Sabah And Sarawak; Defining And Redefining

I chanced upon a brief history of the entry of Sabah and Sarawak into Malaysia, Zainon Ahmad for The Sun (24.07.2007) reproduced here. It points to the uneasiness in and around the entry of Sabah and Sarawak into Malaysia and points to root concerns that have prevailed ever since.

Read with a more recent analysis of Sabah and Sarawak post GE2008 written by Anthea Mulakala for the Asia Foundation (see here), the two articles set out an interesting perspective to the discontent that that now threatens to redefine federal government.

MIS

Of Religion And Choice

Of Religion And Choice

It may be wise to pause for breath before rushing out to celebrate the decision of the Penang syariah court in the Siti Fatimah case. Though welcome, not least for the fact that it allows Siti Fatimah to carry on with her life, we must ask ourselves whether it really sets the required precedent that the issue of apostasy requires.

I do not think it does.

The first difficulty I have with the decision is its basis in law. The syariah court has jurisdiction only over persons professing the religion of Islam. Siti Fatimah claimed, and still claims, that she was not such a person and that she converted only for the purpose of marriage. Let us say for purposes of argument that at the time of her conversion, and in the period she wished to remain married, she was for all purposes a Muslim. It is apparent that at some point prior to her petitioning the syariah court, she ceased being one and was, as such, no longer a person professing the religion of Islam.

How then did the court assume jurisdiction?

This brings me to the second difficulty. There are two distinct polar views concerning the issue of renunciation. At one end, there is what I call the pro-choice view that allows every person, without qualification, a freedom to determine of their own right their choice of religion. The Federal Constitution guarantees this choice in Article 11 which vests the freedom in ‘every person’. At the other extreme, there is the view that the choice of leaving Islam is one that can only be exercised through, and as such by, the syariah court. I call this the pro-regulation view.

It is apparent that the pro-regulation view renders illusory the right to choice of religion. For persons who happen in law (as opposed to ‘in fact’) to be a Muslim, the decision of which religion to profess is no longer theirs. If they wished to leave Islam they would have to go on bended knee to the syariah court, uncertain that the syariah court would ultimately agree with their petition. In the legal fiction perpetuated by those who espouse the pro-regulation view, a group that includes those judges of the Federal Court who formed the majority in Lina Joy, a person is a Muslim until such time as that person is declared a non-Muslim. It does not matter that the person may not in fact profess Islam any longer. Though an incredible perspective, it has nonetheless informed constitutional jurisprudence as of late and entrenched a mind-set that has resulted in grave injustice to persons unfortunate enough to have had to confront the issue.

It is on this precarious premise that the syariah court of Penang assumed jurisdiction over a person it ultimately declared as being not a Muslim. Our celebrating of the decision would as such be a celebration of a wrongful seizing of jurisdiction and wielding of power by a court not empowered to do so in law. It would also be, where Muslims are concerned, a commending of the vesting of the right to choose in a third party agency, leaving in tatters the fundamental liberty so painstakingly provided for in the Constitution.

Regardless of the convenience of the Siti Fatimah decision, it cannot be a good thing. Media reports suggest that the Penang syariah court was swayed by Siti Fatimah not having been given proper advice about Islam by her former husband and the Islamic authorities. This means that the court could take a different view of those who were born into the faith, such as Lina Joy, or those who made a decision to embrace Islam after due consideration. The court would after all be at liberty to do so if it were vested with a discretion.

I am concerned that the decision may distract from meaningful and coherent efforts aimed at ensuring a just and constitutional solution to the issue of apostasy. We should not lose sight of the fact that before a grossly misconceived decision of the Supreme Court handed down in 1999 (Soon Singh), Muslims were not required to obtain an exit-order from the syariah courts. They left the faith, declaring the fact by deed poll and carried on with their lives in relative privacy. The public face of Islam was left unscarred and the religion was not made a victim in a way that it has been of late.

(Malay Mail; 13th May 2008)

MIS

Karpal Singh: 'Disaffection' Not An UMNO State Of Mind

Accusations of sedition are being hurled around as if it is going out of fashion.

I think the offence of sedition in itself ridiculous. It is a vestige of colonialism that was aimed at only one thing: silencing of free expression to protect vested interest. I have decried recourse to the Sedition Act and have consistently advised against filing police reports for sedition. It does not matter who says what, be they from the Barisan Nasional, its component parties or those that make up the Pakatan Rakyat; if statements are found to be offensive, there is ample room in the public space to take it up there without having to criminalise expression. God knows, there are more important things for the police to be focusing on.

The case of Mr Karpal Singh illustrates this. Rightly or wrongly, he expressed a view concerning the position taken by His Royal Highness the Sultan of Perak. His view concerned the validity of the legal position taken by the Sultan. If Mr Karpal Singh is right, then the Sultan, respectfully, erred in issuing a show cause to the Menteri Besar of Perak in the way that was done. If Mr Karpal Singh was wrong, then the Sultan was correct.

Where is the sedition in this? I cannot see it. If there are those who disagree with his view, let them state their position and then let all involved agree to disagree.

