Malaysia: No country for honest men, just MO1


November 28, 2017

Malaysia: No country for honest men, just MO1

https://www.themalaysianinsight.com/s/24566/

Image result for Tan Siew Sin and Dr. Ismail Abdul Rahman

READING Robert Kuok’s account of Malaysian leaders of a bygone era, one anecdote stood out.

The anecdote shows how far our current leaders have fallen in integrity, accountability, honesty and sense of responsibility for the country.

In his memoir, Kuok recalls an incident of former Prime Minister Tunku Abdul Rahman writing to then Finance Minister (Tun) Tan Siew Sin to tell the tax department to go easy on a poker buddy.

Image result for Tan Siew Sin and Dr. Ismail Abdul Rahman

Tun Tan Siew Sin with Malaysia’s Prime Minister Tunku Abdul Rahman. Both were men of integrity who served Malaysia with distinction.

Tan was so upset at being asked to intervene and bend the rules that he marched into the office of Dr Ismail Abdul Rahman.

Dr Ismail’s advice was brilliant. He told his cabinet colleague that Tunku Abdul Rahman had done his friend a favour by writing the letter. Now Siew Sin had to do the country a favour by doing his job.

And yes, Dr Ismail also crumpled up the letter and threw it into the waste bin.

These men were the nation’s true trustees.

There wouldn’t have been the BMF and Perwaja Steel scandals, and most certainly, the biggest act of kleptocracy in the world would never have been allowed to happen.

If the PM or UMNO chieftains of the day had tried to propose a shady deal, they would have spoken up against it. What a contrast to the crop of today.

Image result for Najib Razak Bullshit

Cronyism. Nepotism. Every “ism” that the leaders of the bygone era fought against has infected the leadership of the country, from top to bottom. But even sadder is that unlike the towering giants of the past, we now are surrounded by champions of mediocrity.

Not for them the integrity and honesty of their predecessors. They prefer to attend to the more immediate need of short-term electoral gains to stay in power at any cost.

Cronies and acolytes are a must, in the interests of development and to ensure the race and religion remain supreme.

 

Image result for najib and rosmah

That it is lip service is of no concern to those who preach that the end justifies the means. People may remain poor decades after Merdeka but they are fed hope while cronies scoop up the contracts and concessions.

Image result for jho low

Why is the Penang-born Arab still at large? Because he is a Najib crony who knows too much about his patron, MO1

Will anyone in government stand up to such blatant abuse of their mandate? Will any blow the whistle on those who abuse their power?

The long answer is, no way for sure. The short answer, d’uh. It will never happen and the few who dared to say yes have been sacked and punished.

The simple fact is, Kuok is talking of a time in Malaysia that is long gone. And will never return again. – November 25, 2017.

 

The Robert Kuok Memiors: Devils’ to Friends


November 27, 2017

Devils’ to Friends – how China’s communists won over Malaysian PM Tunku; Hussein Onn clung to race-based politics

http://www.scmp.com/week-asia/opinion/article/2121058/devils-friends-how-chinas-communists-won-over-malaysian-pm-tunku

Former Malaysian Prime Minister, Tunku Abdul Rahman. File photo

COMMUNIST DEVILS? PLEASE, PRIME MINISTER

Malaysia has had six Prime Ministers since independence. I have known all six. The first, Tunku Abdul Rahman, had tremendous rhythm. He was a well-educated man, having graduated with a law degree from Cambridge. If you talk of brains, Tunku was brilliant, and very shrewd. His mother was Thai, and he had that touch of Thai shrewdness, an ability to smell and spot whether a man was to be trusted or not. Tunku was less mindful about administrative affairs. But he had a good number two in Tun Razak, who was extremely industrious, and Tunku left most of the paperwork to Razak.

Tunku was like a strategist who saw the big picture. He knew where to move his troops, but actually going to battle and plotting the detailed campaign – that was not Tunku. He’d say, “Razak, you take over. You handle it now.” In that sense, they worked very well together. In my meetings with Tunku, he demonstrated some blind spots. He had a bee in his bonnet about communism. One day, when we had become quite close, he said to me, “Communists! In Islam, we regard them as devils! And Communist China, you cannot deal with them, otherwise you are dealing with the devil!” And he went on and on about communists, communism and Communist China. I responded, “Tunku, China only became communist because of the immense suffering of the people as a result of oppression and invasion. I think it’s a passing phase.” He interjected, “Oh, don’t you believe it! The Chinese are consorting with the devil. Their people are finished! You don’t know how lucky you Chinese are to be in Malaysia.” I replied softly, “Tunku, as Prime Minister of Malaysia, you should make friends with them.”

