seconded to the Home Ministry’s publications and Koranic text control division. His videos and talks are often inflammatory. It is also alleged that preachers are paid about RM20,000 per month.

Anyone who thinks that this battle royal is just another religious incident that will soon blow over is wrong. Najib knows that clipping the religious preachers’ wings would seriously erode his powerbase, but he is caught in a dilemma of his own making. Rural, feudal Malays are making it crucial that Najib’s political future be determined by his ability to conciliate the royal households and the demands of the power-hungry, conservative Islamic clerics whom he has fostered. Najib has unleashed a hydra which he may be unable to control.

Mariam Mokhtar is a liberal political commentator in Malaysia

 

Malaysia through its Constitution


August 8, 2017

Malaysia through its Constitution

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

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

 

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

 

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

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

The Malaysian Story

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

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

1962: Consolidation of Power

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

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

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

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

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

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

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

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

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

1963-1969: A Nation in Transition

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

KL in the 1960s.

 

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

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

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

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

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

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

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

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

1969-1973: Aftermath of a Tragedy

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

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

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

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

1973-1994: The Mahathir Era

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

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

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

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

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

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

Mahathir Mohamad.

 

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

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

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

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

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

Malaysia Day celebrations.

 

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

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

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

Whither Do We Go?

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

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

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

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

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

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

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

4 Cindy Tham, ibid.

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

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

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

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

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

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

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

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

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

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

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

16 The Sun Daily, ibid.

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

18 Lim Hong Hai, ibid., pp. 111–112.

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

20 Barry Wain, ibid., pp. 179–180.

21 Barry Wain, ibid., pp. 181.

22 Barry Wain, ibid., pp. 185.

23 See Article 121 of the Federal Constitution of Malaysia.

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

Zairil Khir Johari is MP for Bukit Bendera, Penang.

 

Malaysians–Rise up against toxic racism


July 14, 2017

Malaysians–Rise up against toxic racism

by Farouk A. Peru@www.themalaymailonline.com

There is something so counter-intuitive about racism. Even when racism was the norm, racists found a need to explain themselves.

They would come up with different theories as to why some races were superior to others. They would feel the need to explain why segregation was important. Think about it — do we ever have to explain why being united and transcending racism is important? No, because these attitudes are intuitively good.

There is something about them which we know, deep down, is correct and we gravitate towards them. Yesterday, I read a very disturbing news report about Astro and how it treated one of its customers.

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A woman by the name of Madhavi Rai was told by Astro’s customer service that ethnic Indians and foreigners were only allowed to use auto-debit service as their payment option.

Rai, who is of Malaysian Nepali and ethnic Chinese parentage, had complained that her application was rejected as she did not choose the auto-debit payment option after she was allegedly informed it was her only payment option as she is “an Indian.” How did they know she was an Indian? They simply guessed from her name!

It is true that my outlook on these matters may be out of touch with reality in Malaysia but I refuse to believe that this incident is acceptable where ever you are.

In the UK, even where the majority population is overwhelmingly white, an incident such as this would receive condemnation from the entire population except a marginal one or two per cent (who are the far right, neo-Nazi types!).

Racism is simply not acceptable and I learnt that from my earliest days here. A police chief commissioner at the time made the mistake of calling a convicted criminal a “black bas***.”

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An UMNO Racist Leader and Najib Razak’s Cheerleader

Had he just used the second word, it would have been ok but the first word made it racist. He then lost his job. No ifs, no buts. That incident left a lasting impression upon me.

Since Astro has not denied this incident—but have apologised unreservedly—it is safe to assume that this policy must have been known to its management.

There is certainly no way lower level management, let alone the employees themselves, could have put such a policy into operation.  The strange thing is, according to Ms Rai’s account, they simply offered no explanation at all.

A customer service representative even admitted that the policy sounds racist but “has nothing to do with it.” Quite a puerile explanation, if you ask me. Sounds more like a denial even though the facts are clear.

Worse still, Ms Rai’s Chinese heritage was invoked. She was told that if she were to register as a Chinese, she would be able to choose other payment options. How utterly demeaning to our Indian brethren!

In Malaysia, we are relatively lax about these things, especially when they happen to non-Malays. We simply see them as realities in 21st century Malaysia but even so, we forget that realities are not made without our consent. It is because we tolerated incidents such as these that they have become the norm.