It is not sedition to voice an opinion. It is only where the opinion is stated in a way that gives rise to a ‘seditious tendency’ within the meaning of the Sedition Act that the opinion could be arguably characterised as being seditious. The Sedition Act sets out six heads of a seditious tendency as follows:

1. to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;
2. to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established;
3. to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;
4. to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State;
5. to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or
6. to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.
   

Looking at the facts of the scenario at hand, it would appear that those who accuse Mr Karpal Singh of sedition take refuge in limbs (1) or (4). Mr Karpal Singh has clarified that he did not seek to question the prerogative of the Sultan, such as it was, and contends that in his view the Sultan was not exercising prerogative in the circumstances.

It is significant that at the heart of both limbs (1) and (4) is a requirement of, at the very least, discontent or disaffection. To establish this is no easy task. It is not enough to merely point to the words giving rise to a tendency towards, putting it simply, dissatisfaction. It is necessary to establish that the potential dissatisfaction would be directed at the institution of the Sultan and would be of such a widespread nature that the institution itself would be in danger.

As was observed by the High Court (PP v Param Coomarswamy, 1986):

“"Disaffection" means disloyalty, enemity and hostility against Authority. In the same way, "discontent" means dissatisfaction against Authority. Therefore, "to raise discontent or disaffection" among the people means to create discontent or disaffection among the people against Authority. Consequently, the assertion of a grievance or complaint which tends to create discontent must be directed at Authority for it to be seditious.”

Looking on at the enthusiastic show-boating by certain UMNO quarters, I am hard pressed to conclude that such expressions as we have heard would amount to a dissatisfaction, let alone such a level of dissatisfaction.

Quite aside from that, it is significant that thus far no one, including the Attorney General, has pointed to section 3(2)(a), Sedition Act which plainly provides:

“...an act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency to show that any Ruler has been misled or mistaken in any of his measures;”

Is that not what Mr Karpal Singh was attempting to do? An inference to the contrary is something which, try as I might, I cannot draw from the circumstances.

UMNO must realize the glass house it is in. Judged by the criteria forming the basis of its position on the issue of Mr Karpal Singh having committed sedition, much of what was said in and around the appointments of the Menteri Besars of Perlis and Trengganu could similarly be said to be seditious. But then, I wonder whether this even matters. The political expediency of the very public and highly sensationalised accusations appears to outweigh all other considerations.

MIS

Reforms?

In my post 'The Politics Of Compromise' I questioned the levels of the Barisan government's commitment to judicial reform. The New Straits Times ran a report yesterday (Najib: Lingam report decision still pending) which included a reference to Mukhriz Mahathir (who's views I will take as representing some quarters in UMNO) as follows:

"On judicial reforms which Abdullah proposed in April, Mukhriz said: "Reforms are good but I also need to be convinced that the judicial reforms will make us win the next election, because I don't see how reforms will bring back confidence to Barisan Nasional."

"If we don't solve issues like rising oil and consumer goods prices, I don't think we'll win the elections."

MIS

'Disquiet' On Paper

The editors of the new Malay Mail had very kindly asked me to write a weekly column in the new Malay Mail. I got the assurances I needed from the editors and am now writing 'Disquiet' for the Malay Mail every Tuesday. My arrangement with the newspaper allows me to post my article on this blog two days after the print version appears. My first article appeared on Tuesday, 6th May. Here it is.

(My article for next Tuesday is on the decision of the Penang Syariah Court on the apostasy application of Siti Fatimah)

The Fortress

March 8th brought with it a new landscape, one that to many, across the divides, offered a promise that had long been abandoned. Some dared venture a little further into a hope of a new beginning, tentatively at first but then with more conviction as they realized the full effect of what had transpired.

I was asked soon after how I saw things. I said that I thought that it was a good result, one that would show the politicians that Malaysians now took democracy more seriously, that we valued our freedoms that much more and were prepared to defend it. My inquisitor, who as it turned out shared my view, asked where I would start if I could rebuild things.

I gave it a thought and while it was tempting to point to a greater freedom of expression and assembly or even of religion or liberty, there were more fundamental problems that had to be tackled as a matter of priority.

One of the first insights gained when learning about human rights is how much of a cornerstone freedom from discrimination is. The right to equal treatment, regardless of race or religion or gender or any other factor, informs every aspect of the human condition. It is the right to be treated as equals that allows us to stand up and hold our heads up high, regardless of where we have come from, that protects our personal dignity. It gives meaning to a simple truth; that each of us wants to be able to live our lives to the fullest and achieve our dreams in a way that only each of us can.

No one has the right to tell us who we are, or to tell us how we should live our lives. No one has the right to tell us that we cannot reach for the stars. No one.

The right to equality, to equal protection, is a cornerstone of the constitutional framework of this nation. It is cast in stone, even though it was unnecessary to do so for it being so self-evident. Merdeka brought us together as one, the collective beating of our hearts setting the rhythm by which we would stride into the future.