Tunku Abdul Rahman had a bee in his bonnet about communism.

 

Years later, when Tunku was out of office, he was invited to China. Zhao Ziyang, then Premier, entertained him in the Great Hall of the People in Beijing. Tunku travelled with a delegation of 15 Chinese businessmen who were good friends of his. On his way to China, Tunku stopped in Hong Kong and I gave them dinner. Then on his way out of China, he stopped in Hong Kong and we dined again. I asked him for his impressions. All of his old prejudices had vanished! He didn’t even want to refer to them. He just said the trip had been an eye-opener. “They are decent people, like you and me,” he said. “We could talk about anything.” From then onward, you never heard Tunku claim that the Chinese Communists were the devils incarnate.

Tun Razak. File photo

FRIENDS, NOT CRONIES

One thing I will say for Tunku: he had friends. His friends sometimes helped him, or they sent him a case of champagne or slabs of specially imported steak. He loved to grill steaks on his lawn and open champagne, wine or spirits. His favourite cognac was Hennessy VSOP. Tunku would also do favours for his friends, but he never adopted cronies.

When Tun Tan Siew Sin was Finance Minister, Tunku sent him a letter about a Penang businessman who was one of Tunku’s poker-playing buddies. It seems the man had run into tax trouble and was being investigated by the tax department, and he had turned to Tunku for help. In his letter, Tunku wrote, “You know so-and-so is my friend. I am not asking any favour of you, Siew Sin, but I am sure you can see your way to forgiving him,” or something to that effect.

Tunku would do favours for his friends, but he never adopted cronies

Siew Sin was apoplectic. He stalked into Tun Dr Ismail’s office upstairs and threw the letter down. “See what our Prime Minister is doing to me!” Tun Dr Ismail read the letter and laughed. “Siew Sin,” he said, “there is a comic side to life”. Ismail took the letter, crumpled it into a ball and threw it into the waste-paper basket. He then said, “Siew Sin, Tunku has done his duty by his friend. Now, by ignoring Tunku, you will continue to do your duty properly.” That was as far as Tunku would go to help a friend. Cronyism is different. Cronies are lapdogs who polish a leader’s ego. In return, the leader hands out national favours to them. A nation’s assets, projects and businesses should never be for anyone to hand out, neither for a king nor a prime minister. A true leader is the chief trustee of a nation. If there is a lack of an established system to guide him, his fiduciary sense should set him on the proper course.

A leader who practices cronyism justifies his actions by saying he wants to bring up the nation quickly in his lifetime, so the end justifies the means. He abandons all the General Orders – the civil-service work manual that lays down tendering rules for state projects. Instead, he simply hands the projects to a Chinese or to a Malay crony. The arms of government-owned banks are twisted until they lend to the projects. Some of these cronies may even be fronting for crooked officials.

Tunku was unnerved by the riots of May 13. After the riots he was a different man. Razak managed to convince him and the cabinet to form the National Operations Council, a dictatorial organ of government, and Razak was appointed its director. Parliament went into deep freeze. By the time the NOC was disbanded, Razak had been installed as Prime Minister. Tunku felt bewildered. He had helped the country gain independence and had ruled as wisely as he could, yet the Malays turned against him for selling out to the Chinese. In fairness to Tunku, he had done nothing of the sort. He was a very fair man who loved the nation and its people. But he knew that, if you favour one group, you only spoil them. When the British ruled Malaya, they extended certain advantages to the Malays.

Malay Sultans along with then Malayan High Commissioner Donald MacGillivray sign an agreement creating an independent Malaysia on August 5, 1957 in the official residence of the British high commissioner of Malaya. File photo

When the Malays took power following independence on 31 August 1957, more incentives were given to them. But there was certainly no showering of favours. All of that came later, after 1969. The riots of May 13, 1969, were a great shock to the system, but not a surprise. Extremist Malays attributed the poverty of many Malays to the plundering Chinese and Indians. Leaders like Tunku Abdul Rahman, who could see both sides, were no longer able to hold back the hotheads. The more thoughtful leaders were shunted aside and the extremists hijacked power. They chanted the same slogans as the hotheads – the Malays are underprivileged; the Malays are bullied – while themselves seeking to become super-rich. When these Malays became rich, not many of them did anything for the poor Malays; the Chinese and Indians who became rich created jobs, many of them filled by Malays.