Imagine the humiliation Ms Rai must have gone through! However she chooses to define herself, racially speaking, it should not have any bearing on her being able to choose any particular payment option.

Pegging payment options to race only says one thing — that some races are either economically disadvantaged or worse still, morally inept.

Either way, this is extremely insulting and all right thinking Malaysians cannot afford to ignore this deeply troubling incident. It is not enough for Astro to apologise. They need to give compensation to Ms Rai for her mental anguish.

If not cash, then free Astro service for an extended period. Even so, that is getting off lightly.

* This is the personal opinion of the columnist.

Malaysia: Social Media Administrators under Pressure


May 19, 2017

Malaysia: Social Media Administrators under Pressure

by Asiasentinel Correspondent

http://www.asiasentinel.com/politics/malaysia-social-media/

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When you cannot face up to the truth (message) you screw up, censor and threaten the messenger (s). Trump should learn from the Malaysian Prime Minister. Remember George Orwell’s 1984. People like Raja Petra and his lot can be consultants to The Trump White House.–Din Merican

With national elections looming, perhaps as early as August or September, the Malaysian government is warning its legions of myriad social media critics to knock off tweeting or posting content the government deems “inappropriate.”

The Malaysian Communications and Multimedia Commission has promulgated a new “advisory for group admins” that critics say is designed to coerce social media platforms such as Facebook and others in the country to censor postings by opponents of the government.

The Barisan Nasional, the national ruling coalition, has cause for concern. According to Steven Gan, editor of the independent news website Malaysiakini, the next election, which must be held before August of 2018 but is likely to be earlier, is likely to be fought out in social media, with as many as 70 percent of Malaysians online.

With the mainstream media – English, Malay and Chinese language newspapers, radio and television – in the hands of political parties aligned with the government, an increasing number of citizens are turning to the Internet to seek independent voices.

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As Asia Sentinel reported on April 22, opposition websites and independent news publications have been warned to mute their criticism or face being shut down. The Chinese-language newspaper Nanyang Siang Pau was warned over a cartoon satirizing the Speaker of Parliament as a monkey and told to suspend the staff involved.

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The government is running scared for a variety of reasons, the biggest being a massive scandal involving the misuse or theft of as much as US$11 billion from the state-backed 1Malaysia Development Bhd., with at least US$1 billion and as much as US$2 billion having ended up in Prime Minister Najib Razak’s own pockets, according to an ongoing investigation by US authorities looking into the purchase by nominees of houses, apartments, art works and a wide variety of other US assets, and the funding of the 2013 movie Wolf of Wall Street starring Leonardo DiCaprio.

The Barisan Nasional actually lost the popular vote in the 2013 general election but prevailed because the parliament was so thoroughly gerrymandered that the coalition ended up with 133 seats to 89 for the opposition, then headed by Anwar Ibrahim, who was later jailed on sexual perversion charges that human rights critics have characterized as trumped up.

Subsequently rising antipathy on the part of minority races, particularly the Chinese, has cut deeply into the Barisan’s support, leaving it largely supported only by ethnic Malays, who make up at least 63 percent of the population of 30 million. Given rising antipathy on the part of urban Malays, strategists for the Barisan believe the United Malays National Organization, the leader of the government coalition, must win every ethnic Malay vote possible in the countryside – where the mainstream media rule along with UMNO.

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2017–The Way Backward

That means trying to keep out as much chaff from the social media as possible, including people who retweet or post Chedet, the blog of former Prime Minister Mahathir Mohamad, Najib’s most implacable opponent, which gets thousands of readers every day, or the Sarawak Report, which despite being blocked by the communications ministry (along with Asia Sentinel) can draw more than 100,000 readers on a single story.

Mahathir is said to be making inroads among the rural Malays supported by the Federal Land Development Authority, or Felda, which was founded to handle the resettlement of the rural poor, most of them ethnic Malays. The government listed Felda on the Malaysian stock exchange in 2012 and induced the thousands of settlers – whose territory covers 54 of UMNO’s 86 seats in parliament – to invest in the shares. Because of a variety of missteps, the shares have fallen in value steeply, impoverishing the settlers who bought into them. Felda Global Ventures as the public vehicle is now known, may be forced to delist.