And yet, it would seem that even the most sacred of truths are not spared when they stand in the way of ambition. Fifty plus years into our history and Malaysia does not have a culture of non-discrimination. Race politics, greed and the lust for power have trampled into near obscurity our path to the single thread that binds us all together, the freedom to be Malaysian.

It is so wrong when we separate our children into Malays, Indians, Chinese and Others. It is so wrong when we tell our young that they should be wary of their friends just because they are different. It is so wrong that some of us feel ourselves entitled to a better life at the expense of others. It is so wrong that we have been made to fear others, not for what it is they intend to do to us, but for what is we are told they will do.

And it is so wrong that the nation, and the futures of all that call it home, are held to ransom by a political vision whose driving purpose is to protect vested interests. For those who find divisions along racial and religious lines useful, a multi-racial Malaysia in which the energy and vision of all Malaysian are harnessed to a common and beneficial end, is threatening. It is in their interests to make it equally threatening for others.

The declining standards in the public service, from education to health care to the administration of justice, all stem from this sad state of affairs. In the fortress that has been built around the Malay community, it is trapped in a vicious cycle that prevents it from seeing the obvious and doing what is necessary. In the push to protect the Malays from perceived threats and enemies, Malays and non-Malays have suffered. The pain that has been caused is immeasurable, the extent of the injury unmapped.

What would I do, where would I start? I would start here.

MIS

The Methodology Of Fear

This evening, Haris Ibrahim was taken away from Dataran Merdeka by the police. He was there to participate in the candle-light vigil for Raja Petra.

He has since been released, apparently without any intention on the part of the police to take the matter any further. I spoke to him a short while ago and he was his usual jocular self, musing whether he could say that he had faced an arrest when it appeared instead that he had been harassed.

In the period between when I was first told by Tony Yew of Haris being taken away to the point where I managed to speak to him and find out firsthand what is that had occurred and what would, or would not, be happening, a range of thoughts crossed my mind. Being Malaysian and having lived in this country for the better part of my life, these thoughts, not unusually, largely centered on the possibility of his being prosecuted for, perhaps, sedition or, worse still, a detention under the ISA.

Later, after I was informed that he had been released, I went back to my reactions during that period. And I got angry.

At the fact that thoughts like that are the norm in this society. At the fact that the administration had nurtured an environment that keeps us in a constant state of tension and anxiety, so much so that many of us do not even register these feelings any more. At the fact that the administration felt that it had the right to do so.

Why is it that those of us who believe in a better Malaysia should live our lives in the expectation of reprisal. I am not alone in this. After I was told about Haris’ arrest (a flu had kept me home), I called around and, unsurprisingly, everyone I spoke to had the same reaction. The same questions came to mind. Sedition? ISA? Was he going to be ok? And they came to mind because Haris speaks out, regularly and loudly.

Paranoia? Perhaps a little, but then, that’s part of the wider strategy, an element in the methodology of fear by which those in authority keep the rest of us in check. Remember that the next time the Home Minister asserts the continued need for the ISA, remember that he is defending a means of fear-mongering as lethal as it is a means of suppression.

And remember that the only interests that require protection through suppression and fear are vested interests.

MIS

Free Raja Petra

"I am happy. We bloggers have declared war on the government. We are not scared of the government. The government should be scared of us".

Raja Petra

As I stepped out of my home on the morning of the 9th of March, it felt like I had been holding my breath for a lifetime and there I was, suddenly, drawing breath. Perhaps it was the adrenaline, still surging through my veins, the few hours of sleep unable to extinguish the exultation of victory.

And it had been a victory.

It was not just about the fact that the Barisan had been given the trouncing it rightfully deserved. It was also, perhaps more importantly so, about the many personal stories, the sacrifices, of those who had helped change the course of destiny in their own ways, big and small.

We had been involved in a war without even knowing it. Two wars. The first, a war on democracy waged by those who saw only the value of their own empire, to whom the language of democracy was merely a useful means by which to distract from the glint of the weapons as they came hurtling down at us. The arbitrary detentions, the brutality, the perversion of justice, the muzzling of free expression and the subversion of the institutions of state kept us in a constant state of shock that left us blind to all that was being taken from us.

There were visionaries however, those who were our compass stars. They showed us, in their own ways, the true north. They showed us that for us to reclaim democracy, we had to go to war for it. They showed us the way into that war, that second war, the war for democracy.

I saw it as thousands marched for free and fair elections. I saw it as thousands marched against marginalisation. I saw it as thousands marched for justice. I saw it as people stood up in defiance, stood up to be counted. I saw it as people said “No More!”.

And I saw it in the campaigns of truth that spread across the blogs.

Raja Petra, like Haris Ibrahim, and many others, were, are, visionaries who have continued to show us the way through courage and tenacity. These patriots, standing up in defence of their motherland, are the mirrors in which we see ourselves and all that we stand for, all that we should be.

March 8th was a decisive victory for all of us. But it was not the only one that we need. We may have won the battle, but it is the war we want to win. Let the deeds of those who have paved the way with their sacrifice become the standards under which we march. For this time, we march to win. This time, we march for Malaysia.

MIS