ON PRO-MALAY POLITICS

I vividly recall an incident that occurred within a few months after the May 1969 riots. I was waiting to see Tun Razak when a senior Malay civil servant whom I knew very well came along the corridor of Parliament House and buttonholed me. He asked, “What are you doing here, Robert?” I replied, “Oh, I’m seeing Tun.” He snarled, “Don’t be greedy! Leave something for us poor Malays! Don’t hog it all!” I could see that, after May 1969, the business playing field was changing. Business was no longer clean and open. Previously, the government announced open tenders to the Malaysian public and to the world. If we qualified, we would submit a tender. If we won the contract, we would work hard at it, and either fail or succeed. I think eight or nine times out of ten we succeeded.

Don’t be greedy Robert. Leave something for us poor Malays! A senior civil servant friend

But things were changing, veering more and more towards cronyism and favouritism. Hints of change were there even before the riots. I was hell-bent on helping to develop the nation: that’s why I went into shipping, into steel – anything they asked of me. Even among the Malays there were those who admitted their weaknesses and argued for harnessing the strength of the Chinese. Mind you, that may have created more problems. If they had harnessed the strength of the Chinese, the Chinese would ultimately have owned 90 or 95 per cent of the nation’s wealth. This might have been good for the Malaysian economy, but bad for the nation.

Overall, the Malay leaders have behaved reasonably in running the country. At times, they gave the Malays an advantage. Then, when they see that they have overdone it, they try to redress the problem. Their hearts are in the right place, but they just cannot see their way out of their problems. Since May 13, 1969, the Malay leadership has had one simple philosophy: the Malays need handicapping. Now, what amount of handicapping?

The 1969 riots were a pivotal moment in Malaysian history. File photo

The Government laid down a simple structure, but the structure is full of loopholes. Imagine that a hard-working, non-Malay Malaysian establishes XYZ Corporation. The Ministry of Trade and Industry rules that 30 per cent of the company’s shares must be offered to Malays. The owner says, “Well, I have been operating for six years. My par value of 1 ringgit per share is today worth 8 ringgit.” Then the Ministry says, “Can you issue it at 2 ringgit or 2.50 ringgit to the Malays?” After a bit of haggling, the non-Malay gives way. So shares are issued to the Malays, who now own 30 per cent. But every day after that, the Malays sell off their shares for profit. A number of years pass and then one day the Malay community holds a Bumiputra Congress. They go and check on all the companies. Oh, this XYZ Corporation, the Malay shareholding ratio is now down to seven per cent. That won’t do. So the Malays argue that they’ve got to redo the shareholding again. Fortunately, the ministry usually acts as a fair umpire and throws out such unscrupulous claims.

The Malays’ zeal to bridge economic gap with the Chinese bred ugly racism

It’s one thing if you change the rules once to achieve an objective agreed to by all for the sake of peace and order in the nation. But if you do it a second time, it’s robbery. Why is it not robbery just because the government commits it? And when people raise objections, it is called fomenting racial strife, punishable by three years in jail. As a Chinese who was born and grew up in Malaysia and went to school with the Malays, I was saddened to see the Malays being misled in this way. I felt that, in their haste to bridge the economic gap between the Chinese and the Malays, harmful short cuts were being taken. One of the side effects of their zeal to bridge the economic gap was that racism became increasingly ugly. I saw very clearly that the path being pursued by the new leaders after 1969 was dangerous. But hardly anyone was willing to listen to me. In most of Asia, where the societies are still quite hierarchical, very few people like to gainsay the man in charge. As in The Emperor’s New Clothes, if a ruler says, “Look at my clothes; aren’t they beautiful?” when he is in fact naked, everybody will answer, “Yes, yes sir, you are wearing the most beautiful clothes.”

THE EAR OF THE PRIME MINISTER

I made one – and only one – strong attempt to influence the course of history of Malaysia. This took place in September 1975 during the Muslim fasting month. Tun Razak, the second Prime Minister of Malaysia, was gravely ill with terminal leukaemia, for which he was receiving treatment in a London hospital. My dear friend Hussein Onn, son of Dato Onn bin Jafar, was Deputy Prime Minister, Minister of Finance and acting Prime Minister in Tun Razak’s absence. He was soon to become Malaysia’s third Prime Minister. I went to Kuala Lumpur and sent word that I wanted to have a heart-to-heart talk. On the phone Hussein said, “Why don’t you come in during lunch time. It is the fasting month. Come to my office at about half past one. There will be no one around and we can chat to our heart’s content.”

Hussein and I go back to 1932 when we were in the same class in school in Johor Bahru. Shortly afterwards, his father fell out with the then-Sultan of Johor and the family moved to the Siglap area of Singapore.