Mahathir and PPBM, which he calls Parti Bersatu against the wishes of the government, have capitalized on the discontent to the point where political analysts believe he will pull away a number of those UMNO seats, perhaps 10 or 11 – two of which are held by Najib’s lieutenants.

Thus the Communications Ministry targets “administrators” of group pages hosted on communication platforms such as Facebook, WhatsApp, Wechat, Viber and Telegram, or on similar services, advising them to take a proactive role in monitoring and removing content posted by others to their pages.

“While not a legally enforceable regulation in itself, a warning on the ministry’s Facebook page accompanying the advisory stated that Internet users should ‘be wise in using social media for their own protection,’” according to Article 19, a global rights watchdog with representatives in Malaysia. “This implies that failure to comply with the advisory may make group admins liable for the posts of others, even though this type of liability for third-party content is not currently provided for in Malaysian law.”

As Article 19 points out, a growing number of individuals are being arrested, investigated and charged in Malaysia for online criticism or questioning of the government under the sedition law, a toughened communications and multimedia act and a security act passed last year.

“Article 19 therefore considers that the MCMC advisory is seeking to deliver an implicit threat to social media users, that even if they are not the author of offending content, they can still be prosecuted by association,” according to Kuala Lumpur-based spokeswoman Nalini Elumalai. “This is likely to have the effect of co-opting private internet users into the role of enforcing draconian content restrictions in the online sphere, with victims of this censorship not having any recourse to challenge or seek redress for such removals. This is a concerning direction of travel, in particular if attempts are made to give legal force to the vague ‘advice’ of the MCMC. “

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The advisory by the Communications Ministry appears to violate an agreement promulgated by the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information that individuals cannot be held liable for content they have not authored unless they disobey court orders to remove such content.

The UN Special Rapporteur on freedom of expression also warned that private actors should not be pressured by legal or extra-legal means to take steps that unnecessarily or disproportionately interfere with freedom of expression, including by removing content.

“The MCMC advisory is clearly intended to pressure social media users, against international freedom of expression standards, and against the spirit of the freedom of expression guarantees in Article 10(a) of the Federal Constitution of Malaysia,” Article 19 said. The rights organization urged the communications ministry to “retract the advisory without delay and make clear to social media users that they cannot be held responsible for content created by third parties. We also call on the Malaysian government to engage in comprehensive reforms to legislation that violates the right to freedom of expression, including online, in particular the CMA, the Sedition Act, and the Penal Code.”

At 50–Quo Vadis ASEAN


October 20,2016

At 50–Quo Vadis ASEAN

by Tess Bacala

http://www.asiasentinel.com

As the international backlash continues over Philippine President Rodrigo Duterte’s bloody war on drugs, the lack of due process and the consequent deaths of “suspects” in his campaign, the Association of Southeast Asian Nations(ASEAN), along with its individual member states, has been characteristically silent.

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For instance, ASEAN’s leaders and ministers met at their summit in the Lao capital Vientiane last September and discussed a range of issues in the region and beyond. But neither the organization nor its members raised a whimper about rights concerns on the extrajudicial killings of supposed drug users and pushers since Duterte assumed office on June 30.  News reports put the figure of alleged users and pushers killed at more than 3,000 since Duterte took over.

ASEAN’s silence on this issue was not particularly a surprise, but it was the latest example of how it is not the organization’s habit to tell off a member state about its domestic issues.

More typically, it was an outside state like the United States, though not a disinterested country, that brought up the issue of human rights at the September 6-8 summit, where Duterte made his debut on the regional stage.

To human rights advocates across the region, the 28th and 29th ASEAN Summits, held back to back this year, should have been an apt occasion to discuss a subject that is otherwise anathema to the Southeast Asian organization, especially given its theme, ’ASEAN 2025: Forging Ahead Together’, which defines the vision of the ASEAN Community for the next decade.

At the ASEAN-US summit in Vientiane, President Barack Obama called to mind a “common vision” for the region — “(a)n open, dynamic and economically competitive Asia-Pacific that respects human rights and upholds the law-based order.”