 

Malaysia’s third Prime Minister Hussein Onn. File photo

My father would often spend weekends with Dato Onn. Two or three years later, Hussein returned to Johor Bahru and we were classmates again at English College from 1935 to 1939. Hussein’s father, Dato Onn, did not have a tertiary education. But he read widely and was very well informed. He was a natural born politician, a gifted orator in Malay and in English. He was a very shrewd man with a tremendous air of fine breeding even though he was not from Malaysian royalty. When you were in his presence, you knew you were in the presence of someone great. Dato Onn would go on to found UMNO, the ruling party of Malaysia, and become one of the founders of the independent nation of Malaysia. He set a tone of racial harmony for the nation – and he practised it. Our families were close.

So, I went to call on his son, my old friend Hussein Onn in 1975. His office was in a magnificent old colonial building, part of the Selangor Secretariat Building. In front of it was the Kuala Lumpur padang, where, in the colonial days, the British used to play the gentlemen’s games of cricket and rugby. I climbed up a winding staircase and his aide showed me straight to his room. There was hardly another soul in that huge office complex. After greeting one another, I warmed up to my subject with Hussein very quickly. I said, “Hussein, I have come to discuss two things with you. One is Tun Razak’s health. The other is the future of our nation.” I said, “You know, Razak has been looking very poorly lately. We all know he has gone to London for treatment.” Hussein interrupted: “Tun doesn’t like anybody discussing his health. Do you mind if we pass on to the next subject?” I said, “Of course not.” I continued, “I had to raise the first subject because that leads to the next subject. Assuming Razak doesn’t have long to live – please don’t mind, but I have to say that – you are clearly going to become the new Prime Minister in a matter of months or weeks.”

“I’m listening,” he said. “Hussein, we go back a long way. Our fathers were the best of friends; our families have been the best of friends. In our young days, you and I always felt a strong passion for our country, which we both still feel. Whatever has happened these past years, let’s not go backwards and ask what has gone wrong and what has not been done right. Let’s look at the future. If there was damage done, we can repair it.”

Hussein listened patiently. I pressed on, “First, let me ask you a few questions, Hussein. What, in your mind, is the number of people required to run a society, a community, a nation with the land mass of Malaysia?” This was 1975, when the population was about 12.5 million. He didn’t reply. For the sake of time, I answered my own question. “Hussein, if I say 3,000, if I say 6,000, if I say 10,000, 20,000, whatever the figure, I don’t think it really matters. We are not talking in terms of hundreds of thousands or millions. To run a society or a nation requires, relatively speaking, a handful of people. So let us say six or seven or eight thousand, Hussein. And of course this covers two sectors. The public sector: government, civil service, governmental organisations, quasi-governmental bodies, executive arms, police, customs and military. The private sector: the economic engines; the engines of development, plantations, mines, industry.

Robert Kuok. File photo

“The leaders of these two sectors are the people I am referring to, Hussein. If we are talking of a few thousand, does it matter to the masses whether it becomes a case of racially proportionate representation, where we must have for every ten such leaders five or six Malays, three Chinese, and one or two Indians?” I continued, “Must it be so? My reasoning mind tells me that it is not important. What is important is the objective of building up a very strong, very modern nation. And for that we need talented leaders, great leadership from these thousands of people. If you share my view that racial representation is unimportant and unnecessary to the nation, then let’s look at defining the qualifications for those leaders.

“Number one, for every man or woman, the first qualification is integrity. The person must be so clean, upright and honest that there must never be a whiff of corruption or scandal. People do stray, and, when that happens, they must be eliminated, but on the day of selection they must be people of the highest integrity. Second, there must be ability; and with it comes capability. He or she must be a very able and capable person. The third criterion is that they must be hard-working men or women, people who are willing to work long hours every day, week after week, month after month, year after year. That is the only way you can build up a nation.”

I went on, “I can’t think of any other important qualifications. So your job as prime minister, Hussein – I am now assuming you will become the Prime Minister – your job will then be from time to time to remove the square pegs from the round holes, and to look for square holes for square pegs and round holes for round pegs. Even candidates who fulfil those three qualifications can be slotted into the wrong jobs. So you’ve got to pull them out and re-slot them until the nation is humming beautifully.”

The best brains come in all shades and colours, all religions, all faiths. “We do not have all the expertise required to build up the nation,” I added. “But with hard work and a goal of developing the nation, we can afford to employ the best people in the world. The best brains will come, in all shades and colours, all religions, all faiths. They may be the whitest of the white, the brownest of the brown or the blackest of the black. I am sure it doesn’t matter. But Hussein, the foreigners must never settle in the driving seats. The days of colonialism are over. They were in the driving seats and they drove our country helter-skelter. We Malaysians must remain in the driving seats and the foreign experts will sit next to us. If they say, ‘Sir, Madame, I think we should turn right at the next turning,’ it’s up to us to heed their advice, or to do something else. We are running the show, but we need expertise.
You’re going to be the leader of a nation, and you have three sons, Hussein … your eldest son will grow up very spoiled

“You’re going to be the leader of a nation, and you have three sons, Hussein. The first-born is Malay, the second-born is Chinese, the third-born is Indian. What we have been witnessing is that the first-born is more favoured than the second or third. Hussein, if you do that in a family, your eldest son will grow up very spoiled. As soon as he attains manhood, he will be in the nightclubs every night because Papa is doting on him. The second and third sons, feeling the discrimination, will grow up hard as nails. Year by year, they will become harder and harder, like steel, so that in the end they are going to succeed even more and the eldest will fail even more.”

I implored him, “Please, Hussein, use the best brains, the people with their hearts in the right place, Malaysians of total integrity and strong ability, hard-working and persevering people. Use them regardless of race, colour or creed. The other way, Hussein, the way your people are going – excessive handicapping of bumiputras, showering love on your first son – your first born is going to grow up with an attitude of entitlement.” I concluded, “That is my simple formula for the future of our country. Hussein, can you please adopt it and try?” Hussein had listened very intently to me, hardly interrupting. He may have coughed once or twice. I remember we were seated deep in a quiet room, two metres apart, so my voice came across well. He heard every word, sound and nuance. He sat quietly for a few minutes. Then he spoke, “No, Robert. I cannot do it. The Malays are now in a state of mind such that they will not accept it.”

He clearly spelt out to me that, even with his very broad-minded views, it was going to be Malay rule. He was saying that he could not sell my formula to his people. The meeting ended on a very cordial note and I left him. I felt disappointed, but there was nothing more that I could do. Hussein was an honest man of very high integrity. Before going to see him, I had weighed his strength of character, his shrewdness and skill. We had been in the same class, sharing the same teachers. I knew Hussein was going to be the Malaysian Prime Minister whom I was closest to in my lifetime. I think Hussein understood my message, but he knew that the process had gone too far. I had seen a picture developing all along of a train moving in the wrong direction. During Hussein’s administration, he was only partially successful in stemming the tide. The train of the nation had been put on the wrong track. Hussein wasn’t strong enough to lift up the train and set it down on the right track.

The train of the nation had been put on the wrong track. The capitalist world is a very hostile world. When I was building up the Kuok Group, I felt as if I was almost growing scales, talons and sharp fangs. I felt I was capable of taking on any adversary. Capitalism is a ruthless animal. For every successful businessman, there are at least 10,000 bleached skeletons of those who have failed. It’s a very sad commentary on capitalism, but that is capitalism and real capitalism, not crony capitalism. Yet, I’ve always believed that the rules of capitalism, if properly observed, are the way forward in life. I know that, having been successful, I will be accused of having an ‘alright Jack’ mentality. But I am just stating facts: capitalism is a wonderful creature – just don’t abuse its principles and unwritten laws.

Robert Kuok, A Memoir will be available in Hong Kong exclusively at Bookazine and in Singapore at all major bookshops from November 25. It will be released in Malaysia on December 1 and in Indonesia on January 1, 2018

Malaysian train on wrong track, says tycoon Kuok in memoir


November 27, 2017

Malaysian train on wrong track, says tycoon Kuok in his memoir

https://www.themalaysianinsight.com/s/24454/

Image result for Tunku  and Tan Siew Sin

TYCOON Robert Kuok has released his autobiography in Hong Kong and Singapore today, detailing his thoughts on Malaysia and his relationship with its Prime Ministers.

The South China Morning Post (SCMP), which Kuok once owned, released excerpts of his memoir today.

IN the 376-page “Robert Kuok, A Memoir”, the 54th richest man in the world, according to Bloomberg, said he had known all of Malaysia’s six Prime Ministers and shared how he saw Malaysia’s trajectory as far back as 1969.

Tunku – chief trustee of a nation

Kuok, who is also ranked Malaysia’s richest man, said first Prime Minister Tunku Abdul Rahman was a well-educated law graduate with “tremendous rhythm”.

Image result for Tunku  and Tan Siew SinTunku was brilliant, and very shrewd. And he had that touch of Thai shrewdness, an ability to smell and spot whether a man was to be trusted or not. –Robert Kuok

 

“If you talk of brains, Tunku was brilliant, and very shrewd. His mother was Thai, and he had that touch of Thai shrewdness, an ability to smell and spot whether a man was to be trusted or not.