But this is far from how the situation is from the view of the sectors that have been at the receiving end of certain governments’ systemic suppression of dissent at home. This also comes at a time when the ASEAN Community has been formed with its three pillars — political security, socio-cultural, and economic – and where its peoples can enjoy “human rights and fundamental freedoms.”

ASEAN continues to steer clear of human rights issues in line with the principle of non-interference in its member states’ internal affairs. But as ASEAN turns 50 next year, critics say this adherence to non-intervention should not be absolute, especially now that economic integration is going full throttle after the launch of the ASEAN Community’s in December 2015.

Economic but not political openness

The organization has shown much more openness – and willingness to let go of sovereignty concerns – in the areas of economics and business rather than in political areas such as human rights.

“ASEAN has promoted a harmful contradiction. Member states have abandoned ASEAN principles of ‘non-interference’ and ‘state sovereignty’ in relation to capital and economic policy but doggedly retained them in relation to human rights,” says the alternative document titled ‘Vision 2025: ASEAN Women’s Blueprints for Alternative Regionalism’.

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Ryerson University (Canada)’s Dr. Sorpong Peou

Over recent decades, Southeast Asia has experienced three ‘miracles’: economic growth, the disappearance of mass atrocities, and efforts to promote regional peace and community building,” said Dr. Sorpong Peou, chairperson of the Department of Politics and Public Administration at Ryerson University in Canada. “Large-scale killings or genocide such as those in Indonesia (1965–66), Cambodia (1975–1978 under the Khmer Rouge), and East Timor (1975–1999 under the Indonesian occupation) “have all disappeared from contemporary Southeast Asia.”

“But authoritarianism keeps threatening to return,” wrote the Cambodian-born scholar in a commentary published by the East Asia Forum in March. “Below the surface of official declarations lies an acceptance among most ASEAN leaders that democracy and human rights should not be pushed too fast and too far.”

Appreciation and interpretation of human rights are subject to national interest rather than international human rights standards,” said Jaymie Ann Reyes, program manager of the Working Group for an ASEAN Human Rights Mechanism. The Working Group, a coalition of individuals and organizations that include civil society and academics, engages ASEAN on specific rights initiatives.

Rights? It depends

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Some human rights themes and focuses are more acceptable to ASEAN such as women’s rights, children’s rights, and rights of persons with disabilities,” Reyes added.

All 10 member states have ratified the UN Conventions on the Elimination of All Forms of Discrimination Against Women, the Rights of the Child, and the Rights of Persons with Disabilities. “But there are more ‘sensitive’ issues that are not discussed for fear of violating the principle of ‘non-interference,’” she said.

One of these is refugee protection. The majority of ASEAN countries have not signed the 1951 UN Refugee Convention and the 1954 Statelessness Convention.

A wide range of other rights concerns continues to exist today across the region of 620 million people.

In Indonesia, the vigorous implementation of the death penalty, the enactment of more discriminatory laws against women, and violent attacks against religious minorities are bedeviling the government, according to Human Rights Watch.

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Neighboring Malaysia recently passed the National Security Council Act (NSCA), which empowers the government to declare martial law in areas where there are perceived security threats. Singapore’s Administration of Justice (Protection) Bill, passed in Parliament just a month ahead of the Vientiane summit, is seen as yet another attempt to muzzle freedom of expression in the city-state.

The decades-old Internal Security Act, which allows arrests without warrant and indefinite detention without trial, remains firmly in place in Singapore. (A similar law in Malaysia was abolished in 2012. Yet four years later, the NSCA came into force.)

Thailand’s new constitution — approved in a referendum on August 7 — is seen to reinforce the military’s two-year hold on power.

“For the people in Malaysia, Thailand, Vietnam and Singapore, the democratic crisis has meant increasing crackdowns on journalists, human rights lawyers, opposition politicians, bloggers, activists and religious leaders. Political deterioration has also contributed to internal conflict in Southeast Asia,” said Yuyun Wahyuningrum, senior advisor on ASEAN and Human Rights at the Human Rights Working Group, a coalition of more than 50 groups advocating for human rights in Indonesia.

The Bangkok-based Asian Forum for Human Rights and Development (FORUM-ASIA), sees “a trend of shrinking civil society space” despite “ASEAN’s aim to be a people-centered and people-oriented community”.