“Tunku was less mindful about administrative affairs. But he had a good number two in Tun (Abdul) Razak (Hussein), who was extremely industrious, and Tunku left most of the paperwork to Razak.”

The 94-year-old said Tunku had many friends but he would not adopt cronies.

“His friends sometimes helped him, or they sent him a case of champagne or slabs of specially imported steak. He loved to grill steaks on his lawn and open champagne, wine or spirits. Tunku would also do favours for his friends, but he never adopted cronies.

“When Tan Siew Sin was Finance Minister, Tunku sent him a letter about a Penang businessman who was one of Tunku’s poker-playing buddies. It seems the man had run into tax trouble and was being investigated by the tax department, and he had turned to Tunku for help.

Image result for Tunku  and Tan Siew Sin

 

“In his letter, Tunku wrote, ‘You know so-and-so is my friend. I am not asking any favours of you, Siew Sin, but I am sure you can see your way to forgiving him,’ or something to that effect.”

But Kuok said Siew Sin was upset and marched into Dr. Ismail (Abdul Rahman)’s office to complain.

Image result for Tun Dr. Ismail

“Ismail took the letter, crumpled it into a ball and threw it into the waste-paper basket. He then said, ‘Siew Sin, Tunku has done his duty by his friend. Now, by ignoring Tunku, you will continue to do your duty properly’,” Kuok said.

“That was as far as Tunku would go to help a friend. Cronyism is different. Cronies are lapdogs who polish a leader’s ego. In return, the leader hands out national favours to them.

“A nation’s assets, projects and businesses should never be for anyone to hand out, neither for a king nor a prime minister. A true leader is the chief trustee of a nation. If there is a lack of an established system to guide him, his fiduciary sense should set him on the proper course.”

Kuok said a leader who practised cronyism justified his actions by doing everything necessary to achieve his ends.

A different man after 1969

Kuok said Tunku was a different man after the May 13 race riots. Tunku felt he had helped the country gain independence and had ruled as wisely as he could, yet, the Malays turned on him for purportedly selling out to the Chinese, said Kuok.

“In fairness to Tunku, he had done nothing of the sort. He was a very fair man who loved the nation and its people. But he knew that, if you favour one group, you only spoil them. When the British ruled Malaya, they extended certain advantages to the Malays.

“When the Malays took power following independence on August 31, 1957, more incentives were given to them. But there was certainly no showering of favours.”

Kuok said everything changed after 1969 due to extremist Malays attributing their poverty to plundering Chinese and Indians.

“The more thoughtful leaders were shunted aside and the extremists hijacked power. They chanted the same slogans as the hotheads – the Malays are underprivileged; the Malays are bullied – while themselves seeking to become super-rich.

“When these Malays became rich, not many of them did anything for the poor Malays; the Chinese and Indians who became rich created jobs, many of them filled by Malays.”

Pro-Malay Malaysia

Kuok said prior to 1969 the government would open tenders and if a company worked hard, it would succeed “eight or nine times out of 10”.

“But things were changing, veering more and more towards cronyism and favouritism.”

Kuok said Malay leaders were quite reasonable in running the country and gave Malays an advantage at times.

“Then, when they see that they have overdone it, they try to redress the problem. Their hearts are in the right place, but they just cannot see their way out of their problems. Since May 13, 1969, the Malay leadership has had one simple philosophy: the Malays need handicapping. Now, what amount of handicapping?”

Closing the gap but opening new wounds

Kuok said Malaysia’s zeal to narrow the wealth gap between the races caused even more racism.

“As a Chinese who was born and grew up in Malaysia, and went to school with the Malays, I was saddened to see the Malays being misled in this way. I felt that, in their haste to bridge the economic gap between the Chinese and the Malays, harmful shortcuts were being taken. One of the side effects of their zeal to bridge the economic gap was that racism became increasingly ugly.

“I saw very clearly that the path being pursued by the new leaders after 1969 was dangerous. But hardly anyone was willing to listen to me.”

Hussein Onn and the three sons

Image result for Tun Hussein Onn

 

Kuok said his father and Hussein Onn’s father, Onn Jaafar had known each other since the 1930s. Kuok and Hussein were even classmates at one time.

And he told the third Prime Minister to use the best Malaysians for the job regardless of race, colour and creed before he took over.

“You’re going to be the leader of a nation, and you have three sons, Hussein. The firstborn is Malay, the second-born is Chinese, the third-born is Indian. What we have been witnessing is that the firstborn is more favoured than the second or third. Hussein, if you do that in a family, your eldest son will grow up very spoiled.

“As soon as he attains manhood, he will be in the nightclubs every night. The second and third sons, feeling the discrimination, will grow up hard as nails.

“Please, Hussein, use the best brains, the people with their hearts in the right place, Malaysians of total integrity and strong ability, hard-working and persevering people. Use them regardless of race, colour or creed.

“The other way, Hussein, the way your people are going – excessive handicapping of Bumiputeras, showering love on your first son – your firstborn is going to grow up with an attitude of entitlement.”

Kuok said Hussein was quiet for a while and after that he said: “No, Robert. I cannot do it. The Malays are now in a state of mind such that they will not accept it.”

He clearly spelt out to me that, it was going to be Malay rule, said Kuok.

“I felt disappointed, but there was nothing more that I could do. Hussein was an honest man of very high integrity. Before going to see him, I had weighed his strength of character, his shrewdness and skill. We had been in the same class, sharing the same teachers.

“I knew Hussein was going to be the Malaysian Prime Minister whom I was closest to in my lifetime. I think Hussein understood my message, but he knew that the process had gone too far.

“I had seen a picture developing all along of a train moving in the wrong direction. During Hussein’s administration, he was only partially successful in stemming the tide. The train of the nation had been put on the wrong track. Hussein wasn’t strong enough to lift up the train and set it down on the right track.” – November 25, 2017.

‘Robert Kuok, A Memoir’ will be available in Hong Kong exclusively at Bookazine and in Singapore at all major bookshops from November 25. It will be released in Malaysia on December 1 and in Indonesia on January 1.

https://www.themalaysianinsight.com/s/24454/



The Malaysia Story via its Constitution


August 25, 2017

The Malaysia Story via its Constitution

by Zairil Khir Johari

http://www.newmandela.org

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.

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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 spell 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.

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.

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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 corresponds 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” 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. 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. 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”.

1960: Ending the Emergency without losing emergency powers

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Tunku Abdul Rahman

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, 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. 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”. 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.

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 Agong 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 the 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 when the provisions facilitated the sacking of the lord president (now known as chief justice) Salleh Abbas and two other judges of the Supreme Court, precipitating a judicial crisis from which the nation has never fully recovered.

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.

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 per cent of seats in the Federal Legislative Council reduced to only 71 per cent 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 program while they sought to contain the non-Malays by two means: firstly, citizenship was made more difficult to acquire and easier to lose, and greater discretionary power in citizenship matters was placed in the hands of the executive. Secondly—and more effectively—fundamental changes were made to the electoral system in order to mitigate the potential threat of non-Malay electoral strength.

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 redelimitation 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 redelimitation 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

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Tun Abdul Razak

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.

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. 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, Indonesia declared a “confrontation” against the Federation, proceeding to wage violent conflict for the next three years. 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 10 March 1965, which killed three people and injured 33 others. (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.)

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 21 July 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 9 August 1965, Malaysian Prime Minister Tunku Abdul Rahman Putra moved to enact the Constitution and Malaysia (Singapore Amendment) Act 1965 in order to 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 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 a 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 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 13 May 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 5 April to polling day on 10 May, 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 11 May, 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.

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 Youth to respond by organising a victory parade in the capital.

What followed on 13 May will forever be etched in history as Malaysia’s day of disgrace, described by the Tunku as a “social and political eruption of the first magnitude,” 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 16 May, 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 13 May 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 the Tunku and reconvening of Parliament on 22 September 1970.

From the ashes of the bloody riots, a new social compact was forged in the form of the New Economic Policy (NEP) which laid the ground for an assertion of Malay nationalism in various sectors including education and the economy through social reengineering and affirmative action programs. 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”, 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.

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Malaysia’s Man of Honour and Integrity

 

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. 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 13 May 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. 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. Naturally disinclined towards feudalism and fuelled by the prospect of an incoming activist Agong, Mahathir decided to pre-empt the situation by introducing the Constitution (Amendment) Bill 1983.

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 standoff ensued as Mahathir went in 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.

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” (Article 121), 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,  Tun 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.

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.

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The Doctor who deformed the House

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.

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Abdullah Badawi and Najib Razak–Religion and Race Champions

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, 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?

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Where are heading given the state of our politics today?

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.

At the very least, arbitrary changes to the Constitution are now improbable, given that the ruling regime has since 2008 lost its customary two-thirds control over Parliament, and by virtue of that, also its ability to amend the Constitution unilaterally. Yet plugging the leak is not fixing the problem.