In Cambodia, government critics have been jailed, and more oppressive laws passed. For instance, Kem Ley, leader of the advocacy group Khmer for Khmer, was gunned down in broad daylight in the capital Phnom Penh on July 10 this year.

Although Myanmar has ceased to be a pariah state, its democratic transition has been marked by concern over discrimination against Rohingya Muslims, who are stateless in the mainly Buddhist country.

Punishment under Hudud

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Critics have also dubbed as medieval Brunei’s announcement in October 2013 to impose a tough shariah penal code system, after its chairmanship of ASEAN that same year.

Yet ASEAN prides itself on having an “overarching human rights institution” such as the ASEAN Intergovernmental Commission on Human Rights (AICHR).

In fact, the ASEAN Chair’s statement in Vientiane commended the commission for “the progress of (its) work” and urged it to “promote the mainstreaming of human rights across all three pillars of the ASEAN Community”. But how such “progress” is measured and improves the rights landscape is not clear.

On the eve of the Vientiane summit, the ASEAN Parliamentarians for Human Rights appealed to ASEAN leaders “to press the Lao government to cease the abuses that have consistently placed Laos at the bottom of rights and development indexes measuring rights, press freedom, democracy, religious freedom, and economic transparency.”

This referred to the unresolved disappearance of Lao activist Sombath Somphone, missing since December 2012. The Lao government had earlier said the issue had no place at the ASEAN meetings.

Looking back, ASEAN’s road to setting up a human rights commission – whose limitations its own commissioners concede – has been far from smooth. The commission’s creation was already a feat by itself.

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ASEAN launched in Bangkok in 1967

The regional grouping laid down the ASEAN Charter in 2008, which stipulated the creation of a human rights body. AICHR was created in 2009. In a process criticized by civil society for falling short of international standards, ASEAN drafted an ASEAN Human Rights Declaration in 2012.

From being taboo, human rights principles were slowly integrated into ASEAN documents, institutions, and language. ASEAN bodies and government representatives are slowly adopting and using human rights language,” said Reyes of the Working Group for an ASEAN Human Rights Mechanism.

But the AICHR’s limited mandate does not include receiving and investigating rights complaints. “It is high time it (AICHR) evolved from promotion to the protection of human rights,” said a statement by the Thai Civil Society Network on ASEAN and AICHR.

Today, “all ASEAN human rights instruments recognise universal human rights standards with caveats: the principle of non-interference and due regard to the different culture, history, and socioeconomic condition in each ASEAN member state,” Ranyta Yusran, research fellow at the National University of Singapore’s Centre for International Law, said at a legal conference in Beijing in May.

Wahyuningrum of the Jakarta-based Human Rights Working Group said: “Human rights and democracy issues (in the region) are not going to simmer down. How is ASEAN going to keep up with these changes if it remains too bureaucratic and difficult to engage with?”

But she said there are encouraging signs. At a recent meeting she attended in Bangkok on legal aid and witness protection for victims of cross-border trafficking, participants acknowledged the political differences among the member states they were representing, but nevertheless focused on cooperation. The participants wanted to develop a cross-border witness protection standard operating procedure, which is a “good start,” she said.

Although AICHR has not adapted to “the changing context and structural challenges” of rights protection, Wahyuningrum credited it with initiating activities that have helped set “different platforms for subregional debate on human rights and clarified the ASEAN dimension on responses to human rights issues”.

For Reyes, there has also been “more robust engagement between and among non-governmental and civil society organizations,” though this faces challenges.

All eyes are now looking to 2017, when the Philippines takes its turn as ASEAN chair during the organization’s 50th year. The country has had a record of speaking up against rights abuses in ASEAN, but there are questions about how – and whether it can still do this credibly – given the furore over extrajudicial killings in the Duterte government’s crackdown on illegal drugs.

Tess Bacala wrote this as a fellow of the Reporting ASEAN project of Inter-Pres Service (IPS) Asia-Pacific (http://aseannews.net).  This story was produced under the “Reporting Development in ASEAN” series of Inter-Press Service Asia-Pacific. 

Malaysia’s culture of tolerance is under threat


September 23, 2016

Religious freedom in Malaysia

Taking the rap

Malaysia’s culture of tolerance is under threat