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.

Zairil Khir Johari is the Member of Parliament for the federal constituency of Bukit Bendera, Penang. He is the Democratic Action Party’s Parliamentary Spokesperson for Education, Science and Technology, and a Fellow of the Penang Institute, the public policy think tank of the state government of Penang.

He is also a columnist with the Penang Monthly and the author of Finding Malaysia: Making Sense of an Eccentric Nation.

This article originally appeared in the August 2017 edition of Penang Monthly, and is republished with permission.

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.

 

Malaysia is a Land of Broken Dreams–Thank You, UMNO for Malusia


August 1, 2017

After 60 years, Malaysia is a Land of Broken Dreams–Thank You, UMNO for Malusia

by Azly Rahman@www.malaysiakini.com

The nation must be made to be Malaysian once and for all. Malaysia is one country and cannot be considered in part. There can be no such thing as first and second class citizens anymore. This Malaysian brand of apartheid is morally reprehensible and must be abolished once and for all.–Azly Rahman

Image result for Malaysia after 60 year

A Forlorn Clock Tower in Kuala Lumpur– A Witness to Malaysia’s Decline

On August 31, 2017, our nation will be celebrating sixty years of Merdeka, or an experiment in being a sovereign state.

As another ritual approaches, and as we think of the hopes, dreams, and legacy of the best Prime Minister we had, Tunku Abdul Rahman, I thought of these ideas of the requirements of a new spirit and structure of citizenship.

The nation must be made to be Malaysian once and for all. Malaysia is one country and cannot be considered in part. There can be no such thing as first and second class citizens anymore. This Malaysian brand of apartheid is morally reprehensible and must be abolished once and for all.

Image result for tunku abdul rahman

Essentially, below are considerations for a grand plan or the big picture of change that need to respectively be created and painted in order for Malaysia to offer a pathway to the realization of the “Malaysian Dream,” preceded by key premises.

We cannot escape from the idea that there ought to be winners and losers, whether it is in the way we give grades to students, design economic policies, organise the political system or, ironically, even in the way we understand religion and God and how these relate to what Mohandas Gandhi would call the harijan (children of God).

The continuing issues of succession plaguing the leadership of the major components of all the ruling parties, for example, reflects a virtueless leadership. It even reflects the system of dictatorship and authoritarianism that we have allowed to take root in all parties.

Image result for Najib Razak

Malaysia’s  Virtue less Leader

We are seeing the development of another dangerous excess of authoritarianism – the development of political dynasties. We continue to see this culture in the Malay and Chinese political parties as well.

If all that energy is used to design a better system of participatory democracy and philanthropy, and to reach out to other ethnic groups to collaborate in solving the issue of poverty, we, as Malaysians, will become a miracle nation. Poverty is not the problem of various races – it is the problem of Humanity.

How can the rich be saved if the poor are multiplying in large numbers? We will have a society that will need more sophisticated surveillance system in order to reduce robbery, kidnapping, etc.

The poor look at the rich and ask themselves: “Am I poor because I am lazy? Or is he rich because he works a hundred times better? Or is it the system we build that will continue to make the rich richer and the poor poorer?”

What resources do the rich have vis-à-vis the poor to compete in a world that is increasingly technological, technicist, and informational? We have created a system of ethnically-based structural violence. It is a complex problem but one can certainly make sense of it all.

We need to bring back “virtue” to the forefront of our political philosophies and into our economic paradigm, and use it to design a virtuous foundation of our economic system. From a virtuous foundation, we will then see a healthier characterisation of how we design and re-organise our lives as economic beings.

Education, and education alone, though slow and tedious as a process of transformation, will be the most powerful tool of cognitive restructuring and the teaching of virtue.

Education for peace, social justice, co-operation, tolerance and spiritual advancement will be the best foundation for this mode of operation.

How do we even begin creating a republic of virtue if we do not yet have the tools of analysing what a corrupt society is and how corrupt leaders are a product of the economic system created to reproduce more sophisticated forms of corruption?

We must engineer a revolution of our very own consciousness. From the revolution in our minds, we move on to the revolution of our consciousness, and next to our collective consciousness. Gradually, as we realise that a better collective consciousness can be created, we will be aware of the oppositional forces that are disabling real human progress.

We must now become makers of our own history and help others do the same. We must first learn to deconstruct ourselves and draw out the virtue within us, even if the process can be terrifying. We must then each create a manifesto of our own selves and de-evolve from then, until we tear down the structures within and outside of ourselves and reconstruct the foundations of a new order based on our own notion and design of a new republic.

Is there hope today? After sixty years?